State of Tennessee v. Robert Edward Seaton ( 2021 )

02/26/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
June 23, 2020 Session
STATE OF TENNESSEE v. ROBERT EDWARD SEATON
Appeal from the Criminal Court for Knox County
No. 113217 G. Scott Green, Judge
No. E2019-01225-CCA-R3-CD
Following a jury trial, the Defendant, Robert Edward Seaton, was convicted of facilitation
of theft of property valued at $2,500 or more but less than $10,000, a Class E felony, and
one count each of vandalism, evading arrest, and driving with a revoked license, second
offense, Class A misdemeanors. See Tenn. Code Ann. §§ 39-11-403, -14-103, -14-105, -
14-408, -16-603, 55-50-504. In this appeal as of right, the Defendant contends (1) that the
trial court erred by denying the Defendant’s motion for a mistrial when a court officer, who
was acting as jury custodian, was called and sworn as a rebuttal witness; (2) that the court
erred by denying the Defendant’s motion for a mistrial after the court elicited from a
defense witness the name of the witness’s father-in-law, who was “a notorious criminal
and murderer”; (3) that the court erred by admitting reputation or opinion evidence from
three law enforcement officers regarding a defense witness’s character for truthfulness; (4)
that plain error occurred when the State cross-examined a defense witness regarding prior
criminal behavior not resulting in a conviction; and (5) that the cumulative effect of these
errors deprived the Defendant of a fair trial. Following our review, we conclude that the
admission of reputation and opinion evidence from law enforcement officers constitutes
reversible error such that the Defendant is entitled to a new trial. Alternatively, we
conclude that the Defendant would be entitled to relief due to cumulative error.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed;
Case Remanded
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.
Eric Lutton, District Public Defender1; Jonathan Harwell (on appeal), Assistant District
Public Defender; and Kate Holtkamp and Marshal Jensen (at trial), Assistant District Public
Defenders, for the appellant, Robert Edward Seaton.
Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney
General; Charme P. Allen, District Attorney General; and Ashley McDermott and Christy
Smith, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND2
This case arises from a March 9, 2018 incident at Southern Grounds Landscaping
(“Southern Grounds”) on Oak Ridge Highway in Knoxville. On that date, a John Deere
Skid Steer machine, referred to during these proceedings as a “Bobcat,” was taken from
the Southern Grounds property to the parking lot of a neighboring Masonic lodge without
the permission of its owner, Brandon Lawson (“Mr. Lawson”). Thereafter, the June 2018
session of the Knox County Grand Jury charged the Defendant with two counts of theft of
property valued at $10,000 or more but less than $60,000; two counts of vandalism related
to a damaged fence at Southern Grounds and damage to Thomas Wright’s lawn,
respectively; evading arrest; and driving with a revoked license.
The proof adduced at trial established that around 9:00 p.m. on March 9, 2018, the
Defendant, along with Douglas “Drew” Lawson (“co-defendant Lawson”) and Justin
Hammontree,3 arrived at Southern Grounds in the Defendant’s son’s truck, which had an
attached trailer, and parked it behind the Masonic lodge. Co-defendant Lawson was Mr.
Lawson’s brother and had previously worked at Southern Grounds and had been trained to
operate the Bobcat; Mr. Lawson testified that he fired co-defendant Lawson for theft two
months before the incident and that co-defendant Lawson was “not an honest person.”
1
Mark E. Stephens was the District Public Defender during the Defendant’s trial and at the time the
Defendant’s appeal was filed on July 10, 2019. In the pendency of this appeal and before the Defendant’s
appellate brief was filed, Mr. Stephens retired from public service and Mr. Lutton was appointed as his
successor.
2
The Defendant does not contest the sufficiency of the evidence on appeal. In the interest of efficiency,
we have abridged the trial testimony to contain only the facts and context necessary to examine the issues
on appeal.
3
The record reflects that the Defendant was indicted and tried separately from his co-defendants.
-2-
Anthony McNeal, a Southern Grounds employee who lived in a recreational vehicle
on the property and served as a security guard, testified that just before the incident, he lost
internet connection in his residence and went outside to investigate. Mr. McNeal saw a
man he believed to be co-defendant Lawson 4 start the Bobcat and drive it from the
Southern Grounds lot. The man drove the Bobcat through a wooden fence, across a
neighboring business’s lawn, and ultimately to the Masonic lodge’s parking lot, where the
three men began to load the Bobcat onto the trailer. As Mr. McNeal ran up to the men, he
noted that the man driving the Bobcat was wearing a brown hooded sweatshirt with the
hood raised; he assumed the man was co-defendant Lawson because he knew how to start
the Bobcat.
When Mr. McNeal confronted the men, the Defendant had a “verbal confrontation”
with Mr. McNeal while the other two men unloaded the Bobcat from the trailer.
According to Mr. McNeal, the Defendant ran toward him, yelled, and stated, “[T]his was
bulls--t and that he had a right to it and everything.” Mr. McNeal noted that the Defendant
moved behind him as they argued, and Mr. McNeal opined that the Defendant meant to
divert his attention. Mr. McNeal agreed that the Bobcat’s engine was loud and that he and
the Defendant had to stand close together in order to be heard.
At some point during Mr. McNeal’s encounter with the men, he called Mr. Lawson
and asked him to come to Southern Grounds because “someone [was] taking equipment.”
Mr. Lawson heard Mr. McNeal tell someone to “put it down or back it off” before the call
disconnected. Mr. McNeal saw the third man place the trailer’s ramp into the truck bed,
then enter the truck; the Defendant then entered the driver’s seat of the truck and drove
away. The parties stipulated that the Defendant’s driver’s license was revoked at the time
of the incident.
After Mr. McNeal and Mr. Lawson respectively called 911, Knox County Sheriff’s
officers located the truck a short distance away. A police cruiser pulled behind the truck
with its blue lights activated; the truck turned into a subdivision; and it traveled between
two houses in a cul-de-sac, ultimately crashing into an embankment bordering a steep,
wooded hill, which was described as a “ravine” containing thorns, tall grass, and snakes.
The truck caused damage to Thomas Wright’s yard; Mr. Wright testified that he heard the
crash and identified photographs of resulting damage to his lawn.
After the crash, the three men exited the truck; co-defendant Hammontree fell and
was arrested near the truck; and the Defendant and co-defendant Lawson ran down the
embankment into a woodline, where they were subsequently located by officers using
4
It was not alleged at trial that the Defendant took the Bobcat, but it was disputed which of the other two
men drove it from the Southern Grounds lot.
-3-
night-vision goggles. Officer Michael Adkins testified that he ordered the Defendant to
come out of the woodline, but the Defendant did not comply. After sending his police dog
to the Defendant’s location, Officer Adkins and Officer Marcus Parton walked to the
Defendant, and Officer Parton arrested him. Another officer’s body camera recording was
received as an exhibit and reflected officers’ bringing the handcuffed Defendant down a
steep, wooded hill. The Defendant was wearing a long-sleeved blue shirt with a white
undershirt.
Mr. Lawson arrived at Southern Grounds after the Defendant and co-defendants had
left. After the police finished their onsite investigation in the early hours of the morning,
Mr. Lawson viewed a surveillance recording, which he described for the jury. According
to Mr. Lawson, the recording showed a man who was not co-defendant Lawson5 walking
from the Southern Grounds fence to an irrigation box marking the location of the
underground internet line, pausing there, and then walking to the Bobcat. Mr. Lawson
agreed that co-defendant Lawson knew about Southern Grounds’s security cameras. Mr.
Lawson averred that the internet line was cut, although he also described previous damage
to the line that had not yet been fully repaired at the time of the incident. The essence of
the testimony was that the surveillance recording was lost a short time after the incident
when it failed to upload to a “cloud” server backup.
The Defendant testified that he worked in landscaping during the summer and in
“mechanical work” during the winter. The Defendant met co-defendant Lawson, who also
worked in landscaping and irrigation, five years before the trial. At the time of the
incident, the Defendant believed that co-defendant Lawson co-owned Southern Grounds
with Mr. Lawson.
The Defendant testified that in late January or early February of 2018, co-defendant
Lawson proposed a work trade in which the Defendant would perform irrigation work for
co-defendant Lawson in exchange for co-defendant Lawson’s help clearing land on the
Defendant’s property. The trade was supposed to occur the weekend of March 9, 2018.
The Defendant anticipated that they would load the necessary equipment onto his trailer
and take it to the Defendant’s house in order to “get an early start” on Saturday morning.
The Defendant testified that co-defendant Lawson drove the Defendant’s son’s
truck to Southern Grounds because the Defendant’s driver’s license had been revoked.
The Defendant stated that as they approached Southern Grounds, co-defendant Lawson
explained that he parked at the Masonic lodge “all the time . . . because it’s easy to get the
trucks and trailers in.” The Defendant elaborated that they parked at the Masonic lodge
5
Mr. Lawson explained that co-defendant Lawson walked with a pronounced limp at the time of the
incident and that the man on the recording had an average gait.
-4-
because Southern Grounds had too short an entryway to fit a truck and trailer, that other
vehicles were blocking the entryway, that Oak Ridge Highway was a busy road, and that
the Masonic lodge had a well-lit driveway that would permit the truck to exit onto Oak
Ridge Highway without having to drive in reverse.
The Defendant testified that co-defendant Lawson, whom the Defendant assumed
had the Bobcat’s keys, left to retrieve the machine and bring it to them. The Defendant
noted that a neighboring business had “high brush and trees,” which impeded his view of
Southern Grounds from the Masonic lodge parking lot. The Defendant heard the Bobcat’s
engine start and joked with co-defendant Hammontree about the condition of the engine
due to its being “extraodinar[ily] loud.” After a short time, the Defendant saw the Bobcat
come around a bend on the Masonic lodge’s driveway. When co-defendant Lawson was
two-thirds of the way to the truck, the Defendant saw Mr. McNeal running behind the
Bobcat and waving. The Defendant thought that Mr. McNeal was “just waving at” the
men in greeting, and the Defendant waved back. He noted that he had not met Mr. Lawson
previously and believed that Mr. McNeal could have been Mr. Lawson. The Defendant
averred that he could not hear any voices.
The Defendant testified that as Mr. McNeal came closer, he observed that Mr.
McNeal was “not in a happy mood” and was “motioning [for them] to stop.” The
Defendant also described Mr. McNeal as “hysterical” and “demanding” that co-defendant
Lawson stop the Bobcat. Co-defendant Lawson drove the Bobcat onto the trailer. The
Defendant stated that he did not understand why Mr. McNeal wanted co-defendant Lawson
to stop the Bobcat because according to the Defendant’s understanding, co-defendant
Lawson had an ownership interest in the machine. The Defendant eventually gleaned that
co-defendant Lawson was not supposed to be operating the Bobcat.
The Defendant testified that upon learning this information, he cursed and stated
that “this [was] a bunch of bull cr-p.” The Defendant said that he pointed at co-defendant
Lawson and demanded that he back the Bobcat off the trailer. The Defendant stated that
after the Bobcat was unloaded, he turned toward Mr. McNeal to address him. Meanwhile,
co-defendant Hammontree put away the ramps to the trailer because Mr. McNeal was
“making it plain and simple” that co-defendant Lawson was not authorized to use the
equipment.
The Defendant testified that co-defendant Lawson dismounted the Bobcat and
entered the truck. The Defendant asserted that he was concerned that co-defendant
Lawson would “take off” in the truck, and the Defendant “holler[ed] at him” in an attempt
to ascertain what co-defendant Lawson was doing. Co-defendant Lawson did not respond,
and the Defendant entered the truck and questioned co-defendant Lawson. The Defendant
-5-
stated that co-defendant Lawson drove the truck away and that co-defendant Lawson did
not respond to the Defendant’s questions.
