FILED

October 6, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

(HEARD AT CHATTANOOGA)

FOR PUBLICATION

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 & Reporter Denise S. Terry

Morristown, Tennessee

Michael E. Moore Thomas F. Bloom

Solicitor General Nashville, Tennessee

(Appeal Only)

Gordon Smith

Associate Solicitor General

Michael J. Fahey, II

Assistant Attorney General

Nashville, Tennessee 

Alfred C. Schmutzer, Jr.

District Attorney General

James B. Dunn

Assistant District Attorney General

Fourth Judicial District

Sevierville, Tennessee

O P I N I O N

COURT OF CRIMINAL APPEALS

AFFIRMED. DROWOTA, J. 

The defendant, Merlin Eugene Shuck, was convicted of one count of 
1Oral arguments were heard in this case on April 15, 1997, in Chattanooga, Hamilton

Coun ty, as part of th is Court’s S.C.A.L .E.S. (Supreme Court Advancing Legal Education for

Students ) project. 

2

Tenn. R. Evid. 702.

3

Ten n. R. E vid. 70 4; In T ennessee, th e only u ltima te iss ue ab out which an ex pert e xplic itly

cannot offer an opinion is whether the defendant was or was not sane at the time of commission of

the criminal offense. Tenn. Cod e Ann. § 39-11-501(c)(199 6 Supp.).

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solicitation to commit first degree murder and two counts of solicitation to commit

especially aggravated kidnaping. The defense theory at trial was entrapment, and

in support of that defense, Shuck sought to introduce expert testimony from a

neuropsychologist that he had suffered a cognitive decline and significant

deterioration of his cognitive abilities which rendered him more susceptible to

inducement than the average person. The trial judge refused to admit the

testimony finding that it would invade the province of the jury. Concluding that the

trial court abused its discretion in excluding the testimony, the Court of Criminal

Appeals reversed the convictions and ordered a new trial. Thereafter, we granted

the State permission to appeal to consider whether expert psychological testimony

about a defendant’s susceptibility to inducment is admissible under Tennessee

law to establish entrapment.1

We conclude that expert testimony about a defendant’s susceptibility to

inducement generally is admissible if it “will substantially assist the trier of fact to

understand the evidence or to determine a fact in issue,”2

 and is not objectionable

merely because the expert’s opinion embraces an ultimate issue to be decided by

the trier of fact.3

 Though the admissibility of expert testimony in a specific case is

a decision which rests in the discretion of the trial judge, that decision may be

overturned on appeal upon a showing of abuse of discretion. For the reasons that
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follow, we conclude that the trial court abused its discretion by excluding the

expert testimony proffered by the defendant and that the error was not harmless. 

Consequently, we affirm the judgment of the Court of Criminal Appeals reversing

the convictions and remanding for a new trial.

BACKGROUND

The defendant, Merlin Shuck, has worked as a practicing veterinarian in

Morristown for over thirty years and has been very active in civic and community

affairs. In January of 1992, Shuck hired Kathy Waters as an assistant in his

veterinarian clinic. Waters had moved to Morristown from New York in 1991 with

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 employed by the defendant. 

During her employment, the defendant and Ms. Waters developed a

relationship beyond that of employer-employee. Though the precise nature of

their relationship is not clear, the record shows that the defendant, while

attempting to help Waters with her drinking problem, tried to get her involved in his

church, persuaded her to be counseled by his pastor, provided her with airline

tickets to Florida to seek a reconciliation with her former husband and children,

assisted her in securing an apartment after she left David Waters, and provided

her with money to buy furniture and pay debts.

The defendant tried to manage Waters’ personal relationships as well.

Witnesses for the State testified that when Waters missed work because of
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sickness, Shuck would go to her apartment, walk in unannounced, and berate

Waters and her husband for consuming alcohol. When Shuck learned that

Waters had developed a social relationship with Robert Cadman after leaving her

husband, he continued the unusual conduct by entering their apartments

unannounced, and berating the two of them. When Waters left his employ, the

defendant closely monitored her activities and repeatedly contacted her

subsequent employers and acquaintances demanding to know her whereabouts. 

