        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs April 9, 2013

                STATE OF TENNESSEE v. LAMONT JOHNSON

                   Appeal from the Circuit Court for Gibson County
                       No. 8954 Clayburn Peeples, Judge


                 No. W2012-01271-CCA-R3-CD - Filed May 30, 2013



After a trial by jury, the defendant was found guilty of the first degree felony murder of his
girlfriend’s five-month-old daughter. On appeal, the defendant claims that the trial court’s
decision to exclude the testimony of four potential witnesses concerning the defendant’s
son’s propensity toward violence violated his constitutional right to present a defense. After
reviewing the record, we conclude that the defendant has failed to establish that the testimony
of these four witnesses was critical to the defense. In addition, strong societal interests
support the exclusion of this type of character evidence when nothing in the record might
suggest that the defendant’s son actually committed the crime. Consequently, the trial court’s
decision to exclude the testimony of these witnesses did not violate the defendant’s
constitutional right to present a defense. The judgment of the trial court is affirmed.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which D. K ELLY
T HOMAS, J R., AND J EFFREY S. B IVINS, JJ., joined.

Tom W. Crider, District Public Defender, and Linda Moore, Assistant Public Defender, for
the appellant, Lamont Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Gary
Brown, District Attorney General; and Hillary Lawler Barham and Jason Scott, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

                        FACTS AND PROCEDURAL HISTORY

       On March 1, 2010, the defendant was indicted on one count of first degree felony
murder in violation of Tennessee Code Annotated section 39-13-202. The indictment alleged
that the defendant unlawfully killed the five-month-old victim during the perpetration of
aggravated child abuse. The charges stemmed from activity that occurred on July 8, 2009.

       At 12:33 p.m. on that date, the defendant called 911 and reported that the victim was
not breathing. When EMTs arrived at the scene, they observed the defendant and a lifeless
infant on the floor. The EMTs immediately began CPR and transported the victim to the
hospital. An emergency room physician and the hospital’s staff attempted pediatric
lifesaving procedures for approximately one hour before the victim was declared dead.

       The victim’s autopsy revealed that she had died of multiple blunt force injuries to her
head, chest, and abdomen. Based on a timeline provided by the defendant and the victim’s
mother, investigators concluded that only the defendant and his son were at home with the
victim when the injuries occurred. When confronted with the autopsy findings, the defendant
claimed to investigators that the victim had stopped breathing after she had fallen off of a
sofa. However, experts at the defendant’s trial later opined that the victim’s injuries were
not consistent with her having fallen off of a sofa and could not have been caused by the
administration of CPR. One expert opined that the victim’s injuries—which included retinal
detachment, massive internal bleeding, a front-to-back skull fracture, and multiple rib
fractures—could only have been caused by “extraordinarily violent” shaking that “would be
very frightful to someone who was watching it.”

       At the defendant’s trial on December 12-13, 2011, the defense predicted in its opening
statement that the prosecution’s witnesses would not tell “the whole story” concerning the
incident and stated its confidence that after considering all of the evidence the jury would
feel compelled to return with a verdict of not guilty. At no point during that statement was
any reference made to the defendant’s eight-year-old son. However, during the defense’s
cross-examination of the State’s penultimate witness, the victim’s mother, defense counsel
asked questions apparently intended to cast suspicion upon the boy.

       During her direct testimony, the victim’s mother testified that she and her children
were living together and that the defendant had been in the process of moving in with them
when the incident occurred. She also gave testimony about the events that transpired at the
hospital following the incident, and she related her grief when she learned that her daughter
had died. She testified concerning the defendant’s behavior on the day of the incident and
on the following day, which involved fainting, drinking, smiling, and laughing at various
points. She described the couple’s initial interviews with the police after the victim’s death
was ruled a homicide. She testified that prior to the police investigation, the defendant had
never mentioned anything to her about the victim having fallen off of a sofa. She testified
that she first learned that the defendant was making such a claim from the investigating

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officers.

