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State v. Henderson3/7/2001
ground that the reports were irrelevant and immaterial. The trial court overruled the objection.
On appeal, Appellants have abandoned the argument that the reports were improper rebuttal evidence. Thus, we do not address it. Instead, Appellants argue for the first time on appeal that the reports were inadmissible hearsay evidence. "It is elementary that a party may not take one position regarding an issue in the trial court, change his strategy or position in mid-stream, and advocate a different ground or reason in this Court." State v. Dobbins, 754 S.W.2d 637, 641 (Tenn. Crim. App. 1988). Thus, this issue is waived.
XV. EXPERT TESTIMONY IN REBUTTAL
Appellants contend that the trial court erred when it allowed Dr. Harlan to testify for the State in rebuttal. We disagree.
The determination of the admissibility of rebuttal evidence lies in the discretion of the trial court and this Court will not interfere with the exercise of this discretion unless there has been clear abuse of discretion appearing on the face of the record. State v. Kendricks, 947 S.W.2d 875, 884 (Tenn. Crim. App. 1996).
The record indicates that when the State attempted to call Dr. Cleland Blake, Appellants objected and the trial court conducted a jury out hearing. Although the record indicates that the trial court subsequently ruled that Dr. Blake would not be allowed to testify, the transcript of the hearing was not included in the record pursuant to instructions from defense counsel. The State therefore relied on the testimony of Dr. Ellington and Jason McDonald to establish the time of Griffin's death.
As part of the defense proof, Dr. Wolfe opined that Griffin had died between twenty-four and thirty-six hours before his body was discovered on February 24, 1992. Thereafter, the State called Dr. Harlan in rebuttal and Appellants objected. The trial court overruled the objection, and Dr. Harlan testified that it was his opinion that Griffin died between 6:00 p.m. on February 21, 1992, and 8:00 a.m. on February 22, 1992. Dr. Harlan also testified that he had reviewed the testimony of Dr. Wolfe and he disagreed with many of the conclusions that Dr. Wolfe had made from viewing the evidence in the case. The trial court then asked whether Appellants had anything in surrebuttal, and Appellants stated that they did not.
Appellants essentially argue that because Dr. Harlan could have testified during the State's case in chief, he should not have been allowed to testify during rebuttal. However, this Court has previously stated that "we have observed that it is within the discretion of the trial court to permit the state, in a criminal case, to introduce in rebuttal even testimony which should have been introduced in chief." Kendricks, 947 S.W.2d at 884 (citation omitted). It is clear that the State could have called Dr. Harlan during its case in chief. However, although the record is not entirely clear because defense counsel prevented the relevant hearing from being transcribed into the record, a reading of the record indicates that the State's purpose in calling Dr. Blake was to elicit expert testimony about the time of Griffin's death. When the trial court ruled that Dr. Blake could not testify, the State decided to rely on what was essentially lay testimony from Ellington and McDonald about the time of death. Once Appellants proffered the testimony of Dr. Wolfe, it was within the trial court's discretion to allow the State to call its own expert to rebut Wolfe's opinion.
Appellants also contend that it was improper for Dr. Harlan to testify in rebuttal because the State did not disclose Dr. Harlan's identity to Appellants before trial. However,
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