### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE January 5, 2001 S ession

JAMES RAY v. THOMAS ALVIN RICHARDS

Appeal from the Circuit Court for Davidson County No. 99C-2370 Hamilton Gayden, Judge

No. M2000-01808-COA-R3-CV - Filed July 17, 2001

Plaintiff filed a complaint

against Defen

dant for persona

l injuries resulting

from an allege

d assault which occurred on

October 20, 1998. The jury found for Defendant. Plaintiff appeals ra ising two issues: (1) Whether the trial court committed reversible error by admitting evidence of Plaintiff’s character, reputation, conduct, and criminalrecords, and (2) whether the trial court erred in allowing the neighbor’s

petition describin

g Plaintiff as a p

ublic nuisance into evidence. We affirm the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

W ILLI AM B. C AIN , J., delivered the opinion of the court, in which W ILLI AM C. K OCH , J R . and P ATRICIA J. C OTTRELL , JJ., joined.

Jas on S . Ma ngru m an d Aa ron T. R aney, Nas hvi lle , Te nne sse e, fo r th e app ell ant , Ja mes Ray.

Julian W. Blackshear, Jr. and Jeffr ey W. Blackshear, Nashville, Tennessee, for the appellee, Thomas Alvin Richards.

OPINION

The parties to t his lawsuit reside in the same neighborhood. At trial, Plaintiff alleged that

on Octob er 20, 1998, he was on a walk in the neighborhood. He encountered Defendant and tha t Defendant

assaulted him with

a stick which caused the

plaintiff injuries. Plaintiff phoned the police department

andreported the incident. Defendant was arrested and charged by the police with hitting the plaintiff with a broom handle and causing him bodily injury.

Defendant

had a different version of the even ts than Plaintiff of the October 20, 1998 incident. Defendant alleged that he was in his yard propping himself up with a broom handle when Plaintiff approached him and pinned Defendant against the mailbox. The following day, Plaintiff

was walking around the neighborhood with a lo ng stick that had a nail in the end of it in case he came upon a “rat.”-2-

Plaintiff’s general conduct and the way he behaved in the neighborh

ood alerted the r

esidents of the neighborhoo

d to the extent that a p

etition was cir culated describ ing Plaintiff as a

public nuisance.

On August 26, 1999, Plaintiff filed a civil warrant in Davidson County General Sessions Courtalleging that Defendant assaulted him and that he suffered p ers onal injuries. Defendant denied all claims and asserted that Plaintiff filed the claim fraudulen tly a nd that Plaintiff’s injuries were self-inflicted.

After an adverse judgment

in General Sessions Court, Plaintiff appealed to the Circuit Court for Davidson County. At trial in the circuit court on April 10 and 11, 200 0, b efor e a j ury, a judgment was entered for the defendant. Plaintiff appealed represented by new counsel.

Plaintiff/Appellant

argues that the trial court erred by permitting the introduction of evidence including opinion and reputation testimony concerning Plaintiff’s character and specific instances of conduct, prior c

onvictions of the Pla

intiff, as well

as hearsay evidence. We have determined that Plaintiff cann ot raise this i ssue on appeal be cause he failed

to make a timely

objection to this evidenceat the trial of this case. We first address the plaintiff’s assertion that the defendant’s counsel was successful in having Defend

ant and two other w

itnesses discuss

specific instances of Plaintiff’s conduct.

Plaintiff’s assertion is correct since Defendant

Richards and the witnesses, Charles and Mary Cason, testified as to

numerous instances where they observed Mr. Ray trespassing onother people’s pro pert y, repeatedly

driving by

neighboring ho

me s , and generally putting the people of the nei ghbo rho od i n fea r. N o ob jec tio n, t ime ly or oth erwi se, was int erpo sed to a ny ofthi s te sti mon y.

The same is true as to testimony concerning the pa st criminal record of Mr. Ray, much of which dealt with

charge s not n ecess arily f ollo wed by co nvict ion. T hese c harges invol ved DU I, fleeing and eludin g police, car rying a prohibited weapon, possession of a controlled substance, reckless driving, and contributing to the delinquency of a minor.

Plaintiff argues that such testimony was inadmissible under Tenn.R.Evid. 403, 608, and 609. However, the exchanges about which Plaintiff com plain s regarding c

haracter evide

nce, specific instances of condu c t, and criminal charges cannot be addressed on appeal because the exchang es
werenot met by appropriate objections. Generally , relief is not

available in the a

ppellate courts to

a party who fails to take whatever actio n is necessary to prevent error. See Tenn.R.App.P. 36(a). “Error may not be predicated upon a ruling which admits or excl

udes evidence un

less a substantial right of the party is affected,

and . . . [i]n case the ruling is one admitting evidence, a timely objection

or motion tostrike appears o f record, statin

g the specific g

round of objection

if the specific ground was not apparent from the context.” Tenn.R.Evid. 103(a)(1).

