         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                    Remanded by Supreme Court September 11, 2000

                  STATE OF TENNESSEE v. EMIT KEITH CODY

                        Appeal from the Circuit Court for Cocke County
                            No. 6923    Ben W. Hooper, II, Judge



                                  No. E2000-02188-CCA-RM-CD
                                        November 28, 2000

The Defendant, Emit Keith Cody, was convicted of first degree murder and sentenced to life
imprisonment. He appealed, and we reversed his conviction and remanded the case for a new trial
based on our conclusion that the trial court's failure to give a limiting instruction to the jury on the
use of the State's main witness's prior inconsistent statement constituted plain error. See State v.
Emit Keith Cody, No. E1999-00068-CCA-R3CD, 2000 WL 190227 (Tenn. Crim. App., Knoxville,
Feb. 16, 2000). The State applied for permission to appeal to the supreme court, which granted
permission for the purpose of remanding the case to this Court for reconsideration in light of the
supreme court's recent decision in State v. Smith, 24 S.W.3d 274 (Tenn. 2000). After revisiting this
issue, we remain of the opinion that the trial court committed plain error by failing to give a limiting
instruction. Accordingly, the Defendant's conviction is reversed, and the case is remanded for a new
trial.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed.

DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and DAVID
G. HAYES, J., joined.

Susanna Thomas, Assistant Public Defender, for the appellant, Emit Keith Cody.

Paul G. Summers, Attorney General and Reporter; Marvin S. Blair, Jr., Assistant Attorney General;
Al Schmutzer, Jr., District Attorney General; and James B. Dunn, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                          OPINION ON REMAND

        The Defendant was convicted of both premeditated murder and felony murder of Elvis Lynn
Gibson.1 The State's primary witness was to be the Defendant's girlfriend, Eugenia Buttry. When
the State called Ms. Buttry to testify, she said that in October of 1996 she and the Defendant went
to the victim's house to see if the victim wanted to buy the Defendant's car. The victim did want to
buy the car but did not have all of the money, so he asked the Defendant and Ms. Buttry to drive him
to Newport where he could get the money to buy the car. Ms. Buttry said that she and the Defendant
took the victim to Newport, where he saw someone he knew in a blue truck. The victim told the
Defendant and Ms. Buttry that he was "going to go with that guy and make the money to buy the
car," and then he would meet them at their apartment later with the money. Ms. Buttry said that was
the last time she and the Defendant saw the victim.

        During direct examination, Ms. Buttry admitted giving a statement to police on January 29,
1997, which was completely inconsistent with her testimony at trial. She was questioned at length
about her prior statement, without objection by the Defendant, and she admitted that she previously
told police the following version of events:

       She said that she and the Defendant picked up the victim and that he did not have all
       of the money to purchase the car. They then drove out Lee Road in Cocke County
       toward Newport and up a gravel road to harvest some marijuana so that the victim
       could get the rest of the money for the car by selling the marijuana. The victim and
       the Defendant got out, leaving Ms. Buttry in the car. The Defendant took a pistol that
       he always kept wrapped in a pink pillowcase in the car. They walked down a steep
       bank and were gone into the woods for five to ten minutes when Ms. Buttry heard a
       gunshot. About a minute and a half later she heard two more gunshots. Soon
       thereafter the Defendant returned to the car alone, out of breath and asking for
       something to drink. He said to Ms. Buttry, "You didn't think I would do something
       like that, did you." The Defendant showed Ms. Buttry approximately $120.00 that
       he had in his possession, and Ms. Buttry said that she knew it came from the victim
       because the Defendant had only $10.00 or $15.00 when he left home that morning.
       The Defendant said, "I made Lynn lay down on the ground on his stomach and the
       second and third time I had to do it to make sure." They then went to a place in the
       woods where the Defendant buried the gun. Later, the Defendant told Ms. Buttry
       that he was going to go back and move the gun because he did not want the police
       to be able to find it if she ever did talk to them. On their way back to Newport, the
       Defendant told her what to tell police if questioned.

