State v. Smith

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

STATE OF TENNESSEE v. DONALD RAY SMITH

Appeal from the Circuit Court for Henry County

No. 12495 Hon. Julian P. Guinn, Judge

No. W1998-00156-SC-R11-CD — Decided June 30, 2000

FOR PUBLICATION

In this appeal, we address whether prior inconsistent statements can be used substantively to

corroborate a confession when the prior statements are admitted into evidence without objection.

We also consider whether the failure of the trial court to instruct the jury as to the limited use of the

prior statements constitutes plain error. The Court of Criminal Appeals held that prior inconsistent

statements could not be used as substantive evidence and that the failure of the trial court in this case

to give a limiting instruction amounted to plain error. For the reasons stated herein, we hold that by

not objecting to the admission of the statements, the appellee waived any objection to their use by

the jury as substantive evidence to corroborate the appellee’s two confessions. Consequently, we

hold that the evidence in this case is sufficient to support a finding of guilt beyond a reasonable

doubt. Finally, because the decision to forgo any objection to the hearsay testimony was a

deliberate, tactical decision by trial counsel, we are precluded from considering admission of the

evidence under a plain error analysis. We reverse the judgment of the Court of Criminal Appeals

and reinstate the appellee’s conviction and sentence for aggravated sexual battery.

Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the Court of Criminal

Appeals is Reversed; Appellee’s Conviction and Sentence for Aggravated Sexual Battery are

Reinstated

BARKER, J., delivered the opinion of the court, in which ANDERSON, C.J., and BIRCH and HOLDER ,

JJ., joined. DROWOTA , J., not participating.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Daryl J.

Brand, Associate Solicitor General, Nashville, Tennessee, for the appellant, State of Tennessee.

W. Jeffery Fagan, Assistant District Public Defender, Camden, Tennessee, for the appellee, Donald

Ray Smith.

OPINION

On July 29, 1996, twelve-year-old C.S.1 told her mother that sometime during the previous

January, her father, appellee Donald Ray Smith, reached his hand underneath her shorts and touched

her “private parts.” The next day, Ms. Smith took C.S. to the Tennessee Department of Human

Services, where C.S. related the same story in more detail to Carolyn Gore, an employee with

Children’s Services, and to Gary Vandiver, an investigator with the Henry County Sheriff’s Office.

According to her story, C.S. was at home with her father one evening in January 1996 while her

mother was at work. C.S. was lying on the floor watching television when her father asked her to

sit with him on the couch. When C.S. sat down beside her father, he began rubbing the inside of her

leg with his hand and moved his hand underneath her shorts and panties. C.S. stated that her father

then touched her “private parts,” at which point C.S. demanded that he stop. The appellee then

offered her money and candy for her silence.

After the meeting with C.S. and her mother on July 30, Officer Vandiver left to arrest the

appellee. Although Officer Vandiver had some difficulty locating the appellee that afternoon, he

found and arrested the appellee later that evening and took him to the police station. Shortly after

arriving at the police station, the appellee waived his Miranda rights in writing and gave a tape-

recorded confession, wherein he admitted to touching and rubbing his daughter in substantially the

same manner as previously described by C.S. One week later, after being arrested and released on

bond, the appellee returned to the police station on his own accord. The appellee again waived in

writing his right to remain silent and to have counsel present, and he signed a written confession

again admitting to the improper touching and rubbing of his daughter.2

On November 6, 1996, a Henry County Grand Jury returned an indictment charging the

appellee with one count of aggravated sexual battery against his daughter. Following a plea of not-

guilty, the appellee was tried before a jury on January 28, 1998.3 The first witness called by the State

to testify was C.S., and when the district attorney asked her to relate to the jury how her father

abused her, C.S. recanted her earlier accusations and replied simply that “[h]e didn’t do anything.”

When asked whether she had previously told her mother that her father had touched her “in a bad

way,” C.S. admitted that she had and that she told the same story to Ms. Gore and Officer Vandiver.

Even as the district attorney meticulously reiterated the details of her previous statements, C.S. was

1

It is the policy of this Court not to identify minor children involved in sexual abuse cases

by name. Instead, we will identify the minor victim in this case only by her initials.

2

Although the statement was actually handwritten by Officer Vandiver, the appellee signed

the statement after carefully reading and adopting it.

