# FILED
October 6, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk 

### IN THE SUPREME COURT OF T ENNESSEE

AT KNOXVILLE (HEARD AT CHATTANOOGA)

FOR PUBLICA

TION STATE OF TENNESSEE, ) Filed: October 6, 1997 ) Appellant ) Hon. Ben W. Hooper, ) Judge Vs. ) ) COCKE COUNTY MERLIN EUGENE SHUCK, ) ) Supreme Court Appellee. ) No. 03-S01-9607-CC-00071 )

FOR STATE/APPELLANT FOR DEFENDANT/APPELLEE: John Knox Walkup Charles R. Terry Attorney General & Repor ter Denise S. Terry

Morristown, Tennessee Michael E. Moore Thomas F. Bloom Solicitor General Nashville, Tennessee (Appeal Only) Gordon Smith Associate Solicitor Gener al Michael J. Fahey, II Assistant Attorney Gener al Nashville, Tennessee Alfred C. Schmutzer, Jr. District Attorney General James B. Dunn Assistant District A

ttorney General Fourth Judicial District Sevierville, Tenness

ee



## O P I N I O N

COURT OF CRIMINAL APPE ALS AFFIRMED. DROWOTA, J. The defend ant, Mer

lin Eug ene Shuc k, was convic ted of one

count of1 Oral arguments were heard in thi s case on April15, 1997, i n Chattanooga, Hamil ton Coun ty, as part of th is Court’s S.C.A.L .E.S. ( S upreme C ourt A dvancing L ega l E ducation fo r S tudents ) project.

2 Tenn. R. Evid. 702.
3 Ten n. R. E vid. 70 4; In T enn ess ee, th e only u ltima te iss ue ab out w hich an ex pert e xplic itly cannot offer an opinion is whether the defendant was or was not sane at t he time of commission of the criminal offense. Tenn. Cod e Ann. § 39-11-501(c)(199 6 Supp.). -2- solicitation to commit first degree murder and two counts of solicitation to commit especially aggr

avated kidnaping. The defense theor y at trial was ent rapment, and in support o

f that defense, S huck sought to introduc

e expert te

stimony fro m a neuropsychologist that

he had suffered a cognitive decline and significant deterioration of his cognitive abilities w hich rendered him more suscepti ble to inducement than the average per son. The trial judge refused t o admit the testimony finding that it would invade the prov ince of the jury. Conclu ding that the trial court abused its di scretion in excluding the testimony, the Court of C riminal Appeals reversed the conv ictions and ordered a new trial. Thereafter, we g ranted the State permission to appeal to consider whether ex

pert psychological testimony about a defendant’s susceptibilit y to inducment is admissi ble under Tennessee law to establish entrap ment. 1

We conclude that expert testimony about a de fendant’s susceptibility to inducement generally i s admissible if it “will substantially assist the trier of fact to understand the evidence or t o determine a fact in issue,” 2 and is not objectionable merely because the exper t’s opinion embraces an ulti mate issue to be decided by the trier of fact. 3 Though the admissibility of expert testimony in a specific case is a decision which rest

s in the discretion of the tr ial judge, that decision

may be overturned on appeal upon a show ing of abuse of discretion. For the reasons that-3-

follow, we conclude that the trial court abused it s discretion by ex

cluding the expert testimony proffered by the defendant and that the error w as not harmless. Consequently, we affirm the judgment of the Court of Crimi nal Appeals reversing the convictions and remanding for a new trial.

