         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   October 15, 2003 Session

               STATE OF TENNESSEE v. DAVID KYLE GILLEY

            Interlocutory Appeal from the Circuit Court for Rutherford County
                             No. F-52137     Don Ash, Judge



                   No. M2003-00499-CCA-R9-CD - Filed February 26, 2004


Pursuant to Rule 9, Tennessee Rules of Appellate Procedure, both the defendant and the State were
granted appeals from an interlocutory order of the trial court granting in part, and denying in part,
Defendant’s motion to exclude Rule 404(b), Tennessee Rules of Evidence, testimony. After a
careful review of the evidence, we affirm in part and reverse in part the trial court’s order.

         Tenn. R. App. P. 9 Appeal; Judgment of the Trial Court Affirmed in part,
                             Reversed in part, and Remanded

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY
L. SMITH , JJ., joined.

Alfred H. Knight and Roger T. May, Nashville, Tennessee, for the appellant, David Kyle Gilley.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        On March 4, 2002, the Rutherford County Grand Jury returned an indictment charging
Defendant, David Kyle Gilley, with the premeditated first degree murder of Laura Salmon. The
indictment alleges that the homicide occurred almost eighteen years prior, on May 31, 1984.
Defendant was a juvenile on May 31, 1984, and prior to the filing of the indictment, Defendant had
been charged in Juvenile Court on November 16, 2001, and was subsequently transferred to be tried
as an adult.

        The record in this interlocutory appeal reflects that Defendant and the victim dated, at least
off and on, for a period of time prior to the victim’s death. They had a tumultuous relationship.
        In the record presently on appeal, the first document filed after the indictment is styled
“State’s Written Notice of Potential [Tenn. R. Evid.] 404[(b)] Material,” which was filed on
September 12, 2002. On October 16, 2002, Defendant filed a motion in limine requesting the trial
court to order the State to refrain from mentioning during trial, and from eliciting testimony from
any witnesses, the proposed proof summarized in the State’s “written notice.”

        Two important observations need to be noted at this point. First, it can be surmised from the
record that Defendant’s theory of defense is that someone other than he killed the victim, but since
the case has not yet been tried, other defenses and/or theories of guilt of lesser-included offenses are
not precluded at this time. Secondly, the State was not required to file its written notice of proposed
Rule 404(b) evidence prior to trial, and the procedure followed by the State is therefore somewhat
unusual.

       Following a two-day hearing, the trial court granted in part and denied in part Defendant’s
motion. In another somewhat unordinary procedure, the State and Defendant filed a joint motion
with the trial court for permission to appeal the trial court’s order pursuant to Rule 9 of the
Tennessee Rules of Appellate Procedure. The trial court granted the motion, and this Court
subsequently granted both the State’s and Defendant’s applications to appeal pursuant to Rule 9 of
the Tennessee Rules of Appellate Procedure.

         In its application to appeal the trial court’s interlocutory order, and in its brief on appeal, the
State contests only that portion of the order which granted in part Defendant’s motion because the
testimony of certain witnesses was cumulative. The State attacks this ruling on two grounds: (1) the
State, not the trial court, should be allowed to prioritize the proof and determine which witnesses,
and in what order, should be called to testify, and (2) the trial court improperly characterized “many
of the incidents” as cumulative. In his application and brief on appeal, Defendant argues that the
trial court’s order should be reversed in all portions wherein it allows the State to introduce evidence
pursuant to Tennessee Rule of Evidence 404(b).

Proposed Tenn. R. Evid. 404(b) Material

       In its notice, the State listed twenty-four witnesses. However, the trial court’s order addresses
only fourteen of those witnesses. The record does not reflect why the trial court did not rule on the
remaining witnesses, or if the State withdrew the remaining witnesses from its list of potential 404(b)
testimony. We will therefore address only the testimony of witnesses addressed in the trial court’s
order.

        In order to logically and clearly address the issues raised, it is necessary to quote verbatim,
where relevant, the State’s notice of potential Rule 404(b) evidence, and in bold print, state the trial
court’s findings and ruling as to the proposed witnesses:

         1.     Lourene Mackey, mother of Laura Salmon. As a teacher at Oakland High
                School she saw Kyle assaulting Laura in the hallway one day during her


                                                    -2-
     senior year ‘82-‘83 and caused him to be taken to the office. On another
     occasion in the summer of ‘83, she found Laura crying at home as a result of
     an assault by Kyle Gilley which resulted in her two front teeth being broken
     off. Dental records of this incident are available, and state the injuries were
     caused due to a severe blow to the teeth and jaws. Ms. Mackey was aware of
     a number of other assaults and attempted to get Laura, by then 18, to
     prosecute Kyle for an assault at her MTSU dormitory in March 1984. Laura
     would not prosecute him.

            With regard to the testimony provided by Witness Lourene
     Mackey, the Court finds that her observations of the victim after the
     defendant allegedly pushed her into the lockers at Oakland High School
     are admissible to prove the defendant’s motive, intent and a settled
     purpose to harm the victim. The victim’s statements made to Witness
     Mackey immediately following the incident are also admissible under the
     excited utterance exception to the hearsay rule. The Court finds clear
     and convincing evidence that these events occurred as described and the
     probative value of the evidence outweighs the prejudicial effect.

            The Court will also allow Witness Mackey’s statements about her
     observations of the victim’s mouth injury. The Court will allow the
     victim’s statement made to Witness Mackey immediately following the
     injury to her mouth, explaining that she fell while horsing around with
     the defendant. This statement is admissible as an excited utterance.
     There is clear and convincing evidence that these events occurred as
     described and the probative value of the evidence outweighs the
     prejudicial effect.

             The Court will not allow the victim’s statement made the day
     after injuring her mouth, which accused the defendant of causing the
     injury which fails to qualify as an excited utterance exception to the
     hearsay rule.

2.   Kim Roberts said she was present on numerous occasions when Kyle
     slapped, shoved and hit Laura. In particular she said she was present when
     Kyle assaulted Laura at her MTSU dormitory in March 1984.

            In regards to the testimony provided by Witness Kim Roberts, the
     Court finds that the testimony describing an incident where the
     Defendant allegedly drug the victim down a stairwell at MTSU is
     admissible to show the defendant’s hostility toward the victim, malice,
     intent or a settled purpose to harm. There is clear and convincing
     evidence that the event occurred as described and the probative value of


                                       -3-
     the evidence outweighs the prejudicial effect. The Court reserves ruling
     on the statements of fear made by the victim to Witness Roberts.

3.   Read [sic] Ridley said he was present at The Murfreesboro Little Theatre on
     an occasion when Kyle assaulted Laura, then rolled her arm up in the
     window of the car he was driving and drag [sic] her through the parking lot.