        During the victim’s mother’s cross-examination, however, the defense focused almost
exclusively on the witness’s feelings concerning the defendant’s son. The victim’s mother
testified that the defendant’s son lived nearby with his mother and that he would frequently
come over to her house to spend the night. The victim’s mother acknowledged that she had
seen the defendant’s son hold the victim in the past. The victim’s mother admitted that she
had asked one of the investigators if the defendant’s son had been anywhere around the
victim on the day of the incident. The victim’s mother also testified that the defendant’s son
had been in lots of trouble at school, had “all sorts of problems” with fighting and violence,
and that she was “[j]ust a little bit” concerned about the defendant’s son being around her
children.

        After this testimony, the State’s final witness, an investigating officer, testified
concerning the investigation generally and discussed a statement given by the defendant to
police, in which he claimed to have left the victim on a living room sofa while he made her
a bottle and that she fell on the floor, “crying loudly,” when he came back in. The witness
testified that the defendant claimed to have noticed that the victim was having difficulty
breathing shortly afterward.

        During cross-examination, defense counsel questioned the witness concerning the
degree to which the defendant’s son had been investigated as a possible suspect. The witness
replied that the defendant’s son had undergone a “forensic interview.” The witness testified
that the defendant’s son had told them that he had been in the back bedroom playing video
games throughout the relevant time period and that he had not seen anything that had
transpired. Defense counsel asked the witness if he had spoken to anyone at the defendant’s
son’s school concerning the defendant’s son’s reputation as a bully, and the witness replied,
“No sir.” At this point, the record reflects that a bench conference was held, but the
conference was not recorded.1

        Following this testimony, the State rested. Before the defense began its case the
following morning, the State made an oral “objection” in response to the defense’s apparent
intent to offer character evidence concerning the defendant’s son. The State argued that
presenting such evidence was “prohibited by the law and prohibited by the rules” if it was


        1
           The defendant asserts that during this bench conference the defense was directed not to ask the
witness further questions concerning the defendant’s son’s teachers or behavior at school. The defendant
contends that this bench conference was not recorded due to the incompetence of the out-of-town court
reporter assigned to the case. For purposes of resolving the defendant’s claim, we will accept these
assertions as true.

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offered for purposes of showing that the child acted in conformity with some particular
character trait on the day in question. The defense responded that it intended to introduce
the testimony of four of the defendant’s son’s teachers concerning the defendant’s son’s
“general conduct,” as well as some of the defendant’s son’s “specific acts,” such as
“threatening to kill students” and “saying he was going to harm students” with various
objects that he had brought to school. The defense claimed that it was entitled to show to the
jury that “this is perhaps an extraordinary child” and that the proffered evidence fell under
one of the exceptions to the general prohibition against character evidence imposed by
Tennessee Rule of Evidence 404(b). The State argued that Rule 404(b) only applied to
defendants in a criminal case, not other witnesses, and consequently the evidence was not
admissible.

       The trial court asked the defense if any proof had been presented that the defendant’s
son had committed the crime. The defense responded that it only wanted to prove that the
defendant’s son had the “opportunity and capacity” to commit the crime. The trial court
agreed that the defendant had “an absolute right to present any evidence that someone else
committed the crime,” but disagreed that the defendant had the right to present evidence that
proved only that someone else was merely “capable of committing the crime.” The trial court
concluded by stating “I’m going to grant the State’s motion.”

        After the State’s “motion” was granted, the defendant was advised of and waived his
right to testify in his own defense pursuant to the procedures established in Momon v. State,
18 S.W.3d 152, 162-63 (Tenn. 1999), and the defense rested without putting on any proof.
During closing arguments, the defense discussed the prosecution’s failure to prove the
identity of the perpetrator and briefly mentioned the defendant’s son as a possible alternative
suspect. However, the defense primarily argued that the prosecution had failed to “connect
all the dots” and prove its case beyond a reasonable doubt.

       After being duly instructed, the jury retired to deliberate at 10:42 a.m. on December
13, 2011, and returned with a verdict finding the defendant guilty as charged at 11:37 a.m.
that same day. The defendant was sentenced to life in prison. The defendant filed a timely
motion for new trial and an amended motion. The trial court denied the motion. The
defendant filed a timely notice of appeal.

