IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
STATE OF TENNESSEE v. DONALD RAY SMITH
Appeal from the Circuit Court for Henry County
No. 12495 Hon. Julian P. Guinn, Judge
No. W1998-00156-SC-R11-CD — Decided June 30, 2000
FOR PUBLICATION
In this appeal, we address whether prior inconsistent statements can be used substantively to
corroborate a confession when the prior statements are admitted into evidence without objection.
We also consider whether the failure of the trial court to instruct the jury as to the limited use of the
prior statements constitutes plain error. The Court of Criminal Appeals held that prior inconsistent
statements could not be used as substantive evidence and that the failure of the trial court in this case
to give a limiting instruction amounted to plain error. For the reasons stated herein, we hold that by
not objecting to the admission of the statements, the appellee waived any objection to their use by
the jury as substantive evidence to corroborate the appellee’s two confessions. Consequently, we
hold that the evidence in this case is sufficient to support a finding of guilt beyond a reasonable
doubt. Finally, because the decision to forgo any objection to the hearsay testimony was a
deliberate, tactical decision by trial counsel, we are precluded from considering admission of the
evidence under a plain error analysis. We reverse the judgment of the Court of Criminal Appeals
and reinstate the appellee’s conviction and sentence for aggravated sexual battery.
Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the Court of Criminal
Appeals is Reversed; Appellee’s Conviction and Sentence for Aggravated Sexual Battery are
Reinstated
BARKER, J., delivered the opinion of the court, in which ANDERSON, C.J., and BIRCH and HOLDER ,
JJ., joined. DROWOTA , J., not participating.
Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Daryl J.
Brand, Associate Solicitor General, Nashville, Tennessee, for the appellant, State of Tennessee.
W. Jeffery Fagan, Assistant District Public Defender, Camden, Tennessee, for the appellee, Donald
Ray Smith.
OPINION
On July 29, 1996, twelve-year-old C.S.1 told her mother that sometime during the previous
January, her father, appellee Donald Ray Smith, reached his hand underneath her shorts and touched
her “private parts.” The next day, Ms. Smith took C.S. to the Tennessee Department of Human
Services, where C.S. related the same story in more detail to Carolyn Gore, an employee with
Children’s Services, and to Gary Vandiver, an investigator with the Henry County Sheriff’s Office.
According to her story, C.S. was at home with her father one evening in January 1996 while her
mother was at work. C.S. was lying on the floor watching television when her father asked her to
sit with him on the couch. When C.S. sat down beside her father, he began rubbing the inside of her
leg with his hand and moved his hand underneath her shorts and panties. C.S. stated that her father
then touched her “private parts,” at which point C.S. demanded that he stop. The appellee then
offered her money and candy for her silence.
After the meeting with C.S. and her mother on July 30, Officer Vandiver left to arrest the
appellee. Although Officer Vandiver had some difficulty locating the appellee that afternoon, he
found and arrested the appellee later that evening and took him to the police station. Shortly after
arriving at the police station, the appellee waived his Miranda rights in writing and gave a tape-
recorded confession, wherein he admitted to touching and rubbing his daughter in substantially the
same manner as previously described by C.S. One week later, after being arrested and released on
bond, the appellee returned to the police station on his own accord. The appellee again waived in
writing his right to remain silent and to have counsel present, and he signed a written confession
again admitting to the improper touching and rubbing of his daughter.2
On November 6, 1996, a Henry County Grand Jury returned an indictment charging the
appellee with one count of aggravated sexual battery against his daughter. Following a plea of not-
guilty, the appellee was tried before a jury on January 28, 1998.3 The first witness called by the State
to testify was C.S., and when the district attorney asked her to relate to the jury how her father
abused her, C.S. recanted her earlier accusations and replied simply that “[h]e didn’t do anything.”
When asked whether she had previously told her mother that her father had touched her “in a bad
way,” C.S. admitted that she had and that she told the same story to Ms. Gore and Officer Vandiver.
Even as the district attorney meticulously reiterated the details of her previous statements, C.S. was
1
It is the policy of this Court not to identify minor children involved in sexual abuse cases
by name. Instead, we will identify the minor victim in this case only by her initials.
