# State of Tennessee v. Billy Norman Forte

> Court of Criminal Appeals of Tennessee · May 16, 2025

URL: https://www.frixlaw.com/law-library/cases/11052479

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** May 16, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Kyle A. Hixson
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11052479

## How later opinions describe it (automated extraction)

- stating that evidence of mere arrests or indictments is generally inadmissible unless the accused somehow opens the door for impeachment, such as by testifying that he or she had never been arrested or indicted

## Opinion text

05/16/2025

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
October 23, 2024 Session Heard at Chattanooga1

STATE OF TENNESSEE v. BILLY NORMAN FORTE

Appeal from the Criminal Court for Hamilton County
No. 305501 Barry A. Steelman, Judge

No. E2022-01216-CCA-R3-CD

The Defendant, Billy Norman Forte, appeals from his jury conviction for second degree
murder and his resulting twenty-one-year sentence. On appeal, the Defendant challenges
(1) the trial court’s Ferguson remedy due to the State’s destruction of the recording of the
Defendant’s 911 call; (2) the trial court’s ruling allowing the State to introduce evidence
of the Defendant’s 1996 conviction for domestic assault against his ex-wife because the
Defendant had opened the door to such evidence during his direct examination testimony;
and (3) the trial court’s ruling prohibiting the Defendant from introducing certain evidence
of the victim’s criminal history. After review, we affirm the judgment of the trial court.

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

KYLE A. HIXSON, J., delivered the opinion of the court, in which JILL BARTEE AYERS and
TOM GREENHOLTZ, JJ., joined.

M. Todd Ridley and William W. Gill, Assistant Public Defenders – Appellate Division (on
appeal); Steve Smith, District Public Defender, Boyd M. Patterson, Assistant District
Public Defender (pretrial hearings); and Benjamin L. McGowan (at trial), Chattanooga,
Tennessee, for the appellant, Billy Norman Forte.

Jonathan Skrmetti, Attorney General and Reporter; Ronald L. Coleman, Senior Assistant
Attorney General; Neal Pinkston, District Attorney General; and Lee Ortwein and Miriam
Johnson, Assistant District Attorneys General, for the appellee, State of Tennessee.

1
Oral argument in this case was heard at the University of Tennessee at Chattanooga. This panel
wishes to express its gratitude to the University and our court staff for their efforts in bringing this project
to fruition, as well as to both the students and attorneys that were present.
OPINION

I. FACTUAL AND PROCEDURAL HISTORY

This case stems from events that occurred on April 2, 2018, at the family-owned
business, Eaves Formal Wear (“Eaves”), located in Chattanooga, when the Defendant shot
his adopted son, Charles Forte (“the victim”) in the head with a .410 shotgun, resulting in
his son’s death. From the outset, the Defendant claimed that he caught his son, who had
worked at Eaves, in the act of embezzling funds from the business and that he acted in
self-defense. Nonetheless, in August 2018, a Hamilton County grand jury indicted the
Defendant with first degree premeditated murder. See Tenn. Code Ann. § 39-13-202. The
Defendant proceeded to a trial by jury.

A. State’s Proof

Over forty years ago, the Defendant married the victim’s mother, Ollie Jane Forte,
and subsequently adopted the victim when he was five years old. The Defendant owned
Eaves, and the victim worked there for his father. The victim was “a big guy,” with an
estimated weight of 266 pounds and a height around five feet, ten inches tall. Shortly
before this incident occurred, the Defendant had a stroke and was hospitalized for
approximately one week. The Defendant had undergone financial hardship and had
voluntarily placed Eaves in receivership.

Ms. Forte knew the victim and the Defendant sometimes disagreed on how to run
the business, but she never personally witnessed them arguing over business matters. The
victim had informed Ms. Forte that the Defendant was not paying him, and she spoke with
the Defendant about it. During her discussions with the Defendant about the business, the
Defendant would sometimes get angry. He talked of “dealing with” the victim and told
Ms. Forte that he would kill her if she interfered, though she did not take this threat
seriously. Also, Ms. Forte averred that the Defendant never mentioned to her during any
of these discussions his suspicions that the victim was stealing from the business. In
addition, Ms. Forte stated that the victim did not carry a gun.

On April 2, 2018, the victim phoned Nicole Pearson, a former coworker at Eaves,
and asked her to come to the business to help him with some computer issues. The two
had remained friendly after Ms. Pearson had stopped working for the company as an “office
clerk” in June or July of 2017 because she “was no longer needed.” While Ms. Pearson
was on the phone with the victim, she overheard the Defendant in the background ask the
victim a question that was followed by “a back-and-forth type” of exchange before the

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victim hung up. While the victim and the Defendant were not yelling at each other, Ms.
Pearson thought it seemed as if they were engaged in an argument.

That same evening, the victim also called Ms. Forte and commented that the
Defendant “was in rare form” that day. According to Ms. Forte, the Defendant returned
home around 7:00 p.m. that evening, which was very early for him. He walked through
the house before quickly leaving again.

Ms. Pearson arrived at Eaves where she met the victim, who was alone in the office.
Ms. Pearson and the victim sat in office chairs and worked on the computer together; she
was sitting directly in front of the monitor, and the victim was seated slightly behind her.
Within ten minutes, the Defendant entered and asked the victim “something about did he
do something for the lady or did he get something for the lady.” When the victim responded
that he had not, the Defendant “just kind of mumbled” and walked out. After the Defendant
left, the victim commented, “oh, he’s mad or something,” and “shrugged it off.” During
this interaction, both the Defendant and the victim had a “regular” or “calm” demeanor,
according to Ms. Pearson. However, Ms. Pearson indicated that the victim had told her
that he had argued with the Defendant earlier that day and that he “had cuss[ed] out” the
Defendant. She recalled the victim telling her at some point that the Defendant was no
longer paying him.

About a minute later, the Defendant reentered the business. Ms. Pearson, who at
the time was focused on the computer, saw the Defendant “[o]ut of the corner of [her] eye”
before hearing a “really loud noise.” Ms. Pearson never saw the victim reach for anything
during this time. When Ms. Pearson turned, she saw the Defendant holding a long shotgun
and the victim falling forward. The Defendant reached over the desk and yelled
“something like, ‘I told you’ or something,” at the victim while the victim lay on the
ground. Ms. Pearson thought she heard a second gunshot. Then, the Defendant “cocked
the gun,” pointed it in Ms. Pearson’s direction, and instructed her to “get [her] a** out of
his business.” Ms. Pearson pleaded with the Defendant not to shoot her and ran out to her
car.

When she realized she had left her cell phone inside, she went back inside for it.
Upon her entry, Ms. Pearson heard the Defendant, who was still holding the shotgun,
speaking into the phone and saying, “I need somebody to come down here. I shot this
boy.” He also asked for an ambulance to be sent. Ms. Pearson assumed the Defendant was
on the phone with 911. At that point, the Defendant, who had seen Ms. Pearson, changed
his mind and ordered her to stay until the police arrived. Despite this instruction, Ms.
Pearson retrieved her cell phone and returned to her car. While in the parking lot, she saw

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what “may have been the bag that the shotgun was in” on the ground in between her car
and the white van the Defendant drove. As she was driving home, she called 911 to report
the shooting. Ms. Pearson said that she had never seen that particular shotgun before nor
any other firearm inside the business. Ms. Pearson’s home was never searched.

Chattanooga Police Department (“CPD”) Officers, John Andrew Doub and Patrick
Cavanaugh, responded to Eaves around 7:30 p.m. and detained the Defendant. Much of
the interaction that followed was captured by body camera footage. After securing the
Defendant, they asked the Defendant if he had shot someone, and he answered
affirmatively. The Defendant also said that he had shot the victim with a pellet rifle and
requested for the officers to look in the “little cases” too. When the officers entered the
business, they determined that the victim was already dead from a gunshot wound. The
victim was shot in the right side of his head next to the top of his ear, a wound that was
later determined to have been inflicted from a distance of about two feet away.

The Defendant was placed in handcuffs and put inside the back of a patrol car. As
Officer Doub was placing the Defendant inside the patrol car, he asked the Defendant why
he had shot the victim, but the Defendant’s response was unintelligible. Officer Doub then
said, “Well, you shot him over that?” Officer Doub opined that the Defendant’s response
was not necessarily indicative of self-defense. When it was pointed out that the Defendant
shot the victim in the face, the Defendant said that the victim “ducked down for his thing,”
and he indicated that the victim carried something. But this last statement was cut short by
Officer Doub who told the Defendant to “shut up.”

Officer Cavanaugh’s patrol car was equipped with an interior camera, and while the
Defendant sat in the back seat, he often talked to himself. The Defendant made statements
like: It was “bound to happen.”, “I told you motherf-----”; “Pow. Shot him in the head.”;
“Killed that motherf-----.”; “How come I feel so liberated?”; “Throwing away [forty-six]
years.”; and “Not going to take probation or nothing.”

Officers with the CPD Crime Scene Unit searched the area and found an empty cloth
long-gun case lying in the parking lot between the Defendant’s van and the victim’s car.
During a search of the business office, they found a spent green shotgun shell on a desk
and a Springfield model 18 series F .410 shotgun leaning against a wall. They also found
what appeared to be pellets, potentially from a second gunshot, that hit the carpet and a
cardboard food box. However, although they “thoroughly searched” the office area along
with the victim’s car, they did not find any other weapons in either location. They did find
two uncashed checks in the glovebox of the victim’s car—the checks were both dated in
2017 and made out to the victim in the amount of $750, but they were unsigned.

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Officer Cavanaugh took the Defendant to the police station where he was processed.
When the Defendant was searched, a second spent green shotgun shell was found in his
pocket. After the Defendant was read his Miranda2 rights for the first time, he voluntarily
signed a form waiving those rights. He was then questioned by CPD Investigator Taylor
Walker, along with another officer, and provided his version of the shooting.

During the interview, which began at 10:54 p.m., the Defendant alleged that the
shooting was “a combination of almost a year and a half of, of bullying.” He claimed the
victim always carried a pistol and had numerous guns. The Defendant mentioned that the
victim had “just got[ten] out of prison” and that he was a drug dealer who thought he knew
everything because he “sold dope.” He also commented that the victim was on probation
and was not supposed to be in possession of a firearm. The Defendant told the officers that
“today was the end of the line,” that he was at “a breaking point,” and that the victim “made
his own bed.”

Describing the events leading up to the shooting, the Defendant said that the armed
victim came outside to the Defendant’s van that day and talked “to [him] like [he was] a
punk.” The Defendant depicted that the victim was trying to treat him like he was the
victim’s drug “pusher,” who had gotten “away with some of [the victim’s] dope,” and that
the victim was “gonna jump on [his] a--.” But the Defendant explained, “[I]t just doesn’t
work that way.” According to the Defendant, when he entered the business later that same
day and found the victim and Ms. Pearson, he knew they were stealing because
QuickBooks was open on the computer. The Defendant told the victim that he was “going
to leave out of [there] with handcuffs on” once the receiver’s audit was completed. Then,
the Defendant retrieved the shotgun—which he kept in the shipping area to shoot rats—in
an effort to keep the victim there, and he intended to call the police. However, when the
victim looked at the Defendant, the victim “was ducking for that bag down there because
he ke[pt] a bunch of pistols” in it, so the Defendant had to shoot the victim to prevent him
from obtaining a weapon of his own. The Defendant insisted that he did not intend to shoot
the victim in the head but only did so because he was bending down. The Defendant
averred that he only shot the victim once.

The Defendant frequently commented that the victim “was supposed to have that
pistol” and that had it only been a few minutes earlier in the day, then the victim would
have been found with a gun. He also told the officers that, if they would take him to the
business, he could provide evidence of the theft. Though the Defendant claimed he had no
intent to kill the victim when he reentered the business with a shotgun, he “knew something
2
See Miranda v. Arizona, 384 U.S. 436 (1966).

-5-
was going to happen.” The Defendant admitted that he did not know “whether [the victim]
was going for something in that bag,” that he did not “know if [the victim] had a gun there,”
and that he did not see a gun at the time of the shooting. When asked why he did not simply
call the police, the Defendant claimed that he had to “put a stop to it” because that is how
it is “in the jungle.” He claimed the victim “didn’t give [him] but two options”—either the
victim was going to leave in handcuffs or “with a sheet over [his] head.” He insisted, “I
was going to get him. That was the last straw. . . . I was gonna kill him. I was determined
to do that, and I feel liberated.” The Defendant was remorseful that he was going to lose
his forty-six-year marriage.