Shuck even asked the local cab company to refuse to transport Waters either to

Cadman’s apartment or the liquor store. According to the owner of the cab

company, Shuck, who was a city councilman, threatened her with political reprisal

if the company provided Waters with transportation without his knowledge. On

one occasion, when he was unable to locate Waters, Shuck posted “Fugitive-atLarge” posters, and when he found her, Shuck locked Waters in his clinic so she

would “dry-out.”

The investigation which ended with the indictments for solicitation began as

a result of an incident on May 18, 1993 when Shuck broke into Cadman’s

apartment, and was in the process of forcibly removing Waters, when Cadman

telephoned Emergency 911 for assistance. The Morristown Police Department

initiated an investigation, taking a statement from both Waters and Cadman about

the incident and various other alleged physical assaults by the defendant upon

Waters. At that time neither Waters nor Cadman wished to prosecute the

defendant.

Because Shuck was a city councilman, the investigation was transferred to
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the local district attorney’s office at the end of May of 1993. An investigator was

assigned to the case, but discovered no additional evidence until the end of the

summer when the investigator first spoke with Cadman, who gave a detailed,

three-page statement accusing the defendant of assault, breaking and entering,

and abuse of power. Thereafter, the investigator visited Waters in the Knox

County jail, and was told that Judy McDaniel, who was employed by the

defendant, would have further information about the incidents.

In the meantime, the allegations and events had come to the attention of

Lawrence Myers, editor of a local newspaper. Myers interviewed Waters and

Cadman and, beginning on August 24, wrote a number of articles about the

situation. In the articles, Myers printed a transcript of the 911 telephone call and

recounted the allegations which Waters and Cadman had made against Shuck.

The official investigation continued, and on September 6, the investigator

went to McDaniel’s home and took a statement from her concerning Waters’

allegations. Sometime after the interview, McDaniel notified the investigator that

the defendant had made statements which could be construed as threats against

Waters. McDaniel thereafter agreed to wear a body wire to her job each day at

the defendant’s clinic. 

Over a period of approximately five weeks, McDaniel taped various

conversations at the clinic. On December 1, McDaniel informed the investigator

that the defendant, in an unrecorded conversation, had sought her help and

offered to forgive a debt she owed him if she would agree to help him get rid of
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Kathy and David Waters. As instructed by the investigator, McDaniel engaged the

defendant in a taped conversation in which he confirmed the offer the next day.

Four days later, on December 6, the investigator and McDaniel met with

officials from the Tennessee Bureau of Investigation (T.B.I.), and arranged 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 hit man, who she portrayed as a friend of

hers in Cocke County. The defendant discussed the possibility of the meeting

with varying degrees of certainty. At one point, he told McDaniel that he “may

need” the hit man but was not sure when. The defendant, thereafter, increased

the number of people he wanted killed, adding Lawrence Myers as a third target,

but he lowered the price he was willing to pay McDaniel for her “help.” At another

point, the defendant indicated that he would do the crime himself. A short time

later he expressed renewed interest in the meeting, but said he was too busy to

discuss the possibility of the meeting that week, and suggested that the “hit man”

call next week. The defendant said that if a meeting or agreement could not be

worked out “that’s fine, no problem.”

The defendant told McDaniel on December 15, that it was a bad time and

he could not meet that day. The next day, Thursday, December 16, the

defendant said, “let’s see what the situation is. He might not want to do it under

my requirements.“ Shuck, on one occasion, said the hit man “may not want to do

it that way” and “that’s all right.” However, later that same day, in a conversation

that was not tape-recorded, the defendant agreed to meet with the “hit man” that
4

The d efenda nt was s entenc ed to ser ve ten year s on his c onviction fo r solicitation to

com mit first de gree mu rder and s ix year s on e ach conv iction for so licitatio n to com mit e specially

aggravated kidnaping. The sentences were ordered to run concurrently for an effective sentence of

ten years. 

