         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 November 27, 2001 Session

         STATE OF TENNESSEE v. FREDERICK H. GONZALES, JR.

                Direct Appeal from the Circuit Court for Williamson County
                         No. I-699-210    Donald P. Harris, Judge



                   No. M2000-03219-CCA-R3-CD - Filed October 29, 2002


A Williamson County jury convicted the defendant, Frederick H. Gonzales, Jr., of selling cocaine
in an amount of .5 grams or more and assessed a fine of $50,000. The trial court sentenced the
defendant to serve nine years as a Range I offender and reduced his fine to $5,000. The defendant
now brings this appeal, challenging the trial court’s failure to grant his motion for new trial on the
basis that (1) evidence of a prior bad act committed by the defendant was improperly admitted at trial
and that (2) the state improperly referred to the defendant’s failure to call witnesses in closing
arguments. Because we find that (1) the defendant opened the door to the prior bad act testimony
and waived this issue by failing to object at trial and that (2) the prosecutor’s reference to missing
witnesses was harmless error, we affirm the judgment of the trial court.

      Tenn. R. App. P. Appeal as of Right; Judgment of the Circuit Court is Affirmed.

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA
MCGEE OGLE , JJ., joined.

Tony L. Maples, Murfreesboro, Tennessee, for the appellant, Frederick H. Gonzales, Jr.

Paul G. Summers, Attorney General & Reporter; T. E. Williams, III, Assistant Attorney General;
Ron Davis, District Attorney General; and Mary K. Garvey, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                             OPINION

                                       Factual Background

       Ms. Vicky Wilsford, a friend of the defendant’s, agreed to be an informant for the police and
to wear a wire during an arranged cocaine sale with the defendant. Ms. Wilsford testified that she
performed this favor for the police out of civic duty and because her niece, while with the defendant,
had ingested cocaine and therefore had to receive medical attention. Ms. Wilsford was paid for her
services. On the night of the scheduled deal, the defendant arrived at Ms. Wilsford’s house early,
and therefore the police had to search and wire Ms. Wilsford at the police station. While en route
to the deal, Ms. Wilsford apparently got lost, and the police lost contact with her for 20-30 minutes.
The deal proceeded as planned and the defendant sold Ms. Wilsford cocaine later that evening.
While much of the cocaine sale was tape-recorded, the police never got a visual identification of the
defendant. After hearing this and additional proof, the jury convicted the defendant.
        As aforementioned, the defendant received a nine-year sentence and $5,000 fine, and he is
appealing his conviction on the basis of the trial court’s admission of testimony regarding one of his
prior bad acts and the prosecutor’s reference to a missing witness. After reviewing the record and
applicable law, we find that none of these issues merit relief and accordingly affirm the defendant’s
convictions.


                                     Prior Bad Act Testimony

         The defendant complains that the trial court erroneously refused to grant his motion for a new
trial on the basis of improperly admitted testimony regarding his prior bad act. At trial Ms. Wilsford
testified that she was motivated to cooperate with the police in order to secure the defendant’s arrest
because the defendant was responsible for her niece having ingested cocaine, which had resulted in
her niece receiving hospital care. The defendant argues that this evidence of a prior bad act should
not have been admitted because it was irrelevant and introduced solely to bolster Ms. Wilsford’s
credibility. The defendant argues that Ms. Wilsford’s motivation for cooperating with police had
not been called into question nor had her character been attacked at the time of this testimony. The
defendant further argues that even if this evidence were relevant, it should not have been admitted
because it was unduly prejudicial. Finally the defendant alleges that the prejudicial nature of this
testimony was compounded by the prosecutor’s reference to it during closing arguments. The state
counters the defendant’s argument by contending that the defendant himself opened the door to this
testimony, which was admissible to rehabilitate Ms. Wilsford’s character. Furthermore, the state
also alleges that the defendant has waived this issue on appeal because he failed to object to the
contested testimony at trial.
         Evidence of a defendant’s prior crimes, wrongs, or acts is generally not admissible to prove
that he committed the crime in question. See Tenn. R. Evid. 404. Such evidence carries the inherent
risk of the jury convicting the defendant of a crime based upon his bad character or propensity to
commit a crime, rather than the strength of the evidence. See State v. Rickman, 876 S.W.2d 824,
828 (Tenn. 1994). The risk is greater when the prior bad acts are similar to the crime for which the
defendant is on trial. See id. However, Tennessee Rule of Evidence 404(b) states that evidence of
prior crimes, wrongs, or acts may be admissible when it is probative of material issues other than
conduct conforming with a character trait. Evidence of a defendant’s criminal character is
admissible to prove: (1) the use of “motive and common scheme or plan” to establish identity, (2)
to establish the defendant’s intent in committing the offense on trial, and (3) to “rebut a claim of
mistake or accident if asserted as a defense.” State v. McCary, 922 S.W.2d 511, 514 (Tenn. 1996).
         In order to admit such evidence, a trial court must, upon request, hold a hearing outside the
jury’s presence and determine that a material issue exists that does not concern conduct conforming
with a character trait. See Tenn. R. Evid. 404(b). The trial court must also, upon request, state on