3

The appellee originally pled guilty to the charge and was sentenced by the trial court to

serve eight years imprisonment. His conviction was set aside, however, in a post-conviction

proceeding. The issues in this case arise from the subsequent retrial of the case.

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adamant that no such incident occurred, although she repeatedly admitted making the statements.4

The appellee made no objection to the introduction of C.S.’s prior statements by the State.

On cross-examination, the appellee questioned C.S. in detail about her prior statements, including

why she made the accusations, how she knew what type of accusations to make, and how she knew

which particular words to use. C.S. also denied that the reason she recanted her accusations was

because someone convinced her to change her mind.

The State then called the appellee’s wife as a witness and asked her about the statements C.S.

made to her in July of 1996. Ms. Smith admitted that C.S. told her that the appellee touched her

inappropriately, and that she fully believed C.S.’s accusations. Ms. Smith denied, however, that she

contacted Children’s Services or any law-enforcement officer. Ms. Smith also stated that C.S. told

her sometime after the appellee was arrested that no touching occurred. The appellee again made

no objection to the introduction of C.S.’s prior statements made to Ms. Smith.

Next, the State called Carolyn Gore to testify as to the detailed statements given to her by

C.S. on July 30, 1997. Officer Vandiver was also called as a witness by the State to testify as to the

allegations made to him by C.S. In addition, Officer Vandiver played the appellee’s tape-recorded

confession for the jury, and he read to the jury the handwritten confession signed and adopted by the

appellee.5 As with the State’s two other witnesses, the appellee did not object to the introduction

of C.S.’s prior statements made to either Ms. Gore or to Officer Vandiver. Instead, the appellee

questioned Ms. Gore about the details of C.S.’s accusations and how Ms. Gore became aware of the

accusations.

The appellee rested his case after putting on no proof, and he argued to the jury that C.S.’s

former statements were not credible in light of her trial testimony. Nevertheless, the jury returned

a guilty verdict on the sole count of the indictment, and on March 9, 1998, the appellee was

sentenced to eight years imprisonment. In his motion for a new trial, the appellee asserted that the

trial court erred in not granting a judgment of acquittal and that the evidence was insufficient as a

matter of law to sustain the conviction. The motion was denied on April 22, 1998, and the appellee

filed a timely notice of appeal to the Court of Criminal Appeals.

4

At trial, C.S. testified that she made these allegations because her sister, Kim, offered her

twenty dollars to do so. Kim was apparently dating a boy of whom the appellee did not approve.

5

The handwritten confession reads as follows:

I, Donald Smith, during Jan. 1996 was at home with my 12 yea [sic] daughter [C.S.]

and my handicapped son. My son was in his bedroom. [C.S.] and I was [sic] in the

living room. [C.S.] was laying on the couch. I was sitting on the couch. [C.S.’s]

legs were over mine. I began rubbing her leg. I rubbed up her leg up under her

shorts and panties. I rubbed her vagina area on pubic hair for about a minute. [C.S.]

said “Don’t, I don’t want to.” I stopped[.] I said I was sorry, I will not ever do it

again.

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Although not raised as an issue by the appellee, the Court of Criminal Appeals held that the

trial court committed plain error in failing to instruct the jury that the prior statements of C.S. should

be considered only for impeachment purposes and not as substantive evidence of guilt. While the

full panel reversed the conviction on the basis of this plain error, a majority of the panel voted further

to dismiss the case because no substantive evidence corroborated the appellee’s confession. Writing

in partial dissent, Judge Joe G. Riley stated that because the trial court’s failure to give a limiting

instruction was merely an evidentiary error, a new trial was the more appropriate remedy.

In the appeal before this Court, the State has asked us to consider whether a victim’s prior

statements, though otherwise inadmissible hearsay, may be considered by a jury as substantive

evidence of guilt when the defendant does not object to their admission, and consequently, whether

the evidence in this case is sufficient for conviction. We hold that under the circumstances of this

case, the prior statements of C.S. could have been considered by the jury as substantive evidence of

the appellee’s guilt, and that these statements adequately corroborated the appellee’s two confessions

so as to support the jury’s verdict. Because we also disagree that the trial court committed plain

error in this case, we reverse the judgment of the Court of Criminal Appeals.