The Defendant testified that he was unaware that the police were following the truck
until co-defendant Lawson turned onto another road. The Defendant stated that after
turning, co-defendant Lawson accelerated; however, the Defendant noted that he did not
“get up to a dangerous speed” because they entered a subdivision. The Defendant stated
that when it became apparent that the police were trying to stop the truck, he became angry
and demanded that co-defendant Lawson answer his questions. According to the
Defendant, co-defendant Lawson held the steering wheel “real hard” and “avoid[ed]” the
Defendant. The Defendant described co-defendant Lawson’s affect as being “in his own
world. He [did not] even know [the Defendant] exist[ed] in the vehicle.”
The Defendant testified that upon entering the cul-de-sac, co-defendant Lawson
drove between two houses, and the truck crashed. The Defendant was not wearing a
seatbelt, and the impact threw him about such that he became “dazed.” The Defendant
stated that co-defendant Lawson began “going wild” and “slapping at the door handle” in
an effort to leave the truck. Co-defendant Hammontree, who was sitting in the passenger
seat, opened his door, and co-defendant Lawson climbed over the Defendant to exit through
the passenger-side door after “clawing and matting, and . . . beating at” the other two men.
The Defendant stated that after co-defendant Lawson exited the truck, the Defendant exited
the driver-side door. The Defendant stated that he fled behind co-defendant Lawson
instead of waiting for the police to arrive because he was afraid.
The Defendant identified co-defendants Lawson and Hammontree in still
photographs taken from the police body camera footage; he stated that co-defendant
Lawson wore brown khaki pants and “a dark hoodie of some sort,” whereas co-defendant
Hammontree wore a hat and a grey hooded sweatshirt he had borrowed from the Defendant.
The Defendant testified that if co-defendant Lawson had communicated his intent
to steal a Bobcat from Southern Grounds, the Defendant would have “looked at him like
he was crazy and asked him what for, why would he do something like that.” The
Defendant reiterated his assumption that co-defendant Lawson owned the Bobcat, and the
Defendant denied intending to steal it. The Defendant also denied seeing co-defendant
Lawson break the wooden fence as he left the Southern Grounds lot.
On cross-examination, the Defendant testified that he had never worked for
Southern Grounds. The Defendant stated that co-defendant Lawson “made it clear” that
the Southern Grounds and Masonic lodge properties “joined together on the back side.”
The Defendant acknowledged that a chain-link fence was visible in a photographic exhibit
taken by police, which showed the Bobcat in the Masonic lodge parking lot from a location
-6-
on the Southern Grounds lot; the Defendant noted that a streetlight in the Masonic lodge
parking lot illuminated the fence in the photograph.6 The Defendant maintained that he
did not hear a crash when the Bobcat drove through the wooden fence because the Bobcat’s
engine was very loud. The Defendant denied seeing the Bobcat damage the lawn between
the properties, and he disagreed that if he had seen the Bobcat’s driving over the lawn, it
would have made him suspicious.
The Defendant acknowledged that the police body camera footage showed his being
led out of the woodline by police. The Defendant further acknowledged Mr. Lawson’s
testimony that the lost surveillance recording showed a man who was not co-defendant
Lawson on the Southern Grounds lot. The Defendant characterized his demeanor toward
Mr. McNeal as upset rather than aggressive, and he denied that he yelled or cursed at Mr.
McNeal. The Defendant averred that he only cursed when “talking about as far as
operation of the equipment.” The Defendant stated that co-defendant Lawson entered the
truck first, the Defendant followed, and co-defendant Hammontree entered last. The
Defendant identified the person Mr. McNeal saw placing the ramp in the truck as co-
defendant Hammontree.
The Defendant testified that he helped load the Bobcat onto the trailer by ensuring
it was properly directed. The Defendant denied that he attempted to divert Mr. McNeal’s
attention, instead characterizing his stepping off the trailer as “simply getting out of the
way of the machine.”
When asked whether co-defendant Lawson’s flight from the truck in Mr. Wright’s
yard reflected guilty knowledge, the Defendant responded generally that co-defendant
Lawson drove the truck safely. The Defendant acknowledged, however, that the manner
in which co-defendant Lawson drove after the police began to follow them “definitely
began to look” as though co-defendant Lawson knew he had done something illegal. The
Defendant denied that he drove the truck at any point in the evening. The Defendant
acknowledged that he did not call the police at any point during the incident7 or wait for
the police to arrive.
The Defendant acknowledged that he had eight previous convictions for driving
under the influence (DUI); he stated that he was a recovering alcoholic and had been sober
6
Mr. Lawson noted during his testimony that for the benefit of the neighboring businesses, Southern
Grounds had a wooden fence in the portions of the lot that were visible from the street.
7
The Defendant made a comment during his testimony indicating that he may not have possessed a cell
phone.
-7-
for about eight years.8 He further acknowledged a 2018 conviction for driving with a
suspended license.
The Defendant testified that he did not see the damage the truck caused to Mr.
Wright’s lawn, although he “assum[ed]” that photographs showing damage to the lawn
were caused by the truck. He agreed that he decided to follow co-defendant Lawson and
“crouch down in the woods in all those briars” rather than wait for the police. The
Defendant reiterated that he wanted co-defendant Lawson to answer his questions.
The Defendant averred that he did not exit the woodline as directed by the police
because he was praying and that when he stood up, he saw officers coming toward him and
heard their order to come out. The Defendant denied that he resisted the officers or that
they had to “come and get [him] out.”
When asked why he went to Southern Grounds at night, the Defendant responded
that it had “gotten dark on [them] after work” and that they encountered trouble obtaining
a trailer; he denied that the timing was intentional. The Defendant stated that they chose
to pick up the Bobcat on a Friday in order to facilitate weekend work without interfering
with Southern Grounds’s or the Defendant’s regular work.
Asa Hobbs testified on the Defendant’s behalf that he had previously owned a
business performing “equipment work and body shop” work. Mr. Hobbs testified that he
had worked in “the equipment business” with his father beginning in childhood and that he
had traded in landscaping equipment his “whole life.”
Mr. Hobbs met the Defendant through a friend “many” years previously, and Mr.
Hobbs had known co-defendant Lawson for six or seven years. Mr. Hobbs noted that he
met co-defendant Lawson when Mr. Hobbs purchased a number of lawn mowers from him.
Mr. Hobbs testified that in late January or early February of 2018, he, co-defendant
Lawson, and the Defendant “made arrangements” to borrow the Bobcat from Southern
Grounds. To Mr. Hobbs’s knowledge, co-defendant Lawson was “the manager of
[Southern Grounds] or involved with his brother, family, as a co-owner, owner, or
something of it.” Mr. Hobbs stated that when he periodically met co-defendant Lawson
during the workday, co-defendant Lawson was with several men performing “big mowing
contracts.”
8
The record reflects that the Defendant’s three most recent DUI convictions related to offenses that
occurred in 2008.
-8-
Mr. Hobbs testified that according to his agreement with co-defendant Lawson, Mr.
Hobbs would perform some “trenching for him for a side job that he had to do installing
an irrigation system.” In exchange, co-defendant Lawson was going to clear one piece of
property for Mr. Hobbs and a second piece of property for the Defendant using “an old
machine[.]” To Mr. Hobbs’s understanding, they were going to wait to collect the
machine until the Friday before a weekend in which the Bobcat would not be needed at
Southern Grounds. Co-defendant Lawson also told Mr. Hobbs and the Defendant that the
Bobcat was “in ill-repair” and that co-defendant Lawson needed to operate it. Mr. Hobbs
ultimately did not accompany the men to Southern Grounds on the night of the incident
because his trailer was unavailable.
On cross-examination, Mr. Hobbs testified that he was previously placed on
probation for driving with a suspended license, although he did not recall an October 8,
2018 violation of that probation. He acknowledged that he failed to appear in court on
June 25, 2018, but he did not recall whether it resulted in a conviction. Mr. Hobbs agreed
that his record reflected a failure to appear on May 12, 2017, but he denied ever having
“had a felony” in relation to the failure to appear. He stated that he was charged with
reckless endangerment on July 8, 2012, after firing a shotgun into the air on the Fourth of
July, but that the charge was dismissed.
Mr. Hobbs testified that he sold his commercial property fifteen years before the
Defendant’s trial and that before the sale, he operated a body shop for twenty-five years.
Although Mr. Hobbs denied knowing the meaning of the term “chop shop,” he also denied
that his business was a chop shop or that he was ever involved with such a business. Mr.
Hobbs averred that he repaired, painted, and cleaned cars for insurance companies. He
denied ever working for or owning a junk yard in the Rocky Hill area; he noted, though,
that his father-in-law owned a junk yard in West Knoxville. At this juncture, the trial
court interjected:
THE COURT: And what was your father-in-law’s name?
THE WITNESS: Roy Clark.
THE COURT: Roy Lee Clark?
THE WITNESS: Uh-huh.
THE COURT: Go ahead.
The Defendant subsequently rested.
-9-
In rebuttal, the State called court officer James Humphrey 9 to the stand. The
following exchange occurred:
THE COURT: Mr. Humphrey raise your right hand, please, and be sworn.
(Whereupon, the witness was sworn.)
THE COURT: All right. I need to have a jury out hearing before I do this.
After the jury-out hearing, which we recount in more detail below, the trial court issued
the following instruction to the jury:
[Y]ou saw Mr. Humphrey called to the witness stand as a potential
witness before we took a break. He is not going to be testifying.
I don’t want you to speculate about why. The long and short of it is,
he is one of the [c]ourt’s bailiffs and officers, and he has been in charge of
keeping you safe and comfortable, so he will not be testifying in this case.
Sometimes from time to time in a lawsuit . . . things just happen.
And today is one of those things that’s happened. There’s another witness
who will be testifying. That witness is not available today.
The trial court continued to discuss scheduling matters, and court was adjourned for the
day shortly thereafter.
The following morning, Knox County Sheriff’s Chief Deputy Bernie Lyon testified
in rebuttal that he began working in law enforcement in 1979, that he was familiar with
Mr. Hobbs, and that Mr. Hobbs had a “bad reputation” in regard to truthfulness. On cross-
examination, Chief Deputy Lyon agreed that his assessment of Mr. Hobbs’s reputation was
based upon conduct occurring in the 1990s.
Next, Knox County Sheriff’s Officer Brian Bates testified that he previously worked
for the Knoxville Police Department for thirty-six years and that in his opinion, Mr. Hobbs
was “an untruthful person . . . involved in criminal activity.” The trial court instructed the
jury to disregard the comment about criminal activity and that it could only consider
evidence of Mr. Hobbs’s reputation for truthfulness.
9
For consistency, we will refer to the court officers in the same manner as the trial court, which used the
title “Mr.” instead of “Officer.”
-10-
In addition, Knox County Sheriff’s Captain David Amburn was asked for his
“opinion” of Mr. Hobbs’s “reputation.” Captain Amburn replied that he had worked in
law enforcement for twenty-eight years and that he would not “deem [Mr. Hobbs] as a
credible witness.”
After the close of rebuttal evidence, the State argued in closing that the Defendant
was guilty under a theory of criminal responsibility. In relevant part, the Defendant
argued that he made a mistake of fact regarding co-defendant Lawson’s authority to borrow
the Bobcat and that consequently, he lacked the requisite mental state to commit theft.
Defense counsel briefly mentioned Mr. Hobbs’s corroboration of the work trade
arrangement and the Defendant’s mistaken impression of co-defendant Lawson, as well as
the State’s attempt to discredit Mr. Hobbs, but Mr. Hobbs was not otherwise discussed.
