IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
June 7, 2005 Session
STATE OF TENNESSEE v. DAVID KYLE GILLEY
Appeal by Permission from the Court of Criminal Appeals
Circuit Court for Rutherford County
No. F-52137 Don Ash, Judge
No. M2003-00499-SC-R11-CD - Filed September 30, 2005
We granted review of this interlocutory appeal to address the admissibility of prior acts of physical
abuse committed by the defendant against the victim and others under Rule 404(b) of the Tennessee
Rules of Evidence. The trial court ruled prior to trial that the State’s evidence of the defendant’s
prior acts was admissible in part and inadmissible in part. After granting an interlocutory appeal as
requested by both the defendant and the State, the Court of Criminal Appeals held that prior acts of
physical abuse committed by a defendant against a victim are per se admissible at trial and that there
is no longer a requirement for such a prior act to be relevant to a contested issue. After our review
of the record and applicable authority, we hold (1) that the trial court and the Court of Criminal
Appeals erred in granting interlocutory review of the trial court’s pretrial ruling on the admissibility
of the evidence under Rule 404(b), and (2) that the Court of Criminal Appeals erred in holding that
prior acts of physical abuse committed by a defendant against a victim are per se admissible at trial.
As a result, the Court of Criminal Appeals’ judgment is reversed, and the case is remanded to the
trial court for further proceedings.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
Reversed; Remanded to Trial Court
E. RILEY ANDERSON , J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,
and ADOLPHO A. BIRCH , JR., JANICE M. HOLDER , and WILLIAM M. BARKER, JJ., joined.
Alfred H. Knight and Roger T. May, Nashville, Tennessee, for the Appellant, David Kyle Gilley.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Joseph F.
Whalen, Associate Solicitor General; William C. Whitsell, Jr., District Attorney General; and J. Paul
Newman, Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
Background
On May 31, 1984, at approximately 6:00 p.m., the partially-nude body of the victim, Laura
Salmon, was found at the Hoover Rock Quarry in Rutherford County, Tennessee.1 The victim had
died from multiple blows to her head with rocks. A description of a person seen in the victim’s car
that same afternoon around 4:45 p.m. matched the defendant, David Kyle Gilley.
The defendant was interviewed by law enforcement officers after the victim’s body was
found. He told officers that he had known the victim while both attended Oakland High School in
Murfreesboro, Tennessee, in 1982 and 1983, and that he and the victim had dated for two years. The
defendant said that he had never been to the rock quarry with the victim, and he denied involvement
in the victim’s death. The defendant was not arrested or charged at that time.
In 2000, law enforcement officers who had reopened the investigation talked to Michelle
Davenport. Davenport told officers that she had sexual relations with the defendant at the Hoover
Rock Quarry in the summer of 1984. The defendant began to get rough, held her hair, and pinned
her down with his arm across her chest. When Davenport told the defendant to stop, he became
angry and asked if she wanted to “end up like” the victim. The defendant then told Davenport that
he had killed the victim, who had been his girlfriend. Davenport told a family member and a friend
about this incident, but she did not tell law enforcement officers until they interviewed her in 2000.
When the defendant was interviewed by law enforcement officers in November of 2000, he
denied that he had ever been to the rock quarry with the victim. He told officers that he and the
victim had a sexual relationship but that he “was never physically violent with her . . . .” He stated
that the victim once “chipped her tooth when she jumped on me,” and that they would often “scream
and holler.”
DNA testing was performed on the victim’s clothing and a pair of blue jeans that had been
covering the victim’s body. Although DNA testing of semen from the victim’s vagina and panties
excluded the defendant, DNA testing of semen found on the blue jeans matched the defendant. The
blue jeans were the same size as those worn by the defendant.
In March of 2001, the defendant was indicted for the premeditated first degree murder of the
victim. Prior to trial, the State filed a notice of proposed evidence, consisting of over twenty
witnesses who would testify about prior acts of physical abuse committed by the defendant against
the victim or others. The evidence involved incidents that allegedly occurred while the defendant
and the victim were in high school in 1982 and 1983, and while the victim attended college at
1
Although this case has not yet been tried, the summary of evidence is taken from a transcript of the juvenile
court transfer proceedings against the defendant, David Kyle Gilley, which is in the record on appeal.
