State v. Gilley

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

June 7, 2005 Session

STATE OF TENNESSEE v. DAVID KYLE GILLEY

Appeal by Permission from the Court of Criminal Appeals

Circuit Court for Rutherford County

No. F-52137 Don Ash, Judge

No. M2003-00499-SC-R11-CD - Filed September 30, 2005

We granted review of this interlocutory appeal to address the admissibility of prior acts of physical

abuse committed by the defendant against the victim and others under Rule 404(b) of the Tennessee

Rules of Evidence. The trial court ruled prior to trial that the State’s evidence of the defendant’s

prior acts was admissible in part and inadmissible in part. After granting an interlocutory appeal as

requested by both the defendant and the State, the Court of Criminal Appeals held that prior acts of

physical abuse committed by a defendant against a victim are per se admissible at trial and that there

is no longer a requirement for such a prior act to be relevant to a contested issue. After our review

of the record and applicable authority, we hold (1) that the trial court and the Court of Criminal

Appeals erred in granting interlocutory review of the trial court’s pretrial ruling on the admissibility

of the evidence under Rule 404(b), and (2) that the Court of Criminal Appeals erred in holding that

prior acts of physical abuse committed by a defendant against a victim are per se admissible at trial.

As a result, the Court of Criminal Appeals’ judgment is reversed, and the case is remanded to the

trial court for further proceedings.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals

Reversed; Remanded to Trial Court

E. RILEY ANDERSON , J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,

and ADOLPHO A. BIRCH , JR., JANICE M. HOLDER , and WILLIAM M. BARKER, JJ., joined.

Alfred H. Knight and Roger T. May, Nashville, Tennessee, for the Appellant, David Kyle Gilley.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Joseph F.

Whalen, Associate Solicitor General; William C. Whitsell, Jr., District Attorney General; and J. Paul

Newman, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

Background

On May 31, 1984, at approximately 6:00 p.m., the partially-nude body of the victim, Laura

Salmon, was found at the Hoover Rock Quarry in Rutherford County, Tennessee.1 The victim had

died from multiple blows to her head with rocks. A description of a person seen in the victim’s car

that same afternoon around 4:45 p.m. matched the defendant, David Kyle Gilley.

The defendant was interviewed by law enforcement officers after the victim’s body was

found. He told officers that he had known the victim while both attended Oakland High School in

Murfreesboro, Tennessee, in 1982 and 1983, and that he and the victim had dated for two years. The

defendant said that he had never been to the rock quarry with the victim, and he denied involvement

in the victim’s death. The defendant was not arrested or charged at that time.

In 2000, law enforcement officers who had reopened the investigation talked to Michelle

Davenport. Davenport told officers that she had sexual relations with the defendant at the Hoover

Rock Quarry in the summer of 1984. The defendant began to get rough, held her hair, and pinned

her down with his arm across her chest. When Davenport told the defendant to stop, he became

angry and asked if she wanted to “end up like” the victim. The defendant then told Davenport that

he had killed the victim, who had been his girlfriend. Davenport told a family member and a friend

about this incident, but she did not tell law enforcement officers until they interviewed her in 2000.

When the defendant was interviewed by law enforcement officers in November of 2000, he

denied that he had ever been to the rock quarry with the victim. He told officers that he and the

victim had a sexual relationship but that he “was never physically violent with her . . . .” He stated

that the victim once “chipped her tooth when she jumped on me,” and that they would often “scream

and holler.”

DNA testing was performed on the victim’s clothing and a pair of blue jeans that had been

covering the victim’s body. Although DNA testing of semen from the victim’s vagina and panties

excluded the defendant, DNA testing of semen found on the blue jeans matched the defendant. The

blue jeans were the same size as those worn by the defendant.

In March of 2001, the defendant was indicted for the premeditated first degree murder of the

victim. Prior to trial, the State filed a notice of proposed evidence, consisting of over twenty

witnesses who would testify about prior acts of physical abuse committed by the defendant against

the victim or others. The evidence involved incidents that allegedly occurred while the defendant

and the victim were in high school in 1982 and 1983, and while the victim attended college at

1

Although this case has not yet been tried, the summary of evidence is taken from a transcript of the juvenile

court transfer proceedings against the defendant, David Kyle Gilley, which is in the record on appeal.