              The Court finds that in the testimony of Reed Ridley there is a
     material issue that goes to the relationship of the parties, intent and
     motive and that there is clear and convincing evidence that the event
     took place. The Court finds that the prejudicial effect of Witness Riley
     [sic] testimony outweighs its probative value. Therefore, this testimony
     is not admissible, in that the Court finds it is cumulative.

4.   Trina Quesenberry. [No ruling on this testimony was included in the
     trial court’s order.]

5.   Connie Shelton said she witnessed an assault on Laura at the “Party Tree”
     off Sulphur Springs Road. Kyle showed up at a band/flag corps field party
     and insisted Laura leave with him. When she refused, Shelton said, Kyle
     grabbed Laura by the back of the neck and hair and threw her face first onto
     the hood of the car. Shelton said that resulted in Laura having two black
     eyes. Shelton also saw other assaults in which he pushed and shoved Laura.
     Laura told Shelton she was afraid to leave Kyle, that he was into rough sex
     and he wasn’t a loving person. Shelton said Kyle would follow Laura, leave
     notes and flowers and was very jealous.

             The Court will allow Witness Connie Shelton’s testimony
     describing an event where she allegedly observed Defendant pull the
     victim’s hair and ram her into a car a couple of times as admissible 404b
     evidence. The Court finds that this testimony is relevant to a material
     issue to prove the relationship of the parties, the defendant’s hostility
     toward the victims [sic], showing malice, intent, or a settled purpose to
     harm. The Court finds that the Witness’ testimony provided clear and
     convincing evidence that the event took place as the Witness described.
     The Court finds that the probative value of this testimony outweighs the
     prejudicial effect. Further the Court ruled that the issue of the remote
     nature of the event described goes only to the weight and not the
     admissibility of the evidence under the holding of State v. Pleasant, 2001
     Tenn. Crim. App. Lexis 486 (July 3, 2001).




                                     -4-
            The Court will not allow testimony from Witness Shelton
     describing certain notes written by the Defendant to the victim at this
     time, but will reserve ruling until a future hearing.

6.   Melinda Edwards said she knew Laura from childhood. She witnessed the
     black eyes from Kyle slamming her face first into school lockers. She also
     witnessed the “Party Tree” incident in which he slammed her face into the
     car. During the spring of ‘83, Edwards said Laura had broken up with Kyle
     and she witnessed Kyle confront her in the school hallway at Oakland. Kyle
     grabbed Laura’s arm twisted it up behind her back and said “I’ll KILL YOU
     before I let you go out with someone else.” Edwards said Laura told her she
     was afraid to leave Kyle and would have to stay with him.

            The Court will allow Witness Melinda Edwards’ testimony
     describing an event that took place in the hallway of Oakland High
     School where defendant allegedly shoved the victim into the lockers as
     evidence of the violent acts indicating the relationship between the victim
     of a violent crime and the defendant prior to the commission of the
     offense. The Court finds this evidence is relevant and admissible to show
     the defendant’s hostility towards the victim, malice, intent and settled
     purpose to harm the victim. This evidence is not relevant to show the
     defendant’s propensity to commit the crime.

             The Court will allow Witness Edwards’ testimony describing the
     same event as Witness Shelton where Defendant allegedly grabbed the
     victim by the hair and knocked her head into the car as admissible to
     show defendant’s hostility towards the victim; malice, intent and settled
     purpose to harm the victim. The Court finds that Witness Edwards
     provided clear and convincing evidence that the events took place as
     described and that the probative value of this testimony outweighed the
     prejudicial effect. The Court finds that Witness Edwards’ testimony
     describing an alleged threat made by Defendant to the victim telling her
     if she dated anyone else, he would kill her is admissible testimony but not
     404b material.

            The Court reserves ruling on Witness Edwards’ testimony
     regarding the victim’s statements to the Witness that the victim was
     afraid of the Defendant, under the ruling in State v. Smith, 868 S.W.2d
     561. (Tenn. 1993)

            The Court finds that Witness Edwards’ testimony describing the
     victim’s various bruises and the victim’s injury which required her to
     wear her arm in a sling to be inadmissable for lack of clear and


                                     -5-
      convincing evidence of these events or statements occurring as the victim
      described them.

 7.   John Jolly said he and Brian Chastain saw Kyle yelling, screaming and
      shoving Laura in a driveway of [sic] about a month before the murder. Kyle
      then grabbed her by the neck and shook her back and forth.

             The Court finds that in the testimony of Witness John Jolly there
      is a material issue that goes to the relationship of the parties, intent and
      motive and that there is clear and convincing evidence that the event
      took place. The Court finds that the prejudicial effect of Witness Jolly’s
      testimony outweighs its probative value, in that the Court finds it is
      cumulative. Therefore, this testimony is not admissible.

 8.   Phil Hull. [No ruling on this testimony was included in the trial court’s
      order.]

 9.   Scott Mason said he’d seen Kyle shaking and grabbing Laura in the halls of
      Oakland on more than one occasion. He said that one day he passed the
      couple on his way into a classroom and then heard a slap, he turned around
      and Laura was crying and Kyle was walking away.

              The Court finds that the testimony of Witness Scott Mason does
      present a material issue because it shows the relationship of the parties
      but is inadmissable 404b material for lack of clear and convincing
      evidence the Defendant actually slapped the victim as described by
      Witness Mason. The Court finds that the prejudicial effect of Witness
      Mason’s testimony outweighs its probative value, in that the Court finds
      it is cumulative.

10.   Bill Tenpenny, Murfreesboro police officer, said he was at a dance at
      Oakland and saw Laura come running out crying and the side of her face was
      red. Tenpenny said Laura told him that Kyle had just slapped her. Tenpenny
      said he and now-Murfreesboro firefighter Darrell Alexander witnessed Gilley
      get into a violent fight in Smryna in which he held a boy down and pummeled
      his face bloody.

             The Court finds that the testimony of Witness Bill Tennpenny
      shows a material issue that goes to motive or intent and there may be
      clear and convincing evidence that the Defendant actually slapped the
      victim as described by Witness Tennpenny. The Court, however, based
      upon the introduction of the other testimony also finds that the
      prejudicial effect of Witness Tennpenny’s testimony outweighs its


                                      -6-
      probative value. Therefore, this testimony is not admissible, in that the
      Courts finds it is cumulative.