BACKGROUND The defendant, Merlin Shuck, has worked as a practicing veterinarian in Morristown for ove r thirty years and has been very activ e in civic and community affairs. In January of 1992, Shuck hired Kathy W aters as an assistant in his veterinarian clini c. Waters had moved to Morristow n from New York in 1991 w ith her husband, David Waters. Prior to moving to Tennessee, Kathy Waters had been successfully treated for a cocaine addiction, but she had an alcohol problem while she was employ

ed by the defendant.
During her employment, the defendant and Ms. Waters developed a relationship beyond that of empl oyer-employee. Though the precise nature of their relationship is not clear, the record shows that the defendant, while attempting to help Wate rs with her drinking problem, tried to get her involved in his church, persuaded her to be couns eled by his pastor, prov ided her with airli ne tickets to Florida to s

eek a reconciliation w

ith her former husband and childr en, assisted her in securing an apartment after she left Davi d Waters, and provided her with money to buy furniture and pay debts.
The defendant tried to manage W aters’ personal relationships as well. Witnesses for the State testified that when Waters missed w ork because of-4-

sickness, Shuck would go to her apartment, wal k in unannounced, and berate Waters and her husband for consuming alcohol. When Shuck learne d that Waters had developed a social relations hip with Robert Cadman after leaving her husband, he continued the unusual conduc t by entering their apartments unannounced, and berating the tw o of them. When Waters left his employ, the defendant closely monitored her activities and repeatedl y contacted her subsequent employers and ac quaintances demanding to know her whereabouts. Shuck even asked the local cab company to refuse to transpor t Waters either to Cadman’s apartment or the liq uor store. According to the owner of the cab company, Shuck, who w as a city councilman, threatened her with political reprisal if the company provided Waters with transportation without h is knowledge. On one occasion, when he wa s unable to locate Waters, Shuck posted “Fug itive-atLarge” posters, and w

hen he found her, Shuck locked Waters in his cl inic so she would “dry-out.”
The investigation w

hich ended with the indic tments for solicitation bega n as a result of an incident on May 18, 1993 when Shuck broke into Cadman’s apartment, and was in the pro cess of forcibly removi ng Waters, when Cadman telephoned Emergency 911 for ass istance. The Morristow n Police Department initiated an investigation, taking a statement from both Waters and Cadman about the incident and various other alleged physica l assaults by the defendant upon Waters. At that time neither Waters nor Cadman wished t o prosecute the defendant.
Because Shuck was a city councilman, the investigation was transferred to-5-

the local district attor

ney’s office at the end of May of 1993.An investigator w as assigned to the case, but di scovered no additional ev idence until the end of the summer when the investi gator first spoke with Cadman, who gave a det ailed, three-page stat ement accusin g the defenda nt of assault, breaking and ent ering, and abuse of power. Thereafter, the i nvestigator vis ited Waters in the Knox County jail, and was

told that Judy McDanie l, who was employ ed by the defendant, would have further information about the incidents.
In the meantime, the allegations and events had come to the attenti on of Lawrence Myers, edi

tor of a local newspaper. Myers interview ed Waters and Cadman and, beginning on Aug ust 24, wrote a number of arti cles about the situation. In the articl es, Myers printed a t ranscript of the 911 telephone cal l and recounted the allegations which Waters and Cadman had made against Shuck.
The official investigation continued, and on September 6, the inv estigator went to McDaniel’s home and took a statement from her conce rning Waters’ allegations. Sometime after the interview, McDaniel notified the investi gator that the defendant had made statem ents which could be construed as threats against Waters. McDaniel thereafter agreed to w ear a body wire to her

job each day at the defendant’s clinic.
Over a period of approxi mately five weeks, M cDaniel taped various conversations at the cl inic. On December 1, McDaniel informed the investigator that the defendant, in an unrecorded co nversation, had sought her help and offered to forgive a debt she ow ed him if she would agree t o help him get rid of-6-

Kathy and David Waters. As instr ucted by the investigator, McDaniel engag ed the defend ant in a ta ped conve rsation i n which he c onfirme d the of fer the n ext day.
Four days later, on Dec ember 6, the investigator and McDaniel met with officials from the Tennessee Bureau of Inves tigation (T.B.I.), and ar ranged for an undercover T.B.I. agent to pose as a hit man in a meeting that McDaniel was to set up with the defendant. McDaniel returned to work and offered to set up a meeting between the defendant and the hi t man, who she portrayed as a friend of hers in Cocke County. The defendant discussed the possibil ity of the meeting with varying

degrees of certainty. At one point, he told McDaniel that he “may need” the hit man but was not s ure when. The defendant, thereafter, i ncreased the number of people he wanted kil led, adding Lawrence Myers as a third targ et, but he lowered the price he was willing to pay McDaniel for her “help.” At another point, the de

fendant indic

ated that he w

ould do the cr

ime himself. A short time later he expressed renew ed interest in the meeting, but said he was too busy to discuss the possibilit

y of the meeting that week,and suggested that the “hit man” call next week. The defendant said that if a meeting or ag reement could not be worked out “that’s fine, n o problem.”