When officers left the room, the Defendant repeated to himself that the victim “was
supposed to have that pistol.” He commented that the victim had “no business freeloading
off the company,” that the victim “didn’t leave [him] no choice,” and that he was defending
“the American Dream.” He repeated that the victim was simply “a dope dealer” who had
“a bunch of pistols” and was “still on probation for . . . cocaine.” The Defendant also said,
“I’m gonna walk. I’m gonna convince a jury. . . . I can get a jury to hang.” He insisted
that he would “be vindicated.” He told himself, “[I]t’s a jungle, man. . . . You wouldn’t
call the police for that, man. And you kill him and save the police the trouble.” He
acknowledged that he “[s]hot him in the head,” commenting, “I told you,
motherf----- . . . . Shot and killed him. . . . I wasn’t going in there to play with
him . . . . Shot that motherf-----, man.”

B. Defendant’s Proof

The Defendant’s first witness was Kay Baker, a private investigator. She noted that,
during Ms. Pearson’s 911 call, Ms. Pearson said she was almost home at 7:34 p.m. But,
according to Ms. Baker, it took about ten minutes to drive from Eaves to Ms. Pearson’s
house, thus, Ms. Pearson’s statement was likely inaccurate given that the shooting took
place around 7:30 p.m. Ms. Baker also noted that the police station was only about one
mile from Eaves.

The seventy-one-year-old Defendant chose to testify at trial and described his family
history, education, and work history for the jury. He talked about adopting the victim after
he married Ms. Forte. The Defendant indicated that he purchased Eaves in 2017 and had
previously worked as a bail bondsman for a period of roughly twenty-two years. The
Defendant talked about his recent stroke, how it affected his memory, and how it helped
his memory to repeat thoughts in his head by speaking them aloud.

-6-
According to the Defendant, the victim started college but did not finish, going into
“the drug business” instead. The Defendant said that he had “heated conversations” with
the victim when the victim was in his twenties about the victim’s life choices. He told the
jury that the victim “was imprisoned” in the 1990s and that the victim was released on
supervised probation somewhere around 1999 or 2000. The Defendant claimed that prison
had “chang[ed] and “harden[ed]” the victim and that they often had “very harsh”
exchanges. The Defendant described an incident that occurred while the victim was
released, wherein he and the victim had an argument that led to the victim threatening him
with a weapon. The Defendant said that during this argument, the victim tried to get a
pistol from his car to shoot the Defendant in order “to teach [him] a lesson,” but Ms. Forte
intervened by running to the car and stopping the victim.

The Defendant said that, about a month after this incident, in 2003, the victim went
to federal prison, where he remained incarcerated until 2016. Following the victim’s
release under federal supervision, the Defendant tried to rekindle their relationship and let
the victim work at Eaves. The Defendant said that the officer who supervised the victim
visited “all the time” and that they often spoke about the victim’s progress. However, the
Defendant then developed suspicions that the victim and Ms. Pearson were taking money
from the business by failing to separate cash and credit card transactions. The Defendant
claimed that he spoke with the victim about this on multiple occasions. According to the
Defendant, he placed the business into receivership to allow him more time to pay debts
and told the victim to submit a bill for services with the court just like any other creditor.
The Defendant said that when he spoke to Ms. Forte about the victim’s stealing, she begged
him not to put the victim back in prison.

The Defendant alleged that, several hours before the shooting, he and the victim got
into a disagreement because he told the victim not to bring his friends around the business
anymore and that the business was going “in a completely different direction.” The
Defendant described that the victim “blew up” at this news and that the victim got in his
face while armed with “a little pistol on his side.” The Defendant claimed that the victim
was frequently in possession of this pistol, though if the victim had ever been caught with
it, then he would have gone back to prison because he was a felon. The Defendant said he
told the victim to get his things and not to come back to the business. After the victim left,
the Defendant finished his work before he left and locked the doors to the business.

However, later that evening, the Defendant returned to the business and found the
victim and Ms. Pearson working in QuickBooks, an accounting software program. He said
that when he entered the office, they “jumped [up] like they were surprised to see [him].”
He claimed he had caught them “[c]ooking the books.” The Defendant said that he did not

-7-
call the police because he was “accustomed to taking care of [his] own business.” As the
Defendant was closing up in the shipping area, he saw the “vermin gun” next to the scales.
He claimed that it was loaded with three rounds, the first of which was a “dumdum” shot
and the following two were lethal. He explained that a “dumdum” shot had mostly salt
pellets in it mixed with and only a few lead pellets. The Defendant picked up the shotgun
and proceeded back into the office where the victim and Ms. Pearson were located. When
the Defendant reentered the room, the Defendant chastised the victim for being in
QuickBooks, which prompted the victim to reach for the top drawer of the desk where,
according to the Defendant, the victim usually kept his gun whenever he was in the office.
The Defendant said that he fired the “dumdum” round into the floor and that, being fearful,
he fired a second shot at the victim because he “was going for his pistol.” The Defendant
insisted that he was not aiming for the victim’s head, but rather his chest area, and that the
victim was shot in the head while bending down. He also insisted that if the victim’s gun
were not found in the desk drawer, then “[i]t could have been in his bag down on the floor.”

After the shooting, the Defendant immediately called 911. While on the phone with
911, Ms. Pearson reentered the business to retrieve her cell phone. The Defendant saw Ms.
Pearson walk by the drawer where the victim’s gun was supposedly located, and he
believed that Ms. Pearson left the business with something in her hand. The Defendant
heard sirens approaching, and he confirmed that he told Ms. Pearson to wait with him until
the police arrived.

The Defendant was asked if he would have walked away had he known what was
going to happen. He responded that he was unsure, that “[l]ife, liberty and [the] pursuit of
happiness matters,” and that “[y]ou have to have money for that.”

On cross-examination, the Defendant admitted that he was convicted of assault in
1996, which involved his now ex-wife, Ms. Forte. He also stated that he was accustomed
to taking care of his own problems and that the victim had become a problem. He reiterated
that he had suffered a year-and-a-half’s worth of bullying and that “this event was the end
of the line[,] . . . the last straw.” However, the Defendant continued to insist on redirect
examination that the victim “was going for his gun, and he had that . . . killer instinct in his
eyes.”

C. State’s Rebuttal

In rebuttal, Ms. Forte denied that any incident ever occurred where the Defendant
and the victim were fighting, and she had to stop the victim from getting a gun out of a car.

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In addition, she disputed that she ever asked the Defendant not to call the police or do
anything to avoid sending the victim back to prison.

On cross-examination, Ms. Forte confirmed that the victim was a drug dealer in
1994 and had gone to prison for over ten years. She also acknowledged that, around 2004,
the victim “got sentenced to [sixteen] years in federal prison.” She could not recall if that
conviction was the result of the victim’s dealing drugs again. Ms. Forte acknowledged on
redirect examination that any possession of a weapon by the victim was a violation of the
conditions of his release and that he was prohibited from working in an office where a
firearm was kept. Finally, on recross examination, according to Ms. Forte, the Defendant
usually kept the shotgun “at the house in a cedar closet.”

D. Verdict and Post-Trial Proceedings

Following the conclusion of proof, the jury found the Defendant guilty of the lesser
included offense of second degree murder, a Class A felony. See Tenn. Code
Ann. § 39-13-210. Thereafter, the trial court conducted a sentencing hearing. After finding
both enhancement and mitigating factors present, the trial court sentenced the Defendant,
a Range I, standard offender, to twenty-one years at 100 percent service in the Tennessee
Department of Correction.

Thereafter, the Defendant filed a motion for new trial, and following a hearing, the
trial court denied the motion. The Defendant filed a timely, albeit premature, notice of
appeal. The case is now before us for review.

II. ANALYSIS

On appeal, the Defendant contends that the trial court erred (1) by failing to dismiss
the indictment against him due to the State’s destruction of the recording of the Defendant’s
911 call, relying on State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999); (2) by allowing the
State to introduce evidence of the Defendant’s 1996 conviction for domestic assault against
Ms. Forte because the Defendant had opened the door to such evidence during his direct
examination testimony; and (3) by prohibiting the Defendant from introducing certain
evidence of the victim’s criminal history. We will address each of the Defendant’s issues
in turn.

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A. 911 Recording

The Defendant argues that he was deprived of his right to a fair trial due to “[t]he
State’s failure to preserve the recording of [his] 911 call immediately after the incident,”
which amounted to potentially exculpatory evidence, and that “[t]he trial court erred by
providing a jury instruction as a remedy instead of ordering a more substantial remedy in
the form of dismissal or, at a minimum, the suppression of related evidence.” The
Defendant asserts that the State’s failure to preserve this recording resulted from gross
negligence, the recording was critical to his state of mind relative to his claim of
self-defense, and the State put forward minimal evidence at trial to counter his assertion of
self-defense. The State responds that “[t]o the extent the [D]efendant was deprived of a
fair trial where the State accidentally deleted a recording of the [D]efendant’s 911 call after
preserving it for three years,” the trial court properly exercised its discretion in issuing a
jury instruction as a remedy, rather than ordering a more substantial remedy.

1. Pertinent Facts

The shooting took place on April 2, 2018, and the Defendant was indicted four
months later in August 2018. Originally, the district public defender’s office was appointed
to represent the Defendant (“pretrial counsel”). Thereafter, the Defendant requested
discovery materials, and the trial court, pursuant to Rules 12 and 16 of the Tennessee Rules
of Criminal Procedure, granted the Defendant’s motion on August 15, 2018, just two weeks
after the indictment.3

At a hearing on the Defendant’s motion to reduce bond on October 18, 2018, the
trial court asked when the defense would be ready to set a trial date. Pretrial counsel
replied, “I think we’re still in the process of getting discovery for everything[,]” noting that
there was still the possibility of a ballistics test on the shotgun and that “there [were] some
avenues that the defense could explore” related to the eyewitness’s testimony. Though
pretrial counsel indicated that he was not presently ready to proceed to trial, he observed,
“But this doesn’t seem like a relatively complicated case as far as murder cases go, I mean,
other than looking at this particular witness.” The trial court indicated that pretrial counsel
would have more time to prepare and that a trial date would not be set at that time. The
trial court also requested that the State move forward with testing the firearm if it intended
to do so.

3
There is no written discovery motion filed on behalf of the Defendant in the record, but the trial
court’s order references that such a motion was made.

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On November 19, 2019, the State filed a request for reciprocal discovery. See Tenn.
R. Crim. P. 16(b)(1)(A). On that same day, the State filed a motion to add the names of
several witnesses to the indictment, which included the Hamilton County 911 Call Center’s
custodian of records. A status review of the Defendant’s case took place on November 21,
2019, with both the State and the Defendant present, and the trial court granted these
motions.

It appears from the record that the Defendant’s first trial date was set for May 19,
2020, and that pretrial counsel was prepared for trial at that time. However, the trial was
postponed due to the COVID-19 pandemic.

A status review took place on April 15, 2021, during which the Defendant’s
expressed desire for a new attorney was discussed. Despite the Defendant’s expressed
desire, pretrial counsel indicated that the relationship was not “irreparably fractured.”
According to pretrial counsel, the Defendant’s case had benefited from the assistance of an
investigator, and the defense had received discovery materials from the State. Nonetheless,
the Defendant requested what he considered a more experienced attorney, expressing his
complaint that lack of “paperwork [was] the main thing.” The Defendant explained, “I’m
in the dark through my own process,” and he requested an attorney to “process [his] case
the way it should be processed.” The trial court asked the Defendant to explain what he
meant by “paperwork,” and the Defendant indicated that he had not been provided with
transcripts from his prior proceedings, specifically the preliminary hearing, which he
believed would prove conflicts in various testimony.

Pretrial counsel responded that he had discussed the case with the Defendant at
length and that he had reviewed the “paperwork” with him. According to pretrial counsel,
“we’ve talked numerous times about the content of the discovery. He’s very clear on the
State’s case against him, any angles we have for our particular defense, so there’s nothing
about the paperwork that has not been talked about numerous times.” Though pretrial
counsel told the Defendant that he could get a copy of “the paperwork,” pretrial counsel
advised the Defendant that it was not recommended to leave the materials “around the jail.”
Pretrial counsel continued, “Even beyond that, I still have given him paperwork, especially
about the main aspect of his case, which centers around the business[.]” Pretrial counsel
indicated that, given the Defendant’s expressed dissatisfaction, he would be amenable to
supplying the Defendant with a copy of “everything,” noting that the Defendant was aware
of the risks of possessing those documents while incarcerated.

The trial court told the Defendant that any conflicts in testimony from the
preliminary hearing could be brought out on cross-examination of the witnesses and

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through the presentation of evidence at trial. The Defendant acknowledged that he spoke
with pretrial counsel on occasion by telephone, though infrequently in the Defendant’s
estimation. He continued to express his belief that his case was not ready for trial and his
desire “to get out [of] the public defender’s office[.]” In response to the Defendant’s claims
of unpreparedness, pretrial counsel stated, “There’s nothing that’s been talked about that
hasn’t been done or followed up. There’s nothing about the case that’s been left undone
or investigated that [the Defendant] has brought to me or that I’ve seen.” The Defendant
maintained that transparency on the part of pretrial counsel was the “problem” because the
Defendant felt ill-informed. Pretrial counsel reiterated that he would “be happy to give
[the Defendant] copies of the exact same things” that had been “discussed numerous times
in discovery.” The trial court indicated that it would allow more time for pretrial counsel
and the Defendant to discuss things and would not appoint a new attorney at that time.

