jury-out hearing in Tennessee

2019ANALYSIS On appeal, the Defendant contends that (1) the trial court erred by denying his motion to suppress photographic identifications of the Defendant by Matthew, Ms. Townsel, and Mr. Griggs; (2) the court erred by denying his motion to sever the 7 We note that during a jury-out hearing pursuant to Momon v. State, 18 S.W.3d 152 (Tenn. 1999), the Defendant stated repeatedly that he wanted Joshua Townsel to be called as a witness.

2017However, during a jury-out hearing held pursuant to Momon v. State, 18 S.W.3d 152 (Tenn. 1999), after the State closed its proof at trial, Mr. Mathis elected not to testify and thus chose to exercise his Fifth Amendment privilege against self-incrimination.

2025Id. - 16 - Following Defendant’s testimony, the State asked for a jury-out hearing pursuant to its prior notice to introduce the evidence of Defendant’s prior firearm possession.

2013Mr. Perez was killed while Mr. Young 2 We note that if the trial court had failed to comply with the procedures in Rule 404(b), we would be required to determine admissibility “on the evidence presented at the jury out hearing.” Dubose, 953 S.W.2d at 653 . -50- was in jail.

2004See State v. Robinson, 146 S.W.3d 469, 491 (Tenn. 2004) (concluding that trial court did not err in allowing medical examiner to display victim’s skull during his testimony, in spite of defense counsel’s objection that it was not relevant to any disputed issue at trial) (“In a jury-out hearing the trial court carefully considered the defense objections, correctly summarized governing law regarding the prosecution’s right to prove its case, and accurately concluded that this right may not be foreclosed by a defendant’s characterization of the proof as undisputed or by a defendant’s offer to sti

2001The purpose behind requiring a reasonable factual basis before permitting an inquiry about specific instances of conduct “is to ensure that such questions are proposed in good faith, rather than in an effort to place before the jury unfairly prejudicial information supported only by unreliable rumors.” State v. Nesbit, 978 S.W.2d 872, 882 (Tenn.1998) (discussing the identical requirement under Rule 405(a)(1) — (2) that the trial court, upon request, hold a jury-out hearing to assess the existence of a reasonable factual basis for an inquiry about a specific instance of conduct).

2010He 4 See State v. Morgan, 541 S.W.2d 385 , (Tenn. 1976) (holding that “where a witness is sought to be cross-examined as to specific instances of conduct as contemplated by Rule 608(b), the Court shall conduct a jury-out hearing for the purpose of determining that the probative value of such evidence outweighs its prejudicial effect”). 5 See Momon v. State, 18 S.W.3d 152, 162 (Tenn. 1999) (“To ensure that defense attorneys in . . . criminal cases do not unilaterally deprive criminal defendants of the fundamental right to testify, in every (continued...) -9- also recalled that the court advised

1998The Morgan court held that “where a witness is sought to be cross-examined as to specific instances of conduct as contemplated by Rule 608(b), the Court shall conduct a jury-out hearing for the purpose of determining that the probative value of such evidence outweighs its prejudicial effect.” 541 S.W.2d at 390 (emphasis added).

2024The following principles guide application of Rule 804(b)(6): (1) the rule does not limit the subject matter of the statements; (2) the rule is not limited to statements made when a formal charge or judicial proceeding is pending against the defendant; (3) the trial court must conduct a jury-out hearing to determine whether statements are admissible; (4) the trial court must find that a preponderance of the evidence establishes “that the defendant was involved in or responsible for procuring the unavailability of the declarant”; and (5) the trial court must find that a preponderance of the - 2

2022Before a hearsay statement is entered under this exception, the trial court must conduct a jury-out hearing and determine that “a preponderance of the evidence establishes: 1) that the defendant was involved in or responsible for procuring the unavailability of the declarant; and 2) that [the] defendant’s actions were intended, at least in part to procure the absence of the declarant.” Ivy, 188 S.W.3d at 147 ; see also State v. Brooks, 249 S.W.3d 323, 325 (Tenn. 2008) (stating that, for the forfeiture by wrongdoing exception to apply, the State must show the defendant’s actions “were intended,

2022Before a hearsay statement is entered under this exception, the trial court must conduct a jury-out hearing and determine that “a preponderance of the evidence establishes: 1) that the defendant was involved in or responsible for procuring the unavailability of the declarant; and 2) that [the] defendant’s actions were intended, at least in part to procure the absence of the declarant.” Ivy, 188 S.W.3d at 147 ; see also State v. Brooks, 249 S.W.3d 323, 325 (Tenn. 2008) (stating that, for the forfeiture by wrongdoing exception to apply, the State must show the defendant’s actions “were intended,

