IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

November 17, 2015 Session

STATE OF TENNESSEE v. ETHAN ALEXANDER SELF

Appeal from the Criminal Court for Hawkins County

No. 13CR154 Jon Kerry Blackwood, Senior Judge

No. E2014-02466-CCA-R3-CD – Filed August 29, 2016

ROBERT H. MONTGOMERY, JR., J., concurring in part and dissenting in part.

I dissent from the majority’s conclusion that the trial court did not err in denying 

the Defendant’s motion for a mistrial after Dr. Brietstein testified that, in his opinion, the 

shooting was not accidental. As the majority notes, this testimony was elicited by the 

prosecutor in violation of the court’s earlier ruling which prohibited Dr. Brietstein from 

testifying to any opinion that the shooting was accidental or intentional.

The majority notes that on direct examination by the defense, Dr. Brietstein read 

an excerpt of his report to the jury. The excerpt included his opinion that the Defendant’s 

account of domestic abuse by the victim was believable, notwithstanding a lack of 

supporting evidence aside from the Defendant’s account. This excerpt also contained the 

following:

By his account, the level of abuse escalated prior to the shooting of his 

father, as was Ethan’s desire to stand up to his father, emancipate himself, 

and finally show his father, “Who the bigger man was.” Thus, Ethan, being 

a victim of abuse, felt as if he had had enough, took matters into his own 

hands and decided to confront his father with the gun, the outcome being all 

but inevitable.

When cross-examining Dr. Brietstein, the prosecutor asked what the doctor meant 

when he said in the report that the outcome was all but inevitable. Dr. Brietstein 

responded, “Well, what I mean is what I go on to say and explain is that I do not believe 

this to have been an accident.” It was at this point that defense counsel moved for a 

mistrial. 
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The prosecutor’s explanation for having asked the question indicates his disregard 

of the trial court’s unequivocal order excluding evidence of an expert’s opinion as to 

whether or not the expert believed the shooting had been accidental. Although the 

prosecutor claimed he did not know the exact answer the Dr. Brietstein would give, he 

conceded that he knew the witness believed the shooting was not accidental. 

The majority aptly notes that three non-exclusive factors may be pertinent to 

determining whether a mistrial should be granted: “(1) whether the improper testimony 

resulted from questioning by the state, rather than having been a gratuitous declaration, 

(2) the relative strength or weakness of the state’s proof, and (3) whether the trial court 

promptly gave a curative instruction.” State v. Demitrius Holmes, No. E2000-02263-

CCA-R3-CD, 2001 WL 1538517, at *4 (Tenn. Crim. App. Nov. 30, 2001); see also State 

v. Danny Wayne Horn, No. E2015-00715-CCA-R3-CD, 2016 WL 561181, at *7 (Tenn. 

Crim. App. Feb. 12, 2016); State v. Bennie Nelson Thomas, Jr., No. W2004-00498-CCAR3-CD, at *5 (Tenn. Crim. App. Nov. 1, 2004), perm. app. denied (Tenn. Feb. 28, 2005); 

State v. Paul Hayes, No. W2001-02637-CCA-R3-CD, at *4 (Tenn. Crim. App. Dec. 6, 

2002), perm. app. denied (Tenn. May 27, 2003). Upon consideration of these factors, I 

reach a different result than that reached by the majority.

As the majority acknowledges, Dr. Brietstein’s testimony was elicited by the State. 

The majority likewise acknowledges that the State’s action was particularly egregious in

view of the prosecutor’s knowledge of the answer he was likely to receive and of the 

court’s prior ruling excluding evidence of this nature. 

The majority aptly notes, as well, that the evidence was legally sufficient to 

support the first degree premeditated murder conviction. I acknowledge that, by all 

accounts, the Defendant shot the victim. The question of the Defendant’s state of mind 

when he shot the victim was vigorously litigated at the trial and was the subject of 

substantial conflicting proof offered by the parties. In my view, the improperly elicited 

evidence went to the issue upon which the entire case turned – the Defendant’s state of 

mind when he shot the victim. There could be no assurance, after the jury heard this 

expert testimony that was contrary to the defense theory of an accidental shooting and 

which came from a witness called by the defense, that the jury could, and did, disregard 

it, notwithstanding the court’s instruction to disregard the improper testimony. 