The defendant told McDaniel on December 15, that it was a bad time a nd he could not meet that day. The nex t day, Thursday, December 16, the defendant said, “let’s see w hat the situation is. He mi ght not want to do it under my requirements.“ Shuc k, on one occasion, said the hi t man “may not want to do it that way” and “that’s all right.” However, later tha t same day, in a convers ation that was not tape-recorde d, the defendant agreed to meet with the “hit man” that4 The d efenda nt was s entenc ed to ser ve ten year s on his c onviction fo r solicitation to com mit f irst de gree mu rder and s ix year s on e ach conv iction for so licitatio n to c om mit e spe cially aggravated ki dnaping. The sent ences were ordered t o run concurrent ly for an effective sentence of ten years. -7- evening, Thursday, December 16, 1993. As arranged,the defendant met with the undercover agent, paid hi m five hundred dollars as par tial payment for the murder of Myers, and said that the kidnapping and eventual murder of Ka thy and David Waters would be deferred until after Chri stmas. The meeting between the defendant and the undercover agent was videotaped and the defendant w as arrested as he left the hotel r oom where the meeting trans pired.
The primary theory of defense thr oughout the trial was entrapment. In order to support this theor y, the defense sought to intr oduce expert testimony from Dr. Eric En gum, a neu ropsychol ogist, tha t the def endant s uffere d from a c ognitive decline, and the significant deterioration of the defendant’s cog nitive abilities rendered him more susceptible to the persuasion of others to commit a crime, and particularly susce ptible to persuasion of a trust ed employee and confidante. The trial judge ruled that the testimony was not admi ssible because it woul d invade the province o f the jur y.
Based on the other proof in the case,however, the trial judge found that the defendant had raised a viable defense o f entrapment and instructed the jur y on that defense. The jury found the defendant gu ilty of one count of solicit ation to commit first degree murder and two counts of solicitation to comm it especially aggravated kidnap ing. 4 The defendant appealed, raising sev eral issues. The Court of Criminal Appeals reversed the convictions, concluding that the trial court5 The Jones Court defi ned entrapment as fol lows: [A]s a general

rule of criminal pract ice and procedur e entrapment occurs when law enfor cement offici als, act ing eit her direct ly or through an agent , induce or persuade an other

wise unwil ling pers on to com mit a n unla wful a ct; ho weve r, whe re a p erso n is predisposed t

o commit an offense, the fact that the law enforc eme nt officials or their agen ts me rely afford a n oppo rtunity does n ot cons titute entrap men t. Id . at 220 (internal citati ons omitted). -8- erred in e xcluding th e expert te stimony o n the ent rapment issue. Th ereafte r, we granted the State’s applic ation for permission to appeal to consider this important evidentiary question. For the reasons that foll ow, we affirm the judgment of the Court of Criminal Appeals.

