                                                                                            02/07/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs August 28, 2018

             STATE OF TENNESSEE v. DAVID LYNN ZEIGLER

                   Appeal from the Circuit Court for Maury County
                          No. 22891 Russell Parkes, Judge
                      ___________________________________

                            No. M2017-01091-CCA-R3-CD
                        ___________________________________

TIMOTHY L. EASTER, J., dissenting.

       I respectfully dissent. I cannot find the trial court abused its discretion by limiting
the cross-examination of the State’s expert witness.

        There was never any issue at trial and there is now no issue on appeal that Dr.
Walker was not qualified as an expert witness under Tennessee Rule of Evidence 702.
Indeed, the proof at trial involved several experts who possessed “scientific, technical, or
other specialized knowledge” that the trial court determined would “substantially assist
the trier of fact to understand the evidence or to determine a fact in issue.” Id. The only
issue with regard to Dr. Walker’s testimony was related to challenging the credibility of
his testimony by discussing the consent order and/or his license’s probationary status.
The trial court determined that Defendant would not be permitted to cross-examine Dr.
Walker about his prior cocaine use or the consent order because neither was related to the
truthfulness of Dr. Walker’s testimony or his ability to effectively evaluate the victim’s
capacity to consent. In so finding, the trial court performed a sufficient evidentiary
analysis under Rules 402, 403, and 608 of the Tennessee Rules of Evidence. The trial
court’s findings were properly made a part of the record for this Court’s review.

       When making evidentiary determinations, a trial court is first tasked with
determining if the evidence meets the threshold requirement of relevancy. Evidence is
relevant when it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Tenn. R. Evid. 401. Relevant evidence is admissible
unless it is barred by some other rule of law. Tenn. R. Evid. 402. However, relevant
evidence “may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Tenn. R. Evid. 403. Even if it is relevant, “[e]vidence of a person’s character

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or trait of character is not admissible for the purpose of proving action in conformity
therewith.” Tenn. R. Evid. 404(a). Rule 608(b) provides an exception to Rule 404(a) by
allowing inquiry into specific instances of conduct that are probative of the witness’s
truthfulness or untruthfulness on cross-examination. See Tenn. R. Evid. 404(a)(3). This
Court will not interfere with the trial court’s exercise of discretion over the admissibility
of evidence absent an abuse of discretion. State v. Franklin, 308 S.W.3d 799, 809 (Tenn.
2010). “An abuse of discretion occurs when the trial court applies an incorrect legal
standard or reaches a conclusion that is ‘illogical or unreasonable and causes an injustice
to the party complaining.’” State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007) (quoting
State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006)). “The abuse of discretion standard is
intended to constrain appellate review and implies ‘less intense appellate review and,
therefore, less likelihood of reversal.’” State ex rel. Jones v. Looper, 86 S.W.3d 189, 193
(Tenn. Ct. App. 2000) (quoting BIF v. Serv. Constr. Co., No. 87-136-II, 1988 WL 72409,
at *2 (Tenn. Ct. App. July 13, 1988)).

        On appeal, Defendant does not cite any authority to support the contention that an
expert witness is somehow “untruthful” because they were treated for cocaine addiction
and/or admitted to unprofessional conduct as a result of cocaine addiction, both of which
occurred prior to the evaluation of the victim in this case. See State v. Larkin, 443
S.W.3d 751, 811-12 (Tenn. Crim. App. 2013) (holding that trial court did not err in
excluding evidence that expert witness omitted a reprimand from his CV where the
reprimand was unrelated to litigation at issue and did not affect qualifications of the
expert); cf. Miller v. SSM Health Care Corp., 193 S.W.3d 416, 419-21 (Mo. Ct. App.
2006) (determining trial court properly allowed defense counsel to cross-examine
plaintiff’s expert about censure he had received for making false representations as an
expert). At the hearing on the motion in limine, Dr. Walker explained at length his
history of addiction and the events which led to his inpatient drug rehabilitation and the
eventual entry of the consent order. At no point did either side allege or elicit testimony
that Dr. Walker’s problems affected his professional ability to perform evaluations or
make conclusions therefrom. The evaluation of the victim occurred after Dr. Walker’s
treatment, at a time when he was sober and actively practicing forensic psychology. I fail
to see how Dr. Walker’s past cocaine addiction or the consent order pertains to Dr.
Walker’s character for truthfulness such that Defendant should be permitted to question
him about it at trial. Furthermore, even if I did conclude that such evidence was
admissible, I could not conclude that the trial court abused its discretion in excluding this
evidence as it could not be said that the trial court “stray[ed] beyond the applicable legal
standards or . . . fail[ed] to properly consider the factors customarily used to guide the
particular discretionary decision.” Lewis, 235 S.W.3d at 141. Said another way, even if
the trial court had allowed the evidence, and the State was now complaining about its
admission, I could not find that the trial court abused its discretion by allowing Defendant
to question Dr. Walker’s about his addiction history, the consent order, and the status of
his license. The abuse of discretion standard is just that protective of a trial judge’s
rulings.

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       Consequently, Defendant was not improperly denied the right to cross-examine
the witness, and there was no violation of Defendant’s constitutional rights. I would
affirm the trial court in full.


                                       ____________________________________
                                       TIMOTHY L. EASTER, JUDGE




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