                     IN THE SUPREME COURT OF TENNESSEE
                                AT NASHVILLE
                               May 31, 2012 Session

             STATE OF TENNESSEE v. MICHAEL FARMER ET AL.
                Appeal by Permission from the Court of Criminal Appeals
                           Criminal Court for Shelby County
                      No. 0806635      John T. Fowlkes, Jr., Judge


                   No. W2009-02281-SC-R11-CD - Filed August 22, 2012




W ILLIAM C. K OCH, J R., J., concurring.

        I concur with the Court’s conclusions that all gunshot wounds do not necessarily cause
bodily injury that involves a “substantial risk of death” for the purpose of Tenn. Code Ann.
§ 39-11-106(a)(34)(A) (2010). I also agree that the State failed to present sufficient evidence
that the particular gunshot wound Mr. Westbrooks received involved a substantial risk of
death. Accordingly, I join the Court’s decision to vacate Messrs. Farmer’s and Turner’s
convictions for especially aggravated robbery and to remand for resentencing for aggravated
robbery. I have chosen to write separately to highlight the important role that expert medical
testimony must play in many cases in which the State must establish that the injury to the
victim carried with it a substantial risk of death.

        Juries play a central role in criminal proceedings. State v. Hester, 324 S.W.3d 1, 51
(Tenn. 2010). They alone must assess the credibility of the witnesses, weigh the evidence,
and resolve disputed issues of fact. State v. Leach, 148 S.W.3d 42, 53 (Tenn. 2004). Because
of the increasing complexity of the factual issues being presented to lay juries, expert
testimony is now commonplace in both criminal and civil proceedings.1 Even though expert
testimony was at one time received “with great caution,” Fisher v. Travelers’ Ins. Co., 124
Tenn. 450, 505, 138 S.W. 316, 330 (1911), Tenn. R. Evid. 702 now invites the use of expert
testimony whenever “scientific, technical, or other specialized knowledge will substantially
assist the trier of fact to understand the evidence or to determine a fact in issue.”

      We have long recognized the importance of expert medical testimony in civil
proceedings. However, even in cases involving medical negligence in which Tenn. Code


        1
        Popular media has whetted jurors’ appetites for expert testimony in criminal proceedings to the
point where some courts are now giving curative, “anti-CSI effect” instructions. See Atkins v. State, 26 A.3d
979, 991 (Md. 2011) (Harrell, J., concurring).
Ann. § 29-26-115 (Supp. 2011) generally requires expert evidence to prove the standard of
care and breaches of the standard of care, we have recognized that expert evidence is not
necessary when the violation of the standard of care is so straightforward that a layperson’s
common knowledge is sufficient to understand that the challenged conduct fell below the
standard of care. See, e.g., Cox v. M.A. Primary & Urgent Care Clinic, 313 S.W.3d 240, 259
n.23 (Tenn. 2010); Seavers v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86, 92 (Tenn.
1999). These cases are the exception rather than the rule.

       If anything, the necessity of presenting expert medical evidence regarding whether a
particular injury involves a “substantial risk of death” is more pronounced in a criminal
proceeding than it is in analogous civil proceedings. Jurors in criminal cases have no greater
expertise with regard to medical matters than jurors in civil cases. In addition, the State must
prove every ingredient of the offense beyond a reasonable doubt. State v. McLerran, 604
S.W.2d 841, 845 (Tenn. 1980); see also Tenn. Code Ann. § 39-11-201(a) (2010). Thus,
except for injuries that are either so serious or so trivial that a lay person will understand that
they either do or do not involve a substantial risk of death,2 expert testimony will, in the
words of Tenn. R. Evid. 702, “substantially assist the trier of fact to understand the evidence
or to determine” whether a particular injury involves a “significant risk of death.”

        Other jurisdictions with statutory language analogous to Tenn. Code Ann. § 39-11-
106(a)(34)(A) have already recognized that expert medical testimony is of significant benefit
when determining whether an injury poses a substantial risk of death. For example, the Court
of Appeals for the District of Columbia has noted that expert medical evidence is properly
admitted to determine whether a particular injury is “a serious bodily injury . . . that involves
a substantial risk of death” when the “medical terms used in the medical records and the
effects of the wounds on the victims [are] beyond the ken of the average layperson.” Bolanos
v. United States, 938 A.2d 672, 677, 679 n.8 (D.C. 2007). Likewise, the Kentucky Supreme
Court has held that “[w]hile medical proof is not necessary,” it can certainly be of assistance
in establishing the severity of an injury to meet the “fairly strict level of proof” required by
Kentucky’s statute analogous to Tenn. Code Ann. § 39-11-106(a)(34)(A). Anderson v.
Commonwealth, 352 S.W.3d 577, 581 (Ky. 2011). The Oregon Court of Appeals has gone
so far as to state that expert medical testimony is required in all criminal cases concerning
injuries where the “substantial risk of death is not apparent to a lay person.” Lambert v.
Palmateer, 69 P.3d 725, 730 (Or. Ct. App. 2003).




       2
           Compare a massive gunshot wound to the heart with a bullet superficially grazing a person’s elbow.

                                                     -2-
       Undoubtedly, there are circumstances in which a juror’s “common-sense
understanding”3 will be sufficient to enable a juror to determine whether a particular injury
involves a substantial risk of death for the purpose of Tenn. Code Ann. § 39-11-
106(a)(34)(A). However, we should candidly acknowledge that some injuries which appear
bloody and gruesome to laypersons may not have a substantial risk of death, while other
injuries that are seemingly benign might, in fact, pose a substantial risk of death.
Accordingly, in many, if not most, circumstances, evaluating whether a particular injury
involves a “substantial risk of death” is “beyond the ken of the average layperson.” Bolanos
v. United States, 938 A.2d at 679 n.8. Because expert medical testimony would very likely
substantially assist the trier of fact in such circumstances, the importance of using expert
medical testimony to aid in establishing that a bodily injury involves a substantial risk of
death cannot be overstated.

        In this case, the State sought to carry its burden of proof by presenting Mr.
Westbrooks’s account of his injury and the medical records regarding the treatment he
received. While Mr. Westbrooks testified about his pain, he did not address the extent to
which his gunshot wound was life-threatening. The medical records by themselves do not
appear to address the seriousness of Mr. Westbrooks’s wound. Introducing medical records
without some accompanying expert explanation is a “risky and uncertain approach,” Glisson
v. Mohon Int’l, Inc./Campbell Ray, 185 S.W.3d 348, 354 (Tenn. 2006), because the medical
records themselves, and the terms used therein, may be “beyond the ken of the average
layperson,” Bolanos v. United States, 938 A.2d at 679 n.8. Based on this record, the State
fell far short of proving that Mr. Westbrooks’s gunshot wound involved a “substantial risk
of death.”




                                                 ______________________________
                                                 WILLIAM C. KOCH, JR., JUSTICE




       3
           Seavers v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d at 92.

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