ENTRAPMENT DEFENSE A proper understanding of the ev identiary issue in th is appeal requires that we briefly review the development and current status of entrapment as a defe nse in Tennessee. First recog nized by the Supreme Cour t in Sorrells v. United States , 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), the defense of entrapment has been described as “vir

tually unique to the cr

iminal jurisprudence of the U nited States.” United States v. Webster , 649 F.2d 346, 348 (5th Cir. 1981), quoting G. Fletcher, Rethinking Criminal Law , § 7.3.B, at 541 (1978). Pri or to 1980, Tennessee was the only jurisdiction in the United States which had not explicitly recognized entrapment as a defense. State v. Jones , 598 S.W.2d 209, 216 (Tenn. 1980). Finding that the defense was being applied in decisiona l law, this Court in Jones expressly recog nized entrapment 5 as a valid affirmative defense with one exception. R

easoning that “one may not be solicited into solici ting,” the Jones Court refused to recogniz e entrapment as a defense to the crime of solicitation. Id . at 220.6 To the extent tha t Jones , supra , viewed ent rapment as an affir mative defense, i

t is no longer ap plicable. State v. Shropshire , 874 S.W .2d 634, 638 (Tenn. Crim . App. 1993).

7 A de fend ant w ho int end s to re ly upon entra pm ent m ust g ive the distric t attor ney ge nera l a notice co mpa rable to tha t required f or an insa nity defens e unde r Rule 12 .2, Tenn . R. Crim . P. Tenn. Code A nn. § 39-11-505 (1991). -9- Following this C

ourt’s decision in Jones , the law of entrapment remained essentially unchanged until the General Assembly , as part of the Criminal Sentencing Reform Act of 1989, codified all the available defenses t o prosecution in Tennessee. Entrapment was i ncluded as a general defense to pr osecution for all off enses an d the exce ption fo r the crime of solici tation, adopted by Jones , was not a part of the enactment. See State v. Latham , 910 S.W.2d 892, 895-96 (Tenn. Crim. App. 1995). Therefore, entrap ment is recognized in Tennessee as a general defense 6 to solicitation.
According to Tenn. Code Ann. § 39-11-505 (1991), entrap ment occurs “when law enforcement official s, acting either direc tly or through an ag ent, induced or persuaded an otherwise unwilling person to commit an unlawful act w hen the person was not predispos ed to do so.” 7 Under this statute, induc ement and predisposition are the cr ucial factors for considerati on. There are two recog nized tests fo r determi ning entr apment , the obje ctive and s ubjective test. Th e objecti ve test is the minority r

ule under which the fact finder focuses on the nature of the police activity involved, without reference to the predispositi on of the defendant. Jones , 598 S.W.2d at 219-20. The subjective test i s applied by a majority of jurisdictions and req uires the fact finder to focus on the s ubjective intent of the defendant to determine whether the defendant was predisposed to commit the criminal act, with l aw enforcement officials furnishing only the opportunity, or8 The subjective test was al so adopted by this Court i n Jones , supra . Id . 220-21.

-10- whether the defendant was an i nnocent person induced by pol ice into committing the criminal offense. Jones , 598 S.W.2d at 219-220; Latham , 910 S.W.2d at 896; 21 Am.Jur.2d Criminal Law § 205 (1976).
Entrapment, as described by Tenn. Code Ann. § 39-11 -505 (1991), requires the jury

to focus on the subjective i ntent of the defendant to determine inducement and predisposition; therefo re, Tennessee applies the subjective test of entrapment. 8 Establishing suscepti bility to inducement and per suasion was the purpose for which the defendant soug ht to introduce the expert psychological testimony which is at issue in this appeal.

ADMISSIBILITY OF EXPERT TESTIMONY The State does not contend that expert testimo ny about a defendant’s unique susceptibility

to inducement is never admis sible. Instead, the State contends that the trial cour t in this case did not abuse i ts discretion by ex

cluding such expert proof. Assuming, however, that exclusion of the testimony was error, the State argues that the err or was harmless because the prosecution proved, beyond a reasonable doubt, that the defendant was predisposed to c ommit the offense.
While conceding that the decision of whether to admit expert testimony is generally withi n the discretion of the trial court, the defendant argues that the trial court abused its discreti on in this case because the onl y reason given by

the trial-11-

court for excluding the evidence, that it would invade the province of the jury, is not a valid basis for exclusion under Tennessee law. The error was prejudicial, the defendant asserts, because the proo f does not establish the defendant ’s predisposition beyond a r easonable doubt.
The admissibility of exper t testimony on the defendant’s unusua l susceptibility to entr

apment is a question of first impr ession in this Court. However, sever

al federal and state courts hav e addressed the issue and concluded that the admissibil ity of such proof is subject to the applicable rules of law and evidence w

hich generally go

vern the admission of exper t testimony. See e.g. People v. Masor , 578 N.E.2d 1176 (Ill. App. 1991 ); State v. Woods , 484 N.E.2d 773 (Ohio Com.Pl. 1984)