In drawing a contrary conclusion, the majority notes Dr. Kelley’s testimony that 

the Defendant suffered from PTSD, that PTSD from abuse would lead to an exaggerated 

startle response, that the Defendant’s account of the gun going off after he was startled 

had a “ring of genuineness,” and that Dr. Kelley thought the Defendant had been truthful 

with him. The majority states that this evidence was received notwithstanding the trial 
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court’s prior ruling that the experts could not testify on the ultimate issue of whether the 

Defendant intentionally or accidentally shot the victim. The import of Dr. Kelley’s 

testimony was that, in his opinion, the Defendant suffered from post-traumatic stress 

disorder (PTSD) and that the Defendant’s account of the shooting was consistent with the 

symptoms and manifestations of PTSD. Dr. Kelley’s testimony about whether he thought 

the Defendant was truthful pertained specifically to the Defendant’s account of abuse at 

the hands of the victim and whether Dr. Kelley thought the Defendant was malingering, 

both of which were relevant to Dr. Kelley’s PTSD diagnosis. Similarly, Dr. Kelley 

merely testified that the Defendant’s account of being startled and the gun going off had a 

“ring of genuineness” based upon Dr. Kelley’s experience in talking with PTSD patients. 

Unlike the majority, I do not view Dr. Kelley’s testimony as having gone beyond the 

scope of the court’s original ruling and as having provided the jury with an expert view

directly opposing Dr. Brietstein’s opinion about the ultimate issue in the case. 

I have considered the case cited by the majority and the State, State v. Kathy 

Martin and Marcus Carlos West, No. 03C01-9411-CR-00420, 1996 WL 192902, at *5-6 

(Tenn. Crim. App. Apr. 23, 1996), perm. app. denied (Tenn. Nov. 4, 1996), and conclude 

that it is distinguishable. As the majority notes, Kathy Martin involved an aggravated 

child abuse prosecution related to a thirteen-month-old child’s burns from a butane 

lighter. On cross-examination by the defense, one of the doctors testified that, in his 

opinion, that victim’s the injuries were intentionally caused. His response was not

responsive to the question asked, which pertained to a thirteen-month-old child’s ability 

to self-inflict the burns. One of the defendants made a motion for a mistrial but did not 

request a curative instruction, and none was given. The trial court denied the motion, and 

this court agreed with the trial court’s ruling. In Kathy Martin, the question was whether 

either or both of the defendants caused the victim’s injuries, whereas in the present case, 

the Defendant admitted causing the victim’s fatal injury. The only issue to be decided in 

the present case was whether the Defendant possessed the requisite mental state for first 

degree premeditated murder or whether his actions were a lesser offense or no offense at 

all. In Kathy Martin, the testimony that the injuries were intentionally inflicted, though 

improper, did not pertain to the challenging defendant’s state of mind as much as it 

pertained to whether a thirteen-month-old child was physically capable of burning herself 

with a lighter. Viewed in this light, the improper evidence in Kathy Martin did not create 

a manifest necessity for a mistrial, unlike the improper evidence in the present case. 

In my view, the State’s eliciting the inadmissible evidence was a flagrant violation 

of the trial court’s previous order, and the evidence the jury heard as a result – from a 

psychiatric expert called by the Defendant himself – was so devastating to the defense 

that “no feasible alternative to halting the proceedings” existed. See State v. Knight, 616 

S.W.2d 593, 596 (Tenn. 1981). Accordingly, I would hold that the trial court abused its 
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discretion in denying the Defendant’s motion for a mistrial. See State v. Adkins, 786 

S.W.2d 642, 644 (Tenn. 1990). 

Because I believe manifest necessity for a mistrial existed, I would reverse the 

conviction and remand the case for a new trial. In all other respects, I concur with the 

majority’s analysis. 

 _____________________________________

 ROBERT H. MONTGOMERY, JR., JUDGE