At subsequent proceedings, pretrial counsel indicated that, since the April 15, 2021
status review, the Defendant had been provided with the “written aspects” of the discovery
materials; nonetheless, the Defendant was refusing to cooperate with his lawyers, causing
“a breakdown in communication.” Pretrial counsel also clarified that the Defendant was
concerned with “items in the discovery” that he considered “like watershed piece[s] of
evidence that[ were] going to change everyone’s mind.” However, pretrial counsel
maintained that none of this information was new to the Defendant, and pretrial counsel
also disagreed with the Defendant’s opinion about the pivotal nature of these items. The
Defendant continued to assert that he “had to come to court to simply get information about
[his] case . . . , and lo and behold, everything’s been there from . . . the beginning.”
According to the Defendant, some of the written materials that had been provided to him
in discovery he had never seen before or discussed with pretrial counsel. In addition, the
Defendant claimed that he “still need[ed his] discovery[,]” indicating that he wanted
transcripts of the prior proceedings.

On July 12, 2021, the Defendant sent a handwritten letter to the trial court requesting
“specific discovery,” wherein he sought production of, among other things, a recording of
the 911 call he made on the evening of the shooting. Thereafter, the trial court allowed
pretrial counsel to withdraw from representing the Defendant on July 20, 2021, given that
there had been “an irreparable breakdown in communication” between them. In pretrial
counsel’s motion to withdraw, counsel noted that he and the Defendant, “[r]ecently, . . .
had disagreements about the importance of some types of evidence involved in [the]
Defendant’s case.” A new attorney was appointed to represent the Defendant (“trial
counsel”).

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At the start of trial, the Defendant, through trial counsel in open court, filed a motion
to dismiss the indictment against him because the State had either lost or destroyed the
recording of the Defendant’s 911 call. In the motion, relying on State v. Ferguson, 2
S.W.3d 912 (Tenn. 1999), the Defendant argued, “The [Defendant’s] 911 call recording
and CAD report4 constitutes exculpatory evidence created by the State and lost by the State.
Its exculpatory nature exists in both the fact that [the D]efendant was the first reporter of
the incident as well as the content of the recording itself.” Trial counsel noted the trial
court’s practice of waiting until the close of the State’s proof to address a Ferguson motion.
When the trial court asked if it should “assume” the motion sought a Ferguson instruction,
trial counsel responded that the motion was titled as one seeking dismissal of the
indictment, but he indicated that a jury instruction was a suitable alternative if dismissal
were not granted. The trial court stated that it would take the matter under advisement until
after the presentation of proof.

During trial, Jean Rogers-Bartley testified that she worked for the Hamilton County
911 Call Center and that it was her job to handle “records request[s].” Ms. Rogers-Bartley
authenticated Ms. Pearson’s 911 call, which was answered by the 911 call center forty-nine
seconds after 7:29 p.m. The recording was played for the jury, and both the recording and
CAD report for that call were admitted into evidence. Ms. Rogers-Bartley testified that the
Defendant had also called 911 that evening seventeen seconds after 7:28 p.m., but that she
was unable to recover the recording of that call, though she did locate a copy of the CAD
report for that call. Ms. Rogers-Bartely confirmed that the Defendant’s call was first in
time. According to Ms. Rogers-Bartley, a CAD report reflects “the notes that the call taker
takes during the phone call” and that “[t]he purpose of the CAD report is to assist in getting
emergency personnel to the scene and giving them vital information[.]” She agreed that
the CAD was “a summary of the phone call[,]” that it would not necessarily “include all
the details about what happened or what everybody sa[id],” and that, generally speaking,
“the better evidence would be the 911 call itself[.]”

Ms. Rogers-Bartley was asked to explain why there was no longer a recording of
the Defendant’s call from the evening of April 2, 2018. She indicated that, because there
were two separate calls initially associated with different addresses, one from Ms. Pearson
and one from the Defendant, two separate operators took them and created separate CAD
reports with different complaint numbers. According to Ms. Rogers-Bartley, “[n]ormally
those would be combined into one, so all the phone calls, all the information would be on
the same CAD [report], but for some reason, . . . that didn’t happen” in this instance. On
April 10, 2018, Investigator Walker requested in writing a copy of all 911 calls in relation
to this incident using a specific complaint number; however, because the Defendant’s call
4
“CAD” report is short for computer-assisted dispatch report.

- 13 -
was never connected to that complaint number, it was not sent. In accordance with the call
center’s policy, a recording of the Defendant’s call, which was under a separate complaint
number, was preserved for three years, but when it had not been requested after that length
of time, it was “automatically erased.” Ms. Rogers-Bartley opined that it was simply “a
mess-up that resulted in the destruction” of that recording.

Investigator Walker also testified that he asked the 911 call center “for any and all
911 calls and CAD information pertaining to this case” and that he only received the
recording and CAD related to Ms. Pearson’s phone call. He explained that at that time,
“there was a little confusion on how many people had called in at that point, but [he] figured
once [he] received that from [the] 911 center, that that’s all that existed for this case.”

The CAD report of the Defendant’s 911 call was admitted into evidence. The CAD
report indicates that the Defendant told the 911 operator that he had shot the victim in the
head with a “.410 rat gun,” that he thought the victim was dead, that he would lay the gun
down and step outside to wait for police, and that he would be wearing a blue pullover
shirt. It appears that the call lasted seven minutes and thirty-four seconds and was “closed”
fifty-one seconds after 7:35 p.m.

Following the conclusion of the State’s case-in-chief, the trial court revisited the
Ferguson matter. After trial counsel argued the merits of the motion and requested
dismissal of the indictment, the trial court asked the attorneys whether there was a
“secondary remedy” available to the court short of dismissal. The prosecutor replied that
“the motion should be denied outright.” The prosecutor noted that the State had done
everything possible to secure the evidence and that the evidence was in possession of “a
third party,” but the trial court disagreed. The trial court determined that the State had a
duty to preserve the recording and was responsible for its destruction, reasoning that the
911 call center was a law enforcement agency, and therefore an arm of the State. The trial
court also discussed the significance of the CAD report and ultimately determined that it
did not qualify as comparable evidence to replace the recording of the actual 911 call.

The trial court then reviewed with the parties the pattern jury instruction for
Ferguson error before turning to address the Ferguson factors. The trial court noted that
the State’s negligence in this case was less egregious than certain other situations because
here the State had recorded the call and “there were efforts to record in an incident detail
report,” as well as efforts by the prosecution to obtain the recording that had been
incorrectly registered under a different incident number and later destroyed due to the call
center’s three-year retention policy. The trial court then mentioned the existence of the
CAD report and the report’s usefulness, noting that the information contained about the

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Defendant’s statements in the CAD report was consistent with other evidence of statements
the Defendant had made “at other times to other people[,]” specifically noting the officers’
body camera footage on the scene and the Defendant’s statements to law enforcement.
However, it also stated that the Defendant’s “exact words would be more valuable evidence
to one side or the other” and determined that any direct statement from the Defendant
“could possess exculpatory value.”

Ultimately, the trial court ruled that it would give the Ferguson pattern instruction,
stating, “And this instruction, I think is basically a compromise to prevent the dismissal of
the case, and I think that’s appropriate here.” It reasoned that in order for the Defendant to
“get a fair consideration of the problem,” an instruction was the appropriate remedy,
emphasizing that dismissal was “unreasonable where there [was] at least a summary of
what [the Defendant] said.” It asked trial counsel if he was satisfied with the pattern
instruction, and trial counsel responded affirmatively.

After the conclusion of all proof, the prosecutor revisited the matter, arguing that
there had been no Ferguson error and that no instruction was warranted. The prosecutor
cited State v. Sims, No. M2004-02491-CCA-R3-CD, 2005 WL 3132441, at *8 (Tenn.
Crim. App. Nov. 22, 2005),5 for the proposition that the Defendant had failed to show that
the 911 recording would have been expected to play a significant role in his defense at the
time it was destroyed and that the CAD report was indeed comparable evidence the
Defendant could have obtained through reasonably available means. The prosecutor noted
that the Defendant had now testified regarding the contents of the 911 phone call and that
there was “nothing exculpatory about it from what he testified to” because he did not
reference any “self-defense type statement” made during the call. Trial counsel asserted
that, due to the passage of time, the Defendant might not have remembered the exact
contents of the call and that statements made by the Defendant immediately following the
shooting were “critical” to the defense and there was “a high degree of likelihood” that the
recording included a statement of self-defense. Trial counsel noted Ms. Rogers-Bartley’s
testimony that the purpose of CAD reports “was to present the basic facts that allow first
responders to respond [in] the most appropriate way” and was “not necessarily there to
document defenses.” The prosecutor replied that the jury had been presented with a
recording of Ms. Pearson’s 911 call and the associated CAD report, and the jury would be
able to compare the contents of the two for how reflective the CAD report was of the exact
substance of her 911 call.

5
While the prosecutor referenced that he was relying on an additional case, only the Sims case is
apparent from the record.

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The trial court agreed with trial counsel, stating that, hypothetically, “there could
have been” such a statement of self-defense on the recording and that “[w]e don’t know,
because we don’t have it.” The trial court explained that “because what he said here in
court seems to be unremarkable doesn’t mean necessarily that what he would have said on
the phone call would be unremarkable.” The trial court stated that “the State has a duty to
gather, preserve and produce at trial evidence that may contain exculpatory value, and it
might have[,]” but the recording “[m]ight have also been inculpatory.” It declined to
change its ruling that a curative Ferguson instruction was warranted under the facts of this
case.

2. Relevant Law

The Due Process Clause of the Fourteenth Amendment to the United States
Constitution and article I, section 8 of the Tennessee Constitution afford every criminal
defendant the right to a fair trial. U.S. Const. amend. XIV, § 1; Tenn. Const. art. I, § 8; see
State v. Rimmer, 623 S.W.3d 235, 256 (Tenn. 2021). The Fourteenth Amendment of the
United States Constitution prohibits state governments from depriving any person “of life,
liberty, or property, without due process of law[.]” U.S. Const. amend. XIV, § 1. Similarly,
article 1, section 8 of the Tennessee Constitution provides, “[N]o man shall be taken or
imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or
in any manner destroyed or deprived of his life, liberty or property, but by the judgment of
his peers or the law of the land.” As a result of these due process protections, the
prosecution has a duty to furnish a defendant with exculpatory evidence that raises a
reasonable doubt as to the defendant’s guilt, United States v. Agurs, 427 U.S. 97, 98 (1976),
or, upon request, provide evidence “material either to guilt or to punishment,” Brady v.
Maryland, 373 U.S. 83, 87 (1963).

In State v. Ferguson, our supreme court explained that the loss or destruction of
potentially exculpatory evidence may violate a defendant’s right to a fair trial. 2 S.W.3d
912, 915-17 (Tenn. 1999). The Ferguson court rejected the federal “bad faith” analysis
espoused in Arizona v. Youngblood, 488 U.S. 51 (1988), in favor of “a balancing approach
in which bad faith is but one of the factors to be considered in determining whether the lost
or destroyed evidence will deprive a defendant of a fundamentally fair trial.” State v.
Merriman, 410 S.W.3d 779, 785 (Tenn. 2013) (citing Ferguson, 2 S.W.3d at 916-17 n.10).

The first step in a Ferguson analysis is to determine whether the State had a duty to
preserve the evidence in question. Ferguson, 2 S.W.3d at 917. The State’s duty to preserve
evidence is limited to constitutionally material evidence described as “evidence that might
be expected to play a significant role in the suspect’s defense.” Id. (quoting California v.

- 16 -
Trombetta, 467 U.S. 479, 488 (1984)); see Merriman, 410 S.W.3d at 785. To be
“constitutionally material,” the evidence “must potentially possess exculpatory value and
be of such a nature that the defendant would be unable to obtain comparable evidence by
other reasonably available means.” Merriman, 410 S.W.3d at 785 (citing Ferguson, 2
S.W.3d at 915, 918) (footnote omitted).

If the trial court concludes that the State lost or destroyed evidence that it had a duty
to preserve, the trial court must then consider three factors to determine the appropriate
remedy for the State’s failure: (1) the degree of negligence involved; (2) the significance
of the destroyed evidence, considered in light of the probative value and reliability of
secondary or substitute evidence that remains available; and (3) the sufficiency of the other
evidence used at trial to support the conviction. Ferguson, 2 S.W.3d at 917; Merriman,
410 S.W.3d at 785. If the trial court concludes, after balancing these factors, “that a trial
would be fundamentally unfair without the missing evidence, the trial court may then
impose an appropriate remedy to protect the defendant’s right to a fair trial, including, but
not limited to, dismissing the charges or providing a jury instruction.” Merriman, 410
S.W.3d at 785-86 (citing Ferguson, 2 S.W.3d at 917).