.
For example, despite concl uding that the trial cour t acted within its discretion in excludi ng expert testimony on a defendant’s susceptibility to inducement because the defendant had not gi ven the required notic

e until the sixth day of trial, the Sixth Circuit, i n United States v. McLer non , 746 F.2d 1098 (6th Cir. 1984), stated that “expert testimony concerning a defendant’s predisposition may be invaluable in an entrapment case.” Id . at 1115.

In United States v. Benveni ste , 564 F.2d 335 (9th Cir. 1977) , the Ninth Circuit stated that an ex pert’s testimony is g enerally admissible on the issue of the defendant’s psychological susceptibility to inducement. However, the court concluded that the trial cour t did not abuse its discretion by excluding the testimony proffered in that case on the grounds that it w ould “confuse the jury and-12-

not shed any light on the issue.” Id . at 339.

Likewise, in United States v. New man , 849 F.2d 156, 165 (5th Cir. 1988), the Fifth Circuit concluded that when an entrapment def ense is raised, expert psychiatric testimony

is admissible to demonstrate that a mental disease, defect, or subnormal intelligen ce makes a defendant peculiarly susceptible to inducement if the expert demonstrates a pr oper factual foundation for the testimony , either through personal interv iews with or psy

chological testing o

f the defendant. The trial court’s excl usion of the evidence in that c ase was upheld, howev er, for several reasons including the defendant’s failure to notif y the government of his intention to offer the testimony until after the government had r ested its case and defense counsel’s failure to succ inctly and clearly

summarize the proffered testimony in a jury-

out hearing. Id . at 165-66.
Perhaps the best statement of the rele vance and general admissi bility of such proof is contained in United States v. Hill , 655 F.2d 512 (3rd Cir. 198 1). In that cas e, the Thi rd Cir

cuit re versed a distr ict cou rt’s ruling that the t estimony of a clinical psycholog ist was inadmissibl e to prove that the defendant’s psy chological profile, subnormal intelligence, and susceptibility to persuasion mad e him uniquely susceptible to inducement. The cour t concluded: Testimony by an expert concerning a defendant’s suscep tibility to influence may be relevant to an entrapment def ense. An expert’s opinion, based on observation, psychological profiles, intelligence tests, and other assorted data, may aid the jury in i ts determination of the crucial issues of inducement and predispo sition. . . . A jury may not be able to properly evaluate the effect of app ellant’s subnormal intelligence and psychological char

acteristics on the existence of inducement or pred isposition without the considered opinion of an expert.9 Opinion test imony by l ay wit nesses generally is not admissible and i s circumscribed by Tenn. R. Evid. 701. -13-

Accordingly, if the ex

pert can reach a conclusion,based on an adequate factual foundation, that the appellant, because of his alleged subnormal intelligence and psychological profile, is more susceptible and easily influenced by the urgings and inducements of other persons, such testimony must be admitted as relevant to the issues of inducement and predisposi tion. Hill , 655 F.2d at 516.
We agree with the decisions discus sed above and conclude that the admissibility of exper

t testimony on a defendant’s unusual susceptibility to inducement is governed, l ike other expert testi mony, by the applicable r ules of law and evidence. Therefore, our r esolution of the issue in this case begins with the Tennessee Rules of Evidence. Rule 702, Testimon y by experts, provides: If scientific, technical, or other specialized knowledge will substantially assist