Emit Keith Cody, 2000 WL 190227, at *2. Ms. Buttry also admitted that she had tried to take the
police to the location where the victim was killed, but they were unable to get down the road due to
mud. She said at trial that she lied in her statement to police and that she knew the location of the


       1
           The two convictions were merged into a single first degree murder conviction.

                                                         -2-
murder because it was in the paper. Ms. Buttry's prior statement to police was the only direct
evidence tying the Defendant to the murder. In closing arguments, both the prosecutor and the
defense attorney emphasized that the resolution of the case depended upon whether the jury believed
Ms. Buttry was telling the truth in her statement to police or at trial.

        On appeal, we found that Ms. Buttry's prior unsworn statement was hearsay and that it was
properly admissible only as a prior inconsistent statement for the purpose of impeaching Ms. Buttry's
credibility. Id. at *6. Although the Defendant did not object to the use of the statement, request a
limiting instruction, or raise the issue on appeal, we held that the failure of the trial court to give a
limiting instruction constituted plain error. Id. at *8. In so doing, we relied upon the cases of State
v. Reece, 637 S.W.2d 858 (Tenn. 1982), and State v. Donald Ray Smith, No. 02C01-9805-CC-
00151, 1999 WL 250593 (Tenn. Crim. App., Jackson, Apr. 29, 1999)rev'd 24 S.W.3d 274 (Tenn.
2000). Id. at *6-8. After we issued our opinion, the supreme court reversed this Court's decision in
Donald Ray Smith. See Smith, 24 S.W.3d at 284. Subsequently, the supreme court remanded the
present case to this Court to reconsider our opinion in light of the supreme court's opinion in Smith.2

        In Smith, the defendant was convicted of aggravated sexual battery of his daughter, C.S. Id.
at 274. When C.S. was called to testify at trial, she said that her father never touched her. Id. at 277.
She did, however, admit telling her mother, an employee of Children's Services, and an investigator
that her father had reached his hand underneath her shorts and touched her "private parts." Id. at
276-77. She admitted saying that this occurred in January 1996 while her mother was at work and
while she and her father were sitting on the couch watching television. Id. at 277. At trial, she said
that she made these allegations because her sister offered her $20.00 to do so; her sister was angry
with their father because he did not approve of the boy she was dating. Id. at 277 n.4. The
Defendant did not object to the introduction of C.S.'s prior statements. Id. at 277. In addition to
C.S., C.S.'s mother, the Children's Services employee, and the investigator testified without objection
about C.S.'s prior statements. Id. at 277-78. These prior statements were the only evidence offered
to corroborate the defendant's confession, in which he admitted touching his daughter in a manner
similar to that described by C.S. Id. at 281. Without the corroborating evidence, the conviction
could not stand because in Tennessee, "a conviction cannot be founded solely upon a defendant's
confession." Id.

        In addressing C.S.'s prior statements, the supreme court acknowledged the rule that prior
inconsistent statements are admissible under the Tennessee Rules of Evidence to impeach the
credibility of a witness, but their admissibility as evidence to prove the matter asserted in the
statements is limited by hearsay restrictions. Id. at 279; see also Tenn. R. Evid. 607, 613, 802.
"Upon timely objection, the trial court should exclude a prior inconsistent statement when offered
as substantive evidence of guilt or innocence, and upon request, the court should instruct the jury that



         2
           The supreme c ourt’s order of remand stated, " The Court o f Criminal Appeals is directed to decide the case
on its merits in accordance with this Court's opinion in [Smith]." We interpret this order to mean that we are to
reconside r our previo us decision in light of Smith.

                                                         -3-
the prior statement may only be considered as reflecting upon the credibility of the witness." Smith,
24 S.W.3d at 279; see also Tenn. R. Evid. 105. Notwithstanding,

        [a] trial court . . . generally has no duty to exclude evidence or to provide a limiting
        instruction to the jury in the absence of a timely objection. A party may consent to
        the admissibility of evidence which is otherwise prohibited by the Rules, so long as
        the proceedings are not rendered so fundamentally unfair as to violate due process
        of law. . . .
                 When a party does not object to the admissibility of evidence, . . . the
        evidence becomes admissible notwithstanding any other Rule of Evidence to the
        contrary, and the jury may consider the evidence for its "natural probative effects as
        if it were in law admissible."