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evening, Thursday, December 16, 1993. As arranged, the defendant met with the

undercover agent, paid him five hundred dollars as partial payment for the murder

of Myers, and said that the kidnapping and eventual murder of Kathy and David

Waters would be deferred until after Christmas. The meeting between the

defendant and the undercover agent was videotaped and the defendant was

arrested as he left the hotel room where the meeting transpired.

The primary theory of defense throughout the trial was entrapment. In

order to support this theory, the defense sought to introduce expert testimony from

Dr. Eric Engum, a neuropsychologist, that the defendant suffered from a cognitive

decline, and the significant deterioration of the defendant’s cognitive abilities

rendered him more susceptible to the persuasion of others to commit a crime, and

particularly susceptible to persuasion of a trusted employee and confidante. The

trial judge ruled that the testimony was not admissible because it would invade the

province of the jury.

Based on the other proof in the case, however, the trial judge found that the

defendant had raised a viable defense of entrapment and instructed the jury on

that defense. The jury found the defendant guilty of one count of solicitation to

commit first degree murder and two counts of solicitation to commit especially

aggravated kidnaping.4

 The defendant appealed, raising several issues. The

Court of Criminal Appeals reversed the convictions, concluding that the trial court
5

The Jones Court defined entrapment as follows:

[A]s a general rule of criminal practice and procedure entrapment

occurs when law enforcement officials, acting either directly or

through an agent, induce or persuade an otherwise unwilling

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

predisposed to 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 citations omitted).

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erred in excluding the expert testimony on the entrapment issue. Thereafter, we

granted the State’s application for permission to appeal to consider this important

evidentiary question. For the reasons that follow, we affirm the judgment of the

Court of Criminal Appeals.

ENTRAPMENT DEFENSE

A proper understanding of the evidentiary issue in this appeal requires that

we briefly review the development and current status of entrapment as a defense

in Tennessee. First recognized by the Supreme Court 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 “virtually unique to the criminal jurisprudence of the United

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). Prior 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 decisional law, this

Court in Jones expressly recognized entrapment5

 as a valid affirmative defense

with one exception. Reasoning that “one may not be solicited into soliciting,” the

Jones Court refused to recognize entrapment as a defense to the crime of

solicitation. Id. at 220.
6

To the extent tha t Jones, supra, viewed entrapment as an affirmative defense, it is no

longer ap plicable. State v. Shropshire, 874 S.W .2d 634, 638 (Tenn. Crim . App. 1993).

7A defend ant who intends to re ly upon entra pm ent m ust give the distric t attorney 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 Court’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 to prosecution

in Tennessee. Entrapment was included as a general defense to prosecution for

all offenses and the exception for the crime of solicitation, 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, entrapment is recognized in Tennessee as a

general defense6 to solicitation.

According to Tenn. Code Ann. § 39-11-505 (1991), entrapment occurs

“when law enforcement officials, acting either directly or through an agent, induced

or persuaded an otherwise unwilling person to commit an unlawful act when the

person was not predisposed to do so.”7 Under this statute, inducement and

predisposition are the crucial factors for consideration. There are two recognized

tests for determining entrapment, the objective and subjective test. The objective

test is the minority rule under which the fact finder focuses on the nature of the

police activity involved, without reference to the predisposition of the defendant. 

Jones, 598 S.W.2d at 219-20. The subjective test is applied by a majority of

jurisdictions and requires the fact finder to focus on the subjective intent of the

defendant to determine whether the defendant was predisposed to commit the

criminal act, with law enforcement officials furnishing only the opportunity, or
8

The subjective test was also adopted by this Court in Jones, supra. Id. 220-21.