        With his amended motion for new trial, the defendant filed four affidavits from the
defendant’s son’s former school teachers discussing the defendant’s son’s behavior at school.
These affidavits generally describe the defendant’s son’s adoption of the “gangster” lifestyle
and propensity toward sudden outbursts of violence, as well as his habit of fighting, using
profanity, and issuing death threats. One mentions an incident in which the police had to be
called to the defendant’s son’s school “to get [the defendant’s son] under control.” Another

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opines that “[w]ithout a doubt, it is my opinion that [the defendant’s son] had the capacity
to hurt another child (or baby) seriously.” The teachers generally claim that they would have
testified in a manner consistent with their affidavits had they been permitted to do so at the
defendant’s trial. In light of these affidavits and the record in this case, we proceed to
consider the defendant’s claim.

                                         ANALYSIS

        The defendant claims that his constitutional right to present a defense was violated by
the trial court’s ruling that the defendant’s son’s four teachers could not testify concerning
the defendant’s son’s propensity toward violence and dangerous behavior at school. The
defendant asserts that this evidence “was all [the defendant] had for a defense,” and
consequently that excluding it violated the Sixth Amendment of the United States
Constitution and Article I, Section 9 of the Constitution of the State of Tennessee. For the
reasons that follow, we disagree.

        Defendants in criminal cases have the right to mount a defense against the charges
against them. See Chambers v. Mississippi, 410 U.S. 284, 294 (1973). The right to call
witnesses on their behalf is a key component of this right. See id. This right, however, is not
absolute, “and may, in appropriate cases, bow to accommodate other legitimate interests in
the criminal trial process,” such as the consistent application of rules governing evidence and
procedure. Id. at 295; see also State v. Flood, 219 S.W.3d 307, 316 (Tenn. 2007). Because
“[r]ules of procedure and evidence are designed to assure fairness and reliability in the
criminal trial process,” if “the rules of procedure and evidence are not applied arbitrarily or
disproportionately to defeat the purposes they are designed to serve, [they] do not violate a
defendant’s right to present a defense.” Flood, 219 S.W.3d at 316. Courts generally afford
“state and federal rulemakers . . . broad latitude under the Constitution to establish rules
excluding evidence from criminal trials.” Id. (quoting United States v. Scheffer, 523 U.S.
303, 308 (1998)). In deciding whether the exclusion of evidence pursuant to an evidentiary
rule amounts to a constitutional violation of a defendant’s right to present a defense, courts
consider: “(1) [w]hether the excluded evidence is critical to the defense; (2) [w]hether the
evidence bears sufficient indicia of reliability; and (3) [w]hether the interest supporting
exclusion of the evidence is substantially important.” Id. Consideration of these factors leads
this court to the conclusion that the defendant’s constitutional rights were not violated by the
trial court’s decision to exclude the testimony of the four teacher-witnesses.

       Under the circumstances of this case, the testimony at issue was not critical to the
defense. The defendant claims that the testimony of the teacher-witnesses was “all [he] had
for a defense,” and the record does reflect that the defendant called no witnesses and
presented no testimony after the trial court excluded these witnesses. However, the fact that

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the testimony of these witnesses was the only evidence that the defendant had intended to
present does not necessarily render it “critical” to his defense. During the defendant’s
opening statement—well before any decision concerning the admissibility of the teacher-
witnesses’ testimony had been made—the defense made no mention of the defendant’s son
as a possible suspect, nor did it discuss the anticipated testimony of any of the teacher-
witnesses. Even in closing arguments, after the defense had succeeded in presenting some
evidence concerning the defendant’s son’s character through skillful cross-examination of
the State’s witnesses, the defense did not dwell on this issue. The defense strategy
throughout the case was primarily to argue that the prosecution had failed to meet its burden
of proof. Successful use of this particular strategy required the presentation of no evidence
whatsoever. To the extent that the defense also sought to suggest that the defendant’s son
was a possible alternative suspect, evidence sufficient to allow the defense to use this tactic
had already been presented to the jury by the victim’s mother, who testified that: (1) the
defendant’s son had problems with violence and fighting; (2) the defendant’s son was present
in the same home as the victim on the day in question; and (3) she had expressed her concern
about that situation to others.