I. SUFFICIENCY OF THE EVIDENCE

The State’s primary argument in this case is that the Court of Criminal Appeals erred in

reversing and dismissing the appellee’s conviction for lack of substantive evidence. When the

sufficiency of the evidence is challenged, “the standard for review by an appellate court is whether,

after considering the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” State v. Buggs,

995 S.W.2d 102, 105 (Tenn. 1999); see also Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); State

v. Burns, 979 S.W.2d 276, 286-87 (Tenn. 1998); Tenn. R. App. P. 13(e). On appeal, the State is

entitled to the strongest legitimate view of the evidence and to all reasonable and legitimate

inferences that may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). In

determining the sufficiency of the evidence, this Court does not re-weigh the evidence, id., or

substitute its inferences for those drawn by the trier of fact. Liakas v. State, 199 Tenn. 298, 305, 286

S.W.2d 856, 859 (1956).

A. Prior Inconsistent Statements as Substantive Evidence

Because the sufficiency of the evidence question turns on the effect given to C.S.’s prior

statements, the first issue we must resolve is whether the prior inconsistent statements in this case

could have been considered by the jury as substantive evidence of the appellee’s guilt. As with any

evidence, a prior inconsistent statement may be offered for any purpose at all, although its

admissibility may be limited to certain issues depending upon the purpose for which it is offered.

It is an elementary principle of evidence law that certain types of evidence may be admissible for

some purposes but not for others. See Tenn. R. Evid. 105; see also, e.g., Tenn. R. Evid. 404(b), 406-

409, 801.

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Our cases have consistently held that a prior inconsistent statement is admissible under the

Rules of Evidence when the prior statement is used to impeach the credibility of a witness. See, e.g.,

Jones v. Lenoir City Car Works, 216 Tenn. 351, 356, 392 S.W.2d 671, 673 (1965) (stating that “prior

inconsistent statements of a witness are admissible for the purposes of impeachment and testing the

credibility of the witness”). On the other hand, the restriction on hearsay evidence limits the

admissibility of prior inconsistent statements when a party offers the prior statements as evidence

to prove the matter asserted in the statement, or as substantive evidence. See id. (stating that prior

inconsistent statements “are not to be considered as substantive evidence of the truth of the matter

asserted therein”); see also Rhea v. State, 208 Tenn. 559, 563, 347 S.W.2d 486, 488 (1961) (stating

that “any prior contradictory statements shown are not to be taken as evidence of the facts therein

stated but are simply limited to the function of discrediting the witness”).6 Upon timely objection,

the trial court should exclude a prior inconsistent statement when offered as substantive evidence

of guilt or innocence, and upon request, the court should instruct the jury that the prior statement may

only be considered as reflecting upon the credibility of the witness. See Tenn. R. Evid. 105 (stating

that “[w]hen evidence which is admissible . . . for one purpose but not admissible . . . for another

purpose is admitted, the court upon request shall restrict the evidence to its proper scope and instruct

the jury accordingly”).

A trial court, however, generally has no duty to exclude evidence or to provide a limiting

instruction to the jury in the absence of a timely objection. A party may consent to the admissibility

of evidence which is otherwise prohibited by the Rules, so long as the proceedings are not rendered

so fundamentally unfair as to violate due process of law. Cf. Clarke v. State, 402 S.W.2d 863, 869

(Tenn. 1966). As early as 1885, this Court has stated that parties “may admit illegal evidence, if they

don’t choose to object. If they do not want to admit it, they should object as soon as it is offered, or

its illegality appears.” See Baxter v. State, 83 Tenn. (15 Lea) 657, 665 (1885) (allowing statements

of victim identifying the defendant, though inadmissible under the dying declaration exception to

the hearsay rule, because the defendant chose not to object to the statements). See also Harless v.

State, 189 Tenn. 419, 422, 225 S.W.2d 258, 259 (1949) (“No objection being interposed to the

testimony of the officer as to what a bystander said[,] it may properly be considered and given its

natural probative effect as if it were in law admissible.”). This same principle is reflected today in

Rule of Evidence 103(a)(1), which requires that a timely objection be made to preserve an error, and

it is also reflected in Tennessee Rule of Appellate Procedure 36(a), which requires that a party take

any action reasonably available so as to prevent an error or to mitigate its harm.