A trial court’s decision concerning the fundamental fairness of a trial conducted
without the missing evidence presents a constitutional issue that is reviewed de novo.
Merriman, 410 S.W.3d at 790. If, following a de novo review, an appellate court concludes
that “the trial would be fundamentally unfair in the absence of the lost evidence,” the
appellate court “will apply an abuse of discretion standard to review the appropriateness of
the remedy imposed by the trial court.” Id. “Thus, when the chosen remedy is consistent
with the findings made by the trial court utilizing the Ferguson considerations, we will not
overrule that choice on appeal.” Id. at 792.

3. Application

a. Duty to Preserve

Turning to our de novo review of the first step in a Ferguson analysis, i.e., whether
the State had a duty to preserve the evidence and failed to do so, the Defendant argues that
the trial court correctly ruled that the State had such a duty and failed in that duty. The
State concedes the issue on appeal. Here, the trial court, in reaching its conclusion on this
point, reasoned that the 911 recording had potentially exculpatory value because the
Defendant’s own statements immediately after the shooting might have provided
“valuable” corroborative evidence of his mental state and self-defense claim. Despite the
trial court’s ruling and the State’s concession, we are not so convinced.

- 17 -
In this case, the recording of the 911 call was directly related to the criminal
prosecution of the Defendant for the shooting of the victim. Generally speaking, the State
has a duty to preserve all evidence subject to discovery and inspection under Tennessee
Rule of Criminal Procedure 16(a)(1), or other applicable law. Ferguson, 2 S.W.3d at 917.
Prior to trial, a criminal defendant may be able to inspect and copy 911 recordings,
assuming such recordings meet the requirements of Tennessee Rule of Criminal Procedure
16. See generally Tennessean v. Metro. Gov’t of Nashville, 485 S.W.3d 857, 872-73 (Tenn.
2016) (“Rule 16 deals specifically with the discovery and disclosure of criminal
investigative materials during a pending criminal proceeding[.]”); State v. Vanderford, 980
S.W.2d 390, 398 (Tenn. Crim. App. 1997) (stating that the phrase “recorded statements”
under Rule 16(a)(1) broadly encompasses audio recordings of the defendant’s statements
made during investigations that are relevant to the crimes charged in the indictment); State
v. Carter, No. W2001-02329-CCA-R3-CD, 2003 WL 402786, at *7 (Tenn. Crim. App.
Feb. 20, 2003) (noting that disclosure of a defendant’s oral statement under Rule 16 is not
dependent on whether it was made to law enforcement).

Without further argument or citation to authority, the parties assume that the
Hamilton County Emergency Communications District (“ECD”), which operates the 911
call center, is an arm of the State for Ferguson purposes. From our perspective, that
conclusion is not obvious from the statutes governing ECDs. For example, upon its
creation, an ECD becomes a separate municipal or public corporation. See Tenn. Code
Ann. § 7-86-106. It exists to receive emergency calls and to dispatch emergency services,
and it has no authority to investigate or prosecute crimes. See id.; Hamilton Cnty.
Emergency Commc’ns Dist. v. BellSouth Telecommunications LLC, 852 F.3d 521, 525 (6th
Cir. 2017) (“The 911 Law created municipal corporations for each county, i.e., Emergency
Communications Districts (‘Districts’), to run the 911 programs, specifically including the
call centers that receive and route the 911 emergency calls to the proper emergency
service.”). An ECD is governed by a board of directors, and its actions are not directed or
governed by the district attorney general or any other law enforcement agency. See Tenn.
Code Ann. § 7-86-105.

We agree that, under Ferguson, the prosecution team has a duty to preserve a 911
call in its possession if the call contained potentially exculpatory evidence. However, we
leave for another day the question of whether an ECD itself has any independent
constitutional duty to preserve records for the accused without a showing that the ECD is
involved in the investigation or prosecution of the crime at issue. Cf. United States v. Gray,
648 F.3d 562, 566 (7th Cir. 2011) (noting that the Brady obligation has been expanded
beyond the prosecutor’s office “to take in investigators and other members of the

- 18 -
‘prosecutorial team’ broadly understood”) (citations omitted); United States v. Hall, 434
F.3d 42, 55 (1st Cir. 2006) (the Brady obligation “does not extend to information possessed
by government agents not working with the prosecution”) (citation omitted); United States
v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998) (“[K]nowledge on the part of persons
employed by a different office of the government does not in all instances warrant the
imputation of knowledge to the prosecutor, for the imposition of an unlimited duty on a
prosecutor to inquire of other offices not working with the prosecutor’s office on the case
in question would inappropriately require us to adopt ‘a monolithic view of government’
that would ‘condemn the prosecution of criminal cases to a state of paralysis.’”) (quoting
United States v. Gambino, 835 F. Supp. 74, 95 (E.D.N.Y. 1993)). For purposes of our
analysis here, we assume without deciding that Ferguson could apply in this circumstance.
We therefore move to address the other factors in the analysis as part of our de novo review.

i. Materially Exculpatory Value

The materiality standard requires the 911 recording in question to play a significant
role in the Defendant’s defense because it possesses potentially exculpatory value.
Ferguson, 2 S.W.3d at 917; Merriman, 410 S.W.3d at 785. The Defendant asserts that the
recording of his 911 call might have corroborated his version of events and buttressed his
claim of self-defense because his statements to the 911 operator were made directly after
and under the continuing excitement of the incident. Certainly, if the Defendant’s
statements made during the 911 call reflected that he acted in self-defense to some extent
in shooting the victim, such evidence would have been contrary to Ms. Pearson’s
statements in her 911 call and her trial testimony, which would have strengthened the
Defendant’s self-defense claim because the jury might have afforded his version of events
more weight.

The Defendant argues that the recording of his 911 call “immediately after the
shooting was of critical significance for the jury to properly evaluate his credibility.”
However, the simple fact that the Defendant placed a call to 911 immediately following
the shooting does not establish that the recording was expected to play a significant role in
his defense for the purposes of Ferguson. At the motion for new trial hearing, trial counsel
noted that the Defendant “could not fully establish [at trial] the corroborative fact that he
had told the dispatcher that he had acted in self-defense and that he felt threatened.” Trial
counsel asserted that the Defendant’s due process rights were violated because the 911
recording, which might have contained such a statement by the Defendant reflecting that
he acted in self-defense, was not available to the defense due to its destruction. However,
all of this speaks purely in the realm of hypotheticals and speculation.

- 19 -
At no point during these proceedings was the Defendant asked about the contents
of the statements he made to the 911 operator. As the maker of those statements, the
Defendant was certainly in the best position to establish the circumstances surrounding the
911 call and the potential contents of any statements made therein. Without more, the
Defendant cannot benefit from Ferguson because the mere possibility of exculpatory
content does not trigger a finding that the State failed in its general duty to preserve
evidence. See State v. Coulter, 67 S.W.3d 3, 54-55 (Tenn. Crim. App. 2001) (determining
that the State had no duty to preserve the missing evidence because drawing a conclusion
that it had any exculpatory value would be “an exercise in pure speculation”), abrogated
on other grounds by State v. Jackson, 173 S.W.3d 401, 407 n.3 (Tenn. 2005). Indeed, even
the Defendant is forced to speculate that the recording would have been helpful to him at
trial given that the contents of the recording are merely conjectural, and without the
recording, it is uncertain whether any statements contained therein may or may not have
been beneficial to his defense. See State v. Waggoner, No. E2018-01065-CCA-R3-CD,
2019 WL 4635589, at *23 (Tenn. Crim. App. Sept. 24, 2019) (holding that the defendant’s
statements during the 911 call did not meet the requirements of the excited utterance
exception to the hearsay rule because, while the defendant called 911 shortly after the
shooting, he did not sound emotional, distraught, or excited and his statements appeared to
be self-serving in nature); State v. Hutchison, No. E2012-02671-CCA-R3-CD, 2014 WL
1423240, at *25-26 (Tenn. Crim. App. Apr. 11, 2014) (rejecting the defendant’s argument
pursuant to Ferguson that the destruction of the 911 recording rendered it plain error for
the trial court to admit the 911 log, which did not contain a purported statement from the
defendant “that he did not commit the murder by himself,” because evidence of the
statement was presented to the jury through testimony, and there was only speculation that
the defendant’s statement was in fact recorded on the 911 call), aff’d, 482 S.W.3d 893
(Tenn. 2016).

Because there is no suggestion in the record that the recording contained any
information that might be expected to play a significant role in the Defendant’s defense,
the Defendant cannot satisfy the threshold showing required by Ferguson that the recording
was constitutionally material. Accordingly, we disagree with the trial court that the
recording of the Defendant’s 911 phone call might have had potential exculpatory value as
required by Ferguson. See Sims, 2005 WL 3132441, at *8-9 (holding, under a Ferguson
analysis, that a recording of the victim’s 911 call would not have been of material assistance
to the defendant “unless the victim had described her assailants as being of some
complexion other than [B]lack” and, thus, no duty to preserve the recording arose under
Ferguson); see also State v. Rimmel, No. M2022-00794-CCA-R3-CD, 2023 WL 3861429,
at *11 (Tenn. Crim. App. June 7, 2023) (concluding that the State was not under a
constitutional obligation to maintain the dash cam video because the defendant’s demeanor

- 20 -
after the arrival of law enforcement was not so significant or material to the issues), rev’d
on other grounds, --- S.W.3d ---, No. M2022-00794-SC-R11-CD, 2025 WL 717397, at *4
(Tenn. Mar. 6, 2025).

ii. Reasonably Available Means

Additionally, under Ferguson, before the State has a duty to preserve evidence, it
must also be determined that the Defendant was unable to obtain comparable evidence by
other reasonably available means. Merriman, 410 S.W.3d at 785. The State is not required
to obtain evidence that the Defendant can obtain on his own. State v. Leath, 461 S.W.3d
73, 113 (Tenn. Crim. App. 2013). The government is not obliged “to provide the
defendant[ ] with evidence that [he] could obtain from other sources by exercising
reasonable diligence[,]” and the defendant “must bear the responsibility of [his] failure to
diligently seek its discovery.” United States v. McKenzie, 768 F.2d 602, 608 (5th Cir.
1985). Accordingly, this court has held that “Ferguson does not discharge a defendant’s
obligation to conduct expedient investigations and to secure relevant, material evidence
whenever possible.” State v. Freeman, No. E2014-02054-CCA-R3-CD, 2016 WL 912160,
at *14 (Tenn. Crim. App. Mar. 10, 2016).

Turning to the facts and circumstances of this case, the Defendant, for the first
several years his case was pending, was represented by the public defender’s office, which
included an experienced assistant public defender and an investigator. It appears that the
State complied with the Defendant’s initial discovery demand and that the defense was in
possession of most of the discovery materials by October 18, 2018. On that date, pretrial
counsel indicated that the defense was only awaiting a possible ballistics test of the firearm
and possibly pursuing certain avenues related to the eyewitness’s testimony before being
ready for trial. After the State’s motions for reciprocal discovery and to add additional
witnesses to the indictment were granted, pretrial counsel indicated that the defense was
ready to proceed to trial, and the Defendant’s case was set for trial in May 2020. Though
the Defendant’s trial was postponed due to the COVID-19 pandemic, the Defendant had
not expressed any dissatisfaction with pretrial counsel or the investigation at that time.

Following postponement of his trial, the Defendant began to express concerns with
pretrial counsel’s representation. At these proceedings, the Defendant only referenced
issues with obtaining a copy of his “paperwork,” and he never made any specific reference
to the lack of the 911 recording or even remotely alluded to its absence when speaking
directly with the trial court. The trial court inquired for more details, but the Defendant
only indicated that he had not received transcripts from prior proceedings. Pretrial counsel
stated that he had reviewed the discovery materials at length with the Defendant, though

- 21 -
he had not given the Defendant a complete physical copy so as to keep the materials from
lying “around the jail.” However, the Defendant was subsequently provided with the
“written aspects” of the discovery materials at his request. According to pretrial counsel,
none of the provided information was new to the Defendant, and pretrial counsel disagreed
with the Defendant’s opinion that certain evidence was particularly important or that any
loose ends remained in the investigation and preparation of his case. From this, we can
only assume that the Defendant either made no effort to inform pretrial counsel of the
recording’s existence or the defense abandoned pursuit of the recording for some reason.