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whether the defendant was an innocent person induced by police 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 intent of the defendant to determine

inducement and predisposition; therefore, Tennessee applies the subjective test

of entrapment.8 Establishing susceptibility to inducement and persuasion was the

purpose for which the defendant sought to introduce the expert psychological

testimony which is at issue in this appeal.

ADMISSIBILITY OF EXPERT TESTIMONY

The State does not contend that expert testimony about a defendant’s

unique susceptibility to inducement is never admissible. Instead, the State

contends that the trial court in this case did not abuse its discretion by excluding

such expert proof. Assuming, however, that exclusion of the testimony was error,

the State argues that the error was harmless because the prosecution proved,

beyond a reasonable doubt, that the defendant was predisposed to commit the

offense.

While conceding that the decision of whether to admit expert testimony is

generally within the discretion of the trial court, the defendant argues that the trial

court abused its discretion in this case because the only reason given by the trial
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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 proof does not establish the defendant’s

predisposition beyond a reasonable doubt.

The admissibility of expert testimony on the defendant’s unusual

susceptibility to entrapment is a question of first impression in this Court.

However, several federal and state courts have addressed the issue and

concluded that the admissibility of such proof is subject to the applicable rules of

law and evidence which generally govern the admission of expert 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 concluding that the trial court acted within its

discretion in excluding expert testimony on a defendant’s susceptibility to

inducement because the defendant had not given the required notice until the

sixth day of trial, the Sixth Circuit, in United States v. McLernon, 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. Benveniste, 564 F.2d 335 (9th Cir. 1977), the Ninth

Circuit stated that an expert’s testimony is generally admissible on the issue of the

defendant’s psychological susceptibility to inducement. However, the court

concluded that the trial court did not abuse its discretion by excluding the

testimony proffered in that case on the grounds that it would “confuse the jury and
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not shed any light on the issue.” Id. at 339.

Likewise, in United States v. Newman, 849 F.2d 156, 165 (5th Cir. 1988),

the Fifth Circuit concluded that when an entrapment defense is raised, expert

psychiatric testimony is admissible to demonstrate that a mental disease, defect,

or subnormal intelligence makes a defendant peculiarly susceptible to inducement

if the expert demonstrates a proper factual foundation for the testimony, either

through personal interviews with or psychological testing of the defendant. The

trial court’s exclusion of the evidence in that case was upheld, however, for

several reasons including the defendant’s failure to notify the government of his

intention to offer the testimony until after the government had rested its case and 

defense counsel’s failure to succinctly and clearly summarize the proffered

testimony in a jury-out hearing. Id. at 165-66.

Perhaps the best statement of the relevance and general admissibility of

such proof is contained in United States v. Hill, 655 F.2d 512 (3rd Cir. 1981). In

that case, the Third Circuit reversed a district court’s ruling that the testimony of a

clinical psychologist was inadmissible to prove that the defendant’s psychological

profile, subnormal intelligence, and susceptibility to persuasion made him uniquely

susceptible to inducement. The court concluded:

Testimony by an expert concerning a defendant’s susceptibility to

influence may be relevant to an entrapment defense. An expert’s

opinion, based on observation, psychological profiles, intelligence

tests, and other assorted data, may aid the jury in its determination

of the crucial issues of inducement and predisposition. . . . A jury

may not be able to properly evaluate the effect of appellant’s

subnormal intelligence and psychological characteristics on the

existence of inducement or predisposition without the considered

opinion of an expert.
9Opinion testimony by lay witnesses generally is not admissible and is circumscribed by

Tenn. R. Evid. 701.

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Accordingly, if the expert 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 predisposition.

Hill, 655 F.2d at 516.

