            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE

           STATE OF TENNESSEE, v. LUTHER RAY DOTSON, JR,.

                    Direct Appeal from the Circuit Court for Rhea County
                             No. 14146    J. Curtis Smith, Judge



                            No. E1999-00640-CCA-R3-CD - Decided
                                        May 3, 2000


JUDGE JERRY L. SMITH, CONCURRING IN RESULTS.

                                    CONCURRING OPINION

        I write separately in concurring with the judgment of the Court, because I believe that the
limitation of the defense expert’s opinion in this case was a discretionary call on the part of the trial
court and I can find no abuse of discretion in the decision made by the trial judge.

         It should be noted that neither Tenn. R. Evid. 702 or 703 provide for the admission in
evidence of testimony concerning the bases of an expert’s opinions. Rule 702 allows the expert to
testify in the form of an opinion, something lay witnesses may not ordinarily do. Rule 703 specifies
what type of facts and data are legally acceptable as the bases for expert opinion, but the rule itself
does not authorize the admission as substantive evidence of otherwise inadmissible testimony. See,
State v. Casey, 868 s.W.2d 737 (Tenn. Crim. App. 1993).

         The facts and data underlying an expert’s opinion, even though inadmissible as substantive
evidence, may be related by the expert to the jury if necessary for the jury to understand and assess
the opinion testimony and if the trial court finds pursuant to Tenn. R. Evid. 403 that this otherwise
inadmissible testimony is not unduly prejudicial, does not confuse the issues, and is not likely to be
misused by the jury. Cohen, Sheppeard, Paine, Tennessee Law of Evidence, § 703.5 (3rd Ed. 1995).
If the trial judge determines the underlying facts and data pass muster under Rule 403, then the
expert may testify about them, but with a cautionary jury instruction that the facts and data are not
to be considered substantive evidence. Id. § 703.4.

        In this case the trial judge conducted a hearing in accordance with Rule 403 and determined
that allowing the jury to hear about Ms. Braden’s statements that she had previously attempted
suicide raised a distinct risk that the jury would consider these hearsay statements as true thereby
misusing the statements. The trial judge therefore determined that Dr. Fowler could not testify that
he based his opinion in part on the fact that Ms. Braden had made these statements.

        Determinations made by a trial court under Rule 403 are matters left to the sound discretion
of the trial judge and will not be overturned on appeal absent an abuse of discretion. State v. Banks,
564 S.W.2d 947, 952. (Tenn. 1978) (although decided prior to adoption of Tennessee Rules of
Evidence, Court finds virtually identical Fed. R. Evid. 403 subject to abuse of discretion review).
See also, Cohen, Sheppeard, Paine, Tennessee Law of Evidence § 403.7 (3rd Ed. 1995). Similarly,
determinations concerning the admissibility of expert testimony, including the basis of the expert
opinion, are within the discretion of the trial judge subject to being overturned only for arbitrary
exercise of that discretion. State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993). Thus, it is beyond
cavil that this Court must find the trial judge in the instant case abused his discretion before we may
hold him in error for limiting Dr. Fowler’s testimony.

         When a trial judge is faced with the decision as to whether to allow an expert to testify as to
the facts and data not independently admissible, which underly his or her opinion the trial judge may
either exclude such testimony or admit it with a limiting instruction.1 Tenn. R. Evid. 703, Advisory
Commission Comments: Benson v. Tennessee Valley Elec. Coop. 868 S.W.2d 630, 641 (Tenn. Ct.
App. 1993). Generally the abuse of discretion standard does not authorize an appellate court to
substitute its judgment for that of the trial court. Myint v. Allstate Ins. Co., 970 S.W.2d 920 (Tenn.
1998). While this court, were it the trial court, might have chosen to admit this testimony with a
limiting instruction, that is not the test of whether the trial judge abused his discretion in excluding
the testimony altogether. There is a distinct risk that some or all of the jury, despite a limiting
instruction, might believe the truth of Ms. Braden’s statements concerning previous suicide attempts
and therefore conclude, based at least in part on this hearsay, that she committed suicide. At the very
least this scenario is not so far beyond the realm of possibility that it is an abuse of discretion for the
trial judge to find it is an unacceptable risk, particularly when the benefit of this risk is measured
against the fact that Dr. Fowler was allowed to testify extensively about the other factors underlying
his opinion that Ms. Braden was suicidal at the time of her death. This testimony included
information that Ms. Braden was unhappy with her home life, was generally unhappy, wanted to live
somewhere else, that she had engaged in “self-injurious” behavior and that she sometime talked of
wanting to commit suicide.

         In summary, I would hold that the trial court did not abuse its discretion in disallowing the
testimony of Dr. Fowler with respect to the victim’s statements concerning suicide attempts, and
therefore that there is no error with respect to this issue. For this reason I concur in the judgment of
the trial court.




        1
         Although neither the advisory comments nor Benson set forth a preference between these
alternatives, it is probable that an abuse of discretion would be found were a trial judge to so severely
limit an expert from testifying as to the bases of his or her opinion that the opinion itself appears
baseless. That is not the case here however. As noted in the text, Dr. Fowler testified extensively
as to other factors upon which his opinion was based.

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