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State v. Bondurant3/20/1998
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A. Yes, sir. To him -- well, to me, that meant that as long as we three stood together, that nobody would go to jail. But if one of them were to fall, we would all go to jail.
First, the defendant contends that the trial court erred by failing to grant a mistrial based on Denise's responses during direct and cross-examination.
The declaring of a mistrial is a matter "of great delicacy, in which the trial Court should act with caution, and that such action should be taken only when necessity requires." Bellis v. State, 157 Tenn. 177, 180, 7 S.W.2d 46, 46 (Tenn. 1928). Although subject to review by appellate courts, the decision of whether to grant a mistrial is within the discretion of the trial court, and a reviewing court will not disturb that action absent a finding of abuse of that discretion. State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990).
Although the witness's initial reference to the Dugger case on direct examination was improper, the trial court sustained the defendant's objection. Moreover, Denise's references to the Dugger case during extensive cross-examination on whether she was actually afraid of the defendant did not rise to the level of creating a necessity for
a mistrial. As in State v. Harris, 839 S.W.2d 54, 72 (Tenn. 1992) (citing Tenn. R. App. P. 36(b), where the supreme court, in considering the effect of statements concerning prior criminal activity on the jury's verdict in a capital case, held that the admission of the evidence was harmless beyond a reasonable doubt when viewed in context of the entire record, we find that Denise's testimony concerning the Dugger trial was harmless error. See also State v. Baker, 751 S.W.2d 154, 164 (Tenn. Crim. App. 1987); State v. Lawson, 695 S.W.2d 202, 204 (Tenn. Crim. App. 1985).
The defendant further contends that it was error to allow the state to question Denise on redirect about why she was afraid of the defendant and why she talked to authorities on numerous occasions. The admissibility of rebuttal proof lies in the discretion of the trial court. Hardin v. State, 210 Tenn. 116, 136, 355 S.W.2d 105, 114 (1962). As stated in State v. Lunati, 665 S.W.2d 739 (Tenn. Crim. App. 1983), "`ebutting evidence' is evidence which tends to explain or controvert evidence produced by the adverse party." Id. at 747 (citations omitted).
Generally, evidence of prior criminal conduct is inadmissible, absent certain well-defined exceptions. See State v. Rounsaville, 701 S.W.2d 817, 820-21 (Tenn.1985); State v. Morgan, 541 S.W.2d 385 (Tenn.1976). The rule, which is embodied in Tenn. R. Evid. 404(b), is premised upon recognition that such evidence may result in a jury improperly convicting a defendant for his bad character or apparent propensity or Disposition to commit a crime regardless of the strength of the evidence concerning the offense on trial. Anderson v. State, 165 Tenn. 569, 56 S.W.2d 731 (1933). This is particularly true when the prior conduct or acts are similar to the crimes on trial. See Long v. State, 607 S.W.2d 482, 486 (Tenn. Crim. App. 1980). As our supreme court stated in State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994) (citations omitted):
The general rule excluding evidence of other crimes is based on the recognition thatsuch evidence easily results in a jury improperly convicting a defendant for his orher bad character or apparent propensity or Disposition to commit a crimeregardless of the strength of the evidence concerning the offense on trial. Such apotential particularity exists when the conduct or acts are similar to the crimes on trial.
The exceptions to this rule of exclusion relate to the probative value of such evidenc
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