Smith, 24 S.W.3d at 279-80 (quoting State v. Harrington, 627 S.W.2d 345, 348 (Tenn. 1981))
(citations omitted). The supreme court thus concluded that because no objection was made to the
introduction of C.S.'s prior statements, they were properly considered as substantive evidence. Id.
at 280.

        Although holding that the prior inconsistent statements were properly considered because no
objection was made, the court expressly acknowledged its prior decision in State v. Reece, 637
S.W.2d 858 (Tenn. 1982), in which it held that "the failure to give the limiting instruction may
amount to fundamental error constituting grounds for reversal, even in the absence of a special
request." Id. at 284 (quoting Reece, 637 S.W.2d at 861). The Reece court limited its holding "to
those exceptional cases in which the impeaching testimony is extremely damaging, the need for the
limiting instruction is apparent, and the failure to give it results in substantial prejudice to the rights
of the accused." Reece, 637 S.W.2d at 861. The supreme court in Smith did not overrule Reece;
it simply concluded that Reece provided no relief, as will be explained below. See Smith, 24 S.W.3d
at 284.

        In addition to acknowledging Reece, the supreme court recognized that Rule 36(b) of the
Tennessee Rules of Appellate Procedure, Rule 103(d) of the Tennessee Rules of Evidence, and Rule
52(b) of the Tennessee Rules of Criminal Procedure allow the appellate courts to take notice of
"plain errors" that were not raised in the proceedings below. Id. at 282. The court explicitly adopted
the five-factor test for determining whether an error constitutes "plain error" that we set out in State
v. Adkisson, 899 S.W.2d 626 (Tenn. Crim. App. 1994). Id. at 283. In Adkisson, we set forth the
following factors to consider in determining whether an error constitutes "plain error:"

        (a) the record must clearly establish what occurred in the trial court;
        (b) a clear and unequivocal rule of law must have been breached;
        (c) a substantial right of the accused must have been adversely affected;
        (d) the accused did not waive the issue for tactical reasons; and
        (e) consideration of the error is "necessary to do substantial justice."



                                                   -4-
Adkisson, 899 S.W.2d at 641-42. Before "plain error" requires reversal of a conviction, the ?<plain
error' must be of such a great magnitude that it probably changed the outcome of the trial.” Id. at
642.

        In Smith, the defendant did not challenge the use of C.S.'s prior inconsistent statements on
appeal, but this Court, relying on Reece and Adkisson, found that the trial court committed plain
error by failing to give a limiting instruction on the use of C.S.'s prior inconsistent statements. See
Donald Ray Smith, 1999 WL 250593, at *6-7. In its review, however, the supreme court determined
that the plain error doctrine could provide no relief because "the decision not to object to the prior
inconsistent statements of C.S. was the result of a deliberate, tactical trial strategy." Smith, 24
S.W.3d at 283. In reaching this determination, the court noted that the defendant's theory of the case
had always been that the inconsistent statements of a single witness cannot be the sole evidence to
corroborate a confession. Id. Because of this theory, the defendant did not object to the statements,
and the defendant questioned C.S. and the other witnesses at length about the prior statements. Id.
The court stated, "When the State places objectionable evidence before the jury, and defense counsel
inquires at length about the evidence on cross-examination, any error in admitting the evidence is
generally cured." Id. In addition, the supreme court said,

       Most importantly, though, counsel for the appellee conceded in oral argument before
       this Court that the decision not to object to admission of the prior inconsistent
       statements was a "tactical decision." Because counsel and the appellee were
       concerned as to the ability of the appellee to make a good witness, they both agreed
       that the best strategy was to forgo objection to the prior statements in an effort to
       convince the jury that C.S. had no credibility. "It is difficult to conceive of evidence
       more probative of an attorney's reason for not objecting than the attorney's own
       statement." Accordingly, for all of these reasons, we hold that because the decision
       to forgo objection to admission of C.S.'s prior statements as substantive evidence was
       a deliberate, tactical decision by trial counsel, we can find no plain error in this case.

