IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

March 12, 2002 Session

STATE OF TENNESSEE v. JUDY JOHNSON and STANLEY 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

GARY R. WADE, P.J., concurring.

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 Johnson on a 1993

animal cruelty charge that did not result in a conviction. Tennessee Rule of Evidence 608 permits

limited use of character evidence for impeachment purposes. Rule 608 provides in pertinent part as

follows:

Specific Instances of Conduct. Specific instances of conduct of a witness for

the purpose of attacking orsupporting 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 cross-examination of the witness concerning the

witness's character for truthfulness or untruthfulness or concerning the character for

truthfulness or untruthfulness of another witness as to which the character witness

being cross-examined has testified. The conditions which must be satisfied before

allowing 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 determine that the alleged conduct has probative value and that a reasonable

factual basis exists for the inquiry;

(2) The conduct must have occurred 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 prosecution,

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 unfair prejudicial effect on the substantive issues.

The court may rule on the admissibility of such proof prior to the trial but in any

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
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need not actually testify at the trial to later challenge the propriety of the

determination. . . . 

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

Here, the state failed to provide notice, as required by the rule, of its intention to crossexamine Stanley Johnson regarding the 1993 animal cruelty charge. The pre-trial notice filed by the

state, which the state now concedes was “defect[ive],” expressed an intent to impeach only Judy

Johnson with a 1990 embezzlement conviction. Stanley Johnson had already testified on direct

examination and the state was near the end of its cross-examination before the issue of the 1993

charge was presented. At that point, the trial court held a bench conference and permitted the

questioning. Judy Johnson, perhaps because of her prior convictions, elected not to testify at trial.

Had Stanley Johnson had proper notice of the state’s intent to cross-examine on the 1993 charge, he

may have made a similar election. More importantly, however, while the events underlying the

charge may ultimately have been admissible, the charge 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. 1994);

Moore v. State, 563 S.W.2d 215, 218 (Tenn. Crim. App. 1977). A witness being cross-examined

as to a specific instance of conduct under Tennessee Rule of Evidence 608 “should be asked about

the act itself, not about rumors, arrests, charges or indictments for the act.” Neil P. Cohen et al.,

Tennessee Law of Evidence § 6.08[4] (4th 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 “charges.” Nevertheless, Johnson, in his response to the questions, made

multiple references to the criminal charge, inadvertently placing inadmissible, highly prejudicial

information before the jury.

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 warrant. Second, the evidence of

guilt was substantial. The living conditions of the dogs are documented by photographic and

videotape evidence. A veterinarian and the Dyersburg Humane Society supervisor described in some

detail the unsanitary state of the defendants’ kennel and the poor quality of the care provided to the

animals. The defense was not that the conditions in the kennel were acceptable, but that they were

the unintentional result of Judy Johnson’s surgery and poor physical health. The animal cruelty

statute, however, does not require intentional conduct. The statute is satisfied when a person

“knowingly . . . [f]ails unreasonably to provide necessary food, water, care or shelter for an animal

in the person's custody.” Tenn. Code Ann. § 39-14-202(a)(2). Evidence that the dogs were not

receiving necessary food, water, and care and that the defendants had knowledge of the situation was

overwhelming. 

I also depart from the majority with regard to certain of the sentencing considerations. The

defendants complain that the trial court erroneously admitted approximately 500 letters from persons

with only secondhand knowledge of the case. The letters originated from across the United States
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and their authors appear to have gained information about the prosecution from the internet and from

humane society publications. The majority excuses the filing of the letters into the record because

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

the content to support the trial court’s order of partial confinement: 

The letters sent to the prosecutor from throughout the United States demonstrate the

wide interest in this matter and establish that, because of the publicity, the

punishment would have a deterrent effect. . . . The geographic spread from which

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 purpose. In State v. Hooper, our

supreme court established the following standard for incarceration based on a need for deterrence:

[W]e will presume that a trial court's decision to incarcerate a defendant based on a

need for deterrence is correct so long as any reasonable person looking at the entire

record could conclude that (1) a need to deter similar crimes is present in the

particular community, jurisdiction, or in the state as a whole, and (2) incarceration

of the defendant may rationally serve as a deterrent to others similarly situated and

likely to commit similar crimes.

29 S.W.3d 1, 10 (Tenn. 2000) (emphasis added). 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 split confinement. In my view,

some incarceration is necessary to avoid depreciating the seriousness of the offenses. See Tenn.

Code Ann. § 40-35-103(1)(B).

Finally, I disagree with the majority’s conclusion that the trial court properly failed to

consider as a mitigating factor that the defendants’ conduct “neither caused nor threatened serious

bodily injury.” See Tenn. Code Ann. § 40-35-113(1). The majority holds that the mitigator is

inapplicable because the dogs in the defendants’ care had “physical and emotional problems.” 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.

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GARY R. WADE, PRESIDING JUDGE