We agree with the decisions discussed above and conclude that the

admissibility of expert testimony on a defendant’s unusual susceptibility to

inducement is governed, like other expert testimony, by the applicable rules of law

and evidence. Therefore, our resolution of the issue in this case begins with the

Tennessee Rules of Evidence. Rule 702, Testimony 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 witness qualified as an expert 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

opinion9

 testimony is will 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, in 1952 this Court held that in order for expert opinion

testimony to be admissible, “the subject under examination must be one that

requires that the court and jury have the aid of knowledge or experience such as
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men not specially skilled do not have, and such therefore 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 requirement, it is somewhat stricter than

the comparable federal rule of evidence which permits expert opinion testimony

upon a finding that it merely assists the trier of fact. Fed. 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 expert opinion

testimony which is based upon reliable facts or data is admissible in Tennessee. 

Rule 703, Tenn. R. Evid., permits reliance upon facts or data perceived by or

made known to the expert at or before the hearing. Moreover, if of a type

reasonably relied upon by experts in the particular field in forming opinions, the

facts or data need not be admissible in evidence. However, Rule 703, unlike the

comparable federal rule, provides that “[t]he court shall disallow testimony in the

form of an opinion or inference if the underlying facts or data indicate lack of

trustworthiness.” In this respect, our rule 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 (Tenn. App. 1990); R. Banks,

Some Comparisons Between the New Tennessee Rules of Evidence and the

Federal Rules of Evidence, Part II, 20 Mem.S.U.L.Rev. 499, 559 (1990). 

In contrast, Tennessee Rule of Evidence 704 is more lenient than its
10See N ote 3, surpa.

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federal counterpart with respect to the admissibility of opinion testimony on an

ultimate issue to be decided by the trier of fact. The federal rule specifically

prohibits expert testimony regarding the criminal defendant’s mental state or

condition as an element of the crime. Fed. R. Evid. 704(b). Under Tennessee

law, “[t]estimony in the form of an opinion or inference otherwise admissible is not

objectionable because it embraces an ultimate issue to be decided by the trier of

fact.” Tenn. R. Evid. 704 (emphasis added).10 With respect to expert testimony,

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 fact, 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 admissible” and not objectionable on other 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 expert testimony

about symptoms of post-traumatic stress syndrome exhibited by victims of child

abuse does not “substantially assist” a jury because it attempts to evaluate the

credibility of witnesses, a task which a jury is capable of performing without expert

testimony, and it is not reliable proof as to the question of whether a defendant

commited the specific crime of which he or she is accused. Id. at 562; see also

Tenn. R. Evid. 703. Under Tennessee law, therefore, expert opinion testimony
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which embraces an ultimate issue of fact is not automatically admissible. Such

testimony is simply not subject to exclusion on the sole basis that it embraces 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 court. The trial court’s decision is not

insulated from appellate review, however, and may be overturned on appeal upon

a showing that the trial court abused its discretion. Ballard, 855 S.W.2d at 562.

Considering the foregoing rules of evidence which govern the admissibility

of expert proof in Tennessee, we must now determine whether the trial court in

this case abused its discretion by excluding the proffered expert testimony about

the defendant’s susceptibility to inducement. Recently we considered the abuse

of discretion standard in another context and observed:

Discretion denotes the absence of a hard and fast rule. When

invoked as a guide for judicial action, it requires that the trial court

view the factual circumstances in light of the relevant legal principles

and exercise considered discretion before reaching a conclusion. 

Discretion should not be arbitrarily exercised. The applicable facts

and law must be given due consideration.

Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996) (internal citations omitted)

(discussing the standard in the context of a trial court’s decision to modify a

protective order). We concluded that an appellate court should find an abuse of

discretion when it appears that a trial court applied an incorrect legal standard, or

reached a decision which is against logic or reasoning that caused an injustice to

the party complaining. Id.
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Applying that standard to the facts in this case, we agree with the Court 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 that 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, if permitted to

do so, Dr. Engum would have offered opinion testimony, based upon observation,

intelligence tests, and other assorted data, that the defendant had suffered a

cognitive decline and significant deterioration of his cognitive abilities which

rendered him more susceptible to inducement and persuasion than the average

person. Even assuming that Dr. Engum had sought to offer opinion testimony on

the ultimate issue of entrapment, such testimony 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 jury. Tenn. R. Evid. 704. In this case, the trial

court’s discretionary decision to exclude the expert testimony was based upon an

incorrect legal standard.