The jury instructions provided that Count 1 referred to the theft of the Bobcat by
obtaining it; Count 2 was based upon an alternate theory of theft by exercising control over
the Bobcat; Count 3, vandalism, was based upon the damage to Southern Grounds’s fence;
Count 4, vandalism, was based upon the damage to Mr. Wright’s yard; Count 5, evading
arrest, was based upon the Defendant’s flight into the woodline after the truck crashed; and
Count 6, driving with a revoked license, was based upon the Defendant’s driving the truck.
The jury was instructed on criminal responsibility, as well as facilitation of theft as a lesser-
included offense.
Upon this evidence, the Defendant was convicted of evading arrest, the vandalism
of Mr. Wright’s yard, driving with a revoked license, and the lesser-included offense of
facilitation of theft of property valued at “more than” $2,50010 but less than $10,000 by
exercising control over the Bobcat. The jury acquitted the Defendant of Count 1, theft of
property valued at $10,000 or more but less than $60,000, and Count 3, vandalism related
to Mr. Wright’s yard. After a sentencing hearing, the trial court found that the Defendant
was a career offender and imposed concurrent sentences of six years for facilitation of theft
and eleven months, twenty-nine days each for evading arrest, vandalism, and driving with
a revoked license, second offense.
Relevant to this appeal, in the Defendant’s motion for a new trial, he argued that the
trial court erred by (1) permitting evidence of Mr. Clark’s familial relationship to Mr.
Hobbs; (2) allowing the State to cross-examine Mr. Hobbs regarding uncharged conduct
“dating back to the 1970s” when the conduct was irrelevant to the Defendant’s case and
Mr. Hobbs’s credibility; (3) denying a motion for a mistrial relative to Mr. Humphrey’s
10
The theft grading statute provides that theft of property valued at $2,500 or more but less than $10,000
is a Class D felony. Regardless of the inaccuracy of the verdict form’s using the phrase “more than”
$2,500, the jury’s finding regarding the value in Count 2 was clearly within the Class D range for theft and,
by extension, the Class E range for facilitation of theft. Tenn. Code Ann. §§ 39-11-403(b), -14-105.
-11-
having been sworn as a witness; and (4) allowing rebuttal testimony from three Knox
County Sheriff’s officers, given that their testimony was not indicative of Mr. Hobbs’s
“current reputation or character for truthfulness but instead . . . [was] based on involvement
with him dating back to the 1970s through the 1990s.” The Defendant also noted that
“[t]he relief requested in this motion [was] necessary to protect [his] rights to due process
and a fair trial[.]”
The Defendant also filed a motion requesting a hearing to determine the extent of
Mr. Humphrey’s contact with the jury. At a joint hearing in which the court considered
both motions, the court found that although Mr. Humphrey had “intimate” contact with the
jury, a mistrial was unnecessary because he did not ultimately testify. The court did not
orally address the other issues in the motion for a new trial, and its subsequent written order
denying the motion contained no findings of fact. The Defendant timely appealed.
ANALYSIS
I. Mistrial
The Defendant contends that the trial court erred by denying his motions for a
mistrial based upon Mr. Humphrey’s having been sworn as a witness and the court’s having
elicited Mr. Clark’s full name. Because the Defendant raises two issues regarding the
denial of a motion for a mistrial, for the sake of efficiency, we will consider both issues at
once.
a. Applicable Law
The purpose of declaring a mistrial is to correct damage done to the judicial process
when some event has occurred which precludes an impartial verdict. State v. Williams,
929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). For a mistrial to be declared, there must
be a “manifest necessity” that requires such action. State v. Robinson, 146 S.W.3d 469,
494 (Tenn. 2004); State v. Millbrooks, 819 S.W.2d 441,443 (Tenn. Crim. App. 1991). A
mistrial is only appropriate when the trial cannot continue without causing a miscarriage
of justice. State v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000); see State v.
McPherson, 882 S.W.2d 365, 370 (Tenn. Crim. App. 1994). The decision to grant a
mistrial is within the sound discretion of the trial court. State v. McKinney, 929 S.W.2d
404, 405 (Tenn. Crim. App. 1996). The burden to show the necessity for a mistrial falls
upon the party seeking the mistrial. Land, 34 S.W.3d at 527. This court will not disturb
the trial court’s decision unless there is an abuse of discretion. State v. Adkins, 786
S.W.2d 642, 644 (Tenn. 1990). In evaluating whether the trial court abused its discretion
we may consider: “(1) whether the State elicited the testimony, (2) whether the trial court
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gave a curative instruction, and (3) the relative strength or weakness of the State’s proof.”
State v. Welcome, 280 S.W.3d 215, 222 (Tenn. Crim. App. 2007).
b. Court Officer’s Testimony
The Defendant contends that the trial court abused its discretion by denying his
motion for a mistrial after Mr. Humphrey was sworn as a witness, arguing that although
Mr. Humphrey ultimately did not testify, the jury could reasonably have concluded that
Mr. Humphrey would have testified to the same facts as the three subsequent law
enforcement witnesses. The Defendant further argues that the trial court’s curative
instruction emphasized a connection between Mr. Humphrey’s anticipated testimony and
that of the police witnesses; in particular, at oral argument, appellate counsel highlighted
that the jury was instructed not to speculate as to why Mr. Humphrey did not testify but
not about what he would have testified. The Defendant avers that as a result of the State’s
actions, a message was sent to the jury that the court system itself “c[a]me down” on the
side of the State.
The Defendant further notes that in light of his defense theory of a mistake of fact,
his defense “rose or fell” on Mr. Hobbs’s credibility. The Defendant argues that the
import of Mr. Hobbs’s credibility and the degree of prejudice inuring to him were
evidenced by the “extraordinary lengths” to which the State went to discredit Mr. Hobbs.
The State responds that no error occurred because Mr. Humphrey did not testify and
that the jury, which was presumed to have followed the court’s instructions, was generally
instructed not to speculate about the reasons for evidentiary rulings.
i. Procedural Facts
After Mr. Humphrey had been sworn as a witness, the court excused the jury and
questioned Mr. Humphrey as follows:
[THE COURT]: All right. What have you done with this jury so far, Mr.
Humphrey? Have you been personally waiting on them? You took the
oath on Monday to wait on this jury, correct?
MR. HUMPHREY: Yes.
THE COURT: What have you done with this particular jury, not in general,
but this particular jury?
-13-
MR. HUMPHREY: I escorted one up for a smoke break earlier today. I
contacted by phone regarding what time to report today, five of them. Four,
one left.11
The trial court asked the State if another rebuttal witness could be presented. The State
responded that although numerous witnesses could be called, Mr. Humphrey and court
officer Mark Pressley were present, and only Mr. Humphrey had engaged in prior direct
contact with Mr. Hobbs. The Defendant argued that a danger existed that the jury would
give Mr. Humphrey’s testimony “extra weight” due to his having had direct contact with
the jurors. The State suggested a curative instruction, and the court noted that if Mr.
Humphrey or Mr. Pressley testified, they could not be allowed to “wait on” the jury further.
After the court asked Mr. Humphrey if he could name any officers who would know of
Mr. Hobbs, the court called a recess and commented,
We are opening up a dangerous can of worms right here, General. If . . . Mr.
Humphrey was a court officer who just merely had been in this courtroom,
that’s one question. But he has had specific and individualized contact with
members of this very jury that’s trying this case and now we’re asking him
to testify as a witness.
Quite frankly, it’s a situation I don’t recall in 30 years of doing this[.]
The State conducted a proffer during the jury’s absence in which Mr. Humphrey testified
that he became aware of Mr. Hobbs during his tenure as a patrol officer in the late 1970s.
He stated that the “burglary larceny detectives and auto theft detectives” told the patrol
officers to be alert “at construction sites, car lots, shopping centers, and they specifically
named [Mr. Hobbs], among others, for stealing cars or stealing construction equipment.”
Mr. Humphrey averred that everyone he knew who “had anything to do with” Mr. Hobbs
told Mr. Humphrey not to believe anything Mr. Hobbs said. The trial court asked Mr.
Pressley, who was also present in the courtroom, if his testimony would be identical, and
Mr. Pressley nodded affirmatively.
After the recess and before the jury returned to the courtroom, the trial court
concluded that Mr. Humphrey could not testify and that the State would have to call another
law enforcement witness. The prosecutor replied that only the three court officers recalled
the facts to which Mr. Humphrey had testified. The court stated that the State was “not
going to call one of these bailiffs” and that they would “try this case again if you do.” The
prosecutor noted that the bailiffs’ oath involved not discussing the case with the jury. The
11
The trial transcript reflects that after the trial began, one juror was excused to attend to a hospitalized
child.
-14-
court again asked the prosecutor if she could find another police witness “who [knew]
about Roy Lee Clark and Mr. Hobbs.”
Defense counsel argued that the reputation evidence Mr. Humphrey had offered was
from the 1970s and therefore, it was irrelevant and not the type of evidence contemplated
by Tennessee Rule of Evidence 608(a). The court found that the evidence had been “made
relevant in large part by Mr. Hobbs’ testimony about what he’s done for a living for . . .
many years. His reputation for truthfulness is at issue.” The court concluded that the
evidence was admissible, “but it’s not going to be from one of [the court’s] bailiffs.”
The trial court then questioned Mr. Pressley briefly about his contact with the jury;
Mr. Pressley responded that other than seeing the jurors in the hallway, he had not directly
interacted with them. The court found that because Mr. Pressley had taken the same oath
as Mr. Humphrey, it was “much cleaner” to have another officer testify. After more
discussion, it was decided that the proceedings would be adjourned until the following
morning12 in order for the State to obtain other witnesses.
The following morning, defense counsel noted her concern that the jury would
realize that Mr. Humphrey would have testified to the same facts as the police witnesses
who were set to testify that day. Counsel argued that because of the relationship and
rapport between the jurors and Mr. Humphrey, a mistrial was necessary. The trial court
stated for the record that although Mr. Humphrey was called to the stand and sworn in, the
court’s “wheels were already turning that [it was] not going to do this.” The court
admonished the parties that in the future, if a party intended to call a court officer as a
witness, it should approach the bench in advance of doing such. The court found that it
had given a curative instruction, that Mr. Humphrey was not permitted to offer any
testimony, and that it was willing to give an additional curative instruction, although in the
court’s opinion, further instruction would draw undue attention to the issue. The court
denied the Defendant’s request for a mistrial.
After trial, the Defendant filed a motion requesting the court to make findings of
fact regarding the extent of Mr. Humphrey’s contact with the jury. At the motion for a
new trial hearing, Mr. Humphrey testified that he did not recall his interactions with this
particular jury but that he did not believe he deviated from his customary practices. Mr.
Humphrey stated that his oath with respect to the jury was administered in front of the
jurors. He said that generally, jurors checked in at the clerk’s office in the courthouse and
that when the trial court was ready for the jury, Mr. Humphrey escorted them to the
courtroom, explained who he was, and “explain[ed] the process.” Mr. Humphrey agreed
that he sometimes “wait[ed] around” in the same room as the jurors until the trial court was
12
The transcript reflects that this discussion occurred at about 3:00 p.m.
-15-
ready for them. Mr. Humphrey also sat in the courtroom beside the jury box during jury
selection and trial, collected badges of dismissed potential jurors, and gave them directions
about how to leave the courthouse. Once a jury was seated, Mr. Humphrey escorted them
to and from the jury room and instructed them to leave their notebooks in the courtroom
until deliberations began. Mr. Humphrey and a second court officer took turns escorting
any smokers to a designated outdoor area. Mr. Humphrey noted that a line was painted
near the door indicating that smokers should stand beyond it. Mr. Humphrey averred that
he stood inside the painted line while the smokers stood some distance away and that he
did not converse with them. Mr. Humphrey also escorted jurors from the jury room to
pick up their lunches in another room of the courthouse, after which the jurors returned to
the jury room; if a juror wanted more food, Mr. Humphrey or another officer would escort
the juror to the lunch room to retrieve a second helping. At the end of the day, Mr.
