### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON March 12, 2002 Sessi

on

STATE OF TENNESSEE v. JUDY JOHNSON and STA NLEY JOHNSON

Appeal from the Circuit Court for Gibson County No. 6803 George R. Ellis, Chancellor

No. W2001-01272-CCA-R3-CD - Filed June 26, 2002

G ARY R. W ADE , P.J., con curring.

While I concur in the result reached by the majority, I disagree on three points. First, it is my view that the trial court erred by permitting the state to cross-examine Stanley John son on a 1993 animal cruelty charge that did not result in a conviction. Tennessee Rule o f Evidence 608 pe

rmits limited use of character

evidence for imp

eachment purpos

es. Rule 608 provides in pertinent part as follows:

Specific

Instances of Conduct. Specific instances of conduct of a witness for the purpose of attac king or supp orting the witness's credibility, other than convictions of crimes as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, if probative of truthfulness or untruthfulness and under the following conditions, be inquired into on cr oss -examination of the witness concerning the witness's character for truthfulness or untruthfulness or concerning the charac ter for truthfulness

or untruthfulness

of another witness a

s to which the char

acter witness being cross-examined has testified. The conditions which must be satisfied before al l owing inquiry on cross-examination about such conduct probative solely of truthfulness or untruthfulness are: (1) The court upon request must hold a hearing outside the jury's presence and
must determ ine t hat the alleged conduct has proba

tive value and tha

t a reasonable fact ual bas is e xis ts f or t he i nqu iry; (2) The conduct must have occurr ed no more than ten years before commencement of the action or prosecution, . . . ; and (3) If the witness to be impeached is the accused in a criminal prosecut ion
, the State must

give the accused reasonable written notice of the impeaching conduct before trial, and the court upon request must determine that the conduct's probative value on credibility

outweighs its unf

air prejudicial e

ffect on the subst

antive issues. The court may rule on the admissibility of such proof prior to the tri al but in an y event shall rule prior

to the testimony of the accused. If the court makes a final determination that such proof is admissible for impeachment purposes, the accused-2-

neednot actually testify at the t ri al to later challenge the propriety of the determination. . . .

Tenn. R. Evid. 608(b) (emphasis added).

Here, the state failed t o prov ide notice, as re quired by the

rule, of its intenti

on to crossexamine Stanley

Johnson regardin

g the 1993 animal

cruelty charge. The pre-trial notice filed by the state, which the state now con cedes was “defect[ive],” expressed an intent to impeach only Judy Johnso n with a 199 0 embezzlement conviction. Stanley Johnson had already testified on direct examination and the state was near the end of its cr oss-exam ination before the issue of the 1993 char ge was presented. At that point, the trial court held a bench conference and permitted the questioni ng. Judy Johnson, per haps because of

her prior convic

tions, elected not

to testify at

trial. HadStanley Johnson had proper notice of the state’s intent to cross-examine on the 1993 charge, he may have made a similar election. Mor e impor tantly, however, while the events underly ing the charge may ultimately have been admissible, the char ge itself was not. See State v. Morgan , 541 S.W.2d 385 , 389 (Tenn. 1976) ; State v. Philpott , 882 S.W.2d 394, 403 (Tenn. Crim. App. 1 994) ; Moore v. State
, 563 S.W.2d 215, 218 (Tenn. Crim. App. 1977). A witness being cross-examined

as to aspecific instanceof conduct under Tennessee Rule of Evidence 608 “should be asked about the act itself, not abo

ut rumors, arres

ts, charges o

r indi ctments for the act.” Neil P. Cohen et al., Tennesse e Law of Eviden ce § 6.08[4] (4 th ed. 2000). To the state’s credit, the assistant district attorney referred to prior “problems” in his cross-examination and instructed Stanley Johnson that he was not inquiring

about “charge

s.” Neverthele

ss, Johnson, in his response to the questions, made multiple references to

the criminal char

ge, inadverte

ntly placing

in admissibl e, highly prejudicial inf orm ati on b efor e th e ju ry.

It is my conclusion, however, that the trial court’s error in permitting the cross-examination

was harmless. See Tenn. R. App. P. 36(b); State v. Edwards , 868 S.W.2d 682 (Tenn. Crim. App. 1993). First, the jury

had already heard evidence of other complaints against the defendants when investigator

Don Curry read the affidavit in support of the search warr ant. Second, the evidence of guilt was substantial. The living conditions of the dogs are documented by photographic a nd vi deotape evidence. A veterinarian and the Dyersburg Humane Society supervisor d escribed in som e detail the unsanitary state of

the defendants’ kennel and the poor quality of the care provided to the animals. The defense was not thatthe conditions in the kennel were acceptable, but that they were the u nintentional resu

lt of Judy Johnson’ s surgery and poor phy

sical health. The

animal cruelty statute, however, does not require intentional conduct. The statute is satisfied when a pe rson “knowingly

. . . [f]ails unreasonably to provide necessary food, w ater, care or shelter

for an animal in the pers on's custody.” Tenn. Code Ann. § 39-14-202(a)(2). Evidence that the dogs were

no t receiving necessary food, water, and care and that th e defendants had knowled ge of the situation was overwhelming.

I also depart from

the majority

with regard to certain of the sentencing considerations. The defendants

complain that the tri al court e rroneously admitted approximately 500 letters from persons withonly secondhand knowledge of the case. The letters or iginated from across the United States-3-

and their authors appear to have gained information about the prosecution from the internet and from humane society publ

ications. The majority excuses the filing of the letters into

the record bec

ause the trial court made no reference to their co ntent in sentencing the defendant and then relies upon the content to suppo

rt the trial court

’s order of part

ial confinement:

The letters sent to the prosecutor from throughout the United States demonstrate the wide interest in this matt er and establi sh that, because of the publicity, the puni shmentwould have a deterrent effect. . . . The geographic spre ad from whic h these letters came supports the trial court’s conclusion as to the deterrent effect of the
sentences.

In my view, the letters should not have been considered for any purpos e. In St ate v. Hooper , our supreme court established the following standard for incarceration based on a need for dete rrence:

[W]e will presu me that a tri al court's decision to incarcerate a defendant based on a needfor deterrence is correct so long as any

reasonable

person looking at the entire record c ould conclude tha

t (1) a need to det

er similar crimes

is present in the particular community, ju

risdic tion, or in the state as a whole , and (2) incarceration of the defendant ma

y rationally

serve as a

deterrent to others similarly situated and likely to comm

it similar crimes.

29 S.W.3d 1, 10 (Tenn. 20 00) (emphasis add

ed). From this,

I would hold that a need for deterrence of similar crimes outside this state is irrelevant and would not, standing alone, support a decision to incarcerate. Nevertheless, I would affirm the trial court’ s order of spl it con finem ent. In my view,

some incarceration

is necessary

to avoid deprecia

tin g the s eriousness of the offenses. See Tenn. Code Ann. § 40-35-103(1)(B).

Fin all y, I disagree with the majority’s conc lusion that the trial cour t prope rly failed t o consider as a mitigating factor

that the defendants’ conduct “neither caused nor threatened serious bodily injury.” See Tenn. C ode Ann. § 40-35-1 13(1). The major ity holds that t

he mitigator is inapplicable

because the dog

s in the defendan

ts’ care had “ph

ysical and e

motional p roblems.” While that may be an

accurate observation, I believe the legislature intended the statute to apply to human life. The application of this factor would not, however, affect the sentence.

____________________________________ GARY R. WADE, PRESIDING JUDGE