        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       April 16, 2013 Session

          STATE OF TENNESSEE v. MICHAEL JASON VANCE
                 Appeal from the Circuit Court for Rutherford County
                       No. F-64237         David Bragg, Judge




              No. M2011-02469-CCA-R3-CD - Filed November 12, 2013




J AMES C URWOOD W ITT, J R., J., concurring.

              I respectfully write separately to express somewhat different views from the
majority on two issues.

               First, relative to the 911 dispatcher’s testimony that the 911 system maintained
a “flag” on the defendant’s address that indicated issues of officer safety, the majority relies
upon the failure of the “flag” to identify the defendant as the source of the issue as a basis
for denying the defendant relief. I believe that, given other evidence in the case, the officer-
safety flag substantially implicated the defendant. Consequently, the trial court should have
excluded the evidence. On the other hand, the totality of the evidence in the case renders the
admission of this evidence harmless, and I would have affirmed the denial of relief on that
basis.

               Second, the majority cites State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012), in
support of its statement of the standard of review of sentence alignment issues. Bise did not
address a sentence alignment issue, and I have previously opined that the caselaw history
preceding Bise did not warrant extending Bise to this issue. See Oregon v. Ice, 555 U.S. 160,
172 (2009); State v. Allen, 259 S.W.3d 671, 688 (Tenn. 2008); Raymond Ross v. State, No.
W2010-00875-CCA-R3-PC (Tenn. Crim. App., Jackson, Sept. 29, 2010).

               That said, I offer a comment about the trial court’s exclusion of the defendant’s
second expert witness while allowing the State to utilize two expert witnesses. The majority
correctly does not rely upon cumulation of evidence as a basis for denying relief as did the
trial court. In my view, allowing the State to use two expert witnesses on the defendant’s
capacity to form the intent necessary to commit the crime while denying the defendant the
opportunity to call a second such witness on the basis that his second witness’ testimony was
cumulative is patently unfair. In a “battle of experts,” quantity may be as important to a jury
as quality. It seems to be a matter of what is “good for the goose is good for the gander.”




                                                    JAMES CURWOOD WITT, JR., JUDGE




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