-2-

Middle Tennessee State University (“MTSU”) in 1983 and 1984. The defendant filed a motion to

exclude the evidence of prior acts under Rule 404(b) of the Tennessee Rules of Evidence.

Following a two-day hearing on the motion to exclude prior to trial, the trial court ruled that

the following evidence of incidents occurring between 1982 and 1984 would be admissible at trial:

(1) the testimony of Lourene Mackey, the victim’s mother, as to the defendant’s assaults against the

victim; (2) the testimony of Connie Shelton, Melinda Edwards, and Terri Brown McCrary regarding

an incident in which the defendant pulled the victim’s hair and pushed her face into the hood of a

car; (3) the testimony of Melinda Edwards that the defendant shoved the victim into a locker; (4) the

testimony of Mary Lester that the defendant repeatedly drove by MTSU to stare at the victim and had

once twisted the victim’s arm; and (5) the testimony of Kim Roberts that the defendant dragged the

victim down a stairwell at MTSU. The trial court found clear and convincing evidence of these

incidents and further concluded that the evidence was relevant to show the defendant’s “motive,”

“intent,” “hostility,” and “settled purpose” to harm the victim.

In contrast, the trial court concluded that evidence of the defendant’s other alleged prior acts

would not be admissible at trial for the following reasons: (1) the testimony of Michelle Davenport

“describing the nature of her encounter with the defendant” at the rock quarry in 1984 was “highly

prejudicial”; (2) the testimony of Marty Milan that he saw the defendant twist the defendant’s wife’s

arm in 1985 was not “so similar or so unique” as to show the defendant killed the victim; (3) the

testimony of Laurie Carr that the defendant slammed her face into a car after she ended a relationship

with him in 1990 was not “so similar or so unique” as to show the defendant killed the victim; (4)

the testimony of Barbara Smith that the defendant stalked her and broke into her home was not “so

similar or so unique” as to show the defendant killed the victim; (5) the testimony of Scott Mason

that he heard the defendant slap the victim was not supported by clear and convincing evidence, and

its probative value was outweighed by its unfair prejudicial effect; (6) the testimony of Bill

Tenpenny that he saw the victim crying after being slapped by the defendant was cumulative, and

its probative value was outweighed by its prejudicial effect; (7) the testimony of Reed Ridley that

the defendant caught the victim’s arm in a car window and then dragged her through a parking lot

was cumulative, and its probative value was outweighed by its prejudicial effect; and (8) the

testimony of John Jolley that he saw the defendant shove the victim one month before the murder

was cumulative, and its probative value was outweighed by its prejudicial effect.

After the motion hearing and prior to trial, the trial court and the Court of Criminal Appeals

granted an interlocutory appeal of the evidentiary rulings as requested by both the defendant and the

State pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The Court of Criminal

Appeals concluded that evidence of prior physical abuse committed by a defendant against the victim

of a violent crime is per se admissible to establish the defendant’s hostility toward the victim, malice,

intent, and settled purpose to harm the victim. The court also indicated that such evidence need not

be relevant to a material issue at trial. Although the Court of Criminal Appeals upheld nearly all of

the trial court’s rulings admitting and excluding the testimony, it observed that the trial court had

erred in concluding prior to trial that some of the testimony was cumulative, as such a finding

necessarily requires analysis of the evidence at trial.

-3-

We granted this appeal.

Analysis

Interlocutory Appeal

Before addressing the merits of the issues, we begin our review by examining an unusual

procedural issue that appears from the record: whether the trial court and the Court of Criminal

Appeals correctly granted interlocutory review of the trial court’s evidentiary rulings in this criminal

case.

An interlocutory appeal requires the permission of both the trial court and the appellate court.

See Tenn. R. App. P. 9(b) and (c). In determining whether to grant interlocutory review, the courts

must consider

(1) the need to prevent irreparable injury, giving consideration to the

severity of the potential injury, the probability of its occurrence, and

the probability that review upon entry of final judgment will be

ineffective; (2) the need to prevent needless, expensive, and

protracted litigation, giving consideration to whether the challenged

order would be a basis for reversal upon entry of a final judgment, the

probability of reversal, and whether an interlocutory appeal will result

in a net reduction in the duration and expense of the litigation if the

challenged order is reversed; and (3) the need to develop a uniform

body of law, giving consideration to the existence of inconsistent

orders of other courts and whether the question presented by the

challenged order will not otherwise be reviewable upon entry of final

judgment.