the trier of fact to understand the evidence or to determine a fact in issue, a w itness qualified as an ex pert by knowledge, skill,experience, training , or education may testify in the form of an opinion or otherwise. Under this evidentiary rule, the inquiry when determining the admissibility of expert opinion 9 testimony is wil l the proof “substantially assist the trier of fact to understand the evidence or to determine a fact in issue.” See McDaniel v. CSX Transportation, Inc. , __ S.W.2d __ (Tenn. 1997). Historically, expert testimony was admissible only upon a showing of necessity. Neil P. Cohen, Donald F. Paine, and Sarah Y. Sheppeard, Tennessee Law of Evidence , § 702.1, p. 354 (2d Ed. 1990). For example, i n 1952 this Court held that i n order for expert opinion testimony to be admissible,“the subject under examina tion must be one that requires that the court and jury have the aid of kn owledge or experi ence such as-14-

men not specially skil led do not have, and such there fore as cannot be obtained from ordinary witnesses.” Casone v. State , 246 S.W.2d 22, 26 (Tenn. 1952). While the substantial assistance standard of Rule 702, Tenn. R. Evid., is a relaxation of the common law necessity requir

ement, it is somewhat str icter than the comparable federal rule of evi dence which permits ex pert opinion testimony upon a finding that it merely assists the trier of fact. F ed. R. Evid. 702; see also McDaniel , ___ S.W.2d at ___; Primm v. Wickes Lumber Co. , 845 S.W.2d 768, 770 (Tenn. App. 1992); Weinstein, Rule 702 of the Federal Rules of Evidence is Sound: It Should Not Be Amended , 138 F.R.D. 631, 636 (1991).
Despite its tendency to substantially assist the jury, only ex

pert opinion testimony which is based upon reliable facts or data is admissible in Tennessee. Rule 703, Tenn. R. Evid., per mits reliance upon facts or dat a perceived by or made known to the expert at or before the hearing. Mor eover, if of a type reasonably relied upon by experts in the particular field in forming opinion s, the facts or data need not be admissible in evidence. Howev

er, Rule 703, unlike the comparable federal rule, prov ides that “[t]he court shal l disallow testimony in the form of an opinion or inference if the underl ying facts or data indi cate lack of trustworthiness.” In this respect, our rul e expresses a greater concern with the bases of expert testimony than does Fed. R. Evid. 703. See McDaniel , __ S.W.2d at __; Omni Aviation v. Perry , 807 S.W.2d 276 (Te nn. App. 1990); R. Banks, Some Comparisons Between the N ew Tennessee Rules of Eviden ce and the Federal Rules of Evidence,Part II , 20 Mem.S.U.L.Rev. 499, 559 (1990).

In contrast, Tennessee Rule of Ev idence 704 is more lenient than its10 See N ote 3, surpa . -15-

federal counterpart with r espect to the admissibility of opinion testimony on an ultimate issue to be decided by the trier of fact. The f ederal rule specifically prohibits expert testi mony regarding the cr iminal defendant’s mental state or condition as an element of the cri me. Fed. R. Evid. 704(b) . Under Tennessee law, “[t]estimony i n the form of an opinion or inference otherwise admissible is not objectionable because it embrac es an ultimate issue to be deci ded by the trier of fact.” Tenn. R. Evid. 704 (emphasis added). 10 With respect t o expert te stimony, this rule is consistent with Tennessee common law. For example, this Court in 1977 held that “an expert’s opinion is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fa ct, so long as it is helpful to the court.” City of Columbia v. C .F.W. Const. Co. , 557 S.W.2d 734, 742 (Tenn. 1977).
Of course, expert opinion testimony which embraces an ultimate issue must be “otherwise admissi ble” and not objectionable on oth er grounds. See Tennessee Law of Evidence , § 704.3, p. 365-66. Indeed, this Court, in State v. Ballard , 855 S.W.2d 557, 562 (Tenn. 1993), concluded that ex pert testimony about symptoms of post-traumatic stress syndrome exhibited by victims of child abuse does not “substantially assist” a jury bec