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the record the material issue, the ruling, and the reasons for admitting the evidence. See id.
Additionally, the trial court must determine that the probative value of the evidence outweighs the
danger of unfair prejudice. Id. If the trial court follows the procedure set forth in Rule 404(b), an
appellate court may only disturb the trial court’s decision upon a finding of an abuse of discretion.
See State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).
        In the instant case, the defendant failed to object to Ms. Wilsford’s testimony that he was
responsible for a child ingesting cocaine and to request a hearing to determine the admissibility of
this evidence. It is a well-established rule that a defendant’s failure to timely object and call this
issue to the trial court’s attention constitutes a waiver of appellate review of the issue. See Tenn. R.
App. P. 36(a); State v. Hall, 8 S.W.3d 593, 603 (Tenn. 1999); State v. Thornton, 10 S.W.3d 229, 234
(Tenn. Crim. App. 1999). Accordingly, this issue is waived.1 Moreover, we agree with the state that
the defendant opened the door to Ms. Wilsford’s testimony regarding her motivation for cooperating
with the police by raising the issue while questioning another witness. Specifically, defense counsel
asked a testifying police officer what the officer believed Ms. Wilsford’s motivation for assisting the
police to be. The officer testified that he believed that she was compensated for her assistance and
that she may have been motivated out of concern for her family members. Counsel then went on to
ask the officer if he had knowledge of an alleged sexual relationship between Ms. Wilsford and the
defendant. We find that the defendant cannot now complain that Ms. Wilsford’s testimony regarding
her motivation for assisting police was improper bolstering of her credibility when defense counsel
raised the issue of her credibility when questioning another witness. See, e.g., State v. Harry Muse
Jones, III, No. 03C01-9312-CR-00402, 1995 Tenn. Crim. App. LEXIS 827, at *19-*21 (Tenn. Crim.
App. at Knoxville, Oct. 4, 1995) (finding that the defendant opened the door to prior bad act
testimony). For the reasons outlined above, we find that this issue lacks merit.


                                        Reference to Missing Witnesses

        The defendant argues that the trial court erroneously refused to grant his motion for new trial
on the basis that the prosecutor made an impermissible reference during closing arguments to
“missing witnesses,” i.e. persons whose testimony the defendant alleged would have been
exculpatory, but whom the defendant did not call as witnesses at trial. During trial, the defendant’s
alibi witness, Beth Zanolini, testified that she and three other individuals were with the defendant
on the night that the defendant allegedly sold Ms. Wilsford cocaine. During closing arguments, the
prosecutor argued that the jury could draw an inference from the defendant’s failure to call these
three witnesses to testify and corroborate his alibi. Defense counsel objected to the prosecutor’s
reference to these missing witnesses, and the trial court sustained the objection. At the close of the



         1
                     In reference to the defendant’s complaint that the prosecuting attorney made an improper reference
to Ms. W ilsford’s alleged motivation for cooperating with police during closing arguments, we note that the defendant
failed to ob ject to the pro secuto r’s com ment in this context, as well, and has acco rdingly waived this issue. See Tenn.
R. App . P. 36 (a); Hall, 8 S.W .3d at 603 ; Thornton, 10 S.W.3d at 234. Moreover, as discussed infra, we find that the
defendant opened the doo r to this testimony by raising the issue o f Ms. W ilsford’s motivation during the examination
of another witness.