Relative to the prosecution’s attempts to secure the recording, we note that shortly
after the shooting, Investigator Walker, on April 10, 2018, requested in writing any
recordings of 911 calls related to this incident using a certain incident number, and he
received a copy of Ms. Pearson’s call and the associated CAD report in response.
According to Ms. Rogers-Bartley, a recording of the Defendant’s call was not included at
that time because of an error by the call center in associating the Defendant’s call with the
correct incident number. There was no indication that Investigator Walker was aware of
another incident number, particularly given that the call center’s policy was to associate all
calls under a single incident number. He testified that, while there was some initial
confusion regarding the number of 911 calls, when he received only one recording from
the 911 call center, he believed this settled the matter. Furthermore, it appears from Ms.
Rogers-Bartley’s testimony that once a specific request for a recording of the Defendant’s
call was made, the Hamilton County 911 Call Center had no difficulty in locating a record
of the call and was able to produce the CAD report. Again, assuming without deciding that
the Hamilton County 911 Call Center had an independent constitutional duty to preserve
the recording, the destruction of the recording pursuant to the three-year retention policy
was, at most, the result of simple negligence. See, e.g., State v. Caldwell, No. M2023-
00343-CCA-R3-CD, 2024 WL 3495753, at *9 (Tenn. Crim. App. July 22, 2024)
(concluding that the State’s failure to preserve the officer’s dash camera video was the
result of simple negligence when the officer marked the recording to ensure that the
computer system would save and maintain the video, but it was later destroyed, and the
employee in charge of record-keeping had “no idea why it wasn’t preserved”), no perm.
app. filed; State v. Swift, No. W2013-00842-CCA-R3-CD, 2015 WL 2128782, at *12
(Tenn. Crim. App. May 5, 2015) (denying relief because, among other things, the loss of
the digitized portion of the eyewitness’s statement was due to simple negligence when the
officer uploaded the digital recording to her computer, but the digitized portion was lost
after the recording “went into a file so that the transcriptionist could listen to and transcribe
it”); State v. Robinson, No. E2004-02191-CCA-R3-CD, 2005 WL 2276421, at *4-5 (Tenn.
Crim. App. Sept. 19, 2005) (holding that, although the surveillance videotape of the police
department’s booking area was erased intentionally pursuant to police policy, the act still

- 22 -
constituted simple negligence for Ferguson purposes because there was no intent to destroy
evidence).

However, under the unique facts and circumstances of this case, the Defendant, as
the caller, knew of the call’s existence and could have obtained the evidence through the
exercise of due diligence. See Rector v. Johnson, 120 F.3d 551, 558-59 (5th Cir. 1997)
(observing that Brady does not require the disclosure of potentially exculpatory evidence
“when that evidence is either in the possession of the defendant or can be discovered by
exercising due diligence”); see also Freeman, 2016 WL 912160, at *14 (citing McKenzie,
768 F.2d at 608 (noting that “Brady does not oblige the government to provide the
defendant[ ] with evidence that [he] could obtain from other sources by exercising
reasonable diligence” and that the defendant “must bear the responsibility of his failure to
seek its discovery”)). The Defendant, through his attorney, should have been aware that
the recording of his 911 call was not produced by the State during the discovery process.
Despite this apparent knowledge, the Defendant waited over three years before either
informing anyone of the recording’s existence or requesting a copy of it, which by that
time had been destroyed due to the Hamilton County 911 Call Center’s three-year retention
policy. “When the defense has access to 911 recordings with the exercise of reasonable
due diligence, there is no suppression of the evidence by the State.” State v. Moss, No.
W2016-01973-CCA-R3-CD, 2018 WL 324350, at *6 (Tenn. Crim. App. Jan. 5, 2018) (first
citing People v. Gonzalez, No. 1-13-1626, 2016 WL 2855385, at *12-14 (Ill. App. Ct. May
13, 2016); and then citing Burkett v. Quarterman, No. H-07-1782, 2008 WL 219511, at *3
(S.D. Tex. Jan. 24, 2008)) (though waiving the issue for the failure to present adequate
record on appeal, nonetheless, agreeing with the trial court’s extensive reasoning denying
the Brady issue “to the extent that the [d]efendant relie[d] on the portion of the [911 call]
transcript that the trial court reference[d] in its order”).

“We find it dubious that the Defendant should fault the State for failing to preserve
evidence which he himself also failed to safeguard.” Freeman, 2016 WL 912160, at *14
(concluding that the State did not violate Ferguson by inadvertently destroying the contents
of the victim’s cell phone when there was “nothing in the record affirmatively establishing
that the [victim’s] telephone records were unobtainable” from her cell phone provider at
the time requested by the defense; there was “nothing in the record regarding the
[d]efendant’s cell phone provider” or any documentation reflecting an “attempt to obtain
the relevant records from that provider”; and the defendant “waited a full year before filing
the motion to dismiss based on the alleged Ferguson violation”). Again, “[t]he prosecution
is not required to disclose information that the accused already possesses or is able to
obtain.” State v. Stanley, No. M2016-02546-CCA-R3-CD, 2018 WL 1391628, at *10
(Tenn. Crim. App. Mar. 20, 2018) (quoting State v. Marshall, 845 S.W.2d 228, 233 (Tenn.

- 23 -
Crim. App. 1992)) (noting this principle when the defendant issued a subpoena for the 911
calls, “which, in retrospect, was inartfully worded in that it did not include all relevant
dates,” and, therefore, the defendant did not receive all of the 911 calls until the weekend
before trial). While the recording was ultimately destroyed due to the simple negligence
of a state actor, the destruction would not have occurred had the Defendant exercised a
modicum of diligence at any point during the three-year retention period. We conclude
that the Defendant was less than diligent in attempting to procure the desired evidence, and
emphasize that he, as the caller, was fully aware of the evidence’s existence. Accordingly,
even if the ECD had an independent constitutional duty to preserve the recording, the
Defendant had access to the recording through reasonably available means. Thus,
Ferguson is not implicated. Freeman, 2016 WL 912160, at *14; see State v. Ferrell, No.
M2015-01011-CCA-R3-CD, 2016 WL 6819784, at *14-16 (Tenn. Crim. App. Nov. 18,
2016) (reaching the same conclusion as the court in Freeman that no Ferguson violation
occurred regarding the production of the victim’s cell phone data).

b. Choice of Ferguson Remedy

Despite our conclusion that there was no Ferguson error in this case, the Defendant
nonetheless received the benefit of the trial court’s Ferguson instruction. In formulating a
remedy for the alleged error below, the trial court determined that the Defendant’s rights
were best protected by a jury instruction and that dismissal of the case was unreasonable.
The instruction, issued in the final jury instructions, informed the jury of the State’s duty
to gather, preserve, and produce evidence and that if the jury found that the State had failed
to fulfill its duty relative to evidence which more probably than not would benefit the
Defendant, it could infer that the absent evidence was favorable to the Defendant. See 7
Tenn. Prac. Pattern Jury Instr. T.P.I.—CRIMINAL 42.23 “Duty to preserve evidence”
(28th ed. 2024).

The trial court is in the best position to fashion a remedy for a Ferguson error, and
as noted above, this court reviews the trial court’s remedy for a Ferguson violation under
the abuse of discretion standard. Merriman, 410 S.W.3d at 790. Dismissal of charges is
reserved for the most egregious of situations, particularly those involving gross negligence
or intentional acts, or when the evidentiary value of the lost evidence is more significant.
Id. at 796; see also Demling v. State, No. M2019-01822-CCA-R3-PC, 2021 WL 3399862,
at *11 (Tenn. Crim. App. Aug. 4, 2021) (affirming the post-conviction court’s
determination that the State’s “failure to retrieve footage that ‘rolled-off’ the server” after
three years did not require dismissal of the charges because such a remedy was reserved
for the most egregious of situations, particularly those involving gross negligence or
intentional acts, which was not present).

- 24 -
Analyzing the Ferguson factors, we note that the Defendant’s call was recorded but
that, due to the passage of time, it had been destroyed pursuant to the 911 call center’s
three-year retention policy. The Defendant waited more than three years before alerting
the State to its absence from the discovery materials. Ms. Rogers-Bartley testified that
normally all the calls from a single incident are subsequently associated with a single
incident number, but in this case, the Defendant’s call was not associated with the correct
incident number because of a simple “mess-up.” Due to this error, the 911 call center never
identified the Defendant’s 911 call as associated with Investigator Walker’s request for the
recordings, and neither Investigator Walker nor the prosecution ever received a copy of the
recording. Nothing in the record suggests that the State purposefully or intentionally failed
to produce the 911 call.

Moreover, reliable substitute evidence, which was admitted into evidence, existed
to support the Defendant’s claim of self-defense—the CAD report provided a summary of
the call and some information regarding the substance of the call; the officers’ body camera
footage and Officer Cavanaugh’s patrol car video reflected the Defendant’s demeanor
immediately following the shooting and that the Defendant made similar statements on the
scene as those summarized by the 911 operator in the CAD report; and the Defendant’s
statement to law enforcement made shortly after the shooting wherein the Defendant made
claims of self-defense.

Finally, Ms. Forte testified that the Defendant never mentioned any suspicions of
the victim’s stealing from the business and that the shotgun the Defendant used was usually
kept at the house. Ms. Pearson stated that she never saw the victim reaching for anything
prior to the Defendant shooting. The proof showed that there were no guns found on the
victim inside the business nor in his car at the time he was shot. All of this evidence was
significantly probative for a reasonable juror to reject the Defendant’s assertion of
self-defense. Also, we note that the missing recording was of a post-shooting 911 call,
rather than of something as substantive as a recording of the shooting itself. The trial court
did not abuse its discretion by determining that dismissal was not required.

A Ferguson remedy has also been applied in a limited manner as the basis to order
the suppression of evidence. The Defendant, relying on State v. Clark, No. E2009-01795-
CCA-R3-CD, 2011 WL 13165164 (Tenn. Crim. App. Oct. 24, 2011), argues that if this
court determines that dismissal is not required, it should, nonetheless, “conclude that the
violation of [the Defendant’s] due process rights calls for a more significant remedy than
a jury instruction.” In Clark, the defendant was charged with vandalism and reckless
endangerment for allegedly firing shots at a traffic light camera because he believed he

- 25 -
would receive a traffic ticket. Id. at *1-5. The damaged camera and camera housing were
not provided as part of discovery. Id. at *5, 12. On appeal, this court concluded that the
appropriate Ferguson remedy was to suppress the photographic evidence of the camera
housing since the evidence could not be tested. Id. at *14-15.

The Defendant argues that Clark is instructive in the instant case. He asks this court
to “remand for a new trial in which the State is not permitted to introduce more favorable
evidence related to [the Defendant’s] 911 call that suggests he did not make any statements
beneficial to his claim of self-defense.” Specifically, he seeks suppression of “the CAD
report for [the Defendant’s] call, the recording of Ms. Pearson’s 911 call, and Ms.
Pearson’s testimony about what [the Defendant] said or did not say during the call.”
However, the Defendant made no similar argument in the trial court. “[A]n appellate
court’s jurisdiction is ‘appellate only.’” State v. Bristol, 654 S.W.3d 917, 925 (Tenn. 2022)
(first quoting Tenn. Const. art. VI, § 2; and then quoting Tenn. Code Ann. § 16-5-108(a)).
Appellate review generally only “extends to those issues that ‘ha[ve] been formulated and
passed upon in some inferior tribunal.’” Id. (quoting Fine v. Lawless, 205 S.W. 124, 124
(1918)). Thus, in the typical scenario, questions not raised in the trial court will be treated
as waived on appeal. Id.

At all times in the trial court, the Defendant here requested dismissal of the
indictment; otherwise, he either indicated or acquiesced that a jury instruction was an
appropriate secondary remedy. “[A] party is bound by the ground[s] asserted when making
an objection. The party cannot assert a new or different theory to support the objection in
the motion for a new trial or in the appellate court.” State v. Adkisson, 899 S.W.2d 626,
634-35 (Tenn. Crim. App. 1994). Stated another way, a party is bound by the evidentiary
theory argued to the trial court and may not change or add theories on appeal. State v.
Alder, 71 S.W.3d 299, 303 (Tenn. Crim. App. 2001). We conclude that the Defendant has
waived appellate review of this claim by changing theories on appeal and raising points
that were not addressed in the trial court. Cf. Clark, 2011 WL 13165164, at *5 (noting that
the defendant, therein, specifically argued below to dismiss the indictment or, in the
alternative, to suppress the evidence based on the State’s failure to timely and completely
file discovery materials); Cornwell v. State, No. E2016-00236-CCA-R3-PC, 2017 WL
5957667, at *7, *21 (Tenn. Crim. App. Dec. 1, 2017) (denying an ineffectiveness claim
based upon lead counsel’s failure to seek additional remedies for the alleged Ferguson
violation besides dismissal of the indictment, “such as a limiting jury instruction or
suppression of any evidence regarding the ‘dirt rub’ on the front of the vehicle”).

