         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     March 12, 2002 Session

  STATE OF TENNESSEE v. JUDY JOHNSON and STANLEY JOHNSON

                       Appeal from the Circuit Court for Gibson County
                           No. 6803    George R. Ellis, Chancellor



                     No. W2001-01272-CCA-R3-CD - Filed June 26, 2002


GARY R. WADE, P.J., concurring.

        While I concur in the result reached by the majority, I disagree on three points. First, it is my
view that the trial court erred by permitting the state to cross-examine Stanley Johnson on a 1993
animal cruelty charge that did not result in a conviction. Tennessee Rule of Evidence 608 permits
limited use of character evidence for impeachment purposes. Rule 608 provides in pertinent part as
follows:

               Specific Instances of Conduct. Specific instances of conduct of a witness for
       the purpose of attacking or supporting the witness's credibility, other than convictions
       of crimes as provided in Rule 609, may not be proved by extrinsic evidence. They
       may, however, if probative of truthfulness or untruthfulness and under the following
       conditions, be inquired into on cross-examination of the witness concerning the
       witness's character for truthfulness or untruthfulness or concerning the character for
       truthfulness or untruthfulness of another witness as to which the character witness
       being cross-examined has testified. The conditions which must be satisfied before
       allowing inquiry on cross-examination about such conduct probative solely of
       truthfulness or untruthfulness are:
               (1) The court upon request must hold a hearing outside the jury's presence and
       must determine that the alleged conduct has probative value and that a reasonable
       factual basis exists for the inquiry;
               (2) The conduct must have occurred no more than ten years before
       commencement of the action or prosecution, . . . ; and
               (3) If the witness to be impeached is the accused in a criminal prosecution,
       the State must give the accused reasonable written notice of the impeaching conduct
       before trial, and the court upon request must determine that the conduct's probative
       value on credibility outweighs its unfair prejudicial effect on the substantive issues.
       The court may rule on the admissibility of such proof prior to the trial but in any
       event shall rule prior to the testimony of the accused. If the court makes a final
       determination that such proof is admissible for impeachment purposes, the accused
       need not actually testify at the trial to later challenge the propriety of the
       determination. . . .

Tenn. R. Evid. 608(b) (emphasis added).

         Here, the state failed to provide notice, as required by the rule, of its intention to cross-
examine Stanley Johnson regarding the 1993 animal cruelty charge. The pre-trial notice filed by the
state, which the state now concedes was “defect[ive],” expressed an intent to impeach only Judy
Johnson with a 1990 embezzlement conviction. Stanley Johnson had already testified on direct
examination and the state was near the end of its cross-examination before the issue of the 1993
charge was presented. At that point, the trial court held a bench conference and permitted the
questioning. Judy Johnson, perhaps because of her prior convictions, elected not to testify at trial.
Had Stanley Johnson had proper notice of the state’s intent to cross-examine on the 1993 charge, he
may have made a similar election. More importantly, however, while the events underlying the
charge may ultimately have been admissible, the charge itself was not. See State v. Morgan, 541
S.W.2d 385, 389 (Tenn. 1976); State v. Philpott, 882 S.W.2d 394, 403 (Tenn. Crim. App. 1994);
Moore v. State, 563 S.W.2d 215, 218 (Tenn. Crim. App. 1977). A witness being cross-examined
as to a specific instance of conduct under Tennessee Rule of Evidence 608 “should be asked about
the act itself, not about rumors, arrests, charges or indictments for the act.” Neil P. Cohen et al.,
Tennessee Law of Evidence § 6.08[4] (4th ed. 2000). To the state’s credit, the assistant district
attorney referred to prior “problems” in his cross-examination and instructed Stanley Johnson that
he was not inquiring about “charges.” Nevertheless, Johnson, in his response to the questions, made
multiple references to the criminal charge, inadvertently placing inadmissible, highly prejudicial
information before the jury.

         It is my conclusion, however, that the trial court’s error in permitting the cross-examination
was harmless. See Tenn. R. App. P. 36(b); State v. Edwards, 868 S.W.2d 682 (Tenn. Crim. App.
1993). First, the jury had already heard evidence of other complaints against the defendants when
investigator Don Curry read the affidavit in support of the search warrant. Second, the evidence of
guilt was substantial. The living conditions of the dogs are documented by photographic and
videotape evidence. A veterinarian and the Dyersburg Humane Society supervisor described in some
detail the unsanitary state of the defendants’ kennel and the poor quality of the care provided to the
animals. The defense was not that the conditions in the kennel were acceptable, but that they were
the unintentional result of Judy Johnson’s surgery and poor physical health. The animal cruelty
statute, however, does not require intentional conduct. The statute is satisfied when a person
“knowingly . . . [f]ails unreasonably to provide necessary food, water, care or shelter for an animal
in the person's custody.” Tenn. Code Ann. § 39-14-202(a)(2). Evidence that the dogs were not
receiving necessary food, water, and care and that the defendants had knowledge of the situation was
overwhelming.

       I also depart from the majority with regard to certain of the sentencing considerations. The
defendants complain that the trial court erroneously admitted approximately 500 letters from persons
with only secondhand knowledge of the case. The letters originated from across the United States


                                                 -2-
and their authors appear to have gained information about the prosecution from the internet and from
humane society publications. The majority excuses the filing of the letters into the record because
the trial court made no reference to their content in sentencing the defendant and then relies upon
the content to support the trial court’s order of partial confinement:

       The letters sent to the prosecutor from throughout the United States demonstrate the
       wide interest in this matter and establish that, because of the publicity, the
       punishment would have a deterrent effect. . . . The geographic spread from which
       these letters came supports the trial court’s conclusion as to the deterrent effect of the
       sentences.

In my view, the letters should not have been considered for any purpose. In State v. Hooper, our
supreme court established the following standard for incarceration based on a need for deterrence:

       [W]e will presume that a trial court's decision to incarcerate a defendant based on a
       need for deterrence is correct so long as any reasonable person looking at the entire
       record could conclude that (1) a need to deter similar crimes is present in the
       particular community, jurisdiction, or in the state as a whole, and (2) incarceration
       of the defendant may rationally serve as a deterrent to others similarly situated and
       likely to commit similar crimes.

29 S.W.3d 1, 10 (Tenn. 2000) (emphasis added). From this, I would hold that a need for deterrence
of similar crimes outside this state is irrelevant and would not, standing alone, support a decision to
incarcerate. Nevertheless, I would affirm the trial court’s order of split confinement. In my view,
some incarceration is necessary to avoid depreciating the seriousness of the offenses. See Tenn.
Code Ann. § 40-35-103(1)(B).

        Finally, I disagree with the majority’s conclusion that the trial court properly failed to
consider as a mitigating factor that the defendants’ conduct “neither caused nor threatened serious
bodily injury.” See Tenn. Code Ann. § 40-35-113(1). The majority holds that the mitigator is
inapplicable because the dogs in the defendants’ care had “physical and emotional problems.” While
that may be an accurate observation, I believe the legislature intended the statute to apply to human
life. The application of this factor would not, however, affect the sentence.



                                                        ____________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




                                                  -3-