Objections to the introduction of evidence must

be timely and specific. See Overstreet

v. Shoney’s, Inc ., 4 S.W.3d 694, 702 (Tenn. Ct. App. 1999). An-3-

evidentiary

objec ti on will be consider ed timely eit

her if it is made in a

motion in limine or if it is made at the time the objectionable evidence is about to be introduced. See Wright v. United Servs. Auto. Ass’n , 789 S.W.2d 911, 914 (Tenn. Ct. App. 1990).

. . . . A party who invites or waives error, or who fails totake reasonable

steps to

cure an error, is

not entitled to relief on appeal. See Tenn. R. App. P. 36 (a), cmt. a. Failureto object

to evidencein a timely and specific fashion precludes taking issue

on appeal with the admission of the evidence. See Ehrlich v. Weber , 114 Tenn. 711, 717-18, 88 S.W. 188, 189 (1905) ; Pyle v. Morrison , 716 S.W.2d 930, 936 (Tenn. Ct. App. 1986); Tenn.R.Evid. 103 (a)(1).

Grandstaff

v. Hawks , 36 S.W.3d 482, 488 (T enn. Ct. App. 2000 ). Plaintiff’s cou nsel objected to testimon yregarding p ossession of a controlled substance on the ground that it was an expunged record. Further, he objected to tes timony regard ing reckless driving on the ground of relevance. Plaintiff’s objection to the reckless driving wa s sustained. Plaintiff’s counse l at the trial faile

d to object to the remaining

exchanges. Acc

ordingly, we de cline to address the admissibility of the evidence.

The fin al i ssu e rai sed by the P laintiff is the argument that the neighborhood petition was entered in error and constitutes reversible error. Plaintiff’s attorney at trial wa s the first to mention the neighbo rhood peti tion durin g opening sta tements by sta ting:

You are going to hear s

ome testimony

that there were

some pamphlets, fly

ers, criminal records passed

out soon after this

incident. There

were some docume

nts passedout that were mea

nt to slander my

client’s name, to m

ake him look bad. You may hear some testimony that there were some records and reports that were passed outto the children in th

e neighborhood

about Mr. Ray ’s prior criminal activ ity, all meant to slander his name.

After being the fi rst to introduce the existence of the petition to the jury during opening statement,Plaintiff asserts that the following exchanges concerning the neighborhood petition were improper under Tenn.R.Evid. 801 and 802, and that the admission o f the docum ent constitutes reversible error:

Q. (By

Mr. Blackshear) I’m

going to get back to those

charges in

one moment. Are you aw are of an y petition that neighbors in the neighborhood were circulating about this man? A. (By Thomas

Richards) Yes, I

was. Q. Oka y. A. I was the last one - - Q. Have you seen the petition? A. Yeah.-4-

Q. This petition event ually was g

iven to you, r

ight? A. Right.

. . . . Q. I hand you this

document before

you that’s e

ntitled “Re sidence [sic] of Spence Court; Spence Circle; Marwood Lane, Nashville, Tennessee,” and ask y ou if this is the petition that was handed to you? A. It is. Q. Thi s is the pet iti on yo u’r e ref erri ng to in yo ur t est imo ny? A. Right. MR. BLACKSHEAR: May it please the Court, Mr. R ic hards is unable to read, and with y

our Court’s permission I’d like to read it for him. THE COURT: Any objection, Mr. Gold? MR. GOLD : I ob jec t be caus e it ’s h ears ay. MR. BLACKSHEAR: He can authenticate that - - MR. GOLD: If Your Honor would like a sidebar confere nce - - THE COURT: Let

me see what it is. MR. GOLD: Furthermore, I’ve had no cha nce of looking at this. When Mr. Blackshear and I exchanged our discovery , he did not provide this to me. MR. BLACKSHEAR: Well, if you don’t wa nt th e jury to see

it, I want to kno w wh y. MR. GOLD: I

t’s highly p

rejudicial. MR. BLACKSHEAR: I

believe I’ll

agree with

you on that on

e. Now, if Your Honor, please, if Your Honor wants the s ignato ries on this petition to come in just for the purpose of authenticating it, as that being their signature, I can do that too, Your Honor, but I’m trying to save some time. THE COURT: Well, I’l

l have to sustain

the objection. It c

ould be admissible

as - - MR. BLACKSHEAR: I’ll reserve that - - THE COURT: - - but there’s no ability to cross-examine this at this time. MR. BLACKSHEAR: I beg y our pardon? THE COURT: There’s no ability to cross-examine this at this point in time. MR. BLACKSHEAR: Okay. I’ll wa it until another comes in. MR GOLD: Thank you, Your Honor. A. Me and my wife was the last ones to sign this petition. Q. (By Mr. B lackshear) Oka y. You did sig

n it? A. Yes, I did on the last paper. Q. Last paper? A. Right. Q. All right. MRBLACKSHEAR: N

ow, may it ple

ase the Court,

is it h earsay n ow? Can he now aut

henticat e his own si

gnature s [sic]? Q. (By Mr. Blackshear) I t this the petition that you signed? A. That’s it.-5- MR B LACK SHE AR: May I n ow r ead i t to the jur y? THE COURT: Yes. MR. BLACKSHEAR: Thank you, Your Honor. “We, the undersigned, affirm that we have witnessed a suspicious per son w alking repeatedly

through our neighborhood, s low ly and repeatedly driving through our neighborh ood, oft en stopping and st aring at our re

sidences in a stal

king manner. The

se suspicious acts have occurred several timesa day, as well as various times during the night andearly morn

ing hours. We have

firsthand knowle

dge that sever

al resi d ents have had a one-on-one conf

rontation with this su

spicious person re

garding his ac

tions. T hrough records obtained at the Metropolitan Police Department in Nashville, Davidson County, we have learned this person’s identity to be James E. Ray of 300

Spence Lane. We consider this suspicious individual to be a disruption to the peacefulness of our neighborhood and, furthermore, a public nuisance.”