11.   Darrell Alexander. [No ruling on this testimony was included in the trial
      court’s order.]

12.   Michelle Clark. [No ruling on this testimony was included in the trial
      court’s order.]

13.   Terri McCrary and Mike Arrington arrived at a school dance at Oakland
      and observed Kyle slamming Laura face-first into a car while holding her
      neck and hair. Arrington had to separate them. [No ruling on the testimony
      of Mike Arrington was included in the trial court’s order.]

             The Court finds that the testimony of Witness Terri Brown
      McCrary describing an event where she allegedly witnessed the
      Defendant pull the victim’s hair and hit her head against the car is
      admissible for the purpose of showing violent acts indicating the
      relationship between the victim of a violent crime and the defendant
      prior to the commission of the offense which is relevant to show the
      defendant’s hostility towards the victim, malice, intent and a settled
      purpose to harm the victim. There is clear and convincing evidence that
      the event occurred as described and the probative value of the evidence
      outweighs the prejudicial effect. The Court also finds that the
      statements made by the victim during this event are admissible under the
      mental state exception to the hearsay rule.

             The Court reserves ruling on the admissibility of testimony
      describing an incident where Witness McCrary allegedly witnessed the
      Defendant argue with the victim behind the bleachers at a football game.

14.   Mary Lester went to high school with Laura and was in flag [corps] with
      her. While in high school she frequently saw bruising on Laura and
      witnessed verbal arugments [sic]. While she and Laura attended a band camp
      at MTSU in the summer of ‘83, she saw Kyle driving by slowly and
      repeatedly as the flag corps practiced. She said Laura became irate and
      screamed at Kyle to leave her alone. Laura told her Kyle had been following
      her. Kyle only left when the band director threatened to call police.

             The Court finds that Witness Mary Lester’s testimony which
      describes an event where she and the victim were practicing for flag corp
      try-outs and the Defendant while driving in his car watched the victim
      is admissible evidence relevant to the Defendant’s motive or intent and


                                      -7-
      the violent relationship between the Defendant and the victim. There is
      clear and convincing evidence that the event occurred as described and
      the probative value of the evidence outweighs the prejudicial effect. The
      Court also finds that the statements made by the victim during this event
      are admissible under the excited utterances exception to the hearsay
      rule.

              The Court further finds that the incident involving the defendant
      allegedly twisting the victim’s arms may be testified to by Ms. Lester as
      it is admissible evidence relevant to the Defendant’s motive or intent and
      the violent relationship between the Defendant and the victim.

14.   Clay Shearron. [No ruling on this testimony was included in the trial
      court’s order.]

15.   Shelly Davenport Tedrow said she went with Kyle to have consensual sex
      at a remote location in the summer of ‘84. It was her first sexual intercourse
      [with Kyle] and she said that Kyle became increasingly violent and she asked
      him to stop. He told her to cooperate or she would “end up like Laura
      Salmon.” Ms. Tedrow had never heard of Laura and asked him who she was.
      “My girlfriend,” Kyle said. Ms. Tedrow asked what happened to her and he
      said “she’s dead.” Ms. Tedrow asked how she died and he said, I killed her.
      Tedrow said she was afraid she was going to be killed and allowed Kyle to
      finish having sex with her. She showed Detectives Goodwin and Sharp
      where this assault occurred and it was less than 20 yards from where Laura
      Salmon’s body was found.

              Witness Shirley Davenport Tedrow’s testimony concerning the
      Defendant’s alleged admission against interest found at page 259, line 7
      of the transcript from the transfer hearing is not 404b material and the
      Court shall reserve ruling on this evidence at a later time. Witness
      Tedrow’s testimony describing the nature of her encounter with the
      Defendant allegedly at the Rock Quarry, twenty feet from where the
      murder victim’s body was found is inadmissable as 404b material and
      found to be highly prejudicial.

17.   Marty Milam said that he saw Kyle twisting the arm of his then-wife Gina
      Jordan Gilley while visiting them at the MTSU Married Housing in 1985.

             Witness testimony from Marty Milan, Laurie Carr, and Barbara
      Smith seem to allege signature crimes that can only be admissible if the
      modus operandi of the other crime and of the crime on trial are
      substantially identical and so unique that the proof tends to show that


                                       -8-
      the defendant committed the crime for which he is charged. The Court
      finds that the incidents described by these witnesses fail to meet this test
      and therefore, they are not admissible under T.R. Evid. 404(b).

18.   Amanda Milam. [No ruling on this testimony was included in the trial
      court’s order.]

19.   Laurie Carr said that after Kyle divorced Gina, she began a relationship with
      him that continued when they both moved to Florida, she to go to college and
      he to his hometown of Bradenton. She said that when she finally tried to
      break off the relationship in 1990, he became physically violent, demanding
      jewelry back and slamming her face-first into a car. Gilley’s roommate, Eric
      Rush, interceded and fought Gilley off her, and the roommate’s girlfriend,
      Diane Lehman had to use Mace to try to separate them. She said she thought
      Kyle was going to kill her in the driveway.

              Witness testimony from Marty Milan, Laurie Carr, and Barbara
      Smith seem to allege signature crimes that can only be admissible if the
      modus operandi of the other crime and of the crime on trial are
      substantially identical and so unique that the proof tends to show that
      the defendant committed the crime for which he is charged. The Court
      finds that the incidents described by these witnesses fail to meet this test
      and therefore, they are not admissible under T.R. Evid. 404(b).

20.   Diane Lehman. [No ruling on this testimony was included in the trial
      court’s order.]

21.   Otis Joiner. [No ruling on this testimony was included in the trial court’s
      order.]

22.   Will Hinkle. [No ruling on this testimony was included in the trial
      court’s order.]

23.   Barbara Smith said she was stalked by Kyle Gilley after she refused his
      advances and he broke into her home twice during the middle of the night.

              Witness testimony from Marty Milan, Laurie Carr, and Barbara
      Smith seem to allege signature crimes that can only be admissible if the
      modus operandi of the other crime and of the crime on trial are
      substantially identical and so unique that the proof tends to show that
      the defendant committed the crime for which he is charged. The Court
      finds that the incidents described by these witnesses fail to meet this test
      and therefore, they are not admissible under T.R. Evid. 404(b).


                                       -9-
Factual Background

        In order to properly address the issues in this appeal, it is necessary to review the non-Rule
404(b) proof available in the record, because that evidence is relevant to our consideration of
whether Rule 404(b) testimony is relevant to a material issue other than a character trait of
Defendant. Most of the non-Rule 404(b) proof has been gleaned from the transcript of Defendant’s
transfer hearing in juvenile court, which was included in the record on appeal.

       Defendant and the victim, Laura Salmon, both attended Oakland High School in
Murfreesboro and began dating in 1983. The victim graduated in the spring of 1983, and attended
Middle Tennessee State University in Murfreesboro during the 1983-84 school year. Defendant
graduated from Oakland High School approximately one week prior to the victim’s death on May
31, 1984.