Humphrey escorted the jury out of the jury area and told them where to report the following
morning. Mr. Humphrey denied conversing with jurors while escorting them from place
to place.
Mr. Humphrey recalled that a one-hour snow delay occurred during the Defendant’s
trial and that he and two other court officers called the jurors regarding the time they should
report to the courthouse. Mr. Humphrey personally called five or six jurors. Mr.
Humphrey stated that after he was called as a witness, he had no further contact with the
jury by instruction of the trial court and that he sat in the rear of the courtroom by the door.
The trial court noted for the record that at the time Mr. Humphrey was called as a
witness, he was already sitting in the rear of the courtroom. When asked whether he was
the “primary person” who told the jury where to go in the courthouse, Mr. Humphrey
responded, “For a short time,” and he noted that he and another officer “shared
responsibility” for the jury.
Mr. Humphrey testified that during the trial, Mr. Pressley asked if Mr. Humphrey
remembered Mr. Hobbs. When Mr. Humphrey responded affirmatively, Mr. Pressley
relayed that fact to the prosecutor, who spoke to Mr. Humphrey further. On cross-
examination, Mr. Humphrey reiterated that he did not converse with any of the jurors, and
denied having discussed the facts of the Defendant’s case with any juror or eating with the
jurors. He affirmed that the jury was not sequestered.
The Defendant argued that because Mr. Humphrey was called as a witness, the State
converted a neutral representative of the court to whom the jurors looked for “protection
and advice and instruction” into an “arm of the prosecutor,” and that although Mr.
Humphrey did not testify, when the three law enforcement witnesses testified, “any juror
who was half awake during the trial . . . could have deduced that’s exactly what Mr.
Humphrey would have said[.]” The State responded that a distinction existed between
-16-
calling a court officer as part of the prosecution’s main case as opposed to a rebuttal witness
and that Mr. Humphrey never testified.
The trial court made the following oral findings of fact:
I have given this a lot of thought. Mr. Humphrey was intimately
connected with the jury in this case, had contact with them, and as he was
coming up to the stand, I knew that there was a potential problem already in
the making. That’s why the [c]ourt sent the jury out once the [c]ourt
confirmed that Mr. Humphrey, in fact, had waited on the jury.
I think the fact that the [c]ourt did not allow Mr. Humphrey to testify
to the facts that he was being called to testify about, in this [c]ourt’s mind,
will justify not granting a new trial in this case.
ii. Analysis
In support of his argument, the Defendant cites Turner v. Louisiana, 379 U.S. 466(1965), in which the United States Supreme Court held that a due process violation
occurred when the state’s primary witnesses were two court deputies who also served as
the custodians of a sequestered jury. In Turner, Officer Vincent Rispone13 testified in
detail regarding his investigation of the crime scene, his role in arresting the defendant, and
the defendant’s leading him to the location of the cartridge clip from the murder weapon.
Id. at 467. Likewise, Officer Hulon Simmons testified and corroborated Officer Rispone’s
account of the defendant’s arrest and the location of the cartridge clip; Officer Simmons
also detailed “damaging admissions” the defendant made at the time of his arrest and the
circumstances under which Officer Simmons “prevailed upon” the defendant to make a
written confession. Id. In compliance with then-effective Louisiana law, the jury was
sequestered during the three-day trial and “placed in charge of the Sheriff” by the trial
court. Id. at 468. “In practice, this meant that the jurors were continuously in the
company of deputy sheriffs” during the trial, and the officers “drove the jurors to a
restaurant for each meal, and to their lodgings each night. The deputies ate with them,
conversed with them, and did errands for them.” Id.When Officers Rispone and Simmons were respectively called to testify, the
defendant moved for a mistrial, which was denied; during jury-out hearings on the motions,
it was “established that both Rispone and Simmons had in fact freely mingled and
conversed with the jurors in and out of the courthouse during the trial.” Turner, 379 U.S.
13The Supreme Court did not use a title when referring to the court officers in this case. Because they
were also active duty police officers who investigated the case, we will refer to them using the title
“Officer.”
-17-
at 547. Specifically, Officer Rispone testified that he had spoken to the jurors in carrying
out his duties. Id. at n.6. Officer Simmons also acknowledged having spoken to the
jurors, and he noted that he knew some of the jurors and made the acquaintance of others
during the trial. Id. Officer Simmons stated that he ate two meals with the jurors at the
same table and that he rode in a car with them to and from the restaurant. Id. Officer
Simmons denied discussing the case with the jurors at any time. Id. Officer Simmons
further agreed that he was the “Chief Criminal Deputy” in charge of officers supervising
the jury and handled certain tasks with the jury personally. Id. The trial court denied the
motion for a mistrial because Officers Rispone and Simmons did not discuss the case with
the jurors; Officers Rispone and Simmons continued to serve as jury custodians. Id. at
469-70.
On appeal, the United States Supreme Court held that this sequence of events
“operated to subvert [the] basic guarantees of trial by jury” because it created the possibility
that the jury would base its verdict upon information outside of the evidence presented at
trial. Turner, 379 U.S. at 472-73. The Court continued,
It is to be emphasized that the testimony of Vincent Rispone and Hulon
Simmons was not confined to some uncontroverted or merely formal aspect
of the case for the prosecution. On the contrary, the credibility which the
jury attached to the testimony of these two key witnesses must inevitably
have determined whether Wayne Turner was to be sent to his death. To be
sure, their credibility was assailed by Turner’s counsel through cross-
examination in open court. But the potentialities of what went on outside
the courtroom during the three days of the trial may well have made these
courtroom proceedings little more than a hollow formality.
Id. at 473. The Court noted that although the officers denied having discussed the case
with the jurors, “it would be blinking reality not to recognize the extreme prejudice inherent
in this continual association throughout the trial between the jurors and these two key
witnesses for the prosecution.” Id. The Court emphasized that the contact between the
officers and the jury was not “a brief encounter, but . . . a continuous and intimate
association throughout a three-day trial—an association which gave these witnesses an
opportunity, as Simmons put it, to renew old friendships and make new acquaintances
among the members of the jury.” Id. The Court noted that the officers’ professional
position “could not but foster the jurors’ confidence in those who were their official
guardians during the entire period of the trial” and that the defendant’s fate turned on the
whether the jury found Officers Simmons and Rispone to be credible. Id. at 474. As a
result, the Court reversed the defendant’s conviction and remanded the case for a new trial.
Id.-18-
Subsequently, in Gonzales v. Beto, the Supreme Court applied Turner and
summarily ordered a new trial when an officer who was the jury’s custodian testified for
the State to authenticate the defendant’s confession, which was dictated to the police and
signed with an “X,” regarding a murder that occurred five years before the defendant’s
arrest. 405 U.S. 1052-53 (1972) (Stewart, J., concurring). During the one-day trial, the
officer escorted the jurors to and from the courtroom, accompanied them to lunch and ate
with them in a private room, and provided them with drinks during deliberations. Id.Justice Stewart noted that “[o]nce, the judge even asked [the officer] to step down from the
witness stand, where he was undergoing cross-examination, in order to retire the jury.” Id.
at 1053. Justice Stewart concluded that although Turner did not create a per se rule that a
new trial was required every time the jury came into contact with a prosecution witness,
[o]ur adversary system of criminal justice demands that the respective roles
of prosecution and defense and the neutral role of the court be kept separate
and distinct in a criminal trial. When a key witness against a defendant
doubles as the officer of the court specifically charged with the care and
protection of the jurors, associating with them on both a personal and an
official basis while simultaneously testifying for the prosecution, the
adversary system of justice is perverted.
Id. at 1055-56. As a result, even if the officer’s contact with the jury was not as “intense”
as the officers in Turner, the contacts were not de minimis. Id. at 1056.
The Defendant correctly observes that Tennessee’s courts have only had occasion
to consider Turner once. See State v. Michael Lynn Stanton, No. E2003-02675-CCA-R3-
CD, 2005 WL 876873 (Tenn. Crim. App. Apr. 15, 2005). In Stanton, the State’s evidence
established that the defendant broke into his former wife’s home when she denied him
entry and shot her in the shoulder; her boyfriend was also present and shot the defendant.
Subsequently, the former wife’s stepfather arrived, and it was alleged that the defendant
shot and killed him. Id. at *2-3. The defendant presented the testimony of his treating
surgeon, who opined that it was “unlikely” the defendant could have accurately fired a gun
within five minutes of having been shot himself. Id. at *6. In rebuttal, the State called
court officer Lieutenant James Carson, who had personal experience with suffering a
gunshot wound. Id. at *14. The trial court asked counsel to approach the bench, excused
the jury, and heard argument from the parties regarding the admissibility of Lieutenant
Carson’s proposed testimony, after which the court found that Lieutenant Carson had been
in “charge of the jury for several days.” As a result, the court concluded that the potential
prejudice of the testimony outweighed its probative value and excluded it pursuant to
Tennessee Rule of Evidence 403. Id.-19-
In the trial court’s consideration of the motion for a new trial, it clarified that
Lieutenant Carson was “one of the supervisors of the court officers but [was] not over the
jury”; that Lieutenant Carson “did some transportation and . . . supervised the others” but
did not stay with the jurors, spend the night with them, or eat with them; and that Lieutenant
Carson “had no direct discussion contact with the jurors.” Stanton, 2005 WL 876873, at
*15. The court concluded that the aborted attempt to call Lieutenant Carson as a witness
had no effect on the jury. Id.On appeal, the defendant argued that the trial court should have declared a mistrial
because Lieutenant Carson’s “mere presence on the witness stand was prejudicial[.]”
Stanton, 2005 WL 876873, at *14. This court noted that no request for a mistrial was
made and that the issue consequently had been waived; however, this court briefly
considered the merits of the issue and concluded that no error occurred. Id. This court
discussed the facts in Turner and distinguished it from Stanton, noting that as soon as the
State “announced its intention” to call Lieutenant Carson as a witness, the trial court held
a jury-out hearing in which Lieutenant Carson averred that he had not discussed his
proposed testimony with the jurors; that Lieutenant Carson did not, in fact, testify; and that
after Lieutenant Carson’s testimony was excluded, the State rested. Id. at *15. This court
observed that in Turner, the court officers not only testified, but offered evidence that “must
inevitably have determined” the defendant’s fate. Id.In this case, the Defendant urges this court to conclude that his case is more similar
to Turner and Gonzales than Stanton because, he argues, the existence of the subsequent
police witnesses allowed the jury to surmise what Mr. Humphrey’s character testimony
would have been. To be clear, we agree with the trial court’s admonition to the parties
that any attempt to present evidence from a court officer should be preceded by a request
for a bench conference or jury-out hearing instead of simply calling the officer as a witness.
The procedure in this case was unadvisable, and Mr. Humphrey’s having been called and
sworn as a witness was error. However, we do not discern that the trial court abused its
discretion by denying the motion for a mistrial.
We agree with the trial court’s assessment that Mr. Humphrey’s contact with the
jury was sufficiently intimate to preclude his testifying; his contacts with the jury were akin
to the officer in Gonzalez and were not de minimis. Mr. Humphrey testified that he
escorted one juror outside for a “smoke break”; he personally contacted four jurors during
snow-delay phone calls; he also generally escorted jurors to and from the jury room and to
pick up their lunches. Although he averred that he did not converse with jurors at any
time, Mr. Humphrey was positioned as a representative of the court, and it was
inappropriate for him to testify on behalf of the State.
-20-
Further, we disagree with the State’s assertion that Mr. Humphrey’s testimony
would not have been constitutionally problematic because it was offered in rebuttal rather
than part of the State’s case in chief. The defense theory relied upon Mr. Hobbs’s
corroboration of the Defendant’s mistake of fact and the work trade arrangement, and as a
result, evidence bearing on Mr. Hobbs’s credibility was not “an uncontroverted or merely
formal aspect” of the prosecution, but directly related to the issue of the Defendant’s guilt.
