                                                                          FILED
                                                                        December 7, 1999

                                                                        Cecil Crowson, Jr.
         IN THE COURT OF CRIMINAL APPEALS OF                           Appellate Court Clerk
TENNESSEE
                          AT KNOXVILLE

                                MAY 1999 SESSION

    STATE OF TENNESSEE
    V.                                               No. E1998-00378-CCA-R3-CD

    JOE N. ANDERSON, JR.


                             CONCURRING OPINION



                  The majority correctly determines that the trial court did not abuse

    its discretion in denying the severance of the offenses wherein Travis Haynes is

    the victim from those wherein Darren King is the victim. The trial court acted
    within its discretion in finding that (1) the offenses were part of a common

    scheme or plan and (2) evidence of one would be admissible upon the trial of the

    others. See Tenn. R. Crim. P. 14(b)(1). However, I differ somewhat from the

    majority in the rationale used to find the second Rule 14(b)(1) factor.



                  After concluding pursuant to the first Rule 14(b)(1) factor that the

    offenses were part of a common scheme or plan, the majority found the

    presence of the second factor, that evidence of one offense would be admissible
    in the trial of the other pursuant to Tennessee Rule of Evidence 404(b), because

    both offenses “involve[d] a common plan or scheme.”



                  This holding is apparently based upon State v. Parton, 694 S.W.2d

    299 (Tenn. 1985), in which our supreme court, in quoting Bunch v. State, said

    that character evidence otherwise inadmissible as being irrelevant may

    nevertheless be admissible when “relevant to such issues on trial as motive of
    the defendant, intent of the defendant, the identity of the defendant, the absence

    of mistake or accident if that is a defense, and, rarely, the existence of a larger

    continuing plan, scheme, or conspiracy of the crime on trial is a part.” Parton,

    694 S.W.2d at 302 (quoting Bunch v. State, 605 S.W.2d 227, 229-30 (Tenn.

    1980)). However, the Advisory Commission Comments to Rule 404(b)
    undermine the notion that common scheme or plan alone is a threshold to the
admission of character evidence otherwise barred by Rule 404(b), when the

common scheme of plan is not in and of itself relevant to some other material

issue such as identity. The Comments acknowledge that exceptions to the
general rule of exclusion of evidence of the defendant’s bad character include,

when material, “issues such as identity (including motive and common scheme or

plan), intent, or rebuttal of accident or mistake.” Tenn. R. Evid. 404 Advisory
Comm’n Comments (emphasis added).



              Even if Rule 404(b) would allow evidence of a defendant’s bad
character to show a common scheme or plan when that evidence is not

illustrative of any other material issue, I doubt the soundness of using the

common scheme or plan rationale to supply the second factor prefatory to
denying a motion to sever offenses. Tennessee Rule of Criminal Procedure

14(b)(1) establishes common scheme or plan as the first of two factors which

must coincide to negate a defendant’s “right to a severance.” The second factor
is that evidence of one must be admissible in the trial of the other. This two-part

requirement is nonsensical if the second factor is also satisfied by the presence

of a common scheme of plan.



              In a footnote, the majority “note[s] that the evidence bore relevance
to ‘identity.’” See majority opn., n. 3. I would have made the issue of identity,

which appears to have been material in the King homicide, the basis for

admissibility under evidence Rule 404(b) and for the denial of severance under
the second factor of Rule 14(b)(1). The defendant was amply identified as the

person who shot Haynes, and the state proved that the bullet recovered from

Haynes was fired by the same gun which was used to kill King.




                                   ___________________________________
                                   JAMES CURWOOD WITT, JR., JUDGE