        The victim’s body was found about 35 feet from a gravel road in a rural area of Rutherford
County behind Hoover Rock Quarry. The victim was nude except for her bra. Two pairs of blue
jeans, one of which was identified as the victim’s, were laying over her body. A jacket was tied
around the victim’s neck, covering her chest. The body was found shortly before 6:00 p.m. She had
numerous injuries to her head. There were indications that the killer had hit the victim on the head
with numerous rocks. Blood spots in the gravel, abrasions on the victim’s back and hip, and blood
on the ground indicated that the victim was first assaulted on the gravel road and then dragged to the
location where her body was found, and that she was hit with rocks at that location also.

        DNA testing of semen found in the victim’s vagina, and on a shirt and on her panties at the
scene excluded Defendant as the donor of those specimens. However, one of the pairs of blue jeans
found partially covering her body was a size 30 x 36, the same size pants as worn by Defendant.
These jeans had blood spatter on them which matched the victim’s DNA, and they also had a semen
deposit on them that matched Defendant’s DNA. There was blood spatter evidence that the victim’s
blood was deposited on these jeans at the time that the victim’s assailant was wearing the jeans and
while she was being assaulted.

        At approximately midnight on May 31, 1984, the victim’s car was found in a parking lot near
the Kroger grocery store where she was employed. The driver’s seat had been adjusted back. Two
pairs of shoes were in the car. She was barefooted when found dead, and the bottoms of her feet
were dirty. There was dust on the victim’s car, which was forensically tested and determined to be
consistent with the soil where her body was found.

       Gladys June Mears testified that she saw a man who looked like Defendant in a car that
looked like the victim’s car, at an intersection approximately two miles from where the victim’s body
was found, at approximately 4:45 p.m. on May 31, 1984. The reason she paid attention to the
vehicle and its occupant was that the car was sitting for a long time at the intersection, and she


                                                -10-
waited a considerable time for the vehicle to move. Finally, she crossed the intersection and drove
past the vehicle. The other vehicle’s driver’s side window was down, and Ms. Mears got a good
look at the driver. As she drove away and nearly out of sight of the other vehicle, she looked in her
rearview mirror and observed the vehicle still sitting at the intersection.

        Retired T.B.I. Agent Tom Carmouche interviewed Defendant at his attorney’s office in
September, 1984. Agent Carmouche wrote down what Defendant said, but Defendant refused to
sign the statement upon his attorney’s advice. Defendant told Agent Carmouche that he had known
the victim for about three years, and had dated her for about two years prior to her death. He said
that he had gone to Florida following his graduation, and had returned prior to the victim’s death.
Defendant said he had seen the victim twice upon his return from Florida.

         Defendant told Agent Carmouche that he worked a midnight shift on May 30-31, 1984, and
got off work at 7:00 a.m. on May 31. He went home and went to bed. He later woke up and either
placed or received a phone call and then went back to sleep. Defendant woke up about 4:40 p.m.
and tried to call the victim, but did not reach her. Defendant claimed to have made plans to meet the
victim at her grandmother’s house in Murfreesboro at 4:00 p.m. (When the victim got off work at
Kroger at 1:00 p.m. May 31, she told a co-worker that she was going to her grandmother’s apartment
complex to swim.) Defendant said he called the victim’s father and grandmother trying to locate her,
and then drove around looking for her. Defendant told Agent Carmouche that he had been to the
rock quarry area on two prior occasions but never with the victim. Although not explicitly stated,
it is obvious Defendant denied involvement in the victim’s death.

         In 2000, the case was reopened for investigation. Pursuant to this investigation, Detective
Don Goodwin and Detective Sharpe, of the Rutherford County Sheriff’s Department, went to Florida
and interviewed Defendant at his place of employment at the Manatee County Public Works Office.
As an aside, Detective Goodwin testified that he knew the victim at MTSU, where she was his “little
sister” in the Sigma Chi fraternity. He had taken the victim to a movie on the Sunday before her
death.

        Detective Goodwin wrote down what Defendant told him in November, 2001, and Defendant
signed the statement. In this statement, Defendant denied that he had ever been to the rock quarry
area where the victim’s body was found. Defendant told Detective Goodwin that the victim and
Defendant had a mostly sexual relationship, but that each also dated other persons, and neither was
jealous. He said that he and the victim had sex just about every time they got together. In the
statement, Defendant said “I was never physically violent with her, though she’d slap me, and we
would scream and holler. One time, she chipped her tooth when she jumped on me.” Defendant told
Detective Goodwin that on May 31, 1984, he got home from work after he got off at 7:00 a.m. and
went to bed. He said he woke up between 5:00 p.m. and 7:00 p.m. and called the victim. Her father
told Defendant that she was in some kind of trouble, so Defendant called the Sheriff’s Department
and asked about the victim.




                                                -11-
        Shelly Davenport testified that she was a freshman at Oakland High School during the 1983-
84 school year. She met Defendant at a bonfire party in a field in Murfreesboro sometime in 1984.
She arrived at the party with Pamela Dunn, a friend. After talking with Defendant at the party, Ms.
Davenport left with Defendant in his vehicle. Both had been drinking beer and had “a buzz.” Ms.
Davenport had consented to having sex with Defendant, and he drove her down a gravel road to a
dead end at a “turnaround” where he stopped the car. She later, in 2000, identified the rock quarry
area where the victim’s body was found in 1984 as the place where Defendant had taken her.

       Ms. Davenport performed oral sex on Defendant, and they then engaged in sexual
intercourse. This was Ms. Davenport’s second sexual partner, and Defendant began to get “rough”
and “aggressive” during intercourse. He had his hands in her hair, holding her down with an arm
across her chest. Ms. Davenport told Defendant to stop several times, but he did not do so.
Defendant became angry with Ms. Davenport and asked her if she wanted to end up like Laura
Salmon. At the time, Ms. Davenport knew nothing about Laura Salmon, and she asked Defendant,
“what do you mean, end up like her.” Defendant replied that Laura Salmon was his ex-girlfriend and
he had killed her.

        Ms. Davenport became quiet and Defendant completed the sexual acts, and after both had
cleaned up and dressed, Defendant drove Ms. Davenport to town. There was no conversation until
Defendant let Ms. Davenport out of the car and told her to keep her mouth shut. Ms. Davenport told
her father and her friend Pamela Dunn about the entire incident, but no one else until sometime in
2000 when detectives interviewed her.