When a party does not object to the admissibility of evidence, though, the evidence becomes

admissible notwithstanding any other Rule of Evidence to the contrary, and the jury may consider

that evidence for its “natural probative effects as if it were in law admissible.” State v. Harrington,

627 S.W.2d 345, 348 (Tenn. 1981). If a prior inconsistent statement does not fall within a

recognized exception to the hearsay rule, for example, it is certainly subject to objection as hearsay

6

In contrast to our Rules, the Federal Rules of Evidence do allow prior inconsistent

statements to be considered as substantive evidence under some circumstances. See Fed. R. Evid.

801(d)(1)(A).

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and limitation under the Rules of Evidence. Merely being subject to objection, however, does not

mean that such evidence cannot be considered for its substantive value when no objection is raised.

In cases of hearsay evidence in particular, this Court has stated that when such evidence is

admitted without objection, “it is, therefore, rightly to be considered as evidence in the case and is

to be given such weight as the jury think[s] proper.” State v. Bennett, 549 S.W.2d 949, 950 (Tenn.

1977). Indeed, in Casone v. State, 193 Tenn. 303, 315-16, 246 S.W.2d 22, 28 (1952), this Court

went so far as to say that “it has been held almost universally that when hearsay testimony is

admitted without objection[,] it may probably be considered and given its natural probative effect

as if it were in law admissible, the only question being with regard to how much weight should be

given thereto.” (emphasis added). See also In re Estate of Parsley, 864 S.W.2d 36, 39 (Tenn. Ct.

App. 1988) (“The general rule is that hearsay, unobjected to, may be considered and given its natural

probative effect . . . .”).

We are simply unable to conclude that the prior inconsistent statements of C.S., although

subject to objection and limitation, could not be used as substantive evidence of the appellee’s guilt

when the appellee made no objection to the State’s repeated use of the statements. As our cases

make clear, a failure to object to otherwise inadmissible evidence will allow that evidence to be

considered as if it were, in fact, fully admissible under the law of evidence. We decline to depart

from this long standing rule in this case.

We note that a growing number of jurisdictions have adopted the position that prior

inconsistent statements may be used as substantive evidence of the matters asserted therein,

particularly when the declarant testifies at trial and is subject to cross-examination.7 Our holding

today does nothing to change our now minority position that such statements are inadmissible

hearsay if offered as evidence of the facts to which the prior statement relates, although we do

continue to allow the parties to waive this objection if they so choose.

7

See generally Andrea G. Nadel, Use or Admissibility of Prior Inconsistent Statements of

Witness as Substantive Evidence of Facts to Which They Relate in Criminal Cases—Modern State

Cases, 30 A.L.R.4th 414 (1984 & Supp. 2000). In discussing Pennsylvania’s switch to allow

substantive use of prior inconsistent statements, one commentator asserts that

Relying primarily on the same rationale as that employed in [Commonwealth v.]

Brady, [507 A.2d 66 (Pa. 1986),] forty-one states have elected to follow some version

of the modern rule, and thus allow the admission of a non-party witness’ prior

inconsistent statements as substantive evidence. Only eight states and the District of

Columbia still fully adhere to the orthodox rule and refuse to admit a witness’ prior

inconsistent statements as substantive evidence.

See Jennifer L. Hilliard, Substantive Admissibility of a Non-Party Witness’ Prior Inconsistent

Statements: Pennsylvania Adopts the Modern View, 32 Vill. L. Rev. 471, 489-91 (1987).

Tennessee is listed among the nine jurisdictions that still retain the “orthodox” rule.

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B. Prior Statements as Corroborating Evidence

The appellee argues that even if the prior statements of C.S. are considered as substantive

evidence, the inconsistencies between her prior statements and her trial testimony fail to sufficiently

corroborate the confession so as to sustain the conviction. It is a well-established principle of law

in this state that a conviction cannot be founded solely upon a defendant’s confession, and our cases

have long required some corroborating evidence in order to establish the corpus delicti. See Ashby

v. State, 124 Tenn. 684, 697-98, 139 S.W. 872, 875 (1911). The term corpus delicti refers to “the

body of the crime [or] evidence that a crime was committed at the place alleged in the indictment,”