However, the Defendant’s case is distinguishable from Turner and Gonzalez in that
Mr. Humphrey did not testify. We cannot conclude that Mr. Humphrey’s having been
sworn as a witness is sufficient to trigger an implication of bias based upon his custodial
relationship with the jury. Stanton, 2005 WL 876873, at *15; see Cutts v. Smith, 630
Fed.Appx 505, 509 (6th Cir. 2015) (discussing that the Supreme Court has “implied bias .
. . [in] cases involving extreme circumstances” such as those in Turner). Because Mr.
Humphrey’s testimony did not come to fruition, the due process concerns addressed in
Turner are not implicated here.
Relative to the Defendant’s concern about the subsequent officers’ testimony’s
being imputed to Mr. Humphrey, we note that Mr. Humphrey was excused mid-afternoon,
that court was adjourned for the day afterward, and that the other officers testified the
following morning. This temporal break served to distance Mr. Humphrey from the
subsequent testimony. Further, we disagree with the Defendant that the trial court’s
curative instruction necessarily connected Mr. Humphrey to the other officers’ testimony.
The court stated that Mr. Humphrey would not be testifying, that a witness was
occasionally excluded during a trial, and that the jury should not speculate as to the reason
for his exclusion. The court also proceeded to disclose the reason for Mr. Humphrey’s
exclusion—that he was in charge of keeping the jury “safe and comfortable.” The court
continued to state, “Sometimes from time to time in a lawsuit . . . things just happen. And
today is one of those things that’s happened. There’s another witness who will be
testifying. That witness is not available today.” We note that the court did not say that
another witness would be testifying in Mr. Humphrey’s stead; however, we acknowledge
that the jury was made aware that Mr. Humphrey would have testified for the State but for
his role as jury custodian. Although the procedure in this case was far from ideal and
under other circumstances could lead to the impermissible imputation of testimony the
Defendant alleges, under these particular facts, there was no reason other than speculation
to presume that the jury would impute the police witnesses’ testimony to Mr. Humphrey.
Accord Stanton, 2005 WL 876873, at *15
Relative to the motion for a mistrial, although the State created the situation at issue,
the jury heard no impermissible testimony; the trial court issued a curative instruction,
which we have concluded made no untoward inference regarding the subsequent
testimony; and the State’s evidence was strong. We cannot conclude that the trial court
-21-
abused its discretion by denying the motion for a mistrial. The Defendant is not entitled
to relief on this basis.
c. Roy Lee Clark
The Defendant contends that the trial court erred by denying his motion for a mistrial
after the court elicited from Mr. Hobbs that his father-in-law was Roy Lee Clark. The
Defendant argues that Mr. Clark was known in Knox County as the operator of a chop shop
and the subject of a murder case, facts which were irrelevant to the Defendant’s case but
which served to imply that Mr. Hobbs engaged in similar criminal dealings. The State
responds that the Defendant is not entitled to relief because he has not proven that any
prejudice inured to him or that any jurors knew of Mr. Clark’s reputation.
i. Procedural Facts
As recounted in more detail below, during the jury-out hearing regarding the scope
of the State’s cross-examination of Mr. Hobbs, it was discussed that Mr. Hobbs’s father-
in-law was Roy Lee Clark. Mr. Hobbs answered questions about the extent of his
involvement in Mr. Clark’s court case and generally denied having participated in Mr.
Clark’s chop shop operation. After initially excluding questions regarding the chop shop
due to the age of the alleged events, the trial court permitted the State to question Mr.
Hobbs in front of the jury about whether he had ever been involved in a chop shop after
Mr. Hobbs testified that he had worked with equipment for his entire life and had owned a
body shop for many years. In response to the prosecutor’s asking if he had ever owned a
junk yard, Mr. Hobbs replied negatively, but added that his father-in-law had owned one.
The trial court interjected and asked Mr. Hobbs for his father-in-law’s name. Mr. Hobbs
replied, “Roy Clark.” The trial court responded, “Roy Lee Clark?” Mr. Hobbs answered
affirmatively, and the topic was not discussed further.
The morning after Mr. Hobbs testified and before the State’s rebuttal commenced,
defense counsel requested a mistrial based upon the court’s eliciting Mr. Clark’s full name,
noting that although she was not previously familiar with Mr. Clark, she had researched
him after Mr. Hobbs testified and came to the conclusion that “every juror on there over a
certain age . . . underst[ood] that Roy Clark was apparently convicted of murder.” Counsel
argued that eliciting Mr. Clark’s name was both irrelevant and “extremely prejudicial”
given that the only connection between Mr. Clark and Mr. Hobbs was their in-law
relationship.
Relevant to the mistrial issue, the trial court stated its belief that the jury was
intelligent and would not “make an association that because Mr. Clark [may] have been
-22-
convicted of serious crimes . . . by implication [Mr. Hobbs] was involved in it[.]” The
court declined to declare a mistrial on this basis.
ii. Analysis
For context, the Defendant has cited in his appellate brief to United States v. Clark,
988 F.2d 1459, 1461 (6th Cir. 1993), wherein the federal Sixth Circuit Court of Appeals
recounted that Mr. Clark was convicted of murdering his brother-in-law, who had served
as a Federal Bureau of Investigation informant regarding Mr. Clark’s stealing automobiles
and operating a chop shop to sell the stolen vehicles and parts.14 Although the jury heard
no details regarding Mr. Clark’s criminal history at trial, during the relevant jury-out
hearings, the trial court indicated its familiarity with Mr. Clark and noted to defense
counsel that several members of the Public Defender’s Office would also have been
familiar with him.
We agree with the Defendant that the trial court’s eliciting Mr. Clark’s full name
provided the jury with potentially prejudicial information that was wholly irrelevant to any
fact at issue in the Defendant’s trial, including Mr. Hobbs’s credibility. The murder in
question occurred in 1990, and Mr. Clark was sentenced to life imprisonment; presumably,
Mr. Hobbs’s potential involvement with his father-in-law’s illicit business terminated
sometime between the time of Mr. Clark’s arrest and his incarceration in federal prison.
Pursuant to Tennessee Rule of Evidence 608(b) governing specific instances of conduct,
the chop shop allegations would not be a proper subject for impeachment unless the trial
court determined after the jury-out hearing that there existed a sufficient factual basis for
the inquiry and that “in the interests of justice” the probative value of the evidence
substantially outweighed its prejudicial effect. As we discuss below, this analysis was not
completed by the trial court, making the line of questioning improper due to the age of the
incidents in question and the lack of any factual basis to establish that Mr. Hobbs was
involved in the chop shop; in addition, there was an obvious risk of unfair prejudice from
Mr. Hobbs’ being connected to an ongoing criminal enterprise—one which culminated in
the murder of another family member—when compared to the minimal probative value of
having engaged in automobile theft and dealing in stolen car parts thirty years previously.
We note that Mr. Hobbs consistently denied engaging in this behavior.
The Defendant correctly noted at oral argument that when the trial court asked Mr.
Hobbs to name his father-in-law, it already knew the answer to the question. The
14
The court also noted that from its review of the record, it appeared that Mr. Clark’s daughter, Celene
Clark Hobbs, was also involved with the chop shop. See Clark, 988 F.2d at 1462. It was unclear whether
Ms. Hobbs was Mr. Hobbs’s wife or another relative. However, Ms. Hobbs’s involvement in the chop
shop was not mentioned during the Defendant’s trial.
-23-
Defendant argues that the court’s action in asking for Mr. Clark’s name, then supplying his
full name itself, communicated to the jury that the court felt it important for the jury to
know that Mr. Hobbs was connected to a notorious killer. Suffice it to say, it was error
for the court to elicit this testimony.
However, this error alone was not sufficiently egregious to justify a new trial
because the information was not elicited by the State, whom we note avoided the topic of
Mr. Clark after the jury-out hearing; it was a passing reference in a three-day trial; neither
the State nor the Defendant mentioned Mr. Clark again; it is not clear from the record that
the jurors knew of Mr. Clark’s reputation or were influenced by it 15 ; and the State’s
evidence was sufficient to support the verdicts notwithstanding the improper reference to
Mr. Clark. The Defendant is not entitled to relief on this basis.
II. Reputation/Opinion Evidence
The Defendant contends that the trial court abused its discretion by admitting
evidence of Mr. Hobbs’s reputation for truthfulness, arguing that the State failed to
establish that the testimony was relevant to his truthfulness at the time of trial. The
Defendant notes Chief Deputy Lyon’s testimony that his impression of Mr. Hobbs was
based upon events occurring in the 1990s and that Officer Bates was referring to events
occurring when Officer Bates was eighteen years old. The Defendant argues that this type
of evidence was not contemplated by Rule 608(a), even if admitted with proper foundation.
In a related issue, the Defendant also argues that the State failed to provide an
adequate foundation for the reputation or opinion evidence. The Defendant avers that
instead of providing general community-based reputation evidence, the “parade of law
enforcement officers” primarily conveyed to the jury that the police knew of and were
suspicious of Mr. Hobbs, implying that he was a “life-long crook.” At oral argument,
appellate counsel stated that defense counsel’s discussion of the temporally distant basis
for the officers’ impressions of Mr. Hobbs was, in effect, an objection to foundation.
The State responds that the Defendant’s issue related to foundation has been waived
for failure to contemporaneously object, noting that defense counsel’s discussion of the
time to which the evidence was relevant occurred only during the jury-out hearing about
Mr. Humphrey’s testimony, which did not extend to the testimony of the three officers. In
the alternative, the State argues that plain error relief is not warranted.
15
The jury selection transcript indicated that two jurors referenced events occurring in the 1970s, and
several mentioned events occurring in the 1990s. However, the jurors’ respective ages and whether they
lived in Knox County at the time of Mr. Clark’s trial were not discussed.
-24-
Although the Defendant did not lodge an objection to foundation during the officers’
testimony, the record reflects that before the rebuttal testimony began, defense counsel
requested a jury-out hearing relative to the officers’ basis of knowledge for Mr. Hobbs’s
reputation, which the trial court denied. Counsel noted her concern that inquiry into the
officers’ knowledge would open the door to evidence of Mr. Hobbs’s prior bad acts, and
the court reminded the State not to reference specific instances of conduct.
Our examination of the record reflects that after the jury-out offer of proof relative
to Mr. Humphrey, defense counsel objected to Mr. Humphrey’s reputation testimony as
irrelevant because of its age. The trial court found that the evidence had been “made
relevant in large part by Mr. Hobbs’ testimony about what he’s done for a living for . . .
many years. His reputation for truthfulness is at issue.” The court concluded that the
evidence was admissible so long as the witness was not a court bailiff. In light of the
court’s ruling on this objection, defense counsel did not waive the foundation or relevance
issue relative to the three subsequent law enforcement witnesses. The court had concluded
that opinions based upon long-ago experience was admissible, and counsel was not
required to repeat a futile objection. We will, therefore, examine this issue under plenary
review.
Tennessee Rule of Evidence 608(a) provides, in relevant part, that a witness’s
credibility “may be attacked . . . by evidence in the form of opinion or reputation,” but that
the evidence “may refer only to character for . . . untruthfulness” rather than specific
instances of conduct. The two types of Rule 608(a) evidence, opinion and reputation,
require distinct foundations to be laid before they are admissible. Reputation evidence
requires proof that the character witness has knowledge of the person under attack, the
community in which the person has lived, and the “the circles in which [the person] has
moved, as to speak with authority of the terms in which generally [the person] is regarded.”
