State v. Holman

• Decision Date: 02 February 1981
• Citation: 25 A.L.R.4th 928,611 S.W.2d 411
• Parties: STATE of Tennessee, Plaintiff-Appellee, v. Forrest HOLMAN, Defendant-Appellant. 611 S.W.2d 411, 25 A.L.R.4th 928
• Court: Tennessee Supreme Court

Page 411

611 S.W.2d 411

STATE of Tennessee, Plaintiff-Appellee, v. Forrest HOLMAN, Defendant-Appellant.

611 S.W.2d 411, 25 A.L.R.4th 928

Supreme Court of Tennessee, at Nashville.

Feb. 2, 1981.

John C. Zimmerman, Asst. Atty. Gen., Nashville, of counsel: William M. Leech, Jr., Atty. Gen., Nashville, for plaintiff-appellee.

Thomas D. Steele, Nashville, for defendant-appellant.

OPINION

BROCK, Chief Justice.

The defendant's application for permission to appeal to this Court from the judgment of the Court of Criminal Appeals affirming his conviction in the trial court was granted to review the question whether the trial court erred in permitting the State to introduce evidence tending to show that the defendant had committed a similar offense on another occasion and in refusing to permit the defendant to rebut the effect of such evidence by showing that he had been acquitted of the former offense.

The defendant operated a jewelry store in Hendersonville, Tennessee, and received from Michael Jenkins a watch valued at $1,500. Defendant agreed to repair the wrist band of the watch and return it to the owner in approximately one week. When Mr. Jenkins, the owner, called for the watch approximately two weeks after he left it with the defendant he was told that it was not ready. Pursuant to another later inquiry by the owner, the defendant told him that the watch had been sent to Jones Jewelry for repair. The owner Jenkins returned on several subsequent occasions to demand the return of his watch but without success. In January, 1977, about two months following delivery of the watch to the defendant the owner Jenkins learned that a local bank had taken possession of the defendant's business and closed it down. The defendant's place of business was searched in an effort to find the watch but it was not found. An independent auditor commissioned by the bank found no record in the defendant's shop of the transaction respecting the watch in question. The State's evidence showed that the defendant had indeed forwarded Mr. Jenkins' watch to Jones Jewelry store on December 15, 1976, but that the watch was returned to the defendant on January 18, 1977, without repair because Jones Jewelry refused to accept the defendant's credit.

Over the defendant's objection, the State was allowed to prove that Ms. Millicent Morgan had delivered her watch valued at approximately $2,000 to the defendant for repairs; that defendant had sent it to Jones Jewelry; that it was returned by Jones Jewelry to the defendant on January 18, 1977, without having been repaired; and that it had never been returned to Ms. Morgan.

The defendant sought to show that he had been tried and acquitted of the offense respecting Millicent Morgan's watch but the trial judge refused to allow the defendant to introduce evidence of his acquittal in the Morgan case. These actions of the trial court were affirmed by the Court of Criminal Appeals which held that the evidence respecting the defendant's conduct with regard to the Morgan watch was admissible in the case on trial as tending to establish a common scheme or plan and the absence of mistake or accident on the part of the defendant. The Court also held that the defendant should not be permitted to show that he had been acquitted of the offense respecting the Morgan watch because, in its opinion, "the better practice is not to allow the evidence of such prior acquittal."

Recently in Bunch v. State, Tenn., 605 S.W.2d 227 (1980), we considered at some length the admissibility in a criminal case of evidence that the defendant has committed some other crime wholly independent of that for which he is charged. In Bunch we said:

"It is well established, of course, that in a criminal trial evidence that the defendant has committed some other crime wholly independent of that for which he is charged, even though it is a crime of the same character, is usually not admissible because it is irrelevant. Mays v. State, 145 Tenn. 118, 238 S.W. 1096 (1921); Lee v. State, 194 Tenn. 652, 254 S.W.2d 747 (1953). Moreover, because of the obvious prejudice of such evidence to the defendant its admission often constitutes prejudicial error, requiring the reversal of a conviction. Gray v. State, 191 Tenn. 526, 235 S.W.2d 20 (1950). However, if evidence that the defendant has committed a crime separate and distinct from the one on trial, is relevant to some matter actually in issue in the case on trial and if its probative value as evidence of such matter in issue is not outweighed by its prejudicial effect upon the defendant, then such evidence may be properly admitted.

"On occasions, evidence of crimes other than that on trial has been admitted as being relevant to such issues on trial as motive of the defendant, intent of the defendant, the identity of the defendant, the absence of mistake or accident if that is a defense, and, rarely, the existence of a larger continuing plan, scheme or conspiracy of which the crime on trial is a part. Collard v. State, Tenn., 526 S.W.2d 112 (1975); Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963); Rule 404(b), Federal Rules of Evidence; Rule 404 Uniform Rules of Evidence; McCormick on Evidence § 157 (1954)." 605 S.W.2d at 229.

This Court held in Caruthers v. State, 219 Tenn. 21, 406 S.W.2d 159 (1966) that in order for evidence that the defendant has committed another crime to be admissible, it must be shown by "clear and convincing evidence" that the prior crime was committed and that it was committed by the defendant on trial. See also Wrather v. State, 179 Tenn. 666, 169 S.W.2d 854 (1943); Williams v. State, Tenn.Crim.App., 550 S.W.2d 246 (1976).

In our opinion if the defendant has been acquitted of the alleged prior crime, proposed evidence that he committed such prior crime should not be admitted. In such a case the effect of the acquittal is to render less than "clear and convincing" the proffered evidence that the defendant committed the prior crime and the probative value of such evidence cannot be said to outweigh its prejudicial effect upon the defendant. For such evidence to have any relevance or use in the case on trial, the jury would have to infer that, despite the acquittal, the defendant nevertheless was guilty of the prior crime. No such inference can properly be drawn from an acquittal, particularly from an acquittal based on insufficient evidence to sustain a guilty verdict, as was true in the instant case.

Having been acquitted of the alleged prior crime, the defendant cannot be tried a second time for that offense; yet, if evidence of such alleged prior crime is admitted in the case on trial, the defendant is required to do just that; at the second trial he must defend himself not only against the charge at hand but also against inferences that the jury might draw from the evidence that he committed the prior crime although he has been acquitted of it. Some courts have...