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Middle Tennessee State University (“MTSU”) in 1983 and 1984. The defendant filed a motion to
exclude the evidence of prior acts under Rule 404(b) of the Tennessee Rules of Evidence.
Following a two-day hearing on the motion to exclude prior to trial, the trial court ruled that
the following evidence of incidents occurring between 1982 and 1984 would be admissible at trial:
(1) the testimony of Lourene Mackey, the victim’s mother, as to the defendant’s assaults against the
victim; (2) the testimony of Connie Shelton, Melinda Edwards, and Terri Brown McCrary regarding
an incident in which the defendant pulled the victim’s hair and pushed her face into the hood of a
car; (3) the testimony of Melinda Edwards that the defendant shoved the victim into a locker; (4) the
testimony of Mary Lester that the defendant repeatedly drove by MTSU to stare at the victim and had
once twisted the victim’s arm; and (5) the testimony of Kim Roberts that the defendant dragged the
victim down a stairwell at MTSU. The trial court found clear and convincing evidence of these
incidents and further concluded that the evidence was relevant to show the defendant’s “motive,”
“intent,” “hostility,” and “settled purpose” to harm the victim.
In contrast, the trial court concluded that evidence of the defendant’s other alleged prior acts
would not be admissible at trial for the following reasons: (1) the testimony of Michelle Davenport
“describing the nature of her encounter with the defendant” at the rock quarry in 1984 was “highly
prejudicial”; (2) the testimony of Marty Milan that he saw the defendant twist the defendant’s wife’s
arm in 1985 was not “so similar or so unique” as to show the defendant killed the victim; (3) the
testimony of Laurie Carr that the defendant slammed her face into a car after she ended a relationship
with him in 1990 was not “so similar or so unique” as to show the defendant killed the victim; (4)
the testimony of Barbara Smith that the defendant stalked her and broke into her home was not “so
similar or so unique” as to show the defendant killed the victim; (5) the testimony of Scott Mason
that he heard the defendant slap the victim was not supported by clear and convincing evidence, and
its probative value was outweighed by its unfair prejudicial effect; (6) the testimony of Bill
Tenpenny that he saw the victim crying after being slapped by the defendant was cumulative, and
its probative value was outweighed by its prejudicial effect; (7) the testimony of Reed Ridley that
the defendant caught the victim’s arm in a car window and then dragged her through a parking lot
was cumulative, and its probative value was outweighed by its prejudicial effect; and (8) the
testimony of John Jolley that he saw the defendant shove the victim one month before the murder
was cumulative, and its probative value was outweighed by its prejudicial effect.
After the motion hearing and prior to trial, the trial court and the Court of Criminal Appeals
granted an interlocutory appeal of the evidentiary rulings as requested by both the defendant and the
State pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The Court of Criminal
Appeals concluded that evidence of prior physical abuse committed by a defendant against the victim
of a violent crime is per se admissible to establish the defendant’s hostility toward the victim, malice,
intent, and settled purpose to harm the victim. The court also indicated that such evidence need not
be relevant to a material issue at trial. Although the Court of Criminal Appeals upheld nearly all of
the trial court’s rulings admitting and excluding the testimony, it observed that the trial court had
erred in concluding prior to trial that some of the testimony was cumulative, as such a finding
necessarily requires analysis of the evidence at trial.
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We granted this appeal.
Analysis
Interlocutory Appeal
Before addressing the merits of the issues, we begin our review by examining an unusual
procedural issue that appears from the record: whether the trial court and the Court of Criminal
Appeals correctly granted interlocutory review of the trial court’s evidentiary rulings in this criminal
case.
An interlocutory appeal requires the permission of both the trial court and the appellate court.
See Tenn. R. App. P. 9(b) and (c). In determining whether to grant interlocutory review, the courts
must consider
(1) the need to prevent irreparable injury, giving consideration to the
severity of the potential injury, the probability of its occurrence, and
the probability that review upon entry of final judgment will be
ineffective; (2) the need to prevent needless, expensive, and
protracted litigation, giving consideration to whether the challenged
order would be a basis for reversal upon entry of a final judgment, the
probability of reversal, and whether an interlocutory appeal will result
in a net reduction in the duration and expense of the litigation if the
challenged order is reversed; and (3) the need to develop a uniform
body of law, giving consideration to the existence of inconsistent
orders of other courts and whether the question presented by the
challenged order will not otherwise be reviewable upon entry of final
judgment.