State v. Dutton, 896 S.W.2d 114, 118 (Tenn. 1995) (quoting United States v. Watson, 669
F.2d 1374, 1381 (11th Cir. 1982) (internal citations omitted)). In contrast, our supreme
court has noted that
While “[t]he reputation witness must have sufficient acquaintance with the
principal witness in his community in order to ensure that the testimony
accurately reflects the community’s assessment, . . . the opinion witness is
not relating community feelings.” United States v. Watson, 669 F.2d at
1382. Instead, the opinion witness testifies from personal knowledge and
relates a personal impression of the primary witness’s character for
truthfulness. United States v. Watson, 669 F.2d at 1382. See also Tenn.
R. Evid. 602. Therefore, to establish admissibility of opinion testimony, it
is necessary to demonstrate “that the opinion is rationally based on the
perception of the witness and would be helpful to the jury in determining the
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fact of credibility.” United States v. Dotson, 799 F.2d 189, 193 (5th Cir.
1986).
Id. Moreover, because reputation or opinion evidence bears on the witness’s credibility
at the time of trial, “the reputation or opinion proof under Rule 608(a) should relate to the
witness’s character at the time of the proceeding.” Neil P. Cohen, et al., Tennessee Law
of Evidence 6.08[3][a] (6th ed. 2011); see State v. Steven Lee Whitehead, No. W2000-
01062-CCA-R3-CD, 2001 WL 1042164, at *17 (Tenn. Crim. App. Sept. 7, 2001) (quoting
the same language from a previous edition of the treatise), appeal granted on other grounds
and case remanded (Tenn. Mar. 4, 2002).
In this case, the three law enforcement witnesses did not provide sufficient
information to lay a foundation for either reputation or opinion evidence. Chief Deputy
Lyon testified only that he began his career in “the jail” in 1979, that he had since worked
in every division of the Sheriff’s Office, and that he was “familiar with” Mr. Hobbs and
his poor reputation for truthfulness based upon unspecified conduct occurring in the 1990s.
Likewise, Officer Bates testified that he worked for the Knoxville Police
Department for thirty-two years before working for the Knox County Sheriff’s Office and
that he was familiar with Mr. Hobbs. When asked whether he had “an opinion as to [Mr.
Hobbs’s] reputation for truthfulness,” Officer Bates stated, “Well, I know early on -- when
I was [eighteen] I was a reserve officer with the City, and I used to -- [.]” After the trial
court instructed Officer Bates to avoid describing specific incidents, the prosecutor asked
Officer Bates whether he had “an opinion as to [Mr. Hobbs’s] character” for truthfulness.
Officer Bates responded, “I would -- my opinion is an untruthful person . . . involved in
criminal activity.” The Defendant objected to the latter part of the statement, and the court
instructed the jury to disregard Officer Bates’s comment about criminal activity. The
court further instructed the jury that the Rules of Evidence “provide that a witness may
offer opinion testimony in the form of reputation. If he’s familiar with [Mr. Hobbs’s]
reputation for truthfulness or untruthfulness, that’s as far as you may consider.”
Finally, Captain Amburn testified that he was a narcotics unit supervisor and that
he had worked for the Knox County Sheriff’s Office for twenty-eight years in a range of
positions, including “a special task force” and being “attached to the narcotics unit.”
Captain Amburn affirmed that he was familiar with Mr. Hobbs. When asked whether he
had “an opinion as to what [Mr. Hobbs’s] reputation is for truthfulness or untruthfulness,”
Captain Amburn responded, “I would not deem him as a credible witness, no, ma’am.”
Relative to Chief Deputy Lyon, he was clearly asked about Mr. Hobbs’s reputation
in the community. However, other than being a police officer, Chief Deputy Lyon did not
describe the extent of his familiarity with Mr. Hobbs, nor his familiarity with the Knoxville
-26-
community as it related to Mr. Hobbs and his social circles. He also affirmed that his
knowledge of Mr. Hobbs was based upon conduct occurring between twenty and thirty
years before the trial. In short, nothing in Chief Deputy Lyon’s testimony indicated that
he could “speak with authority” about Mr. Hobbs’s reputation for truthfulness at the time
of trial.
Relative to Officer Bates and Captain Amburn, the record reflects that the language
used by the prosecutor and the trial court was less than precise, repeatedly referring to the
witnesses’ “opinion” of Mr. Hobbs’s reputation or characterizing the evidence as “opinion
testimony in the form of reputation.” Clumsy phrasing aside, it is evident from the jury-
out hearing regarding Mr. Humphrey that the parties anticipated that the officers would
give reputation testimony, not a personal opinion. Moreover, the court’s instruction
during Officer Bates’s testimony indicated that the aim of the questions was to establish
Mr. Hobbs’s reputation in the community.
At any rate, whether we apply the foundation standard for opinion or reputation
evidence, neither Officer Bates nor Captain Amburn established that they had personally
interacted with Mr. Hobbs to such a degree that they could form opinions as to his character
for truthfulness. Likewise, neither Officer Bates nor Captain Amburn indicated present
knowledge of Mr. Hobbs’s reputation in the community. Captain Amburn was not asked
for the time frame in which his impression of Mr. Hobbs’s reputation was formed, and
before Officer Bates was interrupted by the trial court, he began to discuss an event
occurring at the beginning of his career when he was eighteen years old, more than thirty
years before the trial. We note that familiarity with a person’s reputation in the law
enforcement community does not equate to familiarity with a person’s reputation in the
community in which the person lives; none of the three police witnesses indicated that they
were familiar with Mr. Hobbs’s community reputation.16 The admission of the reputation
or opinion testimony was error.
Our supreme court “has recognized three categories of error—structural
constitutional error, non-structural constitutional error, and non-constitutional error.”
State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008). Id. As relevant to this issue, our
supreme court has noted that “errors in the admission of evidence do not normally take on
constitutional dimensions.” Id. at 375 (citing State v. Powers, 101 S.W.3d 383, 397 (Tenn.
2003)).
In determining whether non-constitutional errors are harmless, “Tennessee law
places the burden on the defendant who is seeking to invalidate his or her conviction to
16
We also note that Mr. Humphrey’s proposed testimony, which provided the most detail regarding the
basis for his knowledge of Mr. Hobbs, only established Mr. Hobbs’s reputation among law enforcement in
the 1970s, not the community in general.
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demonstrate that the error ‘more probably than not affected the judgment or would result
in prejudice to the judicial process.’” Rodriguez, 254 S.W.3d at 372 (quoting Tenn. R.
App. P. 36(b)). While substantial evidence of the defendant’s guilt makes it difficult for
“the defendant to demonstrate that a non-constitutional error involving a substantial right
more probably than not affected the outcome of the trial,” harmless error inquiry “does not
turn upon the existence of sufficient evidence to affirm a conviction or even a belief that
the jury’s verdict [wa]s correct.” Id. at 372. Rather, “the crucial consideration is what
impact the error may reasonably be taken to have had on the jury’s decision making.” Id.We conclude that this error was sufficiently egregious that it more probably than
not affected the outcome of the trial. The State itself characterized Mr. Hobbs’s character
as “of the utmost importance,” and Mr. Hobbs was the only person who could corroborate
the Petitioner’s mistake of fact theory. Given that the reputation/opinion evidence was
admitted without sufficient foundation, its probative value was minimal when weighed
against the potential for unfair prejudice. Three law enforcement officers were permitted
to testify that they were familiar with Mr. Hobbs and that their impression of his credibility
was poor; in fact, two of the officers indicated that their impression of Mr. Hobbs was
based upon long-ago events. We note that although the jury was instructed to disregard
Officer Bates’s comment about Mr. Hobbs’s involvement in criminal activity, this
statement succinctly demonstrated the potential harm of allowing the officers to testify
without providing context regarding the extent and nature of their contact with Mr. Hobbs.
Without sufficient foundation, the jury was left to speculate about the nature of Mr.
Hobbs’s prior contact with the police, some of which was apparently so substantial that the
officers remembered Mr. Hobbs thirty years later. We also acknowledge that jurors may
attribute more weight to a law enforcement officer’s opinion over that of a lay person. The
Defendant is entitled to a new trial on this basis.
III. Prior Bad Acts and Convictions
The Defendant contends that the trial court abused its discretion by permitting the
State to cross-examine Mr. Hobbs regarding prior criminal behavior not resulting in a
conviction. The Defendant argues that although a jury-out hearing was held, the court did
not find that a reasonable factual basis existed that Mr. Hobbs engaged in the behavior and
that the conduct alleged did not bear on Mr. Hobbs’s truthfulness. The Defendant
acknowledges that no contemporaneous objection was made and requests plain error
review.
The State responds that plain error relief is not warranted because it is not clear from
the record what occurred in the trial court—specifically, whether the court found that the
evidence was admissible pursuant to Tennessee Rule of Evidence 608 or 609 and whether
the State’s questioning at trial referred to convictions or conduct not resulting in a
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conviction. The State also argues that the Defendant “failed to identify what substantial
right was affected by the State’s questioning” and that consideration of this issue is not
necessary to do substantial justice.
a. Procedural Facts
Just after the beginning of Mr. Hobbs’s trial testimony, the State requested a jury-
out hearing and announced its intent to impeach Mr. Hobbs using his prior criminal history.
During the hearing, Mr. Hobbs denied that he had been “convicted of anything” other than
driving with a suspended license; however, he agreed that he had been previously convicted
of “secreting the property of another.” Mr. Hobbs noted that the charge was reduced to
“criminal trespassing or something like that.”
Defense counsel interjected and noted that the convictions to which the prosecutor
referred were for misdemeanor offenses occurring in the 1980s. Mr. Hobbs stated that he
did not recall past convictions for arson; vandalism in 1995; vandalism in 2000, which Mr.
Hobbs noted was related to his accidentally discharging a firearm inside his coat; and
failure to appear. Mr. Hobbs testified that he had been self-employed for his working life
and that he had installed underground cable lines, performed irrigation work, owned and
operated dump trucks, worked with asphalt, and “moved houses.”
Mr. Hobbs stated that Roy Lee Clark was his father-in-law and that Mr. Hobbs was
subpoenaed to testify at a grand jury hearing related to Mr. Clark. Mr. Hobbs noted that
he was not called as a witness at Mr. Clark’s trial. When asked whether he received
consideration for his grand jury testimony relative to any pending criminal charges, Mr.
Hobbs denied that he had ever had “any charges.” Mr. Hobbs denied ever working at Mr.
Clark’s “junk yard,” although he acknowledged that he “trade[d] cars” there. Mr. Hobbs
denied ever taking stolen equipment to the junk yard. Mr. Hobbs agreed that he had been
stopped by police on his way to Kentucky twenty-five years previously; he denied that the
car he was driving was stolen or that he referred to “anything illegal” while in a police
cruiser. Mr. Hobbs denied having a reputation in the community for being a “chop shop
owner” or a thief. Mr. Hobbs stated, “I have no criminal behavior. I’ve not been
convicted of anything . . . . I have not done anything illegal[.]”
The trial court noted that Rules 608 and 609 generally limited questioning about
prior criminal behavior or convictions to the past ten years and asked the State for the most
recent incident it sought to discuss, noting that the court was in law school when “Roy Lee
Clark was in trouble,” which the court characterized as a “long time ago.” The State
responded,
-29-
Your Honor, again, I think what’s important here is that we now have
somebody who’s coming up here whose credibility is of the utmost
importance to this trial here. If he has convictions of criminal behavior that
happened in the past, his character for truthfulness, his character is very
important in this case.
....
Your Honor, he has things that’s he’s done that he’s been charged
with, but not convicted of. The most recent one . . . in Knox County is 2002.
And then . . . in Blount County a violation of probation, 10-8 of 2018 . . . .
[and] a failure to appear, 6-25 of 2018 . . . . [and a] failure to appear on a
felony charge, 5-12 of 2017[.]
