State v. Sims

Citation746 S.W.2d 191
PartiesSTATE of Tennessee, Plaintiff-Appellant, v. Deloris N. SIMS, Defendant-Appellee. 746 S.W.2d 191
Decision Date15 February 1988
CourtSupreme Court of Tennessee

W.J. Michael Cody, Atty. Gen., Jane W. Young, Asst. Atty. Gen., Nashville, for plaintiff-appellant.

Randall E. Reagan, Knoxville, for defendant-appellee.


BROCK, Justice.

We granted this appeal to consider our rules regarding a matter of evidence in criminal cases.

The defendant, who was convicted of shoplifting goods not exceeding $200 in value, testified at trial. After a hearing pursuant to State v. Morgan, Tenn., 541 S.W.2d 385 (1976), the State was allowed to impeach the defendant by asking her questions about writing a worthless check in January 1981 and changing price stickers on merchandise in a drugstore in June 1983. 1 The defense then presented two character witnesses, Elizabeth Harrell and Bob Edwards, who testified that the defendant had a good reputation for truthfulness in the community in which she lived and that she was entitled to be believed under oath in the courtroom.

The State then cross-examined these witnesses about certain of defendant's prior arrests which did not result in convictions. 2 The pertinent portions of these examinations follows:

Q. Ms. Harrell, had you heard, in your discussions in the community that Ms. Sims had been arrested for shoplifting on February the 13th, 1982?

A. No, I hadn't.

Q. Had you heard that she was arrested for assault and battery, on February the 13th, 1982?

A. No.

Q. Are you aware or have you heard in the community, in your discussions, that she was arrested for shoplifting on June the 29th, 1983?

A. Yes.

Q. Okay. In fact, you were present at that time, weren't you?

A. No, I wasn't.

Q. Were you aware that she was arrested on January the 9th, 1981, for passing a bad check?

A. No.

Q. Okay. Does your awareness of any of these factors have any effect on your opinion concerning Ms. Sims' truthfulness?

A. No, it doesn't.

* * *

Q. Are you aware that Ms. Sims was convicted of shoplifting on August the 12th, 1981?

MR. SIMPSON: Objection. Irrelevant.

THE COURT: All right. The objection is overruled.

MR. SIMPSON: And, besides, your Honor, it assumes a fact not in evidence and is simply not true.

THE COURT: All right. All right. Go ahead.

MR. SIMPSON: She was not convicted in 1981 of shoplifting or anything else.

A. No.

Q. Would that affect your opinion on her credibility in this case?

A. No, it wouldn't.

Q. Mr. Edwards, how many people have you talked about Ms. Sims' reputation with?

A. (Pause) Of course, I don't know for sure. I would guess, in the cases we were involved in, 3 there were a couple of attorneys involved in some guardian ad litem, in each case, in the court. I would imagine, half a dozen to a dozen.

Q. Okay. Are you aware that Ms. Sims pled guilty to shoplifting on August the 12th of 1981?

A. I was aware--

MR. SIMPSON: Objection, your Honor. Now, I think the Court has ruled on that matter.

THE COURT: Well, gentlemen, will you approach the bench once more, please.


Q. Are you aware that, on August the 12th, 1981, Ms. Sims was arrested for shoplifting?

A. I wasn't aware of the specific date or even of specific circumstances, but I was aware of the pendency of the charge.

Q. Okay. Are you, also, aware that, on February the 13th, 1982, Ms. Sims was arrested for shoplifting and assault and battery?

A. I was, again, aware of a couple. I--I don't know exactly how many. I had it in mind that there were a couple of prior instances of this kind of thing.

Q. Were you aware that in January of 1981, Ms. Sims passed a worthless check--

A. Of the--

Q. --was arrested for passing a worthless check?

A. --of the check, I had no awareness, no.

Q. Are you aware that, on June the 29th, 1983, Ms. Sims was again arrested for shoplifting?

A. Again, I knew of a couple prior shoplifting incidents, but if there's more than two, I suppose, no, I didn't.

Q. Okay. And were you aware that, on August the 30th, 1983, that she was in fact convicted of shoplifting?

A. Again, I'm not aware of the specifics of those cases.

Q. Would that affect your opinion of her reputation, Mr. Edwards?

A. Having known about those for some time--at least, the two of which I was aware--the two of which I was aware, no, they didn't. The other two, not knowing anything about the circumstances, I couldn't say for sure if it would or not.