Tenn. R. App. P. 9(a) (emphases added).
An interlocutory appeal is an exception to the general rule that requires a final judgment
before a party may appeal as of right.2 See Tenn. R. App. P. 3(d) (“An appeal as of right is an appeal
that does not require permission of the trial or appellate court.”). As a result, interlocutory appeals
to review pretrial orders or rulings, i.e., those entered before a final judgment, are “disfavored,”
particularly in criminal cases. United States v. MacDonald, 435 U.S. 850, 853 (1978). The United
States Supreme Court has cautioned that interlocutory review of pretrial rulings can create piecemeal
appellate litigation and the “encouragement of delay [that] is fatal to the vindications of the criminal
law.” Id. at 853-54 (quoting Cobbledick v. United States, 309 U.S. 323, 325 (1940)).
2
An “extraordinary” appeal, which is granted by permission of an appellate court, is also an exception to an
appeal as of right. Tenn. R. App. P. 10.
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Here, both the defendant and the State sought review of the trial court’s rulings under Rule
404(b) of the Tennessee Rules of Evidence. Rule 404(b) states that evidence of “other crimes,
wrongs or acts is not admissible to prove the character of a person or to show action in conformity
with the character trait,” but that such evidence “may . . . be admissible for other purposes.” The rule
includes the following conditions:
(1) The court upon request must hold a hearing outside the jury’s
presence;
(2) The court must determine that a material issue exists other than
conduct conforming with a character trait and must upon request state
on the record the material issue, the ruling, and the reasons for
admitting the evidence;
(3) The court must find proof of the other crime, wrong, or act to be
clear and convincing; and
(4) The court must exclude the evidence if its probative value is
outweighed by the danger of unfair prejudice.
Tenn. R. Evid. 404(b).
The safeguards in Rule 404(b) ensure that defendants are not convicted for charged offenses
based on evidence of prior crimes, wrongs or acts. State v. James, 81 S.W.3d 751, 758 (Tenn.
2002). Where the procedures “are substantially followed, the trial court’s decision will be given
great deference and will be reversed only for an abuse of discretion.” Id. at 759; see also State v.
DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).
With regard to the procedures under Rule 404(b), the Court of Criminal Appeals held that
the trial court erred in finding that portions of the State’s proposed evidence was cumulative to other
evidence. The intermediate court explained that such a conclusion “must be made during the trial”
because “[p]roof is not cumulative in a trial until the trial has begun.” Although Rule 404(b) does
not preclude the trial court from conducting a hearing or ruling prior to trial, we share the Court of
Criminal Appeals’ view that the Rule 404(b) criteria – in particular, the existence of a material issue
at trial and the balancing of the probative value and unfair prejudice – require consideration of the
evidence presented at trial. Thus, trial courts must be cognizant that if pretrial evidentiary rulings
are made, they may need to be reconsidered or revised based on the evidence presented at trial.
We further conclude, however, that the trial court and the Court of Criminal Appeals erred
in granting the defendant’s request for an interlocutory appeal pursuant to Rule 9 of the Tennessee
Rules of Appellate Procedure for several reasons. First, interlocutory review was not necessary to
prevent irreparable injury to the defendant because the trial court’s rulings under Rule 404(b) can
be challenged in an appeal as of right if the defendant is convicted. Second, the interlocutory appeal
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was not likely to prevent needless, expensive and protracted litigation; not only can the rulings under
Rule 404(b) be challenged on direct appeal, they are afforded great deference and may be reversed
only if the appellate court concludes that the trial court abused its discretion. Moreover,
interlocutory review of the trial court’s rulings under Rule 404(b) increases the potential for
piecemeal litigation since the appellate court’s decision may (a) hinder the trial court’s flexibility to
revise its rulings depending on the evidence presented at trial or (b) result in another requested
appeal should the trial court depart from the appellate court’s decision based on the evidence
presented at trial. Finally, because the trial has yet to begin, an interlocutory appeal to review
evidentiary rulings would be largely advisory in nature and would not develop a uniform body of
law.