For these reasons, were we to determine that the first step of Ferguson had been
satisfied, we would agree with the State that the trial court correctly concluded that a

- 26 -
curative jury instruction regarding missing or lost evidence was sufficient to protect the
Defendant’s right to a fundamentally fair trial. See State v. Bowen, No. E2022-00691-
CCA-R3-CD, 2023 WL 2945045, at *6-8 (Tenn. Crim. App. Apr. 14, 2023) (determining
that a missing body camera recording of field sobriety tests was potentially exculpatory,
but the curative Ferguson jury instruction was sufficient to assure a fundamentally fair
trial); State v. McDaniel, No. E2021-00565-CCA-R3-CD, 2022 WL 17333095, at *25-27
(Tenn. Crim. App. Nov. 30, 2022) (holding that the State had a duty to preserve the missing
evidence that was related to the defendant’s statement about the offenses and the
circumstances in which the intellectually disabled defendant gave the statement, but the
curative Ferguson jury instruction was sufficient to assure a fundamentally fair trial);
Hutchison, 2014 WL 1423240, at *25-26 (finding no plain error in admission of a 911 call
log without a corresponding recording of the 911 call). Nothing in the record indicates the
trial court applied an incorrect legal standard or reached a decision against logic or
reasoning in its choice of remedy for the Ferguson error. Accordingly, the trial court did
not abuse its discretion in declining to dismiss the indictment. The Defendant is not entitled
to relief on this issue.

B. Defendant’s Prior Domestic Assault Conviction

The Defendant argues that the trial court erred by allowing the State to introduce
evidence of the Defendant’s 1996 conviction for domestic assault against his ex-wife, Ms.
Forte. He contends that, contrary to the trial court’s ruling, his testimony did not open the
door to such evidence. The Defendant also argues that the evidence was inadmissible under
either Tennessee Rule of Evidence 404(b) or 609. The Defendant concludes that the
erroneous admission of this conviction “more probably than not affected” the verdict. The
State responds that the trial court properly found that the Defendant had opened the door
and, alternatively, that any error was harmless.

1. Pertinent Facts

During the Defendant’s testimony, he informed the jury that he had previously
worked in the Chattanooga area as a bail bondsman for twenty-two years. The Defendant
described the violent nature of the business and confirmed that one has “to have a clean
criminal record to be a bondsman.” Additionally, the Defendant testified that he had
suspicions the victim was stealing from the business, which he shared with Ms. Forte. In
response, Ms. Forte pleaded, “Whatever you do, don’t send [the victim] back to prison.”
The Defendant indicated that he respected Ms. Forte’s view and characterized their
marriage as a “mutual relationship[,]” describing that it was not an “I’m the man, you do
what I say” kind of relationship. Later during his testimony, the Defendant was asked

- 27 -
about his repeated statements to law enforcement following the shooting to the effect of
his “[t]hrow[ing] away [forty-six] years,” and he clarified that he was referring to his
marriage and “the relationship with . . . [his] family.” He claimed they “had a good thing.”

On cross-examination, when the Defendant was asked to delineate the timeframe in
which he worked as a bail bondsman, the Defendant replied from 1978 to 1996. When the
Defendant confirmed that he left the bail bonds field in 1996, the prosecutor asked if the
reason for the Defendant’s leaving at that time was because he was convicted of assault in
1996, and the Defendant said that was not his reason for leaving. The prosecutor then
asked the Defendant if he was in fact convicted of assault in 1996, and trial counsel
objected on the basis of Rule 609. The prosecutor noted the Defendant’s testimony on
direct examination regarding the requirement of a clean criminal record to work as a bail
bondsman and argued that the Defendant had opened the door to such evidence. The trial
court overruled the defense’s objection, agreeing with the State’s opening-the-door
rationale.

After testimony resumed, the Defendant agreed that he was convicted of “a simple
assault” on November 18, 1996. When the prosecutor next inquired of the Defendant if
the assault victim was his ex-wife, Ms. Forte, trial counsel again objected arguing that the
door had not been opened regarding the underlying facts of the assault. The prosecutor
pointed out that the Defendant on direct examination had called his marriage “mutual” and
insinuated that “they didn’t have any problems, and so this is going to rebut that.” The
prosecutor indicated that the State had no intent to probe any further after establishing that
the victim was the Defendant’s ex-wife. The trial court again agreed with the State and
overruled the objection.

Testimony resumed, and the Defendant affirmed that the assault conviction involved
his ex-wife. Immediately after this acknowledgement, the trial court instructed the jury as
follows:

Members of the jury, if you find from the evidence in this case that
the defendant has committed other acts than those for which he is on trial,
you cannot consider that evidence as proof of his disposition to commit the
crime for which he is on trial. These are being offered for impeachment
related to his prior testimony. You’ll recall what his prior testimony was. So
these go to impeach statements that were made on his direct examination, but
not to show - - and you cannot use them to consider his propensity to commit
the crime that he’s charged with.

- 28 -
The State did not seek to enter a copy of the Defendant’s judgment of conviction into
evidence.

On redirect examination, the Defendant was asked about the 1996 conviction. He
confirmed that he received six months’ probation and paid a nominal fine. When asked if
that conviction occurred twenty-six years ago, he replied, “‘96, yeah, somewhere around
in there.” The Defendant testified that, other than that conviction, he had “never been in
trouble with the law[.]” Relative to how the jury was to consider this evidence, we note
that a similar charge as detailed above was also given in the final jury instructions. See 7
Tenn. Prac. Pattern Jury Instr. T.P.I.—CRIMINAL 42.10 “Evidence of Other Crimes”
(28th ed. 2024).

At the motion for new trial hearing, the Defendant noted that the State had never
provided notice of such conviction or facts surrounding it, despite an existing and
controlling order requiring disclosure of evidence covered by Tennessee Rule of Evidence
404(b), and that had it done so, the defense could have addressed the issue “in full.” The
Defendant also mentioned that no jury-out hearing was held in accordance with Rule
404(b) to determine if the prerequisites for introduction of the conviction were met.
According to the Defendant, the State did not establish an overlapping timeframe in 1996
between the Defendant’s employment as a bail bondsman and the prior domestic assault,
and the prior misdemeanor conviction had no bearing on his credibility. He asserted that
this error was compounded when the State was allowed to elicit information regarding the
facts and circumstances underlying the over twenty-year-old conviction, which were
“highly prejudicial insomuch as it involved family violence[.]”

The State acknowledged that “a domestic assault certainly . . . is not a crime of moral
turpitude” and that “it would not necessarily go to credibility[.]” However, the State
asserted that the Defendant opened the door to such evidence by statements he made on
direct examination that misled the jury and needed clarification. The State cited to State v.
Joslin, No. 03C01-9510-CR-00299, 1997 WL 583071, at *28 (Tenn. Crim. App. Sept. 22,
1997), for the proposition that pretrial notice was unnecessary because the Defendant
“made a sweeping claim of good conduct on direct examination[,]” which “open[ed] the
door to cross-examination without pretrial notice and with a lower standard of proof to
show relevance on the State.”

2. Relevant Law

Evidence that is not generally admissible may nevertheless be admitted if the
defendant “opens the door” by putting the issue into controversy. State v. Gomez, 367

- 29 -
S.W.3d 237, 246 (Tenn. 2012) (“Even if evidence is inadmissible, a party may ‘open the
door’ to admission of that evidence.”). A party commonly opens the door “by raising the
subject of that evidence at trial.” Id. Our supreme court has explained, “[w]hen a party
raises a subject at trial, the party ‘expand[s] the realm of relevance,’ and the opposing party
may be permitted to present evidence on that subject.” Id. (second alteration in original)
(quoting 21 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure
Evidence § 5039.1 (2d ed. 1987)). Rulings regarding the relevancy of evidence, which
includes the doctrine of opening the door, are “within the trial court’s discretion and will
not be reversed on appeal absent an abuse of that discretion.” State v. Erwin, No. E2021-
01232-CCA-R3-CD, 2022 WL 3355024, at *4 (Tenn. Crim. App. Aug. 15, 2022) (quoting
State v. Biggs, 218 S.W.3d 643, 667 (Tenn. Crim. App. 2006)); see also Gomez, 367
S.W.3d at 243.

Although raising a subject at trial is one manner of opening the door to otherwise
inadmissible evidence, the concept of “opening the door” is “notoriously imprecise.”
Gomez, 367 S.W.3d at 246 (quoting Wright & Miller, Federal Practice & Procedure
Evidence § 5039). In addition, while this doctrine arises from the common law tradition of
evidence, our Rules of Evidence provide “numerous examples by which otherwise
inadmissible evidence may become admissible as a result of the action of a party in the
case.” Id. As our supreme court has explained,

[I]f evidence of prior bad acts of a defendant is inadmissible, the defendant
may open the door to admission of that evidence by putting his character at
issue. Tenn. R. Evid. 404(a)(1), (2); see also Tenn. R. Evid. 405(a). A party
may also “open the door” to evidence of a witness’s truthful character by
attacking the reputation of a witness for truthfulness. Tenn. R. Evid. 608(a).
In short, “opening the door” is an equitable principle that permits a party to
respond to an act of another party by introducing otherwise inadmissible
evidence.

Id.

“[O]pening the door is a doctrine intended to serve fairness and truth-seeking.”
State v. Vance, 596 S.W.3d 229, 250 (Tenn. 2020) (citing Ramirez v. State, 739 So. 2d 568,
579 (Fla. 1999)). Accordingly, “the remedy sought after a party has opened the door should
be both relevant and proportional.” Id. at 250-51. “The otherwise inadmissible evidence
sought to be introduced by the opposing party should be limited to that necessary to correct
a misleading advantage created by the evidence that opened the door.” Id. at 251 (citing
State v. Gaudet, 97 A.3d 640, 646 (N.H. 2014)). This rule has its limitations, and “[t]he

- 30 -
fact that ‘the door has been opened’ does not permit all evidence to pass through because
the doctrine is intended to prevent prejudice and is not to be subverted into a rule for the
injection of prejudice.” Id. (quoting Gaudet, 97 A.3d at 646). Moreover, “[t]he trial court
is in the best position to gauge the prejudicial impact of particular testimony.” Id. (quoting
Gaudet, 97 A.3d at 646). “For example, evidence is still subject to exclusion where a court
finds that the probative value of the otherwise inadmissible responsive evidence ‘is
substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or
misleading the jury[.]’” Id. (quoting State v. James, 677 A.2d 734, 742 (N.J. 1996)).

If a witness, including the defendant, “makes a sweeping claim of good conduct on
direct examination, that claim may open the door to cross-examination without pretrial
notice and with a lower standard of probativeness, as rebuttal of the broad claim would
itself tend to show untruthfulness.” Tenn. R. Evid. 608, Advisory Comm’n Cmts.; see
State v. Johnson, 670 S.W.2d 634, 636 (Tenn. Crim. App. 1984) (concluding that evidence
regarding the defendant’s military rank and type of discharge was properly admitted to
challenge his credibility because the defendant had, “on direct examination, opened the
door by bringing up the subject of his nine-year military service record, which implied to
the jury a long term of honorable service to his country”); State v. Miller, 674 S.W.2d 279,
284 (Tenn. 1984) (stating that evidence of mere arrests or indictments is generally
inadmissible unless the accused somehow opens the door for impeachment, such as by
testifying that he or she had never been arrested or indicted). At that point, Rule 608 is no
longer the applicable rule to address the admission of evidence of the defendant’s prior
convictions because the evidence is being used to challenge testimony about the
defendant’s good character. State v. Harris, No. M2014-00375-CCA-R3-CD, 2015 WL
3563076, at *7 (Tenn. Crim. App. June 9, 2015). Instead, “Rule 404(a)(1) reflects an
exception to the general bar on the admissibility of character evidence and permits the
defendant in a criminal case to ‘open the door’ by introducing evidence of his or her own
character.” Id. (citing Neil P. Cohen et al., Tennessee Law of Evidence § 4.04[a] (5th ed.
2005)). “Until the defendant takes this step, however, the State cannot introduce evidence
of a defendant’s bad character.” Id.

Tennessee Rule of Evidence 404(a)(1) provides:

(a) Character Evidence Generally. 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, except:

(1) Character of Accused. In a criminal case, evidence of a
pertinent trait of character offered by an accused or by the

- 31 -
prosecution to rebut the same or, if evidence of a trait of
character of the alleged victim of the crime is offered by the
accused and admitted under Rule 404(a)(2), evidence of the
same trait of character of the accused offered by the
prosecution.

Once the defendant introduces evidence of his or her own good character, the State may
also address the issue of the defendant’s character in order to prevent the trier of fact from
receiving a one-sided view. State v. Taylor, No. W2006-00543-CCA-R3-CD, 2007 WL
3026374, at *4 (Tenn. Crim. App. Oct. 12, 2007) (citing Cohen et al., Tennessee Law of
Evidence § 4.04[4][a]). Though the defendant’s proof under Rule 404(a)(1) is limited to
reputation and opinion evidence, the State may, under Tennessee Rule of Evidence 405(a),
introduce evidence of specific instances of conduct when cross-examining a defense
witness, including the defendant. Id. (citing Cohen et al., Tennessee Law of Evidence §
4.04[4][c]). Such specific instances of conduct include acts resulting in criminal
convictions. Id. Neither Rule 404 nor 405 imposes a time limit on the prior convictions
used to counter evidence of good character. Harris, 2015 WL 3563076, at *7.