2017Before admitting a hearsay statement under this exception, the trial court must conduct a jury-out hearing and determine that ―a preponderance of the evidence establishes: 1) that the defendant was involved in or responsible for procuring the unavailability of the declarant; and 2) that [the] defendant‘s actions were intended, at least in part, to procure the absence of the declarant.‖ State v. Ivy, 188 S.W.3d 132, 147 (Tenn. 2006); see also State v. Brooks, 249 S.W.3d 323, 325 (Tenn. 2008) (stating that, for the exception to apply, the State must show that the defendant‘s actions ―were intend

2018“To ensure that the defendant’s right to testify has been personally waived by the defendant, the court in Momon adopted procedural guidelines that call for defense counsel to request a jury-out hearing to demonstrate that the defendant’s waiver of the right to testify has been knowingly, intelligently, and voluntarily made.” State v. Posey, 99 S.W.3d 141, 148 (Tenn. Crim.

2013“To ensure that the defendant’s right to testify has been personally waived by the defendant, the court in Momon adopted procedural guidelines that call for defense counsel to request a jury-out hearing to demonstrate that the defendant’s waiver of the right to testify has been knowingly, intelligently, and voluntarily made.” State v. Posey, 99 S.W.3d 141, 148 (Tenn. Crim.

2018In State v. McLeod, the Tennessee Supreme Court held that statements by a child pertaining to sexual abuse, about the general character, cause, or source, are admissible as testimony from the person to whom the child told it, so long as there is a jury-out hearing and an assurance that the child gave the statement for diagnosis and treatment. 937 S.W.2d 867, 870 (Tenn. 1996).

2014In State v. McLeod, the Tennessee Supreme Court held that statements by a child pertaining to sexual abuse, about the general character, cause, or source, are admissible as testimony from the person to whom the child told it, so long as there is a jury-out hearing and an assurance that the child gave the statement for diagnosis and treatment. 937 S.W.2d 867, 870 (Tenn. 1996).

2020The Defendant noted that “the State just bypassed that and asked that question and had [the victim] blurt it out.” The Defendant cited to State v. Rodriguez, 254 S.W.3d 361, 377 (Tenn. 2008), in which our supreme court discussed the danger of propensity evidence in child sexual abuse cases, especially where, as in that case, the only evidence was the testimony of the abused children.

2013See State v. Rodriguez, 254 S.W.3d 361, 375 (Tenn. 2008) (applying Tennessee Rule of Appellate Procedure 36(b) harmless error review to trial court’s erroneous admission of evidence).

2015See Washington v. Texas, 388 U.S. 14, 17-19 , 87 S.Ct. 1920 , 18 L.Ed.2d 1019 (1967).

2015See Washington v. Texas, 388 U.S. 14, 17-19 , 87 S.Ct. 1920 , 18 L.Ed.2d 1019 (1967).

2014See State v. Jones, 15 S.W.3d 880, 895 (Tenn. Crim.

2013See id.; see also State v. Jones, 15 S.W.3d 880, 895 (Tenn. Crim.

2013In State v. Parton, 694 S.W.2d 299, 303 (Tenn.1985), the supreme court held that proof of other crimes may be admissible if, after a jury-out hearing, the trial court determines: (1) the evidence is relevant to an issue at trial, such as identity, and (2) the probative value of the evidence outweighs its prejudicial effect.

1994The general rule was reaffirmed and refined in State v. Parton, 694 S.W.2d 299, 303 (Tenn.1985), where we held that before admitting evidence of other crimes, a trial court must first conduct a jury-out hearing to determine the purpose for which the evidence is being offered, and to determine whether its probative value is outweighed by its prejudicial effect.

2012See Waller v. Georgia, 467 U.S. 39, 48 (1984); State v. Sams, 802 S.W.2d 635, 640 (Tenn. Crim.

2011See Waller, 467 U.S. at 48 ; State v. Sams, 802 S.W.2d 635, 640 (Tenn. Crim.

2012See Waller v. Georgia, 467 U.S. 39, 48 (1984); State v. Sams, 802 S.W.2d 635, 640 (Tenn. Crim.

2011See Waller, 467 U.S. at 48 ; State v. Sams, 802 S.W.2d 635, 640 (Tenn. Crim.

2006State v. Davis, 741 S.W.2d 120, 123 (Tenn. Crim.

1994State v. Davis, 741 S.W.2d 120, 123 (Tenn.Crim.App.), perm. to appeal denied, (Tenn.1987).

