        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                     Assigned on Briefs July 27, 2010 at Knoxville

       STATE OF TENNESSEE v. BRODERICK JOSEPH SMITH
                 Appeal from the Criminal Court for Davidson County
                    No. 2009-A-501      J. Randall Wyatt, Judge



                 No. M2009-01427-CCA-R3-CD - Filed January 14, 2011



J OSEPH M. T IPTON, P.J., concurring.

        I concur. I write separately to express my concern that the courts could turn the phrase
“contextual background evidence” into its own exception under Tennessee Rule of Evidence
404(b). I think “contextual background evidence” is a vague concept that can become too
broad, much like “res gestae” was used before the courts attempted to consign that phrase to
history because of its vagueness. See Gibbs v. State, 300 S.W.2d 890, 892 (Tenn. 1957);
State v. Carpenter, 773 S.W.2d 1, 9 (Tenn. Crim. App. 1989); State v. Kenneth Patterson
(Pat) Bondurant and Hugh Peter (Pete) Bondurant, No. 01C01-9501-CC-00023, Giles County
(Tenn. Crim. App. May 24, 1996) (Tipton, J., concurring), app. denied (Tenn. Nov. 12,
1996). In State v. Gilliland, 22 S.W.3d 266, 270-73 (Tenn. 2000), the supreme court’s
analysis regarding background evidence focused on such evidence’s relevance to material
issues in the case, the need to present the evidence to prevent confusion, and the weighing
of its probative value against the danger of unfair prejudice. Each of these three factors must
be considered and found before the evidence is admissible.




                                                   ____________________________________
                                                   JOSEPH M. TIPTON, PRESIDING JUDGE