“After application to the court, inquiry on cross-examination is allowable into
relevant specific instances of conduct.” Tenn. R. Evid. 405(a). Additionally, the following
conditions must be satisfied:

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

(2) The court must determine that a reasonable factual basis exists for the
inquiry, and

(3) The court must determine that the probative value of a specific instance
of conduct on the character witness’s credibility outweighs its prejudicial
effect on substantive issues.

Tenn. R. Evid. 405(a); see also Taylor, 2007 WL 3026374, at *4. We observe that
introduction of evidence pursuant to Rule 405 provides a distinct avenue for admitting
specific instances of the Defendant’s previous conduct, without relying upon Rule 404(b).
See United States v. Roper, 135 F.3d 430, 433-34 (6th Cir. 1998) (noting that, under the
Federal Rules of Evidence, use of evidence for impeachment purposes pursuant to Rule
405 after a defendant has placed his character at issue does not implicate the prohibitions
against character evidence under Rule 404); see also United States v. Murzyn, 631 F.2d
525, 528 n.2 (7th Cir. 1980) (reading 404(b) in conjunction with 405(b) and concluding

- 32 -
that one of the “other purposes” listed in 404(b) includes evidence of a character or trait
that is an essential element of the charge, claim, or defense).

3. Application

The Defendant’s argument in this regard is two-fold. First, he observes that during
his trial testimony, he indicated only that he had worked as a bail bondsman from 1978 to
1996, that his testimony about maintaining a clean record was confined to that timeframe,
and that he made no sweeping claim of a nonviolent nature that would open the door to the
admission of a conviction from outside that timeframe. Second, he contends that the trial
court erred by allowing proof that the victim of the assault was his ex-wife based on his
testimony that their marriage was “mutual.” Moreover, the Defendant notes that the
conviction was inadmissible under Tennessee Rule of Evidence 404(b) because the State
did not disclose it in response to the Defendant’s pretrial motion requesting notice of any
such evidence to be used by the State at trial, the trial court did not conduct any of the
procedures outlined by the Rule, and the conviction does not relate to any of the recognized
permissible purposes for admission.6 Finally, the Defendant argues that erroneous
admission of his 1996 conviction for domestic assault “more probably than not affected”
the jury’s decision-making and should not be classified as harmless error due to the similar
nature of the crimes against family members.

The State responds that the trial court properly found that the Defendant had opened
the door and exercised its discretion in allowing the State to correct the misleading
insinuations from the Defendant’s trial testimony. It also argues that any error was
harmless because the “challenged evidence was minimal,” the trial court immediately gave
a thorough limiting instruction, and the jury found the Defendant guilty of the lesser
included offense of second degree murder.

We turn to the Defendant’s contention that the trial court erred by allowing the State
to introduce evidence of his 1996 conviction for domestic assault because it did not directly
contradict his testimony regarding the timeframe he worked as a bail bondsman and, thus,
the door was not opened. The Defendant attempts to liken his case to the facts of State v.
Gomez. See 367 S.W.3d 237. In Gomez, our Supreme Court found that the door was not
opened to evidence of prior domestic abuse by one spouse against another, who were

6
The Defendant additionally contends that the conviction was inadmissible for impeachment
purposes under Rule 609 because it was not punishable by imprisonment in excess of one year, did not
involve dishonesty or a false statement, was not disclosed to the Defendant before trial, and occurred more
than ten years before this case. However, the State did not seek introduction of the conviction based upon
Rule 609.

- 33 -
codefendants on charges of aggravated child abuse and facilitation of felony murder, when
one spouse asked the other if she believed the codefendant could have hurt their daughter
and she gave a negative response. Id. at 246-48. The Gomez court reasoned that the
spouse’s testimony that she did not think that the other spouse could have hurt their
daughter, was different than testimony regarding whether he would not hurt anybody, and
therefore, the testifying spouse “did not make a sweeping claim of [the other spouse’s]
nonviolent nature that would be contradicted by her knowledge of [the other spouse’s] prior
assaults against her.” Id. at 247. The court further stated that, because the record did not
reflect that prior instances of domestic abuse “also injured the victim or put the victim at
risk of injury at the time of the assaults[,]” the subject matter was “not the same, and
introducing one of these subjects d[id] not ‘open the door’ by making the other subject
relevant.” Id. (citing Wright & Miller, Federal Practice & Procedure Evidence § 5039).
The court indicated, however, that if the other spouse’s character had been placed at issue,
thus making it a fact of consequence in dispute at trial, then evidence of prior violent acts
by that spouse could have been admissible impeachment evidence pursuant to Tennessee
Rules of Evidence 404(a) and 405(a). Id.

In contrast to Gomez, the subject matter here directly rebutted the Defendant’s
implication on direct examination that he had a clean criminal record and is, thus,
distinguishable. The Defendant insists that his testimony about his criminal history was
constrained to the timeframe he worked as a bail bondsman and that the State failed to
establish his conviction occurred while he was in that occupation, but his testimony on
direct examination was not so explicit. The Defendant testified on direct examination that
he had worked as a bail bondsman for twenty-two years and that one had to have a clean
criminal record to work in such an occupation. He never provided any timeframe for that
employment until asked to do so by the State on cross-examination, and when he did so,
he provided a timeframe from 1978 to 1996, which spanned only eighteen years, rather
than the previously alluded to twenty-two years. The ending of his employment in such a
profession coincided with the timing of his conviction for domestic assault. The Defendant
essentially characterized himself as a nonviolent law-abiding citizen for a significant period
of time while working as a bail bondsman in contrast to the victim, whom he claimed was
violent and troubled. Contrary to the Defendant’s argument, we determine, as did the trial
court, that the Defendant’s testimony amounts to a sweeping claim of good conduct.
Accordingly, the Defendant’s testimony that he had no criminal record during what was
initially identified as a twenty-two-year timeframe made his character, as an upstanding
and virtuous citizen, relevant. See Harris, 2015 WL 3563076, at *7-8 (concluding that the
trial court properly allowed the State to question a witness about the defendant’s prior
criminal history in response to her testimony characterizing the defendant “as a nonviolent
law-abiding citizen in contrast to her other son . . . , whom she claimed was violent and

- 34 -
troubled”); Taylor, 2007 WL 3026374, at *3-5 (rejecting the defendant’s argument that
testimony from his wife that she had never seen him intoxicated did not “open the door” to
the issue of the pertinent character trait for temperance and sobriety).

The State did not make application to the court before inquiring about the
Defendant’s prior conviction and, following the Defendant’s objection, only argued
admissibility pursuant to the doctrine of opening the door and did not raise Rules 404(a)
and 405(a) as specific bases for admission of the evidence, though such were implied from
the context. Rule 405(a) requires the party seeking to inquire about the specific instance
of conduct to make “application to the court” before asking about this type of evidence. It
also requires the trial court to hold a jury-out hearing regarding the admissibility of specific
instances of conduct “upon request” and find that “a reasonable factual basis exists for the
inquiry” and that “the probative value of a specific instance of conduct on the character
witness’s credibility outweighs its prejudicial effect on substantive issues.” Tenn. R. Evid.
405(a); see State v. Nesbit, 978 S.W.2d 872, 881-83 (Tenn. 1998). Rule 405(a) does not
specify that a certain party must request the hearing, only that the trial court must hold a
hearing “upon request.” See State v. Bigoms, No. E2015-02475-CCA-R3-CD, 2017 WL
2562176, at *23 (Tenn. Crim. App. June 7, 2017) (noting same in the context of Rule
404(b)).

Though the Defendant notes on appeal, in the context of his Rule 404(b) argument,
that the trial court failed to engage in a jury-out hearing and make the requisite findings
before admitting this evidence, the Defendant never objected on this basis at trial by
requesting that the trial court follow the procedural mandates of either Rule 404(b) or
405(a). It was not until the motion for new trial hearing that he raised a Rule 404(b) issue.
See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be
granted to a party responsible for an error or who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error.”); see also State v.
McCulloch, No. E2021-00404-CCA-R3-CD, 2022 WL 2348568, at *14 (Tenn. Crim. App.
June 29, 2022) (citation omitted) (waiving a defendant’s claim for failing to make a
contemporaneous objection on the basis of Rule 404(b)). As noted above, the introduction
of evidence pursuant to Rule 405 provides a distinct avenue for admitting specific instances
of the Defendant’s previous conduct, without relying upon Rule 404(b). Given that the
Defendant never referenced Rule 405(a) in the court below, he likewise did not challenge
the State’s failure to make application to the court before asking about the specific instance
of prior conduct consistent with that rule. Instead, the Defendant argued at trial only that
the precepts of the opening-the-door doctrine had not been satisfied. While the State, as
the proponent of this evidence, would have been tasked with establishing Rule 405(a)’s
requirements during a jury-out hearing, the Defendant never requested such. Given these

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deficiencies in procedure by both parties, the trial court, “understandably, did not follow
the requirements of Tennessee Rule of Evidence 405(a) for admitting evidence of [the
Defendant’s] character.” Gomez, 367 S.W.3d at 247.

Although the trial court did not follow the exact procedures set forth in Rule 405(a),
any error by the trial court pertaining to Rule 405(a) would have been harmless error. See
State v. Crawford, No. M2015-02426-CCA-R3-CD, 2017 WL 3841369, at *26 (Tenn.
Crim. App. Aug. 31, 2017) (concluding any error was harmless when Rule 405(a)’s
procedural requirements were not strictly followed). By its ruling, the trial court implicitly
found that the probative value of this evidence on the issue of the Defendant’s character
outweighed its prejudicial effect on the substantive issues. See State v. McKinney, 74
S.W.3d 291, 316-17 (Tenn. 2002) (appendix) (determining same). We agree that the record
in this case supports such a conclusion. Here, the trial court reasonably allowed the State
to correct the wholly misleading insinuation of the Defendant’s character as a nonviolent
law-abiding citizen during the twenty-two-year timeframe he worked as a bail bondsman,
which is substantively different than the State merely attempting to impeach a defendant’s
character for truthfulness with proof of a prior conviction. Cf. State v. Williamson, No.
W2019-00437-CCA-R3-CD, 2020 WL 1274770, at *5 (Tenn. Crim. App. Mar. 16, 2020)
(noting, under a Tennessee Rule of Evidence 609 analysis, that “[a]lthough voluntary
manslaughter and aggravated assault might be relevant to the [d]efendant’s moral character
and are not without minimal probative value on his credibility, the connection between
violent offenses and truthfulness is weak and the potential prejudice created by the
admission of the previous convictions is significant”).

As noted above, the Defendant painted the victim as a violent and troubled young
man. The Defendant’s credibility was a crucial factor here given that he claimed
self-defense when he shot the unarmed victim. It was certainly proper for the State to infer
that the Defendant’s employment as a bail bondsman ended in 1996 because the Defendant
no longer had a clean record due to his assault conviction, a fact that he failed to mention
on direct examination. Moreover, identification of the assault conviction was necessary;
otherwise, the jury would have to engage in pure speculation because it lacked adequate
information to properly weigh the conviction’s probative value as impeaching evidence.
See Harris, 2015 WL 3563076, *8 (making the same observation relative to admission of
a conviction for rebuttal purposes under Tennessee Rules of Evidence 404 and 405)
(quoting State v. Galmore, 994 S.W.2d 120, 122 (Tenn. 1999)). However, the trial court
did not permit questioning into the underlying circumstances of the assault offense other
than to allow the State to note that the assault involved the Defendant’s ex-wife, Ms. Forte,
thereby limiting any prejudicial effect to the greatest extent possible. See Vance, 596
S.W.3d at 251 (limiting admission of evidence to that “necessary to correct a misleading

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advantage crated by the evidence that opened the door”). In addition, the assault offense
was over two and one-half decades old by the time of trial, so it did not necessarily establish
a pattern of family violence.