       The proferred testimony of the four teacher-witnesses would have supported the
victim’s mother’s favorable testimony on these particular issues in only one aspect—they
would have agreed that the defendant’s son had an unusually strong propensity toward
violence. The witnesses had no direct knowledge whatsoever concerning any other issue
relevant to any attempt to cast suspicion on defendant’s son as a viable alternative suspect,
such as whether the defendant’s son had any motive to commit the crime or had any physical
contact with the victim on the day in question. Their testimony related to but a single piece
of a much larger argument, and even concerning that one piece, it is not clear that the
testimony of these witnesses would have added any significant weight to the testimony on
the subject that had already been given by the victim’s mother. The fact that the defendant’s
son had the capacity to commit acts of violence could not have been more clearly conceded
by the victim’s mother during her cross-examination. The State did not dispute this issue.
Consequently, notwithstanding the fact that the testimony of these four teacher-witnesses
would have constituted the entirety of the defense’s case-in-chief had it been admitted, this
evidence was not actually “critical” to the defendant’s chosen defense.

        Moreover, the societal interest underlying the exclusion of this evidence is substantial.
To the extent that the testimony of the teacher-witnesses could have been valuable to the
defense, it was valuable only as negative character evidence. Society has an appreciable
interest in excluding this type of character evidence on these facts. Presenting evidence of
an individual’s prior bad acts for the specific purpose of establishing that the individual at
issue is a “bad” person who did something particularly bad on the day in question is generally
frowned upon and, when that individual is a criminal defendant, generally

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forbidden—subject to a few specific exceptions. See Tenn. Rule Evid. 404(b) (“Evidence
of a person’s character or trait of character is not admissible for the purpose of proving action
in conformity therewith on a particular occasion. . . .”). While Rule 404(b) does not prohibit
the introduction of character evidence against an individual other than a criminal defendant,
see State v. DuBose, 953 S.W.2d 649, 653 (Tenn. 1997) (“Evidence of crimes, wrongs or
acts, if relevant, is not excluded by Rule 404(b) if the acts were committed by a person other
than the accused. . . .”), it nonetheless evidences a societal concern that character or
propensity evidence may be accorded disproportionate weight by, or serve to confuse, a jury.2

          Negative character evidence offered against someone other than a criminal defendant
is still subject to the remaining rules of evidence. The general default rule that “[a]ll relevant
evidence is admissible,” established by Rule 402, still applies, as does its proviso that
“[e]vidence which is not relevant is not admissible.” Tenn. R. Evid 402. Relevant evidence
is “evidence having 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. Even relevant evidence may be excluded “if its probative
value is substantially outweighed by the danger of unfair prejudice.” Tenn. R. Evid. 403.
Unfair prejudice is “[a]n undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.” State v. Banks, 564 S.W.2d 947, 951
(Tenn. 1978) (quoting Fed. R. Evid. 403, Advisory Comm. Note).

       The trial court carefully considered the relevance issue, and it determined that the
testimony of the four teacher-witnesses was simply not relevant. As the trial court explained,
while the proffered testimony could help prove that the defendant’s son had the capacity to
commit the crime, in the absence of any evidence that might suggest that the defendant’s son
had actually committed the crime, the testimony was not relevant to any fact of consequence
to the case. According to the defendant’s statement to police, the victim’s injuries were
sustained in a fall from a sofa. According to statements given by both the defendant and his
son, the defendant’s son was playing video games in another room when the victim’s injuries
occurred. The defense acknowledged that it had no evidence suggesting that the defendant’s
son had in fact committed the crime.

       By presenting the testimony of the four teacher-witnesses concerning the defendant’s
son’s behavior at school, the defendant merely hoped to create reasonable doubt via rumor,
insinuation, and innuendo. Society has a strong interest in preventing important legal matters
from being decided on such improper bases. Society also has a strong interest in protecting
an eight-year-old boy from public character assassination when no evidence exists tying him


       2
         We also note that the evidence could not be admissible under Rule 607, 608, or 609 because the
defendant’s son was not called as a witness.

                                                  -7-
to the crime.

        Because the proffered testimony of the four teacher-witnesses was not critical to the
defendant’s chosen defense (which was based on the theory that the prosecution had simply
failed to meet its burden of proof), and because society has an important interest underlying
the evenhanded application of the evidentiary rules excluding this type of negative character
evidence in this type of situation (in that its admission poses a serious risk that the jury might
decide the case on emotional grounds rather than hard facts), the trial court’s decision to
exclude the testimony of the four teacher-witnesses did not violate the defendant’s
constitutional right to present a defense. The defendant has failed to demonstrate entitlement
to any relief.

                                       CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                                     _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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