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prosecutor’s argument, the defendant requested a curative instruction, and the trial court instructed
the jury as follows:

   During arguments of counsel, there was an objection made to one of the arguments, and I
   would tell you that before an attorney can argue that there’s a witness who should have been
   called in a case, there has to be proof admitted into evidence that, first of all, that witness was
   available to testify or was subject to the subpoena power of this court, and that’s the reason
   I stopped that part of [the prosecutor’s argument], was because that had been said. Is that
   sufficient? [nodding to counsel]

The defendant argues that this curative instruction is deficient because it does not instruct the jury
to disregard the prosecutor’s reference to the missing witnesses, but instead merely informs the jury
that the prosecutor referred to the missing witnesses without first establishing that the witnesses were
available to testify at trial. The state concedes that the prosecutor improperly referred to several
missing witnesses in her closing arguments, but contends that such error was harmless. The state
also notes that the defendant approved of the trial court’s proposed curative instruction before the
court gave the instruction to the jury.
         The law regarding the appropriate circumstances for giving the “missing witness” instruction
was explained by our supreme court in State v. Francis, 669 S.W.2d 85 (Tenn. 1984).

   This Court has held that a party may comment about an absent witness when the evidence
   shows that “[1] the witness had knowledge of material facts, [2] that a relationship exists
   between the witness and the party that would naturally incline the witness to favor the party
   and [3] that the missing witness was available to the process of the Court for trial.” Delk v.
   State, 590 S.W.2d 435, 440 (Tenn. 1979). . . . The mere fact that a party fails to produce a
   particular person who may have some knowledge of the facts involved does not justify
   application of the inference against him. However, when it can be said “with reasonable
   assurance that it would have been natural for a party to have called the absent witness but for
   some apprehension about his testimony,” an inference may be drawn by the jury that the
   testimony would have been unfavorable. Burgess v. United States, 440 F.2d 226, 237 (D.C.
   Cir. 1970).

669 S.W.2d at 88-89 (footnote omitted). When determining whether an improper reference to a
missing witness prejudiced the defendant, Francis instructs us to consider the following:

   1. The conduct complained of viewed in context and in light of the facts and circumstances
   of the case.
   2. The curative measures undertaken by the court and the prosecution.
   3. The intent of the prosecution in making the improper statement.
   4. The cumulative effect of the improper conduct and any other errors in the record.
   5. The relative strength or weakness of the case.

Id. at 91 (quoting Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)).


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        Applying these factors in our analysis of this case, we find that the prosecutorial reference
to the missing witnesses in closing arguments was not inflammatory or unduly prejudicial to the
defendant. The evidence against the defendant was relatively strong, consisting of testimony of an
eye-witness to the transaction, Ms. Wilsford, and a tape-recording of the transaction, which includes
a voice positively identified as the defendant’s. Moreover, while we cannot surmise the prosecutor’s
intent when making an improper reference to missing witnesses, we note that once the defendant
objected to her comments, she abandoned that line of argument. Furthermore, the trial court gave
the curative instruction, quoted above, at the defendant’s request, and while the defendant now
complains that the instruction was incomplete, we note that counsel approved the instruction when
the court asked him if the instruction was satisfactory. Finally, we note that the defendant’s trial
was not replete with errors; thus, no actual risk of an unjust cumulative prejudicial effect on the
defendant existed. Thus, we conclude that the prosecutorial reference to missing witnesses was
harmless error. Therefore, this issue does not merit relief.


                                            Conclusion

      For the foregoing reasons, we find that none of the defendant’s allegations merit relief.
Accordingly, the judgment of the trial court is AFFIRMED.



                                                      ___________________________________
                                                      JERRY L. SMITH, JUDGE




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