         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    March 6, 2007 Session

              STATE OF TENNESSEE v. DAVIDSON M. TAYLOR

                      Appeal from the Criminal Court for Shelby County
                            No. 04-01632   Paula Skahan, Judge



                   No. W2006-00543-CCA-R3-CD - Filed October 12, 2007




JERRY L. SMITH , Judge, Concurring in Results.


        I fully concur in the judgment of the Court that Appellant’s convictions and sentences should
be affirmed. However, I disagree with the majority’s rationale concerning the striking by the trial
court of Ms. Taylor’s testimony that she had never seen her husband intoxicated.

        First, in my opinion, it is questionable whether Ms. Taylor’s testimony is character testimony
at all. Tennessee Rule of Evidence 405(a)(1) provides that character evidence is to be proven by
testimony in the form of an opinion as to the character of a person or the person’s reputation. Ms.
Taylor was asked a fact question as to whether she had ever seen her husband intoxicated. She
responded with a statement of fact, “No, I have never seen him intoxicated.” This type of factual
statement is not what is typically thought of as character evidence.

         Second, while I also believe her statement was largely irrelevant as to whether the Appellant
was driving under the influence on the occasion in question, there was no objection to the question
until the trial court ruled the prosecution could not question Ms. Taylor about Appellant’s prior DUI
conviction. In the absence of an objection, even ordinarily inadmissible evidence may legally be
considered by a jury. See State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000). Thus, at the time the
trial court conducted the probity versus prejudice analysis mandated by Tennessee Rule of Evidence
405(a)(3), Ms. Taylor’s statement was properly before the jury.

        Thirdly, even if Ms. Taylor’s statement is considered character evidence, Tennessee Rule of
Evidence 405 is designed to bar the use of unduly prejudicial specific instances of conduct. It does
not bar the use of character evidence itself when a trial court finds that a character witness cannot
be cross-examined with specific instances of conduct. When the trial court ruled that Appellant’s
prior DUI conviction was unduly prejudicial, the court correctly prevented the State from asking Ms.
Taylor about it. However, in my view, the trial court erred in striking character evidence to which
no objection was voiced at the time the evidence was offered.
        Finally, because the quantum of proof as to the Appellant’s guilt of DUI is overwhelming and
Ms. Taylor’s statement is of little relevance, I believe the trial court’s error was harmless and I
therefore concur in the judgment of the Court.



                                                             ______________________________
                                                             Jerry L. Smith, Judge




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