....
In Blount County he has a failure to appear on 9-25, 2014 . . . . a
reckless endangerment felony on 7-8 of 2012 . . . . an attachment for
contempt, driving without a license, and a seat belt violation from 11-16 of
2008.
In Knoxville . . . there’s a failure to appear on a domestic . . . that
might’ve been dismissed.
The State continued to list Grainger County convictions for failure to appear and vandalism
in 2000; vandalism and reckless endangerment in 1999; driving with a suspended license
in 1998; and a violation of probation “for [driving under the influence] and reckless
driving” and a domestic violence offense in 1995. The prosecutor stated that the State’s
position was that Mr. Hobbs was “a defendant who has continued with criminal behavior
for a long period of time . . . as this [National Crime Information Center (NCIC) printout]
indicated” and that “the State should be allowed to go into his history of being a chop shop
owner if [Mr. Hobbs was] going to be saying that, in fact, there was some conversation that
he was involved in about getting equipment and using the equipment for some other
purposes.” The prosecutor averred that she had witnesses who would testify “to his
reputation in this community of being that of a chop shop owner and being somebody that’s
dishonest.”
The trial court found that the State could cross-examine Mr. Hobbs “about
everything that occurred in Blount County that [was] within the last ten years. That [was]
relevant inquiry on cross[-]examination. But this other stuff, [was] just simply too old.”
The court noted that the State could introduce reputation evidence through other witnesses.
The State responded, “But I would also like to ask him about whether or not he owns a
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chop shop or has ever owned a chop shop. I mean, this is the type of person that you take
equipment like this to, your Honor, you see why . . .[.]” The court replied, “[I]f it was a
year ago or five years ago, I’d let you ask that question. We’re talking about [thirty-five]
years ago. We’re not going there.”
After the prosecutor asked for clarification about the permissible scope of cross-
examination, the trial court reiterated that the State was not to ask Mr. Hobbs about whether
he ever owned a chop shop. The court stated that the State was permitted to cross-examine
Mr. Hobbs about “either specific instances of conduct within – what [the court] just gave
[the State] permission to do, the Blount County issue, which are either 608 or 609.” The
State noted that it was unaware Mr. Hobbs would testify, and it requested more time to
investigate Mr. Hobbs’s criminal history. The court stated that the State had one hour
during lunch to investigate, that the court would not ask the jury to come back for another
day “to find out more about this witness,” and that the court was giving the State “a certain
amount of latitude” in cross-examination to “have free rein” and ask Mr. Hobbs “about
anything within the last ten years. Any criminal conduct that he has.” The court noted
that reputation witnesses would be permitted “as long as they meet the proper foundation
of requirements[.]”
Near the end of direct examination, defense counsel asked Mr. Hobbs how long he
had worked in landscaping. Mr. Hobbs stated that he had worked with equipment
beginning at a young age, that his father took him on jobs in 1967, and that he “knew what
equipment r[a]n like before [he] knew [his] A, B, C’s.” When asked how often he bought
and sold large pieces of landscaping equipment, Mr. Hobbs responded, “I’ve traded on old
equipment my whole life. As a matter of fact, I met [co-defendant Lawson] by buying
some old wor[n] out landscape equipment. He had some mowers and . . . I bought some
stuff off him.” Defense counsel proceeded to ask Mr. Hobbs how he would determine the
value of a Bobcat, and he stated that although he never saw the Bobcat at issue in this case,
he would consider the model, year, and condition of the machine.
At the conclusion of direct examination, the State requested a bench conference.
The trial court noted that defense counsel had “just made relevant what [Mr. Hobbs had]
done for a living for the last 35 years.” The court told the prosecutor that she was
permitted to question Mr. Hobbs regarding his involvement in chop shops, but cautioned
her not to ask about specific instances of conduct. Mr. Hobbs denied ever having owned
or participated in a chop shop operation.
b. Applicable Law
The doctrine of plain error only applies when all five of the following factors have
been established:
-31-
(a) the record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached;
(c) a substantial right of the accused must have been adversely affected;
(d) the accused must not have waived the issue for tactical reasons; and
(e) consideration of the error must be “necessary to do substantial justice.”
State v. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006) (quoting State v. Terry, 118 S.W.3d
355, 360 (Tenn. 2003)) (internal brackets omitted). “An error would have to [be]
especially egregious in nature, striking at the very heart of the fairness of the judicial
proceeding, to rise to the level of plain error.” Id. at 231.
Tennessee Rule of Evidence 608(b) provides that a witness may be questioned
regarding specific instances of conduct “for the purpose of attacking . . . the witness’s
character for truthfulness.” Upon request, the trial court must hold a jury-out hearing to
“determine that the alleged conduct has probative value and that a reasonable factual basis
exists for the inquiry” prior to questioning regarding a specific instance of conduct. Tenn.
R. Evid. 608(b)(1). Generally, the specific conduct must have occurred within ten years
before the commencement of the prosecution; older conduct may be admissible after notice
is given and a judicial determination made that the probative value of the evidence
“supported by specific facts and circumstances, substantially outweighs its prejudicial
effect.” Tenn. R. Evid. 608(b)(2).
Tennessee Rule of Evidence 609 allows a witness to be impeached by evidence of
a prior criminal conviction so long as the convicting offense was a felony or a crime
involving dishonesty or false statement. Tenn. R. Evid. 609(a). Generally, evidence of
a conviction is not admissible if “a period of more than ten years has elapsed between the
date of release from confinement and commencement of the action or prosecution.” Tenn.
R. Evid. 609(b). However, older convictions may be admissible “if the proponent gives
to the adverse party sufficient advance notice of intent to use such evidence to provide the
adverse party with a fair opportunity to contest the use of such evidence” and the trial court
determines “in the interests of justice that the probative value of the conviction, supported
by specific facts and circumstances, substantially outweighs its prejudicial effect.”
This court reviews a trial court’s ruling on the admissibility of previous criminal
behavior pursuant to Rule 608(b) or a prior conviction pursuant to Rule 609 under an abuse
of discretion standard. See State v. Reid, 91 S.W.3d 247, 303 (Tenn. 2002) (stating the
standard of review relative to Rule 608(b)), State v. Waller, 118 S.W.3d 368, 371 (Tenn.
2003) (stating the standard of review relative to Rule 609). However, a trial court’s
decision is not entitled to deference by this court when it fails to substantially comply with
-32-
the procedural requirements outlined Rules 608(b)17 and 609. See State v. Lankford, 298
S.W.3d at 176, 182 (Tenn. Crim. App. 2008) (“Just as in Rule 404(b), we now conclude
that if a trial court fails to comply with the procedural requirements of Rule 609, then the
court’s decision to admit or exclude a prior conviction is not entitled to deference by the
reviewing court.”).
c. Analysis
As a preliminary matter, although the trial court’s discussion of the relevant
impeachment evidence referenced both Rules 608 and 609, the record reflects that during
the jury-out hearing, the State sought to introduce two broad classes of information: Mr.
Hobbs’s criminal history, which apparently contained both felony and misdemeanor
convictions, as well as charged conduct that was ultimately dismissed, and Mr. Hobbs’s
alleged participation in Roy Lee Clark’s chop shop operation. The State’s protestation on
appeal that the record is so unclear as to “hamper[] this [c]ourt’s ability to review the
admissibility” of the evidence and exercise plain error review draws a distinction without
a difference; the prescribed procedure at trial and our standard of review are substantially
similar18 regardless of whether impeachment evidence is governed by Rule 608(b) or 609.
The transcript otherwise clearly establishes what occurred in the trial court, including the
specific evidence at issue, the arguments of the parties, and the court’s findings.
Here, the trial court conducted an appropriate jury-out hearing, wherein Mr. Hobbs
gave contradictory testimony when asked about his past convictions and criminal behavior,
denying that he had ever been charged or convicted of any crime while also admitting that
he had been convicted of secreting the property of another and driving with a suspended
license. However, after hearing the prosecutor’s recitation of Mr. Hobbs’s NCIC record,
which was not entered as an exhibit, the court found that the State could cross-examine Mr.
Hobbs about all criminal behavior from Blount County in the past ten years. The court
made no findings regarding the nature of the convictions or the probative value or
prejudicial effect of the behavior, and it did not consider whether a reasonable factual basis
existed for the non-conviction inquiries. Accordingly, the court’s decision is not entitled
to a deferential standard of review, and we must independently determine the admissibility
of the impeachment evidence. See Lankford, 298 S.W.3d at 182.
The jury consequently heard questions regarding a 2018 violation of probation, a
2018 failure to appear, a 2017 failure to appear on a felony charge, and a 2012 reckless
17
The same standard that applies Rule 609 also logically applies to Rule 608(b).
18
The only procedural difference is an additional finding by the trial court that a reasonable factual basis
exists for the inquiry into criminal behavior not resulting in a conviction. Tenn. R. Evid. 608(b).
-33-
endangerment. Only the 2017 failure to appear and 2012 reckless endangerment 19
charges would have been felonies if they had been established to involve convictions. See
Tenn. Code Ann. § 39-13-103(b)(2); § 39-16-609(e) (2017). Mr. Hobbs acknowledged
having been on probation for driving with a suspended license and having failed to appear,
but he denied having been convicted of a felony, and he averred that the reckless
endangerment charge was dismissed. He never clearly admitted to or denied having
violated his probation. The State did not seek to prove any of the convictions with
extrinsic evidence.
Although the Defendant’s issue on appeal is limited to criminal behavior not
culminating in a conviction under Rule 608(b), his appellate brief assumes that all of the
convictions mentioned during the State’s questioning were criminal behavior. We agree
with the Defendant’s inference that Mr. Hobbs’s convictions were not adequately proven.
It bears repeating that “our supreme court has held that NCIC reports ‘are not
admissible as a substitute for certified copies of court convictions nor for any other
purpose.’” State v. Michael R. Smart, No. M2009-02262-CCA-R3-CD, 2011 WL
1431984, at *4 (Tenn. Crim. App. Apr. 12, 2011) (quoting State v. Buck, 670 S.W.2d 600,
607 (Tenn. 1984)). “While the decision in Buck related to the admissibility of NCIC
reports at a sentencing hearing, this court has held that the State may not use an NCIC
report as a basis for impeaching a witness with a prior conviction. Id. (citing State v.
Philpott, 882 S.W.2d 394, 403 (Tenn. Crim. App. 1994)).
Nevertheless, even if every behavior addressed in the State’s cross-examination
resulted in a conviction, we cannot say that misdemeanor vandalism, driving with a
suspended license, failure to appear, or violating one’s probation involve dishonesty such
that they would have been relevant to Mr. Hobbs’s character for truthfulness. See State v.
Walker, 29 S.W.3d 885, 890 (Tenn. Crim. App. 1999) (stating that Rule 609 impeachment
evidence is limited to felonies and convictions for misdemeanor offenses involving
dishonesty). Alternatively, if the behavior did not relate to a conviction, no factual basis
for the incidents was offered by the State, and their probative value was minimal.
Questioning regarding these incidents was in error.
Relative to the two supposed felony convictions for failure to appear and reckless
endangerment, had the State properly established them, they would have been properly
admitted for impeachment purposes. Because the State failed to satisfy its burden,
admission of the convictions was in error.
19
Mr. Hobbs acknowledged that this charge stemmed from his firing a gun into the air on the Fourth of
July; reckless endangerment involving a deadly weapon is a Class E felony.