Id. at 283-84 (quoting State v. Walker, 910 S.W.2d 381, 400 (Tenn. 1995) (Anderson, C.J.,
concurring)). The supreme court thus reasoned that

       Reece cannot afford relief when trial counsel makes a tactical decision to forgo an
       objection. When a defendant makes a considered and deliberate choice to waive a
       proper objection in an effort to gain tactical advantage, he or she will not later be
       heard to complain that the trial court's failure to provide a limiting instruction
       "substantially prejudiced" his or her rights.

Smith, 24 S.W.3d at 284.

        Looking now at the present case, we again conclude that the failure of the trial court to
instruct the jury that Ms. Buttry's prior inconsistent statement could only be used to impeach her
credibility constitutes reversible error. Although prior inconsistent statements may generally be


                                                  -5-
considered as substantive evidence when no objection is made, Reece provides an exception when
"the impeaching testimony is extremely damaging, the need for the limiting instruction is apparent,
and the failure to give it results in substantial prejudice to the rights of the accused." Reece, 637
S.W.2d at 861. Here, not only was the prior statement of Ms. Buttry extremely damaging, it was the
crux of the State's entire case. Without that evidence, the only evidence tying the Defendant to the
murder was testimony that, on the last day he was seen, the victim left his home with the Defendant
and Eugenia Buttry and testimony that the Defendant stated to a friend that he had killed someone.
As we stated in our prior opinion, "Such vague, circumstantial evidence is not sufficient to prove
beyond a reasonable doubt that the Defendant was guilty of any degree of criminal homicide." Emit
Keith Cody, 2000 WL 190227, at *8. When the only direct evidence tying a defendant to a murder
is a prior inconsistent statement and when the other evidence is insufficient to convict, the prior
unsworn statement is obviously extremely damaging, the need for a limiting instruction is clearly
apparent, and the failure to give the instruction results in substantial prejudice to the rights of the
accused, who would not be convicted if the evidence could not be considered. See Reece, 637
S.W.2d at 861. Thus, we hold, based on Reece, that the failure of the trial court to give a limiting
instruction was reversible error.

         Although the Defendant did not raise this issue on appeal, we are able to reach our conclusion
because the failure on the part of the trial court to properly instruct the jury was plain error. All five
of the Adkisson factors are present in this case. The record is clear that the State was allowed to
extensively question Ms. Buttry about her prior statement without a limiting instruction; in so doing,
a clear and unequivocal rule of law was violated. See Tenn. R. Evid. 607, 613, 802; Smith, 24
S.W.3d at 279; Adkisson, 899 S.W.2d at 641. A substantial right of the accused was adversely
affected because without the use of the prior statement as substantive evidence, the evidence was
insufficient to support the Defendant's conviction. See Adkisson, 899 S.W.2d at 641. Consideration
of the error is "necessary to do substantial justice" because, again, the Defendant could not have been
convicted on the evidence presented had the jury been properly instructed. See id. Finally, unlike
the supreme court in Smith, we find that the Defendant did not waive the issue for tactical reasons.
See id. Granted, the defense attorney did argue to the jury that "[t]he State's case rises and falls on
whether you think that Gina Buttry gave an accurate statement to law enforcement officers or
whether she lied on January the 29 because she was afraid." The defense attorney did not, however,
make any statements admitting that her failure to object was a tactical decision. The impression we
sense from reading the record is that the defense attorney was not aware she could object to the prior
statement.3 The only question she asked Ms. Buttry was whether her testimony at trial was the only
testimony she had given under oath. We see no tactical reason for the defense attorney to
purposefully allow the testimony to be considered as substantive evidence when it was the only
evidence establishing the Defendant's guilt of murder. The record does not support a finding that
the issue was waived for tactical reasons. Thus, we conclude that the failure to object to Ms. Buttry's
testimony was not "the result of a deliberate, tactical trial strategy" like it was in Smith. See Smith,
24 S.W.3d at 283. Accordingly, we also conclude that the failure on the part of the trial court to give


         3
           W e note that the issue of whether the Defendant received the effective assistance of counsel is not before the
Court in this dir ect appea l.

                                                           -6-
a limiting instruction regarding the use of Ms. Buttry's prior inconsistent statement as required by
Reece was plain error.

       The Defendant's first degree murder conviction is reversed, and the case is remanded for a
new trial.



                                                      ___________________________________
                                                      DAVID H. WELLES, JUDGE




                                                -7-
