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State v. Bush4/14/2004
a 404(b) hearing after the state acknowledged during opening remarks that one should be held. In addition, he claims that the trial court erred by allowing the state to introduce "character proof of drug transactions and an aggravated assault." He contends that the jury's hearing about those other bad acts denied him the right to a fair trial.
Rule 404(b), Tenn. R. Evid, prohibits the introduction of evidence of other crimes or acts, except when the evidence of other acts is relevant to a litigated issue, such as identity, intent, or motive, and its probative value is not outweighed by the danger of unfair prejudice. The rule states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with the character trait. It may, however, be admissible for other purposes. The conditions which must be satisfied before allowing such evidence are:
(1) The court upon request must hold a hearing outside the jury's presence;
(2) The court must determine that a material issue exists other than conduct conforming with a character trait and must upon request state on the record the material issue, the ruling, and the reasons for admitting the evidence;
(3) The court must find proof of the other crime, wrong, or act to be clear and convincing; and
(4) The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice.
"Where the evidence of other crimes, wrongs, and acts may reflect upon the character of the accused, the procedure set forth in Rule 404(b) should be followed . . . ." State v. Dubose, 953 S.W.2d 649, 655 (Tenn. 1997) (emphasis added). When a trial court substantially complies with the procedural requirements of the rule, its determination will not be overturned absent an abuse of discretion. Id. at 652. "However, in view of the strict procedural requirements of Rule 404(b), the decision of the trial court should be afforded no deference unless there has been substantial compliance with the procedural requirements of the Rule." Id.
During the state's opening remarks, it described how the defendant and Tigg came up with a plan to steal Cordell Nelson's drugs, keep some of the drugs, and sell them. The state also explained that, as part of the plan, Tigg robbed Nelson and the defendant gave Nelson the 9mm pistol. The defense objected and asked for a 404(b) hearing. Although the state agreed that the trial court should have a hearing, the trial court determined that it was unnecessary. However, given that the state had just described other bad acts committed by the defendant and that it intended to prove these acts during the trial, we agree with the defendant that the trial court should have held a 404(b) hearing to determine the admissibility of the evidence.
Moreover, we conclude that the other bad act evidence was inadmissible and, therefore, that the trial court erred by allowing the jury to hear about the defendant's other bad acts during the state's opening remarks and Tigg's testimony. The fact that the defendant and Tigg concocted a plan to assault and steal drugs from Nelson and then have Nelson assault Tigg with the gun was irrelevant to the earlier robbery. Moreover, although the state argued to the trial court that it was trying to show how the gun passed from the defendant to Nelson, it was not necessary for the state to mention or have Tigg testify about the defendant's other bad acts in order to show that the defendant gave Nelson the pistol. To the contrary, Tigg simply could have testified that four days after the robbery, the defendant gave Nelson the gun and Nelson refu
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