2004On appeal, the Court of Criminal Appeals held that the trial court erred in not conducting a jury-out hearing as required by State v. Gilliland, 22 S.W.3d 266, 272 (Tenn.2000), to determine whether the evidence was admissible to show contextual background.

2004On appeal, the Court of Criminal Appeals held that the trial court erred in not conducting a jury-out hearing as required by State v. Gilliland, 22 S.W.3d 266, 272 (Tenn.2000), to determine whether the evidence was admissible to show contextual background.

1999Relevancy of Testimony Regarding Suspicious Vehicle The determination of whether proffered evidence is relevant in accordance with TenmR.Evid. 402 is left to the discretion of the trial judge, State v. Forbes, 918 S.W.2d 431, 449 (Tenn.Crim.App.1995), as is the determination pursuant to Rule 403, Tenn.R.Evid., of whether th.e probative value of evidence is substantially outweighed by the possibility of prejudice.

1999“Because an assessment of whether a piece of evidence is relevant requires an unde rstand ing of th e cas e’s theory and other evidence as well as a familiarity with the evidence in questio n, appe llate courts give grea t deferen ce to a trial judge’s decision on relevance issue s.” State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim.

2012The trial court should hold a jury-out hearing in order to make an admissibility determination, and when making this determination, the trial court should ensure that the hearsay statement was not “improperly influenced by another, one made in response to leading or suggestive questions, or inspired by a custody battle or family feud.” Stinnett, 958 S.W.2d at 332 .

2003The trial court should hold a jury-out hearing in order to make an admissibility determination, and when making this determination, the trial court should ensure that the hearsay statement was not “improperly influenced by another, made in response to leading or suggestive questions, or inspired by a custody battle or family feud.” Stinnett, 958 S.W.2d at 332 .

2010Hoyt, 928 S.W.2d at 944 .

1999State v. Hoyt, 928 S.W.2d 935, 945 (Tenn. Crim.

2022However, no police report, indictment, or other evidence of the victim’s pending charges appears in the record on appeal. - 18 - harmless beyond a reasonable doubt pursuant to State v. Sayles, 49 S.W.3d 275, 280 (Tenn. 2001).

2010Id.

2012During a jury-out hearing, the defendant objected to Ms. Schultz’s testimony concerning child sexual abuse syndrome, see State v. Ballard, 855 S.W.2d 557 (Tenn. 1993) (holding that testimony concerning behavior and characteristics of child sexual abuse syndrome was inadmissible), and also objected to her testifying as an expert witness for fear that such testimony would bolster the victim’s testimony.

2005Evid. 104(c), the victim established her competency as a witness, see Ballard, 855 S.W.2d at 560 (stating that the "purpose of determining competency of the witness in child sexual abuse cases is to allow a victim to testify if it can be determined that the child understands the necessity of telling the truth while on the stand").

2006The trial judge therefore "excused Strouth from taking the stand." Dicks, 615 S.W.2d at 129 .

2006The trial judge therefore “excused Strouth from taking the stand.” Dicks, 615 S.W.2d at 129 .

2004See James, 81 S.W.3d at 761 ; State v. West, 767 S.W.2d 387, 394 (Tenn.1989) (holding that the trial judge did not err by refusing to accept defendant's offer to stipulate the identity of all property when the defendant made the offer in an effort to eliminate highly emotional and prejudicial testimony); King, 718 S.W.2d at 250-51 (holding that the victim's skull and skull fragments were properly admitted even though the defendant stipulated prior to trial that the victim's death resulted from a shot in the back of the head from a high-powered rifle).

2004See James, 81 S.W.3d at 761 ; State v. West, 767 S.W.2d 387, 394 (Tenn.1989) (holding that the trial judge did not err by refusing to accept defendant’s offer to stipulate the identity of all property when the defendant made the offer in an effort to eliminate highly emotional and prejudicial testimony); King, 718 S.W.2d at 250-51 (holding that the victim’s skull and skull fragments were properly admitted even though the defendant stipulated prior to trial that the victim’s death resulted from a shot in the back of the head from a high-powered rifle).

2026Evid. 404(b); State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); State v. Sexton, 368 S.W.3d 371, 402-04 (Tenn. 2012).

2025See id.

2022It was not until his motion for new trial that Defendant asserted that the trial court erred by denying cross-examination of Mr. Berry about his “404 and 608 background[].” It is well- settled, however, that “a party is bound by the ground asserted when making an objection” and “cannot assert a new or different theory to support the objection in the motion for a - 14 - new trial or in the appellate court.” State v. Adkisson, 899 S.W.2d 626, 634-35 (Tenn. Crim.