Tenn. R. App. P. 9(a) (emphases added).

An interlocutory appeal is an exception to the general rule that requires a final judgment

before a party may appeal as of right.2 See Tenn. R. App. P. 3(d) (“An appeal as of right is an appeal

that does not require permission of the trial or appellate court.”). As a result, interlocutory appeals

to review pretrial orders or rulings, i.e., those entered before a final judgment, are “disfavored,”

particularly in criminal cases. United States v. MacDonald, 435 U.S. 850, 853 (1978). The United

States Supreme Court has cautioned that interlocutory review of pretrial rulings can create piecemeal

appellate litigation and the “encouragement of delay [that] is fatal to the vindications of the criminal

law.” Id. at 853-54 (quoting Cobbledick v. United States, 309 U.S. 323, 325 (1940)).

2

An “extraordinary” appeal, which is granted by permission of an appellate court, is also an exception to an

appeal as of right. Tenn. R. App. P. 10.

-4-

Here, both the defendant and the State sought review of the trial court’s rulings under Rule

404(b) of the Tennessee Rules of Evidence. Rule 404(b) states that evidence of “other crimes,

wrongs or acts is not admissible to prove the character of a person or to show action in conformity

with the character trait,” but that such evidence “may . . . be admissible for other purposes.” The rule

includes the following conditions:

(1) The court upon request must hold a hearing outside the jury’s

presence;

(2) The court must determine that a material issue exists other than

conduct conforming with a character trait and must upon request state

on the record the material issue, the ruling, and the reasons for

admitting the evidence;

(3) The court must find proof of the other crime, wrong, or act to be

clear and convincing; and

(4) The court must exclude the evidence if its probative value is

outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b).

The safeguards in Rule 404(b) ensure that defendants are not convicted for charged offenses

based on evidence of prior crimes, wrongs or acts. State v. James, 81 S.W.3d 751, 758 (Tenn.

2002). Where the procedures “are substantially followed, the trial court’s decision will be given

great deference and will be reversed only for an abuse of discretion.” Id. at 759; see also State v.

DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).

With regard to the procedures under Rule 404(b), the Court of Criminal Appeals held that

the trial court erred in finding that portions of the State’s proposed evidence was cumulative to other

evidence. The intermediate court explained that such a conclusion “must be made during the trial”

because “[p]roof is not cumulative in a trial until the trial has begun.” Although Rule 404(b) does

not preclude the trial court from conducting a hearing or ruling prior to trial, we share the Court of

Criminal Appeals’ view that the Rule 404(b) criteria – in particular, the existence of a material issue

at trial and the balancing of the probative value and unfair prejudice – require consideration of the

evidence presented at trial. Thus, trial courts must be cognizant that if pretrial evidentiary rulings

are made, they may need to be reconsidered or revised based on the evidence presented at trial.

We further conclude, however, that the trial court and the Court of Criminal Appeals erred

in granting the defendant’s request for an interlocutory appeal pursuant to Rule 9 of the Tennessee

Rules of Appellate Procedure for several reasons. First, interlocutory review was not necessary to

prevent irreparable injury to the defendant because the trial court’s rulings under Rule 404(b) can

be challenged in an appeal as of right if the defendant is convicted. Second, the interlocutory appeal

-5-

was not likely to prevent needless, expensive and protracted litigation; not only can the rulings under

Rule 404(b) be challenged on direct appeal, they are afforded great deference and may be reversed

only if the appellate court concludes that the trial court abused its discretion. Moreover,

interlocutory review of the trial court’s rulings under Rule 404(b) increases the potential for

piecemeal litigation since the appellate court’s decision may (a) hinder the trial court’s flexibility to

revise its rulings depending on the evidence presented at trial or (b) result in another requested

appeal should the trial court depart from the appellate court’s decision based on the evidence

presented at trial. Finally, because the trial has yet to begin, an interlocutory appeal to review

evidentiary rulings would be largely advisory in nature and would not develop a uniform body of

law.

