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State v. Bush4/14/2004
sed to return it to the defendant.
In any event, although the trial court erred by refusing to hold a 404(b) hearing and by allowing the jury to hear about the defendant's other acts, we conclude that the error was harmless. Tigg and May testified that the defendant participated in the robbery and shot the victim. Detective Goodwin testified that he interviewed the defendant and that the defendant admitted participating in the robbery. Given the evidence against the defendant, we do not believe that the jury's hearing about the defendant's other bad acts more probably than not affected the result of the trial. See T.R.A.P. 36(a); Tenn. R. Crim. P. 52(a).
III. CROSS-EXAMINATION OF DETECTIVE GOODWIN
The defendant claims that the trial court erred by limiting his cross-examination of Detective Goodwin regarding Mr. Lopez's identifying Michael May as the shooter at May's and the defendant's preliminary hearing. The state claims that the trial court properly limited the testimony. We conclude that the defendant is not entitled to relief.
On direct examination, Detective Goodwin acknowledged that at the defendant's and Mr. May's preliminary hearing, Mr. Lopez identified May as the shooter. He also testified that May and the defendant had similar heights, builds, and complexions and that they had "reversed their hair styles" by the time of the preliminary hearing. On cross-examination, Detective Goodwin acknowledged that at the hearing, Mr. Lopez testified that he could see the shooter's facial features through the nylon pantyhose and that he did not take his eyes off the shooter. The defense then asked Detective Goodwin, "Do you recall that certainty from Mr. Lopez in his identification at the preliminary hearing?" The state objected on the grounds that the defendant was asking the detective improperly to "characterize the certainty in another witness's testimony." The trial court sustained the objection. The defense continued its cross-examination and attempted to read Mr. Lopez's preliminary hearing testimony to Detective Goodwin. The state again objected, and the following exchange occurred in front of the jury:
[The State]: He can't use the testimony of another witness to impeach him.
THE COURT: I know he can't.
[The State]: And we're not talking about a comparison in physical appearance, which is what the detective talked about. And to reiterate the testimony from a previous hearing, when this witness has been available to him, is not proper. He's asking him to comment on another witness's testimony, and that's my objection. You can't do that from another hearing.
[Defense]: If it please the Court, Detective Goodwin was allowed to show these pictures and talk about the change in the hair. And I want to remind Detective Goodwin that Mr. Lopez talked about facial features and all those other things at that hearing.
THE COURT: You've already got that before the jury. Let's don't belabor the point. In other words, let's don't go over all of Mr. Lopez's testimony to say that this is what he testified. If you want to call Mr. Lopez again, he's still in the courtroom.
[Defense]: Yes, sir, I understand that, Judge. But the point of my cross-examination is to point out that it wasn't the hair that was the identifying issue. It was the structure and the shape of his face.
THE COURT: You've got that before the jury.
The defendant claims that he was improperly restricted from asking Detective Goodwin about Mr. Lopez's identifying May as the shooter, May's and the defendant's different hairstyles, and Mr. Lopez's testimony regarding the two men's facial features.
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