Van Zandt v. State, 218 Tenn. 187, 202, 402 S.W.2d 130, 136 (1966), and the state needs “only

slight evidence of the corpus delicti . . . to corroborate a confession and sustain a conviction.” See,

e.g., State v. Driver, 634 S.W.2d 601, 606 (Tenn. Crim. App. 1981). Indeed, as this Court has

discussed in connection with a confession supporting an arson conviction,

[the corroborating] evidence is sufficient if . . . it tends to connect the defendant with

the commission of the offense, although the evidence is slight, and entitled, when

standing by itself, to but little consideration. Thus when we have a verdict[,] even

though founded on slight evidence of corroboration connecting the defendant with

the crime, it cannot be said, as a matter of law, that the verdict is contrary to the

evidence.

Ricketts v. State, 192 Tenn. 649, 664-65, 241 S.W.2d 604, 606 (1951).

When the prior statements of C.S. are considered as proof of the matters stated therein, we

find that the statements fully corroborate both of the appellee’s confessions. C.S. admitted at trial

that her original allegations contained the following facts: (1) that the incident occurred in January

of 1996; (2) that it happened in the evening while her mother was at work; (3) that her brother was

at home in his bedroom; (4) that she was watching T.V. in the living room with her father, who was

sitting on the couch; (5) that her father asked her to sit on the couch with him; (6) that her father

began to rub the inside of her leg with his hand; (7) that he ran his hand underneath her shorts and

underwear; (8) that her father touched her “private parts”; and (9) that she told him to stop.

By way of comparison, the appellee, who apparently knew nothing of the particulars of these

allegations, stated the following facts in his first confession: (1) that the incident occurred in January

of 1996; (2) that he rubbed his daughter’s leg; (3) that he rubbed under her clothes; and (4) that he

touched her in her groin area. In addition to these facts, the appellee in his written confession

admitted that (1) his son was at home in his bedroom; (2) that he and his daughter were sitting on

the couch at the time the incident happened; and (3) that his daughter told him to stop.

When the prior statements of C.S. are considered for their substantive value, as the jury was

entitled to do in the absence of an objection or limiting instruction, it is clear that there was

substantial corroboration of the confession to establish the corpus delicti. In fact, the allegations that

C.S. made to her mother, Ms. Gore, and Officer Vandiver, corroborate virtually every aspect of both

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of the appellee’s confession in substantial detail. Under these circumstances, we have no hesitation

in concluding that the evidence was more than sufficient to convict the appellee of aggravated sexual

battery.

The appellee argues that a confession cannot be corroborated by a recanted accusation. We

disagree. Although the jury in this case was presented with alternative versions of the facts, it was

entitled to decide and resolve for itself the inconsistencies in the evidence presented to it. It is clear

from the verdict in this case that the jury chose to credit the prior statements of C.S. over her

testimony at trial, and we will not re-weigh this finding. All three judges on the intermediate court

agreed that if the prior statements are considered for their substantive value, then the evidence is

sufficient in this case to support the conviction beyond a reasonable doubt. We agree with this

determination and conclude that when the prior statements of C.S. are substantively considered along

with the two confessions given by the appellee, the corpus delicti of the crime has been acceptably

demonstrated. Accordingly, we hold that the proof is sufficient to establish the appellee’s guilt of

the charged offense beyond a reasonable doubt.

Citing this Court’s opinion in Johnson v. Cincinnati, N.O. & T.P. Railway Co., 146 Tenn.

135, 240 S.W. 429 (1922), the appellee contends that when the sole witness both affirms and denies

that a particular act happened, “it would be mere caprice in a jury upon such evidence to decide [the

issue] either way.” We agree with the appellant that if C.S.’s prior statements were the only evidence

of the crime committed, then a conviction could not be sustained. Nevertheless, the prior statements

in this case are needed only to corroborate the appellee’s confessions, and “even though the

corroborative evidence may be slight, such evidence does not need to be as convincing in

establishing the corpus delicti as when no confession exists . . . .” State v. Jackson, 506 S.W.2d 146,

148-49 (Tenn. 1974). The prior statements, as substantive evidence credited by the jury, far exceed

the relatively low threshold required to corroborate a confession, and we hold that the State has met

its burden in this case.