                                           ANALYSIS

       Tennessee Rule of Evidence 404(b) provides as follows:

         (b) Other Crimes, Wrongs, or Acts. – Evidence of other crimes, wrongs, or acts is not
         admissible to prove the character of a person or to show action in conformity with the
         character trait. It may, however, be admissible for other purposes. The conditions which
         must be satisfied before allowing such evidence are:

         (1) The court upon request must hold a hearing outside the jury’s presence;

         (2) The court must determine that a material issue exists other than conduct conforming
         with a character trait and must upon request state on the record the material issue, the
         ruling, and the reasons for admitting the evidence; and

         (3) The court must exclude the evidence if its probative value is outweighed by the danger
         of unfair prejudice.




                                               -12-
Tenn. R. Evid. 404(b). The trial court must also find clear and convincing evidence that the
defendant committed the prior crime or act. Tenn. R. Evid. 404(b) Advisory Commission Comment;
see State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985).

        Prior to the effective date of the Tennessee Rules of Evidence on January 1, 1990, the same
rules regarding evidence of “other crimes, wrongs, or acts” were well-established in Tennessee
jurisprudence. See id. In Parton, the supreme court noted the well-settled maxim that “[e]vidence
of other offenses is not admissible for the purpose of showing propensity or disposition on the part
of the defendant to commit the crime for which he is on trial.” Id. at 303. The court in Parton also
relied upon and extensively quoted from Bunch v. State, 605 S.W.2d 227 (Tenn. 1980). In Bunch,
the court held that “evidence that the defendant committed another crime is admissible only if the
ground for relevance is actually being contested in the case on trial;” Parton, 694 S.W.2d at 302
(quoting Bunch, 605 S.W.2d at 230) (emphasis added).

        Parton, decided in 1985, involved a case wherein the defendant was convicted of aggravated
rape, and the “other crime” which was admitted into evidence was also aggravated rape, but against
another victim. The supreme court held that the evidence was erroneously admitted, resulting in
reversible error. Parton, 694 S.W.2d at 301.

        In 1996, our supreme court decided the case of State v. McCary, 922 S.W.2d 511 (Tenn.
1996). That case involved a defendant who had been convicted of numerous sexual abuse offenses
involving young boys. The issue on appeal was whether the trial court committed reversible error
by admitting into evidence testimony of uncharged sexual offenses committed by the defendant
several years prior to the dates of the offenses for which defendant was being tried. The supreme
court held that admission of this testimony was reversible error. Id. at 515. In doing so, our supreme
court held that, “in this context, Tennessee recognizes three instances in which evidence of
uncharged crimes may be admissible: (1) to prove identity (including motive and common scheme
or plan); (2) to prove intent; and (3) to rebut a claim of mistake or accident if asserted as a defense.”
Id. at 514.

        The court in McCary concluded that identity was not a material issue because each victim
was a member of a church youth group directed by the defendant, the closeness of the defendant’s
relationship was basically conceded, and the defendant denied committing all of the criminal acts
charged and characterized his conduct with the victims as non-criminal. Id. The court further
concluded that motive was not a material issue, because in the context of the facts, motive would be
a material issue only if the defendant made it so, and he did not. The “common scheme or plan”
exception for admissibility of “other crimes,” which is often used to admit nearly identical crimes
when identity is an issue, was also not applicable. Id. Since intent was not an element of the charged
offenses of aggravated sexual battery, sexual battery, rape, and statutory rape, intent was not a
material issue and “other crimes” evidence would not be admissible to prove intent. Id. Finally,
because the defendant did not argue mistake or accident as a defense, “other crimes” evidence was
not admissible to “rebut” accident or mistake. Id. The supreme court in McCary concluded after



                                                  -13-
a detailed analysis of whether the “other crimes” evidence was relevant to a material issue at trial,
that it was not, and therefore constituted prohibited “propensity” evidence. Id.

        As noted, the supreme court in Parton and McCary carefully analyzed the “other crimes”
evidence and considered whether the evidence was relevant to a material, contested issue in the case.
In State v. Gilliland, 22 S.W.3d 266 (Tenn. 2000), the supreme court held, “in every case in which
evidence of other crimes, wrongs, or acts is offered, the trial judge should carefully scrutinize the
relevance of the evidence and the reasons for which it is being offered.” Id. at 271 (emphasis
added).

       We conclude that the trial court, when considering the admissibility of Rule 404(b) evidence,
should find and state both why and how (in relation to the facts of the case) the proffered
“other crimes” evidence is proof of the defendant’s motive, the defendant’s intent, or any other
material, contested issue.

        In State v. Nichols, 877 S.W.2d 722 (Tenn. 1994), the defendant appealed his sentence of
death following a guilty plea to felony murder. In one of the issues, the defendant argued that the
trial court erred by allowing into evidence his prior conviction in 1984 for assault with intent to
commit rape. This conviction was not listed by the State as an “aggravating circumstance” in
support of the imposition of the death penalty. Id. at 732. Defendant’s proof at the sentencing
hearing indicated that he had committed the crimes to which he pled guilty (murder in perpetration
of rape, aggravated rape, and first degree burglary) because they were the result of “a sudden feeling”
which overcame him. His counsel also had attempted to show that the criminal conduct was not
consistent with his “passive nature.” Id. In ruling the evidence admissible, the court in Nichols held,
“[i]nstead of admitting the 1984 assault conviction to prove that the murder in this case conformed
to defendant’s previous violent behavior, the court admitted the conviction to rebut evidence that the
defendant was a docile person.” Id.

        In State v. Copenny, 888 S.W.2d 450 (Tenn. Crim. App. 1993), the defendant was convicted
of second degree murder following a jury trial. Ms. Jones testified that she and defendant had lived
together at one time, and that she had a child by the defendant. The defendant left town, and then
Ms. Jones began dating the victim of the murder. Ms. Jones testified that on one occasion after she
began dating the victim, she was in the victim’s vehicle when the defendant approached and told her
to get out of the car. She refused to comply with his request. The defendant exchanged words with
her. As she began to drive away, the defendant said “Bitch, . . .if I want to get to you, I could get to
you.” The defendant then pulled and broke out the driver’s side window of the victim’s car. Our
court held that this Rule 404(b) evidence was relevant and admissible to prove the defendant’s
motive for committing the crime of murder against the victim. Id. at 456.

        In State v. Maddox, 957 S.W.2d 547 (Tenn. Crim. App. 1997), the defendant was convicted
of aggravated robbery of a Longhorn Steakhouse restaurant in Chattanooga. During the trial, the
State was allowed to introduce into evidence, through letters written by the defendant to his live-in
girlfriend and through the testimony of the girlfriend: (1) that the defendant, his girlfriend, and a


                                                 -14-
third party had a plan for the third party to rob the donut shop where the defendant’s girlfriend
worked in order to obtain funds for the defendant’s bond; (2) references to unspecified criminal
charges against the defendant and a charge of attempted first degree murder against the third party;
and (3) that the defendant had stolen a check that his girlfriend had endorsed and passed, and for
which she had been convicted of forgery. Id. at 552-53.

