              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE                       FILED
                             NOVEMBER 1997 SESSION
                                                                      February 24, 1998

                                                                     Cecil W. Crowson
STATE OF TENNESSEE,          )                                      Appellate Court Clerk
                             )
          Appellee,          )             No. 01C01-9701-CR-00019
                             )
                             )             Davidson County
v.                           )
                             )             Honorable Ann Lacy Johns, Judge
                             )
WILLIAM AUBREY TROTTER, JR., )             (Possession of cocaine with intent to sell)
                             )
          Appellant.         )



                                 CONCURRING OPINION



              I concur in the results and most of the reasoning of the majority opinion. I

question only its analysis of the officers’ testimony regarding specific characteristics of a

drug seller as opposed to a drug user. To me, this opinion evidence -- to the effect that

particular traits distinguish a drug seller from a drug user -- essentially presents a

profile. I do not believe that a profile should be admissible as substantive evidence to

prove that a particular defendant is guilty of drug dealing.



              First, I note that the trial court in this case actually found that the

testimony was admissible because the officers had special knowledge based upon their

long experience in drug investigations. Although the trial court refused to call the

officers experts, its determination was obviously pursuant to Rule 702, Tenn. R. Evid.,

which deals with expert opinions and allows opinion evidence that substantially aids the

jury and is based upon specialized knowledge from the witness’ experience and

training. Thus, although the defendant claims that Rule 701, Tenn. R. Evid., dealing

with lay witness opinions is at issue, and the majority opinion primarily analyzes the

testimony as lay witness opinions, I view the issue to start with a Rule 702 analysis.
              Moreover, a probative value versus potential prejudice analysis should

follow because a drug profile carries little probative value that a particular defendant is

guilty. In fact, the majority of the cases dealing with profile evidence have concluded

that the evidence is inadmissible as substantive evidence of a particular defendant’s

guilt because of this reason. See, e.g., United States v. Jones, 913 F.2d 174, 177 (4th

Cir. 1990); United States v. Williams, 957 F.2d 1238, 1241-43 (5th Cir. 1992); United

States v. Carter, 901 F.2d 683, 684-85 (8th Cir. 1990); United States v. Lui, 941 F.2d

844, 847-48 (9th Cir. 1991); United States v. Hernandez-Cuartas, 717 F.2d 552, 555

(11th Cir. 1983); State v. Walker, 891 P.2d 942, 947-48 (Ariz. Ct. App. 1995); People v.

Hubbard, 530 N.W.2d 130, 132-33 (Mich. Ct. App. 1995); State v. Williams, 525

N.W.2d 538, 547-48 (Minn. 1994).



              Although I agree with the majority opinion to the extent it reflects that

expert evidence may substantially assist a jury in understanding how a seemingly

innocent action by a defendant is a technique used by drug dealers in drug trafficking,

the testimony in the present case went well beyond such particulars. However, there is

no need to concern ourselves with an in-depth analysis. This is because profile

characteristics were first raised by the defendant in his cross-examination of Officer

Dupie in an attempt to show that the defendant did not meet the characteristics of a

drug dealer. Under these circumstances, the testimony elicited by the state regarding

drug dealer characteristics that appeared to match the defendant were proper

responses to the evidence elicited by the defendant. Therefore, I concur in the results

reached by the majority opinion.



                                                  ____________________________
                                                  Joseph M. Tipton, Judge




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