We likewise conclude that the trial court and the Court of Criminal Appeals also erred in

granting the State an interlocutory appeal, though the question is somewhat closer. Unlike the

defendant, the State is not assured appellate review of the trial court’s ruling; if the State’s evidence

is excluded and the defendant is acquitted, for instance, the State has no appeal as of right. That

alone, however, does not end the inquiry. For instance, it is doubtful that granting the State an

interlocutory appeal was necessary to prevent needless, expensive and protracted litigation; as noted

above, the trial court’s rulings under Rule 404(b) are afforded great deference and are reversible only

if the trial court abused its discretion. Finally, as also stated above, an appellate court decision at this

stage would be tantamount to an advisory ruling and would not be necessary to achieve uniformity

in the law.

In sum, we conclude that the trial court and the Court of Criminal Appeals erred in granting

interlocutory review over the trial court’s rulings under Rule 404(b) because the criteria in Rule 9

of the Tennessee Rules of Appellate Procedure were not met.

Rule 404(b) – Prior Acts of Physical Abuse

Although we have concluded that the trial court and the Court of Criminal Appeals erred in

granting this interlocutory appeal, we must address one substantive issue in the interest of judicial

efficiency. The defendant complains that the Court of Criminal Appeals created a per se rule for the

admissibility of evidence of physical abuse committed by a defendant against the victim. The State

replies that the intermediate court reached the correct result even though it concedes the court’s use

of the term “per se” was “unfortunate.”

As discussed above, Rule 404(b) contains several safeguards to the admission of a

defendant’s prior crimes, wrongs, or acts. One safeguard requires the trial court to “determine that

a material issue exists other than conduct conforming with a character trait” and to “state on the

record the material issue, the ruling, and the reasons for admitting the evidence.” These required

findings are vital in ensuring that defendants are not convicted for a charged offense based on their

character or their alleged propensity to engage in particular conduct. James, 81 S.W.3d at 758.

There are no exceptions in Rule 404(b) for cases involving evidence of a defendant’s prior acts of

physical abuse committed against a victim.

-6-

Notwithstanding the language in Rule 404(b), the Court of Criminal Appeals stated that

evidence of prior physical abuse committed by a defendant against a victim is “seemingly per se

admissible” under State v. Smith, 868 S.W.2d 561 (Tenn. 1993). In Smith, evidence of prior violent

acts committed by the defendant against the victims was admitted in the defendant’s trial for first

degree murder. On appeal, this Court observed that the evidence “was admitted not to prove the

Defendant acted in accord with this character but as part of the proof establishing his motive for the

killings.” Id. at 574. This Court also observed that the probative value of the evidence was not

outweighed by the danger of unfair prejudice. Id.

Our decision in Smith did not establish a per se rule allowing the admission of evidence of

prior acts of physical abuse committed by a defendant against a victim, nor did our decision abandon

the requirement that such evidence must be relevant to a material issue at trial. To the contrary, we

stated that the evidence was relevant to the defendant’s motive. Id. at 574. Moreover, the evidence

of motive was also circumstantial evidence of identity, which was a material issue at trial in light of

the defendant’s alibi defense. See id. at 568; see also Neil Cohen et al., Tennessee Law of Evidence

§ 4.04(9), p. 4-84 (4th ed. 2000) (“Although motive itself is rarely an issue in a case, it is often

circumstantial proof of some other important matter, such as identity, intent, or lack of accident.”).

Given these principles, the Court of Criminal Appeals’ broad interpretation of Smith was error.

Accordingly, because there is no per se rule of admissibility under Rule 404(b) for prior acts

of abuse committed by a defendant against a victim, the trial court must, on remand, consider the

admissibility of the State’s proposed evidence by applying the specific safeguards set forth in Rule

404(b).

Conclusion

After our review of the record and applicable authority, we hold (1) that the trial court and

the Court of Criminal Appeals erred in granting interlocutory review of the trial court’s pretrial

ruling on the admissibility of the evidence under Rule 404(b), and (2) that the Court of Criminal

Appeals erred in holding that prior acts of physical abuse committed by a defendant against a victim

are per se admissible at trial. As a result, the Court of Criminal Appeals’ judgment is reversed and

the case is remanded to the trial court for further proceedings. Costs of the appeal are taxed equally

between the defendant, David Kyle Gilley, and the State.

___________________________________

E. RILEY ANDERSON, JUSTICE

-7-