        Our court held that the trial court committed reversible error in admitting the evidence of
“other crimes, wrongs, or bad acts.” Id. at 553. The trial court had not conducted an appropriate
hearing to determine admissibility of the Rule 404(b) evidence. Our court held that much of what
was discussed in defendant’s letters was immaterial and not relevant. Id. at 552. Defense counsel
had attempted to impeach the testimony of the live-in girlfriend with her conviction for forgery. Our
court held that this did not “open the door” for Rule 404(b) proof that the defendant had stolen the
check which ultimately was forged and led to the witness’s conviction. Id.

         Other cases have shown that a careful analysis of the proposed “other crimes” evidence and
how or why it is relevant to a matter actually in issue is required before the Rule 404(b) evidence is
admissible. See State v. Moss, 13 S.W.3d 374, 383-84 (Tenn. Crim. App. 1999) (evidence of
defendant’s prior sexual misconduct with his minor daughter was relevant to show his motive to
murder his estranged wife in order to regain access to his daughter); State v. Jones, 15 S.W.3d 880,
894-95 (Tenn. Crim. App. 1999) (in a trial for murder, testimony that defendant stated he was going
to kill the victim because the victim had told another person about defendant’s involvement in a
stolen car parts ring, and that the person had informed defendant’s parole officer, was admissible to
prove defendant’s motive to kill the victim).

        Even if relevant to a material issue which is actually contested at trial, the Rule 404(b)
evidence cannot be admitted into evidence if its probative value is outweighed by the danger of
unfair prejudice. Tenn. R. Evid. 404(b)(3). The danger is that even if relevant to a contested
material issue, the “other crimes” evidence may be actually more in the nature of prohibited
“propensity evidence.” As stated in State v. Roberts, 703 S.W.2d 146 (Tenn. 1986), “[w]hen the
prior conviction was shown, it may have settled all questions for the jury, allowing them to conclude
that because he did it once, more than likely he did it again.” Id. at 147 (emphasis in original).

        In State v. Luellen, 867 S.W.2d 736 (Tenn. Crim. App. 1992), the two defendants were
convicted of possession of cocaine with intent to sell. Law enforcement officers received
information that the defendants were going to go from Hardeman County to Memphis to obtain
cocaine. Surveillance was begun and a pickup truck containing the defendants and a fourteen-year-
old boy was stopped by police. The only cocaine found was 32.4 grams placed into five bags inside
an envelope, which was discovered inside the juvenile’s shirt after a search. The defendants, at the
time of their arrest at the scene of the stop, denied having any knowledge of the cocaine found on
the juvenile. Id. at 737-38.

         Following a hearing outside the presence of the jury, the trial court allowed the prosecutor
to elicit testimony from a law enforcement officer that on one occasion, one of the defendants was


                                                -15-
found in possession of cocaine in his pants pocket, and on another occasion, he was found in
possession of marijuana following a search of his home. The other defendant was found in
possession of cocaine following a search of his residence. Id. at 740.

        A panel of our court held,

         In the present case, the evidence of the prior wrongs was introduced to show intent
         and lack of mistake pursuant to Rule 404(b). Because the appellants contended
         they had no knowledge that the cocaine was in the possession of the juvenile
         Williams, the state introduced evidence of three prior incidents involving drugs
         to prove that this event did not take place by pure chance. Evidence relating to
         appellants’ actual knowledge of the cocaine is relevant to the case.

Id. at 741.

        However, an officer of the Hardeman County Sheriff’s Department also testified about an
inculpatory admission by one of the defendants, while he was exercising in the jail, regarding his trip
to Memphis to obtain cocaine and his subsequent arrest. Also, the juvenile found in possession of
the cocaine testified at trial that when their vehicle was stopped by police, one defendant told the
other to “get the package.” The second defendant got the package from beneath the dashboard and
put it into the juvenile’s pocket. The juvenile testified he did not know the package contained
cocaine until after the search by the officer. The juvenile knew both defendants. He lived in
Memphis. On the day of the offense, he saw them in Memphis and requested a ride from them to
his grandmother’s house in Hardeman County. In light of the testimony of the juvenile and the
Sheriff’s Department officer, our court held that even though relevant, the probative value of the
“other crimes” evidence was “slight in comparison to the prejudicial effect that resulted.” Id. Our
court reversed the conviction and remanded for a new trial.

         Luellen highlights the proposition that issues regarding “other crimes” evidence and their
resolution under Rule 404(b) can often be a fluid issue. In other words, the strong implication in
Luellen is that if the juvenile witness and the Sheriff’s Department officer had not testified, or had
testified differently, admission of the “other crimes” evidence might not have been reversible error.
While pre-trial hearings on Rule 404(b) issues are not prohibited, and are apparently not unusual,
a risk is posed when such determinations are made pre-trial. Evidence that may appear pre-trial to
be relevant to a material, contested issue, actually may not be so after the trial has begun, and vice-
versa. Also, based upon how the proof develops at trial, and/or the theories of the defendant and
State are set forth in opening statements, direct examination or cross-examination, “other crimes”
evidence that may appear pre-trial to be more probative than prejudicial may not be so after the trial
begins, and vice-versa.

        As noted above, our court granted the applications of both the State and Defendant in this
case to review the trial court’s interlocutory order pursuant to Rule 9 of the Tennessee Rules of
Appellate Procedure. Upon further reflection, it has been considered that Defendant’s application


                                                 -16-
may have been improvidently granted; nevertheless we have concluded that we will address the
issues raised in both the appeal by Defendant and the State. However, our disposition of the issue
is bound by the record as it exists at the present time.

        The cases discussed thus far all involve a defendant who committed “other crimes, wrongs,
or acts” against a person who was not the victim of the case being tried, or the “other crime, wrong,
or act” was not the type of crime that is against a specific victim. See Parton, 694 S.W.2d 299
(Tenn. 1985), McCary, 922 S.W.2d 511 (Tenn. 1996), and Nichols, 877 S.W.2d 722 (Tenn. 1994)
(aggravated rape or other sexual abuse against a victim other than the victim(s) involved in the cases
being tried); Copenny, 888 S.W.2d 450 (Tenn. Crim. App. 1993) (threatening behavior toward a
former girlfriend who had begun dating the victim); Maddox, 957 S.W.2d 547 (Tenn. Crim. App.
1997) (conspiracy to rob a business other than the robbery which was the subject of the trial, and
theft of a check later forged by another person); Moss, 13 S.W.3d 374 (Tenn. Crim. App. 1999)
(sexual misconduct with a juvenile who was not the victim of the homicide for which defendant was
tried and convicted); Jones, 15 S.W.3d 880 (Tenn. Crim. App. 1999) (defendant’s involvement in
a stolen car parts ring and the fact that he was on parole); Luellen, 867 S.W.2d 736 (Tenn. Crim.
App. 1992) (defendant’s possession of illegal drugs on occasions prior to the incident for which they
were on trial).