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Although the Defendant does not raise the trial court’s allowing the State to question
Mr. Hobbs about the chop shop allegations, because we are reversing the convictions, we
also note that the court’s determination that Mr. Hobbs “made relevant” his character for
the past thirty years, thereby opening the door to questioning about the thirty-year-old chop
shop operation, was an abuse of discretion. Although a witness can “open the door” to
cross-examination regarding past criminal behavior by averring that he has generally acted
lawfully20 or that he had never committed illegal acts, we disagree with the trial court that
Mr. Hobbs’s stating that he had worked on vehicles with his father in childhood and that
he owned a business for thirty years “made relevant” his character for the past thirty years.
Even assuming, for the sake of argument, that Mr. Hobbs created a misleading
impression of his law-abiding character, our supreme court has recently observed that “the
remedy sought after a party has opened the door should be both relevant and proportional,”
as well as “limited to that [evidence] necessary to correct a misleading advantage created
by the evidence that opened the door.” State v. Vance, 596 S.W.3d 229, 251 (Tenn. 2020)
(internal citation omitted). “The fact that ‘the door has been opened’ does not permit all
evidence to pass through because the doctrine is intended to prevent prejudice and is not to
be subverted into a rule for the injection of prejudice.” Id. (quoting State v. Gaudet, 972
A.3d 640, 646 (N.H. 2014) (internal citations omitted)). Accordingly, a trial court “must
carefully consider whether the circumstances of the case warrant further inquiry into the
subject matter, and should permit it only to the extent necessary to remove any unfair
prejudice which might otherwise have ensued,” including weighing the probative value of
the evidence against the risk of unfair prejudice. Id. (quoting State v. Phillips, 927 A.2d
931, 943 (Conn. App. 2007) (internal quotation omitted)); see State v. James, 677 A.2d
734, 742 (N.J. 1996) (stating that evidence may still be excluded when the trial court finds
that the probative value “is substantially outweighed by the risk of . . . undue prejudice,
confusion of issues, or misleading the jury[.]”) (quoting N.J. R. Evid. 403).
We note that although Mr. Hobbs made general denials of criminal behavior during
the jury-out hearing, he never testified in front of the jury regarding the nature of his
conduct in general, and simply stating that one is experienced in a specific industry or
owned a business for many years does not speak to one’s character, for good or for ill.
The court’s determination that Mr. Hobbs opened the door to inquiry into his character
over the span of thirty years was error. Moreover, the court failed to make findings of fact
indicating that it had weighed the probative value and prejudicial effect of the chop shop
evidence in rendering its decision.
20
See Tenn. R. Evid. 608, Advisory Comm’n Cmts (“If the witness makes a sweeping claim of good
conduct on direct examination, that claim may open the door to cross-examination without pretrial notice
and with a lower standard of probativeness, as rebuttal of the broad claim would itself tend to show
untruthfulness.”).
35
Further, a reasonable factual basis for the conduct was lacking such that the State
should not have been allowed to pursue this line of questioning. At the jury-out hearing,
the State candidly informed the court that it was attempting to establish Mr. Hobbs as a
person “who has continued with criminal behavior for a long time,” as well as his reputation
for being a “chop shop owner and being somebody that’s dishonest.” The record reflects
that the prosecutor’s basis for this information was in large part Mr. Humphrey, who
recalled that unidentified detectives told him in the late 1970s to be alert for vehicle and
equipment thefts by Mr. Hobbs and unnamed other individuals. The only other fact
tangentially connecting Mr. Hobbs to the chop shop was his in-law relationship to Mr.
Clark. For his part, Mr. Hobbs maintained that he had never been involved in a chop shop.
The court made no explicit finding regarding the factual basis for the chop shop allegations,
and we question whether the State’s assertions on the topic provided an adequate factual
basis to permit questioning under Rule 608(b).21
This court has noted that “[t]o the extent possible, the party seeking to introduce the
evidence [of specific instances of conduct] should present extrinsic proof of the . . . conduct
at the jury-out hearing”; however, if ‘“the realities of trial make it impossible to do so, the
attorney proposing to ask the question should, at a minimum, clearly state on the record
the source and origin of the information underlying’” the instance of conduct. State v.
Wyrick, 62 S.W.3d 751, 781 (Tenn. Crim. App. 2001) (quoting State v. Nesbit, 978 S.W.2d
872, 882 (Tenn. 1998)). Here, Mr. Humphrey did not have firsthand knowledge of any
conduct by Mr. Hobbs that would provide a reasonable factual basis for the inquiry. See
Wyrick, 62 S.W.3d at 781 (discussing that a factual basis was questionable, but
permissible, when defense counsel averred that the victim’s family members had
communicated that the victim made a previous false accusation, but did not disclose
whether they personally heard the accusation; the court noted other, clearer circumstances
in another case in which “the prosecutor pointed to a specific person who had first-hand
knowledge of the specific instances of conduct”). We conclude that the questionable
probative value of the more than thirty-year-old allegations regarding Mr. Hobbs’s
involvement with a chop shop, which were not supported by a reasonable factual basis and
which Mr. Hobbs denied, did not substantially outweigh its unfair prejudicial effect upon
the jury, and inquiry into such conduct was improper cross-examination under Rule 608(b).
However, we are constrained to agree with the State that under plain error review,
the numerous departures from the Rules of Evidence relative to Mr. Hobbs’s criminal
21
We note that although the court cautioned the State against referring to specific instances of conduct
during its inquiry relative to the chop shop, the allegations constituted a specific instance of conduct. See,
e.g., Nesbit, 978 S.W.2d at 884 (reviewing allegations that the defendant generally practiced satanic
worship as specific instances of conduct).
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record and prior criminal behavior would not, standing alone, entitle the Defendant to relief
because the Defendant’s substantial rights were not affected. Although Mr. Hobbs was
cross-examined regarding a variety of relatively minor criminal behavior, he disputed
aspects of his criminal record and firmly denied having been part of a chop shop
organization or having possession of stolen vehicles. The briefly-referenced criminal
behavior did not reflect on the Defendant directly, and the jury clearly credited part of the
defense theory that Mr. Hobbs sought to corroborate, that being the Defendant was under
a mistaken impression regarding Mr. Lawson’s authority to borrow the Bobcat. The
Defendant is not entitled to plain error relief on this basis.
IV. Cumulative Error
The Defendant contends that even if each of the above-referenced errors do not
entitle him to a new trial standing alone, the cumulative effect of the errors deprived him
of a fair trial. The State responds that the Defendant waived this issue by failing to raise
it in the motion for a new trial; alternatively, the State argues that no error occurred. We
have concluded above that the Defendant is entitled to a new trial because of the erroneous
admission of the reputation or opinion evidence relative to Mr. Hobbs. However, in the
event of further review, we conclude that even if this error were held to be harmless
standing alone, the Defendant would be entitled to a new trial under a cumulative error
analysis.
The cumulative error doctrine applies to circumstances in which there have been
“multiple errors committed in trial proceedings, each of which in isolation constitutes mere
harmless error, but when aggregated, have a cumulative effect on the proceedings so great
as to require reversal in order to preserve a defendant’s right to a fair trial.” State v. Hester,
324 S.W.3d 1, 76 (Tenn. 2010). However, circumstances which would warrant reversal
of a conviction under the cumulative error doctrine “remain rare” and require that there has
“been more than one actual error committed in the trial proceedings.” Id. at 76-77.
This court has previously waived consideration of cumulative error in some cases
when it was not raised in the motion for a new trial; however, we recognize that arguing
cumulative error at the motion for a new trial is awkward at best. We note that in the
relevant previous cases waiving cumulative error, this court also briefly addressed the
merits of the issue and stated that no error occurred. cf. State v. Wilkins, 749 S.W.2d 753,
755 (Tenn. Crim. App. 1988) (waiving consideration of cumulative error when the
appellate briefs were inadequate and the issue was not raised in the motion for a new trial;
in addition, this court determined that the defendants’ issues were either waived or without
merit); State v. Quincy D. Scott, No. E2017-01416-CCA-R3-CD, 2018 WL 3156979, at
*2 (Tenn. Crim. App. June 27, 2018) (noting the State’s argument that cumulative error
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was waived for failure to raise it in the motion for a new trial, but concluding that the
defendant waived his individual claims of error due to inadequate briefing; because no
individual error had been established, no cumulative error existed); State v. Korie Bates,
No. W2004-00686-CCA-R3-CD, 2005 WL 1215963, at *8 (Tenn. Crim. App. May 20,
2005) (waiving appellant’s cumulative error for failure to raise it in the motion for a new
trial and noting that no individual error existed). In any event, this court may consider an
error “that has affected the substantial rights of a party at any time, even though the error
was not raised in the motion for a new trial[.]” Tenn. R. App. P. 36(e). Because we
conclude below that the Defendant is entitled to a new trial based upon the cumulative
effect of the errors in his case, we decline to waive this issue.
The individually harmless errors we have identified are as follows: (1) Mr.
Humphrey’s having been sworn as a witness; (2) the trial court’s eliciting Mr. Clark’s full
name from Mr. Hobbs; and (3) the court’s admission of irrelevant and prejudicial evidence
regarding Mr. Hobbs’s involvement in chop shops and misdemeanor convictions or
behavior not bearing on dishonesty. In addition, we concluded above that the admission
of the police witnesses’ opinion or reputation evidence was reversible error; in the event
that this error is held to be harmless, it would also appropriately be considered in the
context of cumulative error.
The cumulative effect of the above-referenced errors entitle the Defendant to relief.
As acknowledged by the State at trial, Mr. Hobbs played a critical role in the defense
theory—he was the only witness who corroborated the Defendant’s account of the work
trade arrangement and the Defendant’s impression that co-defendant Lawson was a co-
owner of Southern Grounds with authority to borrow the Bobcat. These multiple errors
jointly sent a message to the jury that that Mr. Hobbs was a shady character who had
attracted the continuing attention of the police for at least thirty years; moreover, the trial
court itself connected Mr. Hobbs to a notorious criminal and convicted murderer, although
no evidence showed that any juror was aware of the meaning of the court’s comments.
Given that the jury found the Defendant to be less than criminally responsible for the theft,
we conclude that the improper assault on Mr. Hobbs’s credibility more probably than not
affected the jury’s verdict to the Defendant’s prejudice. See State v. Herron, 461 S.W.3d
890, 910 (Tenn. 2015) (discussing that reversal for cumulative error was warranted when
multiple non-constitutional errors more probably than not affected the verdict); see also
Tenn. R. App. P. 36(b) (stating that this court may grant relief when “considering the whole
record, error involving a substantial right more probably than not affected the
judgment[.]”). The Defendant is entitled to a new trial conforming to the dictates of our
Rules of Evidence.
V. Clerical Error in Judgment
38
Although it was not raised by either party, in the event of further appellate review,
the record reflects that a clerical error exists in the judgment for Count 2, facilitation of
theft of property, as it pertains to the jury’s finding regarding valuation. The judgment
form states that the Defendant was convicted of facilitation of theft of property valued at
$10,000 or more but less than $60,000. However, the jury’s verdict form reflects that it
found the value of the property to be “more than” $2,500 but less than $10,000.
Nevertheless, the judgment form reflects the correct felony class, and the Defendant
received an in-range sentence relative to Count 2 for a Class E felony as a career offender.
CONCLUSION
Upon consideration of the foregoing and the record as a whole, the judgments of the
trial court are reversed, and the case is remanded for a new trial on Counts 2, 4, 5, and 6,
in accordance with this opinion; because the Defendant was acquitted by the jury of theft
in Count 2, on retrial, the charge in Count 2 should be facilitation of theft, and the jury
should be instructed on any lesser-included offenses the trial court finds applicable. See
State v. Rush, 50 S.W.3d 424, 432 (Tenn. 2001), as amended (July 25, 2001) (citing State
v. Maupin, 859 S.W.2d 313 (Tenn. 1993) (allowing retrial on lesser-included offenses but
prohibiting retrial on the greater offense)).
_________________________________
D. KELLY THOMAS, JR., JUDGE
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