II. PLAIN ERROR ANALYSIS

Although the appellee did not raise the issue in the intermediate court, the Court of Criminal

Appeals found that the failure of the trial court to instruct the jury in this case as to the evidentiary

effect of C.S.’s prior statements constituted plain error. We disagree.

Notwithstanding our finding that a failure to object to the introduction of C.S.’s prior

inconsistent statements as substantive evidence, Rule of Appellate Procedure 36(b), Rule of

Evidence 103(d), and Rule of Criminal Procedure 52(b) allow this Court to take notice of “plain

errors” that were not raised in the proceedings below. No guidance is given by any of these rules

as to when an error will rise to the level of plain error, but we have previously stated that “[w]hether

or not an appellate court should recognize the error and grant relief in the absence of an objection

in the trial court must depend upon the facts and circumstances of the particular case.” State v. Ogle,

666 S.W.2d 58, 61 (Tenn. 1984).

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The Court of Criminal Appeals has developed five factors to consider when deciding whether

an error constitutes “plain error” in the absence of an objection at trial: “(a) the record must clearly

establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been

breached; (c) a substantial right of the accused must have been adversely affected; (d) the accused

did not waive the issue for tactical reasons; and (e) consideration of the error is ‘necessary to do

substantial justice.’” State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994); see also

Ogle, 666 S.W.2d at 60 (discussing this issue in the context of a Bruton error, and stating that a

conviction based on improper evidence admitted without objection may be reversed when “(1) the

statement constitutes plain error, (2) the statement was an important part of the state’s case, and (3)

the objection was not intentionally waived for tactical purposes”).

Because the Adkisson test provides a clear and meaningful standard for considering whether

a trial error rises to the level of plain error in the absence of an objection, we formally adopt this test

when reviewing a record for plain error. We re-emphasize that the presence of all five factors must

be established by the record before this Court will recognize the existence of plain error, and

complete consideration of all the factors is not necessary when it is clear from the record that at least

one of the factors cannot be established. In addition, the “‘plain error’ must [have been] of such a

great magnitude that it probably changed the outcome of the trial.” Adkisson, 899 S.W.2d at 642.

After a thorough review of the record in this case, we conclude that the plain error doctrine

can afford no relief for the appellee. As the fourth factor in the Adkisson test recognizes, “it is

well-established that [the] plain error rule is not applicable when the record reflects that a defendant

made a deliberate, tactical choice to waive an objection.” State v. Walker, 910 S.W.2d 381, 399

(Tenn. 1995) (Anderson, C.J., concurring, joined by Drowota, J., and Birch, J.). According to the

concurring opinion in Walker, the rationale behind this exception to the plain error rule is that

[t]he plain error rule “should not be used to provide a second bite at the apple for a

defendant whose deliberate trial strategy failed.” United States v. Valencia-Lucena,

925 F.2d at 514. To apply the plain error rule under such circumstances would

encourage defense counsel to gamble for a favorable verdict, and should the verdict

be unfavorable, resort to appeal on errors which might have been obviated on

objection. United States v. Campbell, 419 F.2d 1144, 1145 (5th Cir.1969).

910 S.W.2d at 400. The Court of Criminal Appeals has also recognized that “a party cannot, either

in a civil or criminal case, sit by and not object to testimony, take his chance of acquittal or

conviction on testimony deemed incompetent, and then ask a reversal for such testimony in this

court.” See McKenzie v. State, 3 Tenn. Crim. App. 362, 368, 462 S.W.2d 243, 246 (1970)).

The record is clear in this case that the decision not to object to the prior inconsistent

statements of C.S. was a result of a deliberate, tactical trial strategy.8 The appellee’s theory of the

8

Although the intermediate court found plain error in this case relying on the Adkisson

factors, it did not address the fact that the decision to forgo objection to the prior statements was the

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case all along has been that inconsistent statements by one witness cannot be the sole proof used to

corroborate a confession. To this end, the appellee did not object to any of C.S.’s prior inconsistent

statements when the State questioned C.S. herself, when the State questioned her mother, when the

State questioned Ms. Gore, or when the State questioned Officer Vandiver. Moreover, defense

counsel cross-examined all four witnesses at length about the prior inconsistent statements. For

example, counsel questioned C.S. about her motives in making the prior statement, how she knew

exactly what type of accusations to make, and who told her the particular words to use. When the

State places objectionable evidence before the jury, and defense counsel inquires at length about the

evidence on cross-examination, any error in admitting the evidence is generally cured. Marable v.