       Of some concern is the fact that there is case law which seems to stray from the “how” and
“why” relevancy analysis required under Rule 404(b) in cases where (1) the crime for which a
defendant is charged is a violent crime; and (2) the prior bad acts or “other crimes” evidence
involves violence and the victim of the “other crimes” is also the victim of the offense in the case
for which a defendant is being tried.

        In State v. Glebock, 616 S.W.2d 897 (Tenn. Crim. App. 1981), decided prior to State v.
Parton, supra, the defendant was convicted of assault with intent to commit first degree murder of
his former wife after he shot her four times in the neck, resulting in paralysis from her neck down.
Evidence admitted at trial showed that prior to the shooting, defendant had extensively harassed the
victim, forcing her to move from Ohio to Memphis, where she subsequently remarried. There was
proof that defendant broke into her apartment in Ohio, and that he sent a threatening post card to her
before she moved to Tennessee. The defendant argued on appeal that the trial court erred by
allowing this evidence to be admitted. Our court rejected this argument and held that “[t]he relations
existing between the victim and the defendant prior to the commission of the crime are relevant.
These relations indicate hostility toward the victim and a settled purpose to harm or injure her.” Id.
at 905-06 (citations omitted).

         In State v. Turnbill, 640 S.W.2d 40 (Tenn. Crim. App. 1982), also decided prior to Parton,
the defendant was convicted of the first degree murder of James Pollard, with whom defendant and
his girlfriend shared a room at a rescue mission in Knoxville. The proof showed that death resulted
from a vicious beating of the victim by the defendant that lasted twenty-five to thirty minutes. The
homicide occurred in March, 1980. The defendant’s girlfriend was present during the offense.
Evidence was also introduced at trial that defendant had been arrested for the strong-armed robbery


                                                -17-
of Mr. Pollard in November, 1979. Defendant pled guilty, in a negotiated agreement, to the offense
of criminal trespass, and served time in jail before being released about a week prior to the homicide.
The victim allowed the defendant to stay with him after the defendant’s release from jail. Proof of
the defendant’s arrest for the strong-armed robbery was introduced at the murder trial. Defendant
argued that this was reversible error, because he was only convicted of a misdemeanor, rather than
a felony. The trial court allowed the “other crimes” evidence because it was proof of: (1) the
relationship between the defendant and the victim, (2) the closeness in time of the two incidents, and
(3) the defendant’s intent. Id. at 46. There was evidence that prior to defendant’s vicious assault
upon the victim, the defendant had accused the victim of “snitching” on the defendant and his
girlfriend, causing them to be run out of the rescue mission by the manager. Relying on Glebock,
this court rejected the defendant’s argument and held,

             In this case, as in Glebock, the prior relations between the victim and the appellant
             were relevant matters for the jury’s consideration on the question of the
             appellant’s intent. Even though not actually convicted of the robbery, the
             appellant was convicted of a crime against the [victim]. The circumstances of that
             crime were also relevant to the issue of the appellant’s intent. The admission of
             this testimony was not error and this issue has no merit.

Id. at 47.

         In State v. Smith, 868 S.W.2d 561 (Tenn. 1993), the defendant was convicted of the
premeditated first degree murders of his estranged wife and her two sons from a previous marriage.
He received the death penalty, and the convictions and penalty of death were affirmed by the
supreme court. Proof was introduced at trial of two incidences of prior “other crimes, wrongs or
acts” by the defendant. In one incident, defendant and one of the boys got into a fight when the
defendant and his wife were arguing. Defendant kicked the boy in the leg, bit him on the back, and
tried to kick the boy in the groin. Defendant ordered his wife and sons to leave, and put a gun to the
boy’s head. He threatened to kill his wife and her sons if she took out a warrant or called the police.
In the other incident, the wife victim had gone with the defendant to his trailer to get her car and
other personal items. The defendant tied her up, raped her, and ran a knife across her throat and
stated he was going to kill her. Defendant argued that the evidence was inadmissible under
Tennessee Rules of Evidence 404(b). In addressing the issue, the supreme court stated:

             In response to the Defendant’s assertions that the evidence of the two episodes
             was irrelevant and inadmissible under Tenn. R. Evid. 404(b), the State cites a line
             of cases, see, e.g., State v. Turnbill, 640 S.W.2d 40, 46-47 (Tenn. Crim. App.
             1982); and State v. Glebock, 616 S.W.2d 897, 905-906 (Tenn. Crim. App. 1981),
             which hold that violent acts indicating the relationship between the victim of a
             violent crime and the defendant prior to the commission of the offense are
             relevant to show defendant’s hostility toward the victim, malice, intent, and a
             settled purpose to harm the victim. Also, in the present case, the victims, despite
             the Defendant’s threats to kill them if they did so, had filed charges against the


                                                     -18-
         Defendant based on these prior assaults. The evidence of these violent episodes
         was admitted not to prove the Defendant acted in accord with this character but
         as part of the proof establishing his motive for the killings. The probative value
         of this evidence is not outweighed by the danger of unfair prejudice. See Tenn.
         R. Evid. 404(b)(3); see generally 4 Am. Jur. 2d Homicide § 274 (1968); 41 C.J.S.
         Homicide § 206 (1991).

Smith, 868 S.W.2d at 574 (emphasis added).