Q. Okay. It depends on the circumstances of those particular offenses--

A. Yes.

Q. --before it would affect your opinion?

The Court of Criminal Appeals found reversible error and reversed and remanded for a new trial because of the inquiries about the defendant's arrests and because of questions concerning the August 1981 shoplifting offense, which had been dismissed and expunged from the official records under Sec. 40-21-109(b), T.C.A. The court stated,

The mere fact that defendant had been arrested on these various charges did not constitute specific instances of conduct on her part which would warrant inquiry from the witness for the purpose of attacking defendant's credibility. The State does not dispute the fact that the August 12, 1981, charges were dismissed and expunged from the record in accordance with T.C.A. Sec. 40-20-109. Under the statute there was no adjudication of guilty in that case.

Denying the State's petition to rehear on this issue, the court noted that the arrests were acts of the State and, in the absence of a conviction, inadmissible as part of the defendant's general reputation, as was true of the actions of the defendant in Crawford v. State, 197 Tenn. 411, 273 S.W.2d 689 (1954), which was cited by the State in support of its position. We granted review to consider these issues.

The State challenges the holding of the Court of Criminal Appeals by asserting that the questions about defendant's arrests were not asked to impeach the defendant but to impeach defendant's character witnesses. The cross-examination, the State argues, was designed to test "the foundation of [the witnesses'] opinion as to the defendant's reputation for truthfulness."

This distinction was pointed out in Tucker v. State, 149 Tenn. 98, 257 S.W. 850, 855 (1924) There is ... a sharp distinction between evidence of the general reputation of a defendant, and evidence of specific acts and conduct which may be developed on cross-examination. The one class of evidence may shed light on the guilt or innocence, the credibility or lack of credibility, of the accused. The other class of evidence must be limited to testing the value of the opinion of the character witness.

Tucker and subsequent cases 4 have made it clear that in Tennessee a character witness may be cross-examined as to what he has heard in the community about the character of the defendant to show that his conclusion as to the defendant's reputation is unsupported or to test the accuracy and candor of the witness himself. See Paine, Tennessee Law of Evidence Sec. 21 (1974). A trial judge, however, must instruct the jury that such questions when asked on cross-examination are merely for the purpose of testing the accuracy and credibility of the witness and that the evidence thus developed is not substantive evidence of the defendant's good or bad character. Tucker, supra, 257 S.W. at 855; see also State v. Chestnut, 643 S.W.2d 343, 348 (Tenn.Crim.App.1982) (failure to give this instruction was error).

None of these cases, however, has fully discussed the issue of whether cross-examination of the character witness for these purposes may touch upon arrests of the defendant which did not result in convictions. In Tucker, supra, the defendants' character witnesses as to the defendants' reputation for truth and veracity and peace and quiet were cross-examined about the defendants' activities as bootleggers and about one defendant's assault on his own brother. The opinion quoted from Corpus Juris and Moulton v. State, 88 Ala. 116, 6 So. 758 (1889), to the effect that a character witness may be cross-examined as to "particular charges" against the defendant or "rumors and reports" he has heard concerning the defendant and his conduct. Such questions were permitted to test the witness's "information, accuracy and credibility."

Many years later, in Taylor v. State, 212 Tenn. 187, 369 S.W.2d 385 (1963), this Court approved cross-examination of a character witness as to the defendant's arrest for gambling and his fight with the arresting officers. The Court stated,

Here a witness, a character witness, testified as to the good character of his brother and then after he had done so it was entirely proper to question him about certain charges or rumors of misconduct that he had heard, facts known to him, etc., for the purpose of testing the value of the witness's evidence in chief. Crawford v. State, 197 Tenn. 411, 417, 273 S.W.2d 689 [1954].

369 S.W.2d at 386.

Crawford, cited in this quote, is the case relied upon by the State in the present case. Crawford, however, did not involve allegations as to arrests. There the court approved cross-examination of defendant's character witnesses on whether it was part of the defendant's general reputation that he "cut a man," where the question was asked to test the value of the witnesses' evidence. The court stated that "when a witness gives a party a good character, he may be cross-examined as to particular acts or charges or rumors of misconduct he has heard." (Emphasis supplied.) 273 S.W.2d at 692.

In Hill v. State, 3 Tenn.Crim.App. 331, 461 S.W.2d 50, 52-53 (1970), the court, citing Crawford and Taylor, supra, approved cross-examination of a character witness on his knowledge of other "charges" against the defendant. The Crawford case was also relied upon to sustain questions about "charges" as to various offenses in juvenile court on the cross-examination of a character witness in Stepheny v. State, 570 S.W.2d 356, 359 (Tenn.Crim.App.1978).

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