We likewise conclude that the trial court and the Court of Criminal Appeals also erred in
granting the State an interlocutory appeal, though the question is somewhat closer. Unlike the
defendant, the State is not assured appellate review of the trial court’s ruling; if the State’s evidence
is excluded and the defendant is acquitted, for instance, the State has no appeal as of right. That
alone, however, does not end the inquiry. For instance, it is doubtful that granting the State an
interlocutory appeal was necessary to prevent needless, expensive and protracted litigation; as noted
above, the trial court’s rulings under Rule 404(b) are afforded great deference and are reversible only
if the trial court abused its discretion. Finally, as also stated above, an appellate court decision at this
stage would be tantamount to an advisory ruling and would not be necessary to achieve uniformity
in the law.
In sum, we conclude that the trial court and the Court of Criminal Appeals erred in granting
interlocutory review over the trial court’s rulings under Rule 404(b) because the criteria in Rule 9
of the Tennessee Rules of Appellate Procedure were not met.
Rule 404(b) – Prior Acts of Physical Abuse
Although we have concluded that the trial court and the Court of Criminal Appeals erred in
granting this interlocutory appeal, we must address one substantive issue in the interest of judicial
efficiency. The defendant complains that the Court of Criminal Appeals created a per se rule for the
admissibility of evidence of physical abuse committed by a defendant against the victim. The State
replies that the intermediate court reached the correct result even though it concedes the court’s use
of the term “per se” was “unfortunate.”
As discussed above, Rule 404(b) contains several safeguards to the admission of a
defendant’s prior crimes, wrongs, or acts. One safeguard requires the trial court to “determine that
a material issue exists other than conduct conforming with a character trait” and to “state on the
record the material issue, the ruling, and the reasons for admitting the evidence.” These required
findings are vital in ensuring that defendants are not convicted for a charged offense based on their
character or their alleged propensity to engage in particular conduct. James, 81 S.W.3d at 758.
There are no exceptions in Rule 404(b) for cases involving evidence of a defendant’s prior acts of
physical abuse committed against a victim.
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Notwithstanding the language in Rule 404(b), the Court of Criminal Appeals stated that
evidence of prior physical abuse committed by a defendant against a victim is “seemingly per se
admissible” under State v. Smith, 868 S.W.2d 561 (Tenn. 1993). In Smith, evidence of prior violent
acts committed by the defendant against the victims was admitted in the defendant’s trial for first
degree murder. On appeal, this Court observed that the evidence “was admitted not to prove the
Defendant acted in accord with this character but as part of the proof establishing his motive for the
killings.” Id. at 574. This Court also observed that the probative value of the evidence was not
outweighed by the danger of unfair prejudice. Id.
Our decision in Smith did not establish a per se rule allowing the admission of evidence of
prior acts of physical abuse committed by a defendant against a victim, nor did our decision abandon
the requirement that such evidence must be relevant to a material issue at trial. To the contrary, we
stated that the evidence was relevant to the defendant’s motive. Id. at 574. Moreover, the evidence
of motive was also circumstantial evidence of identity, which was a material issue at trial in light of
the defendant’s alibi defense. See id. at 568; see also Neil Cohen et al., Tennessee Law of Evidence
§ 4.04(9), p. 4-84 (4th ed. 2000) (“Although motive itself is rarely an issue in a case, it is often
circumstantial proof of some other important matter, such as identity, intent, or lack of accident.”).
Given these principles, the Court of Criminal Appeals’ broad interpretation of Smith was error.
Accordingly, because there is no per se rule of admissibility under Rule 404(b) for prior acts
of abuse committed by a defendant against a victim, the trial court must, on remand, consider the
admissibility of the State’s proposed evidence by applying the specific safeguards set forth in Rule
404(b).
Conclusion
After our review of the record and applicable authority, we hold (1) that the trial court and
the Court of Criminal Appeals erred in granting interlocutory review of the trial court’s pretrial
ruling on the admissibility of the evidence under Rule 404(b), and (2) that the Court of Criminal
Appeals erred in holding that prior acts of physical abuse committed by a defendant against a victim
are per se admissible at trial. As a result, the Court of Criminal Appeals’ judgment is reversed and
the case is remanded to the trial court for further proceedings. Costs of the appeal are taxed equally
between the defendant, David Kyle Gilley, and the State.
___________________________________
E. RILEY ANDERSON, JUSTICE
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