        Under Smith, therefore, when there are prior bad acts which indicate the relationship between
the defendant and the victim of a violent crime, these prior violent acts are relevant to show the
defendant’s hostility toward the victim, the defendant’s malice, the defendant’s intent, and the
defendant’s settled purpose to harm the victim. This rule set forth by the supreme court in Smith is
seemingly per se and does not require a case-by-case analysis of the particular facts involved. The
holding in Smith is not that the evidence of the defendant’s prior bad acts was relevant to prove any
of the other facts, but rather to prove the defendant’s motive, and this language in Smith has been
subsequently relied upon by the courts of this state. It further appears that the requirement under
Rule 404(b) that the evidence be relevant to a material, contested issue, see Parton, 694 S.W.2d 299,
302 (Tenn. 1985) (quoting Bunch v. State, 605 S.W.2d 227, 229-30 (Tenn. 1980), has been
overlooked or abandoned when the prior bad acts sought to be admitted are violent ones against the
same victim in a crime of violence. For instance, in State v. Dellinger, 79 S.W.3d 458, 484 (Tenn.
2002), the opinion of this court was attached as an appendix to the supreme court’s opinion, which
noted:

         Indeed, the Tennessee Supreme Court has previously recognized the evidence of
         prior acts of violence against the victim are admissible under Rule 404(b) because
         the evidence is relevant to show the defendant’s hostility toward the victim,
         malice, intent, and a settled purpose to harm the victim. State v. Smith, 868
         S.W.2d 561, 574 (Tenn. 1993).

Dellinger, 79 S.W.3d at 484.

                                 APPLICATION OF THE LAW

       With the above-discussed law in mind, we shall apply it to each individual witness whose
proposed testimony was addressed in the trial court’s order.

Shelly Davenport Tedrow

         We conclude that the trial court did not abuse its discretion, and we find that the State has
not argued that the trial court erred by excluding certain testimony of Shelley Davenport (Tedrow)
that is evidence of prior acts by Defendant. Accordingly, this portion of the trial court’s order is
affirmed.


                                                -19-
Marty Milam, Laurie Carr, and Barbara Smith

        The State has not contested that portion of the trial court’s order excluding this evidence, and
we further find that the trial court did not abuse its discretion. This portion of the trial court’s order
is affirmed.

Scott Mason

       The trial court found that the proposed testimony of Mr. Mason did not constitute clear and
convincing evidence of a prior bad act by Defendant. Therefore, a necessary requirement for
admissibility was lacking. The trial court’s order excluding the testimony of Scott Mason is
affirmed.

Reed Ridley and John Jolly

        The trial court’s order insofar as it excludes the testimony of Mr. Ridley and Mr. Jolly is
reversed. The trial court found that their testimony was more prejudicial than probative because it
was cumulative of the testimony of other potential witnesses. This determination, if appropriate,
must be made during the trial and not prior thereto. Proof is not cumulative in a trial until the trial
has begun. The trial court’s ruling in this regard was premature. Additionally, the “cumulative
evidence” basis for exclusion of testimony under Tenn. R. Evid. 403 has a purpose to promote
judicial economy and efficiency rather than to exclude prejudicial evidence. State v. Jerry Wayne
Pointer, 2003 Tenn. Crim. App. LEXIS 174, No. M2001-02269-CCA-R3-CD, slip op. at 21 (Tenn.
Crim. App. at Nashville, Feb. 28, 2003) perm. to app. denied (Tenn. 2003) (citing Neil P. Cohen et
al., Tennessee Law of Evidence, § 4.03[7] (4th ed. 2000)).

        However, we stress that we are not reversing this portion of the trial court’s order on
substantive grounds. We are not holding that the trial court erred by excluding the testimony because
it was more prejudicial than probative. We are merely holding that the determination to exclude the
evidence under Rule 404(b) because its cumulative nature makes it more prejudicial than probative
must be made, if at all, during the trial and not prior to the trial.

Bill Tennpenny

       The trial court found that the testimony of Mr. Tennpenny “may” be clear and convincing
evidence. Before prior bad acts are admissible, relevant case law and Tennessee Rule of Evidence
404(b) require that the trial court “must” find clear and convincing evidence of the prior bad act.
Accordingly, the trial court’s order, insofar as it excludes the testimony of Bill Tennpenny is
affirmed.

Connie Shelton, Melinda Edwards, Mary Lester,
Terri Brown McCrary, Kim Roberts, and Lourene Mackey



                                                  -20-
        Insofar as it concerns the testimony of these witnesses regarding acts committed by
Defendant against the victim (but not including statements of the victim, which is addressed below),
the order of the trial court is affirmed. At the time of the victim’s death, first degree murder was the
unlawful, premeditated, deliberate, and with malice aforethought, killing of a victim by the
defendant. Tenn. Code Ann. § 39-2-202(a) (1982) (repealed 1989). Under prior law, “malice
aforethought” was an essential element the State had to prove beyond a reasonable doubt. “Malice”
and “malice aforethought” are interchangeable terms. Campbell v. State, 491 S.W.2d 359, 362
(Tenn. 1973). In Fox v. State, 441 S.W.2d 491 (Tenn. Crim. App. 1968) this court explained express
malice as follows:

         [I]t is clear that malice is an essential ingredient of murder. A case of homicide
         cannot be murder unless at and before the killing the wicked intent, constituting
         malice aforethought, exists in the mind of the slayer. Malice is an intent to do an
         injury to another, a design formed in the mind of doing mischief to another.

         Express malice is actual malice against the party slain; it exists where a person
         actually contemplates the injury or wrong which he inflicts. It is shown where the
         assailant kills his victim for the purpose of wreaking his vengeance, or to gratify
         feelings of animosity, hatred, or ill will, and where one, with a sedate and
         deliberate mind and formed design attempts to kill another, which formed design
         is evidenced either by words or by external circumstances indicating the inward
         intentions – such as laying in wait, antecedent menaces, former grudges, and
         concerted schemes to do the victim some bodily harm.

Id. at 495-96 (emphasis added).

        Under State v. Smith, prior acts of violence between the defendant and the victim of a violent
crime are admissible to prove the defendant’s malice. Malice is an essential element of the crime
for which Defendant is charged in this case. Therefore, the “prior crimes, wrongs, and acts”
evidence of witnesses Connie Shelton, Melinda Edwards, Mary Lester, Terri Brown McCrary, and
Kim Roberts is admissible, where the trial court has found that the evidence submitted by these
witnesses is clear and convincing. Where the trial court excluded some of the testimony of one or
more of these witnesses because the proof was not clear and convincing, that portion of the order is
also affirmed.

       The order granting the applications of both the State and Defendant to appeal, pursuant to
Rule 9 of the Tennessee Rules of Appellate Procedure, was limited to the Tennessee Rules of
Evidence 404(b) issues decided by the trial court. Evidentiary issues regarding the admissibility of
hearsay testimony, including admissions by Defendant, excited utterances, and other testimony
regarding statements of the victim were not included in the application or in the order granting the
Rule 9 appeal, and are therefore not resolved in this interlocutory appeal.




                                                 -21-
                                           CONCLUSION

         For the reasons stated, the interlocutory order of the trial court is affirmed in part, reversed
in part, and this case is remanded to the trial court for further proceedings.


                                                         ___________________________________
                                                         THOMAS T. WOODALL, JUDGE




                                                  -22-