State, 203 Tenn. 440, 456, 313 S.W.2d 451, 458-59 (1958) (stating that “the objectionable evidence

[results of a lie detector test] after being volunteered by a State witness was gone into at length by

further cross examination on the subject by the plaintiff in error. Under such circumstances, we

think that if the evidence was objectionable[,] it is cured.”).

Most importantly, though, counsel for the appellee conceded in oral argument before this

Court that the decision not to object to admission of the prior inconsistent statements was a “tactical

decision.” Because counsel and the appellee were concerned as to the ability of the appellee to make

a good witness, they both agreed that the best strategy was to forgo objection to the prior statements

in an effort to convince the jury that C.S. had no credibility. “It is difficult to conceive of evidence

more probative of an attorney’s reason for not objecting than the attorney’s own statement.” Walker,

910 S.W.2d at 400. Accordingly, for all of these reasons, we hold that because the decision to forgo

objection to admission of C.S.’s prior inconsistent statements as substantive evidence was a

deliberate, tactical decision by trial counsel, we can find no plain error in this case.9

Because we have concluded that the alleged plain error in this case was the result of a

deliberate, tactical decision on the part of counsel, our decision in State v. Reece, 637 S.W.2d 858

(Tenn. 1982), upon which the intermediate court relied, can provide no relief for the appellee. In

Reece, we held that “the failure to give the limiting instruction may amount to fundamental error

constituting grounds for reversal, even in the absence of a special request.” 637 S.W.2d at 861. We

expressly limited our holding, however, to “those exceptional cases in which the impeaching

testimony is extremely damaging, the need for the limiting instruction is apparent, and the failure

to give it results in substantial prejudice to the rights of the accused.” Id. Because a trial court’s

failure to give a limiting instruction must “result in substantial prejudice to the rights of the

accused,” Reece cannot afford relief when trial counsel makes a tactical decision to forgo an

result of a tactical decision.

9

Although the policy behind the plain error rule is “that the client should be protected

against egregious errors of counsel,” see Neil P. Cohen, et al., Tennessee Law of Evidence § 103.7,

at 24 (3d ed. 1995), the plain error rule cannot be used to second-guess the deliberate decisions of

trial counsel. “Whether a second-guessing appellate court thinks a tactical decision is inspired or

poor is not the issue on direct appeal. The issue is whether the action, or in this case, the inaction,

was the result of a deliberate, tactical decision.” Walker, 910 S.W.2d at 400.

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objection. When a defendant makes a considered and deliberate choice to waive a proper objection

in an effort to gain tactical advantage, he or she will not later be heard to complain that the trial

court’s failure to provide a limiting instruction “substantially prejudiced” his or her rights.10

CONCLUSION

In summary, we hold that a prior inconsistent statement by a witness may be considered by

the trier of fact as substantive evidence of the matters asserted therein, but only when the party

against whom the statement is offered fails to object to its admission or fails to request a limiting

instruction. Consequently, we conclude that the appellee’s confessions in this case, taken together

with the prior statements of the victim, furnished sufficient evidence to support a finding of guilt of

aggravated sexual battery beyond a reasonable doubt. Further, because the appellee’s waiver of any

objection to the admission of the hearsay evidence was the result of a deliberate, tactical trial

strategy, we are precluded from finding that the plain error doctrine affords any relief in this case.

Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the appellee’s

conviction and sentence for aggravated sexual battery.

Costs of this appeal shall be paid by the appellee, Donald Ray Smith, for which execution

shall issue if necessary.

10

Of course, a different case may be presented if trial counsel makes a deliberate, tactical

decision to waive a fundamental right of the accused without first obtaining his client’s informed

consent. See Momon v. State, No. E1996-00007-SC-R11-PC,1999 WL 1146746 (Tenn. filed at

Knoxville Nov 15, 1999), reh’g granted, March 20, 2000. In this case, though, it is not argued that

the right to exclude hearsay is a fundamental right guaranteed by the state constitution and statutes,

or that the appellee himself did not consent to the trial strategy of counsel. Accordingly, we cannot

conclude that the rights of the appellee have been substantially prejudiced so as to require relief

under the plain error doctrine.

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