. . . . Q. (By

Mr. Blackshear) It’s a petitionthat says tha t Mr. Ray is

a suspicious person - - MR. BLACKSHEAR: May I re ad that petition to him, Your Honor? MR. GOLD: I

n the interest of ti

me, I don’t obj ect. Q. (By Mr. Blackshear) I hand this petition - - MR. BLACKSHEAR: Could I - - could you hand it to him, sir. Q. (By Mr. Blackshear) I t’s Exhibit 9. Is that your name up there? A. (By Charles Cason) My name is on the top line. My wife’s is second. Q. All right. Is that your signature? A. It is my signature. Q. Okay, sir. And do you affirm what is said in that petition now? A. I don’t think I

’ve read this. Q. All right. Well, read it now. A. I don’t have m

y reading glasses, and I

can’t read this f

ine print. MR. BLACKSHEA

R: May I r

ead it to him? THE COURT: Go ahead. Q. (By Mr. Blackshear) “We, the undersig ned, affirm that we have

witnessed a

sus picious person walking r epeatedly through our neig

hborhood, slowly

an d repeatedly

driving throug

h our neighborho

od often stoppin

g an d staring at our residences in a

stalking manner. These suspicious acts have occurred several times a day, as well as various times during thenight and early morning hours. We have firsthandknowledge that s everal residen

ts have had a one-on-one confrontation with this suspicious per

son regarding

his actions. Throu gh records obtaine d in the Metropolita

n Police Departme

nt in Nashville, Davids

on County, we

have learned th

is person’s identity to be James E. Ray of 300 Spence L

ane. We consider

this suspicious individual to be a disruption to the peacefulness of our neighborhood and furthermore a public nuisance.” Is that - - do y

ou agree with th

at?-6-

A. I signed it. He walks the street all the time. I mean,he’s done that since he’s been there. Q. Well, I

think the jury would like to hear from you either a y es or no. Do you agree with that, sir? A. Yes. Q. Thank you, sir. MR. BLACKSHEAR: Is it necessary for me to introduce that as evidence, the exhibit? THE COURT: It’s still for ide nti fic ati on o nly. You’ve got 21 signatures on there. MR. BLACKSHEAR: Okay, sir.

Plaintiff onl y objected to the petition after the Court in

quired as to wheth

er he objected to its introduction. Plaintiff objected on the ground of hearsay and the Court sustained the objection. Sub seq uen tly, Defendant’s counsel read the petition without objection. At a later time, Defendant’s counsel again read the petition al oud. Plaintiff’s counsel stated, “In the interest of time, I don’t object.”

“Tennesseehas long recognized a ‘good-for-the-goose, g ood-for-the-gander’ rule that ‘if a party opens the door

for the admission of incompetent evidence, he is in no plight to complain that his adversary followed through the door thus opened; and this, although no objec tion was made in the first instance to the admission of such evidence.’ ” Spadafina v. Stat e , No. W1999- 00268- CCA-R3-PC, 2000 WL 1670965, *11 (Tenn. Crim. App. Oct. 23, 20 00) (citin g Thomas v. State , 121 Tenn. 83, 87, 113 S.W.

1041, 1042, (1908) ; see also Garrison v . State , 163 Tenn. 108, 121, 40 S.W.2d 1009, 1013 (1931)). Since Plai ntiff was the firs t to inject the issue

of the petition in his opening stateme

nt, he is compromise

d when objecting

to it at trial.

Plaintif f did no t object to the introduction of the petition the second time Defendant introducedit. Accordingly, because Plaintiff did not renew his objection to the petition, we decline to address whether this evidence was admissible. See Grandstaff v. Hawks , 36 S.W.3d 482 (Tenn. Ct. App. 2000). This Cou rt is of the opinion that Pl

aintiff’s failur

e to renew his objection constituted

a waiver of any error by the court in permitting Defendant to read the petition. Therefore , the issue of the neighbor’s petition is not available in this Court. See Tenn. R. App. P. 36(a).

Therewas material evidence to support the verdict of the jury

approved by the trial judge and Appellant does not assert otherwise. Tenn. R. App . P. Rule 13(d) thus precludes this Court from

cons ideration on appeal of any issue as to the facts of the case. The judg ment of the trial court i s affirmed and costs on appeal are assessed to Appel

lant.

___________________________________ WILLIA M B. CAIN, JUDGE-7-