ause it attempts to evaluate the credibility of witnesses, a task which a jury is capable of performing without expert testimony, and it is not r eliable proof as to the questi on of whether a defendant commited the specific crime of w hich he or she is accused. Id . at 562; see also Tenn. R. Evid. 703. Under Tennes see law, therefore, exper t opinion testimony-16-

which embraces an ultimate issue of fact is not automa tically admissible. Such testimony is simply

not subject to exclusi on on the sole basis that it embr aces an ultimate issue to be decided by the trier of fact. As with most other evidentiary questions, the admissibility of expert opinion testimony is a matter which largely rests within the sound discretion of the trial cour t. The trial court’s deci sion is not insulated from appellate revi ew, however, and may be overturned on appeal upon a showing that the tri al court abused its discr etion. Ballard , 855 S.W.2d at 562.
Considering the foregoin g rules of evidence w hich govern the admissi bility of expert proof in Tennessee, we must now determine whether the trial cou rt in this case abused its discr etion by excluding

the proffered expert testimony about the defendant’s susceptibility to inducement. Recent ly we considered the abuse of discretion standard in another context and observed:
Discretion denotes the absenc e of a hard and fast rule. When invoked as a guide for judicial action, it requires that the trial court view the factual cir

cumstances in light of the r elevant legal principles and exercise considered discretion before reaching a conclusion. Discretion should not be ar bitrarily exer

cised. The applicable facts and law must be given

due consideration.

Ballard v. Herzke , 924 S.W.2d 652, 661 (Tenn. 1996) (internal citations omitted) (discussi ng the sta ndard in t he conte xt of a tria l court’s d ecision t o modif y a protective order). We concluded that an appellate court should find an abu se of discretion when it appear s that a trial court appli ed an incorrect legal s tandard, or reached a decision whic h is against logic or reasoning that caused an injustice to the party complaining. Id

.-17- Applying that standard t o the facts in this case, w e agree with the Cour

t of Criminal Appeals that the trial court abused its discretion by excluding the expert psychological testimony proffered by the defendant. As the defendant contends, the trial court excluded the proffered expert testimony on the sole basis th at it embraced an ultimate issue of fact to be decided by the jury. From our review of the offer of proof, Dr. Engum did not seek to offer opinion testimony on the ultimate issue of whether the defendant was entrapped. Instead, i f permitted to do so, Dr. Engum would have offered opinion testimony, based upon observation, intelligence tests, and other assorted data, that the defendant ha d suffered a cognitive decline and significant deterioration of his cognitive abilities which rendered him m ore susceptible to inducemen t and persuasio n than the average person. Even assuming th at Dr. Engum had sought to offer opi nion testimony on the ultimate issue of entrapment, such testim ony is not objectionable if otherwise admissible. As we have previously explained, expert testimony otherwise admissible is not subject to exclusion solely because it embraces an ultimate issue of fact to be decided by the j ury. Tenn. R. Evid. 70 4. In this case, the trial court’s discretionary

decision to exclude the e xpert testimony w

as based upon an incorrect legal standa rd.
The record does not support the State’s contentio n that the “trial court could ha ve reason ably concl uded tha t the doc tor’s tes timony wou ld not ha ve ‘substantially assi sted’ the jury and, in fact , could confuse it on the ultimate question of inducement.” Indeed, nothing in the record ev en hints that the trial court based its decision on these grounds. The trial court acknowledged that Dr. Engum was qualified, stating that “he is as qualified as anybody I know to testify.”-18-

Nothing in the record i ndicates that the defendant failed to prov ide notice to the State as required by the statute. There is no reason to assume that Dr. Engum’s testimony would be confusing to the jury as he very clearly and carefully summarized the testimony i n the offer of proof. There is no sugges tion that the facts or data upon which he bas ed his testimony wer

e unreliable or untrustw orthy. There is simply no reason to conclude that the expert t estimony failed the substantial assistance test of Rule 702, Tenn. R. Evid. Indee d, as the Third Circuit recogniz

ed in Hill , supra , a jury may not be able to properly evaluat

e the effect of a defendant’s cognitive and ps ychological charac

teristics on the existence of inducement or pred isposition without the considered opinion of an expert. Id . at 516. Accordingly , we find that the trial c ourt abused its discreti on by exclud ing the

expert proof.
Having so concluded, we must next determine whether the trial court’s failure to admit the testi mony is an error which affirm atively app ears to ha ve affected the verdict. Tenn. R. Cr im. P. 52(a). The State argues that the error was harmless because the proof show s, beyond a reasonable doubt, that the defendant was predisposed to commit the offense. We disagree.