The record does not support the State’s contention that the “trial court

could have reasonably concluded that the doctor’s testimony would not have

‘substantially assisted’ the jury and, in fact, could confuse it on the ultimate

question of inducement.” Indeed, nothing in the record even 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.” 
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Nothing in the record indicates that the defendant failed to provide 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 in the offer of proof. There is no suggestion that the

facts or data upon which he based his testimony were unreliable or untrustworthy. 

There is simply no reason to conclude that the expert testimony failed the

substantial assistance test of Rule 702, Tenn. R. Evid. Indeed, as the Third

Circuit recognized in Hill, supra, a jury may not be able to properly evaluate the

effect of a defendant’s cognitive and psychological characteristics on the

existence of inducement or predisposition without the considered opinion of an

expert. Id. at 516. Accordingly, we find that the trial court abused its discretion by

excluding the expert proof.

Having so concluded, we must next determine whether the trial court’s

failure to admit the testimony is an error which affirmatively appears to have

affected the verdict. Tenn. R. Crim. P. 52(a). The State argues that the error was

harmless because the proof shows, beyond a reasonable doubt, that the

defendant was predisposed to commit the offense. We disagree. 

Factors relevant to determining a defendant’s predisposition include the

character or reputation of the defendant, including any prior criminal record;

whether the suggestion of the criminal activity was initially 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 overcome only by repeated inducement or persuasion by law
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enforcement officials or agents; the nature of inducement or persuasion engaged

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 expert testimony was excluded,

based on the other proof introduced, the trial court charged the jury on the issue of

entrapment. Moreover, a mere reading of the cold record reveals that the issues

of inducement and predisposition were hotly contested. With respect to

inducement, the record shows that many of the discussions concerning the hit

man were initiated by McDaniel. In addition, when the defendant appeared to

waiver in his resolve to have the meeting and commit the crime, McDaniel would

warn the defendant that Waters was going to cause him trouble. McDaniel would

suggest that Shuck had to do something to prevent Waters from “ruining your life.” 

McDaniel indicated to the defendant that he needed to act quickly if he was going

to do anything before he was ruined by Waters. Finally, McDaniel told the

defendant that the hit man was behind in child support and had no money for

Christmas and wanted to have the meeting as soon as possible. At trial, McDaniel

admitted that she had tried to talk Shuck into meeting with the hit man; however,

McDaniel said that she was concerned for the safety of the potential victims

because the defendant had mentioned 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
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defendant had a prior criminal record or a bad reputation. Indeed, he had been a

practicing veterinarian in the area for thirty years, had served as city councilman,

and been active in other civic and religious organizations. The defendant was not

engaged in the criminal activity for profit and the proof was disputed as to whether

McDaniel or the defendant first suggested hiring a hit man. The duration of the

alleged inducement by McDaniel was lengthy, some five weeks, and her position

as a trusted employee made the inducement more effective. Finally, during the

course of the five week period, the defendant expressed reluctance and

uncertainty about contacting a hit man even up to the day the actual meeting

occurred. Considering the totality of the circumstances, including the recognition

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 psychological characteristics on

the existence of inducement and predisposition, we conclude that the trial court’s

exclusion of the expert testimony was not harmless error under Tenn. R. Crim. P.

52(a). Consequently, we affirm the Court of Criminal Appeals judgment reversing

the convictions and remanding for a new trial.

CONCLUSION

We conclude that the trial court abused its discretion by excluding expert

testimony about the defendant’s unique susceptibility to inducement on the sole

basis that the expert testimony expressed an opinion 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 Appeals

reversing the convictions and remanding for a new trial.
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_____________________________________

FRANK F. DROWOTA, III,

JUSTICE

CONCUR:

Anderson, C.J.,

Reid, Birch, Holder, JJ.