Under these circumstances, we cannot say that the trial court abused its discretion
because a witness can “open the door” to such cross-examination regarding past criminal
behavior. E.g., Johnson, 670 S.W.2d at 636; State v. Simpson, No. M2021-01031-CCA-
R3-CD, 2022 WL 16544456, at *25-26 (Tenn. Crim. App. Oct. 31, 2022) (agreeing with
the trial court that the witness’s testimony, as elicited by the defense on cross-examination,
essentially described defendant as a nonviolent law-abiding citizen and that the defendant
had thus opened the door to the State’s question about his relevant criminal history, i.e.,
his illegal possession of a firearm in 2013); Harris, 2015 WL 3563076, at *8; State v.
Morrison, No. M2005-02282-CCA-R3-CD, 2006 WL 2682807, at *7-8 (Tenn. Crim. App.
Sept. 12, 2006) (permitting the State to cross-examine the defendant about the prior
discovery of a methamphetamine lab in his home in order to rebut his claim that he knew
nothing about manufacturing methamphetamine other than what he had learned in court);
State v. McCray, No. W2005-00479-CCA-R3-CD, 2006 WL 2567483, at *11 (Tenn. Crim.
App. Sept. 5, 2006) (holding that the defendant’s testimony he had not been in trouble since
his shoplifting conviction opened the door and allowed the State to cross-examine the
defendant about his prior arrests). To hold otherwise would allow the Defendant to have
misled the jury, leaving them with a false impression of the Defendant’s nonviolent
law-abiding nature, and providing the Defendant with an unfair advantage he created
through his own testimony.

The Defendant likewise complains that his domestic assault conviction did not
directly contradict his testimony that he and his ex-wife had a “mutual” marriage.
However, during direct examination, the Defendant explained that he was referring to his
marriage and family when he repeated to law enforcement that he was “[t]hrow[ing] away
[forty-six] years[.]” He also claimed that they “had a good thing.” Again, we simply
disagree with the Defendant’s characterization of his testimony.

In State v. Patton, our supreme court addressed whether the trial court had
erroneously permitted the State to cross-examine the defendant, who had been convicted
of second degree murder for shooting his wife in the head and killing her, “on prior bad
acts or specific instances of misconduct and in receiving rebuttal testimony on the same or
similar acts of misconduct, in the absence of testimony placing the defendant’s reputation
for peace and tranquility in issue[.]” 593 S.W.2d 913, 914-17 (Tenn. 1979). The Patton
court held that, because the defendant had put his treatment of the victim at issue by his
testimony that they had “normal marital difficulties,” it was proper for testimony on the

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issue of his prior treatment of the victim, including specific acts of violence, to be included
in the State’s rebuttal. Id. Stated another way, “[p]rior bad acts [were] admissible to rebut
a defendant’s claim of having led a peaceful, normal life.” State v. Nichols, 877 S.W.2d
722, 732 (Tenn. 1994) (citing Patton, 593 S.W.2d at 917). The same is true here.

The Defendant contends that this evidence was highly prejudicial because of its
similarity to the offense for which the Defendant was on trial, i.e., an act of family violence.
Again, we are compelled to note that neither party ever made any request for the trial court
to follow the procedural mandates of Rule 405(a). Here, as noted above, the conviction
itself was admissible separate and apart from the underlying facts and circumstances of the
conviction. The additional information that the assault conviction was domestic in nature
and involved the Defendant’s ex-wife was secondary to the trial court’s initial
determination of the conviction’s admissibility, and it was admitted for the purpose of
rebutting the Defendant’s description of their family dynamics. From this record, we
cannot conclude that the trial court abused its discretion in allowing the State to correct the
insinuation. E.g., State v. Brock, 327 S.W.3d 645, 701 (Tenn. Crim. App. 2009)
(concluding that the defendant put his treatment of the victim at issue during his proof and
that, therefore, proof of prior bad acts to rebut the defendant’s contention were admissible
at trial); State v. Jennings, No. E2017-00330-CCA-R3-CD, 2018 WL 1168723, at *13-14
(Tenn. Crim. App. Mar. 6, 2018) (determining that, although the trial court had initially
ruled that evidence of the defendant’s prior conviction for domestic assault was
inadmissible under Rule 404(b), the defendant, nonetheless, opened the door to the
evidence during his direct examination testimony); State v. Stout, No. 02C01-9812-CR-
00376, 2000 WL 202226, at *20-22 (Tenn. Crim. App. Feb. 17, 2000) (allowing the State
to question a witness about his knowledge of the defendant’s prior convictions in an effort
to rebut the picture painted by the witness, and other family members, that the defendant
was “a fine, active, Christian, young man”).

Finally, we note that the trial court issued the appropriate limiting instruction in this
case regarding how the jury was to consider the propensity evidence, not once, but twice.
See Nesbit, 978 S.W.2d at 883 (requiring such an instruction); Stout, 2000 WL 202226, at
*22 (noting that the trial court should have issued limiting instructions to the jury to
prohibit it from using the proof as propensity evidence). The jury is presumed to have
followed the court’s instruction. State v. Reid, 91 S.W.3d 247, 279 (Tenn. 2002). This
issue is without merit.

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C. Victim’s Criminal History

The Defendant argues that the trial court erred by limiting the introduction of
evidence related to the victim’s criminal history, challenging both the timing of the trial
court’s ruling and its ultimate correctness. According to the Defendant, “the trial court’s
errors regarding the admissibility of key aspects of [the victim’s] criminal history were not
harmless.” The State responds that the trial court properly limited the proof about the
victim’s criminal history but that, even if error were present, it was harmless.

1. Pertinent Facts

a. Preliminary Matters

At the outset of the Monday trial, the prosecutor requested to address the
admissibility of the victim’s prior criminal convictions. According to the prosecutor, trial
counsel had sent two emails the Friday afternoon prior, which contained the following
information related to the victim’s criminal history: a 1991 state conviction for carrying a
dangerous weapon, a Class C misdemeanor; a 1993 indictment for carrying a dangerous
weapon, but with no disposition; a 1994 state conviction for possession with intent to
distribute a Schedule II controlled substance, cocaine; and a federal conviction from 2001. 7
Though the prosecutor had asked trial counsel how he intended to use the information at
trial, trial counsel said he “wasn’t sure at that time” and sent the documents “over in the
abundance of caution.”

Nonetheless, trial counsel, without specifics, argued that evidence of the victim’s
criminal history was “highly relevant on the question of self-defense and level of fear on
the part of the [D]efendant as to [the victim] and [the victim’s] propensity for violence and
[the victim’s] life experience, which . . . consisted of [eighteen] years in federal prison.”
The trial court asked trial counsel if he intended to refer to any of the victim’s convictions
or criminal history during voir dire. Trial counsel indicated that, while he did not “intend
to refer . . . directly to the convictions” during voir dire or opening statement, he did intend
to refer “to the fact that this was a menacing individual who the [D]efendant well knew
had spent [eighteen] years in federal prison.” Trial counsel asserted that the victim “had
carried weapons essentially throughout his adult life and was carrying a weapon on the day
this incident occurred, carrying a firearm, in violation of his probation.” According to trial
counsel, “all these patterns of conduct” on the part of the victim went “directly to
knowledge of danger on the part of the [D]efendant” and were not for the purpose of
proving the victim’s propensity for violence.
7
None of these documents were entered into evidence.

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The prosecutor confirmed with the trial court that the State intended to play the
Defendant’s video-recorded police interview for the jury during which the Defendant
referred to the victim’s habit of going armed. The trial court commented that evidence
from the defense of the victim’s habit of going armed was not “any different” from what
the State intended to introduce through the Defendant’s statement.

Trial counsel stated that he did not “care, frankly, that the nature of the convictions
come in as drug convictions or whatever” because he had no intention of making “any
argument that, because [the victim was] a drug dealer, ergo, he carrie[d] a gun.” Trial
counsel argued, however, that evidence of the victim’s incarceration was relevant because
the Defendant caught the victim in the act of embezzling from the business, the Defendant
was attempting to hold the victim at the business until police arrived, and the victim, who
was on supervised release, feared being returned to federal prison. The prosecutor
responded that such would not become relevant until evidence was entered at trial of the
victim’s crime at the business that day. Trial counsel noted that the Defendant said in his
police statement that the victim and Ms. Pearson were “cooking the books.”

The trial court determined that, during voir dire and opening statement, trial counsel
could refer to the fact that the victim “had a habit of carrying firearms, even that he was a
drug dealer, based on what the State intend[ed] to put in its case-in-chief, but to stay away
from anything that . . . [was] more specifically attached to any specific conviction or
sentence,” including any reference to the victim’s being on supervised release. The trial
court clarified, “Until the Court might rule that those actual convictions are admissible.”

b. Opening Statement

During the opening statement for the Defendant, trial counsel stated that the proof
would show that the Defendant and Ms. Forte had discussed the victim’s stealing from the
business and that Ms. Forte asked the Defendant not to call the authorities and send the
victim “back to prison.” The prosecutor objected, and during the ensuing bench
conference, trial counsel was admonished for violating the trial court’s pretrial ruling
regarding prior sentences of incarceration. When trial counsel recommenced his opening
statement, he noted that the victim had a “past history of drug dealing” and that “there were
some real concerns that [the victim] would have had” if he had been caught embezzling
from the business. Trial counsel continued, “[The victim] had other reasons having to do
with his history that he might react in a more violent way than someone else who’s caught
in theft.” The State lodged no further objection.

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c. Ms. Forte

At the conclusion of trial counsel’s opening statement, the trial court asked the
attorneys to approach the bench. The trial court inquired if the prosecutor intended to call
Ms. Forte, and the prosecutor answered in the affirmative. Trial counsel confirmed with
the trial court that he intended to cross-examine Ms. Forte about the statement she allegedly
made to the Defendant asking him not to do anything that would send the victim back to
prison. The trial court indicated that if trial counsel so intended, the court would “need to
make some ruling and finding about some of these convictions” that had previously been
taken under advisement. Trial counsel said, “I think we’ll address it later, but I think there
probably needs to be a foundation.”

The prosecutor indicated that Ms. Forte was not likely to testify that she made any
such request of the Defendant. The trial court said that though that may be true, if trial
counsel were going to ask about it, then a jury-out hearing was needed. Trial counsel then
agreed not to ask Ms. Forte about the statement, but he noted that the issue would need to
be “address[ed] . . . at some point.” That ended the bench conference, and Ms. Forte
proceeded to testify.

On cross-examination, trial counsel asked Ms. Forte if she recalled an incident
where the victim had threatened to kill the Defendant, but she recalled no such incident.
Trial counsel attempted to refresh Ms. Forte’s recollection about the incident by explaining,
“[I]t’s going to go back a little ways, but [the victim] had been away for a while. . . . And
he came back. . . . This would’ve been about 2004.” Though Ms. Forte confirmed that the
victim did go “away for a while,” she still did not remember any such incident.

Upon further questioning by trial counsel, Ms. Forte denied that the victim ever
asked her to borrow a firearm after an incident in Tracy City where the victim was
confronted by an individual and feared for his life. When trial counsel asked, “Why
wouldn’t you have lent him a firearm under those circumstances?” the prosecutor objected,
and a bench conference ensued. The prosecutor objected because Ms. Forte’s probable
answer to trial counsel’s question was that the victim had a prior conviction and therefore
could not possess a firearm. The trial court told trial counsel that if he “want[ed] to go
down this road,” then a jury-out hearing was needed to discuss the victim’s prior
convictions. Trial counsel replied, “I’ll steer away from it. . . . I think it’s just . . . going
to be tricky because I’m dancing around the fact that he’s spent most of his adult life in
prison.” The trial court interjected, “Well, I think, then, . . . that I need to then make a

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ruling on the admissibility of these prior convictions.” Trial counsel said that he would
“withdraw it. . . . I think the foundation is the problem.” Questioning resumed.

d. Investigator Walker

During the cross-examination of Investigator Walker, Investigator Walker opined
that, if someone were “caught in the act of committing a crime,” it would increase the
likelihood that they might respond in a violent manner. Trial counsel then asked if
Investigator Walker had “done any investigation into [the victim’s] background?”
Investigator Walker replied, “I knew that he was a convicted felon and he had been in some
trouble in the past. But from my understanding, it was a very, very long time ago. It was
in the . . . late ’90s or early ’90s.” Trial counsel next inquired, “Well, so he was convicted
in 1994, correct?” which garnered an objection from the prosecutor. At the ensuing bench
conference, the prosecutor asked that the parties “stay away from this topic.” The trial
court admonished trial counsel, “I told you, though, that we’d have to have a jury-out
hearing before we got into this.” The prosecutor averred that a jury-out hearing was now
needed, and the trial court agreed and sent the jury out of the courtroom.

After the jury was excused from the courtroom, the trial court asked trial counsel,
“What is it . . . that you want the jury to know about?” Trial counsel said it was “limited”
from this witness, and as trial counsel started to explain, the trial court clarified that it
wanted to know what trial counsel planned to ask about the victim’s criminal history “at
any time in the . . . foreseeable future . . . [b]efore the jury gets the case.” Trial counsel
indicated that what was “important here” was that “we have somebody who spent roughly
[twenty-three] of his [forty-seven] years in federal prison.” Again, the trial court
interjected and asked trial counsel, “Separate and apart from any persuasion or argument
about it, specifically what is it you want the jury to know about? Do you want them to
know about convictions? Do you want them to know about . . . incarceration?” Trial
counsel replied that he was “intereste

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11052479. Public record. Not legal advice.