Factors relevant to det

ermining a defendant’s predispo sition include the character or reputation of the d efendant, including any pri or criminal record; whether the suggesti on of the criminal activity was initiall y made by law enforcement officials; whether the defendant was engaged in the criminal activity for profit; whether the defendant evidenced reluctance to commit the offense which was over

come only by repeated indu cement or persuasion by l aw-19-

enforcement officials or agents; the nature of inducement or persuasion e ngaged in by law enforcement officials; and any other direct or circumstantial evidence that the accused was ready and willing to engage in the illegal conduct in question. In determining predisposition a court or jury should consider

the totality of the circumstances. Jones , 598 S.W.2d at 220; McLernon , 746 F.2d at 1112.
Even though the defendant’s proffered ex pert testimony was ex

cluded, based on the other proof introduced, the trial court charg ed the jury on the issue of entrapment. Moreover, a mer e reading of the cold record reveals that the issues of inducement and predisposition w ere hotly contested. With respect to inducement, the record shows that many of the discussions conce rning the hit man were initiated by McDaniel. In addition, w hen the defendant appeared to waiver in his resolve to have the meeting and commit the crime, McDaniel would warn the defendant that W aters was going to cause him trouble. McDaniel would suggest that Shuck had to do something to prevent W aters from “ruining your life.” McDaniel indicated to the defendant that he needed to act quickl y if he was going to do anything before he w as ruined by Waters. Finally, McDaniel told the defendant that the hit man was behind i n child support and had no money for Christmas and wanted to hav e the meeting as soon as possi ble. At trial, McDani el admitted that she had tried to talk Shuck into meeting with the hit man ; however, McDaniel s

aid that she w

as concerned

for the safety

of the potenti al victim s because the defendant had men tioned that he was talking to someone else in Cocke County who he was thinking about hiring to commit the murders.
On the issue of predisposition,the record does not reveal that the-20-

defendant had a prior criminal r ecord or a bad reputation. Indee d, he had been a practicing veteri narian in the area for thirty years, had served as

city councilman, and been active in other ci vic and religious

organizations. The defendant w as not engaged in the criminal activity for profit and the proof was disputed as to w hether McDaniel or the defendant first suggested hiring a hit man. The duration of the alleged inducement by Mc Daniel was lengthy , some five weeks, and her position as a trusted employee made the i nducement more effective. Finally, during the course of the five week per iod, the defendant expressed rel uctance and uncertainty about contacti ng a hit man even up to the day the actual meeting occurred. Considering the totality of the circumstances, including the r ecognition that without the considered opinion of an expert a jury may not be able to properly evaluate the effect of a defendant’s cognitive and psychologi cal characteristics on the existence of inducement and predisposition, we conclude that the trial court’s exclusion of the expert t estimony was not harmle ss error under Tenn. R. Cr im. P. 52(a). Consequently,we affirm the Court of Crimina l Appeals judgment rever sing the convictions and remanding for a new trial.

CONCLUSION We conclude that the trial court ab used its discretion by excluding expert testimony about the defendant’s unique suscep tibility to inducement on the sole basis that the expert testimony expressed an opini on on an ultimate issue to be decided by the trier of fact. Exclusion of the expert testimony was not harmless error. Consequently, we affirm the judgment of the Court of Criminal App eals reversing the convictions and remanding for a new trial.-21- _____________________________________ FRANK F. DROWOTA, III, JUSTICE
CONCUR: Anderson, C.J., Reid, Birch, Holder, JJ.