2
Although the statement was actually handwritten by Officer Vandiver, the appellee signed
the statement after carefully reading and adopting it.
3
The appellee originally pled guilty to the charge and was sentenced by the trial court to
serve eight years imprisonment. His conviction was set aside, however, in a post-conviction
proceeding. The issues in this case arise from the subsequent retrial of the case.
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adamant that no such incident occurred, although she repeatedly admitted making the statements.4
The appellee made no objection to the introduction of C.S.’s prior statements by the State.
On cross-examination, the appellee questioned C.S. in detail about her prior statements, including
why she made the accusations, how she knew what type of accusations to make, and how she knew
which particular words to use. C.S. also denied that the reason she recanted her accusations was
because someone convinced her to change her mind.
The State then called the appellee’s wife as a witness and asked her about the statements C.S.
made to her in July of 1996. Ms. Smith admitted that C.S. told her that the appellee touched her
inappropriately, and that she fully believed C.S.’s accusations. Ms. Smith denied, however, that she
contacted Children’s Services or any law-enforcement officer. Ms. Smith also stated that C.S. told
her sometime after the appellee was arrested that no touching occurred. The appellee again made
no objection to the introduction of C.S.’s prior statements made to Ms. Smith.
Next, the State called Carolyn Gore to testify as to the detailed statements given to her by
C.S. on July 30, 1997. Officer Vandiver was also called as a witness by the State to testify as to the
allegations made to him by C.S. In addition, Officer Vandiver played the appellee’s tape-recorded
confession for the jury, and he read to the jury the handwritten confession signed and adopted by the
appellee.5 As with the State’s two other witnesses, the appellee did not object to the introduction
of C.S.’s prior statements made to either Ms. Gore or to Officer Vandiver. Instead, the appellee
questioned Ms. Gore about the details of C.S.’s accusations and how Ms. Gore became aware of the
accusations.
The appellee rested his case after putting on no proof, and he argued to the jury that C.S.’s
former statements were not credible in light of her trial testimony. Nevertheless, the jury returned
a guilty verdict on the sole count of the indictment, and on March 9, 1998, the appellee was
sentenced to eight years imprisonment. In his motion for a new trial, the appellee asserted that the
trial court erred in not granting a judgment of acquittal and that the evidence was insufficient as a
matter of law to sustain the conviction. The motion was denied on April 22, 1998, and the appellee
filed a timely notice of appeal to the Court of Criminal Appeals.
4
At trial, C.S. testified that she made these allegations because her sister, Kim, offered her
twenty dollars to do so. Kim was apparently dating a boy of whom the appellee did not approve.
5
The handwritten confession reads as follows:
I, Donald Smith, during Jan. 1996 was at home with my 12 yea [sic] daughter [C.S.]
and my handicapped son. My son was in his bedroom. [C.S.] and I was [sic] in the
living room. [C.S.] was laying on the couch. I was sitting on the couch. [C.S.’s]
legs were over mine. I began rubbing her leg. I rubbed up her leg up under her
shorts and panties. I rubbed her vagina area on pubic hair for about a minute. [C.S.]
said “Don’t, I don’t want to.” I stopped[.] I said I was sorry, I will not ever do it
again.
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Although not raised as an issue by the appellee, the Court of Criminal Appeals held that the
trial court committed plain error in failing to instruct the jury that the prior statements of C.S. should
be considered only for impeachment purposes and not as substantive evidence of guilt. While the
full panel reversed the conviction on the basis of this plain error, a majority of the panel voted further
to dismiss the case because no substantive evidence corroborated the appellee’s confession. Writing
in partial dissent, Judge Joe G. Riley stated that because the trial court’s failure to give a limiting
instruction was merely an evidentiary error, a new trial was the more appropriate remedy.
In the appeal before this Court, the State has asked us to consider whether a victim’s prior
statements, though otherwise inadmissible hearsay, may be considered by a jury as substantive
evidence of guilt when the defendant does not object to their admission, and consequently, whether
the evidence in this case is sufficient for conviction. We hold that under the circumstances of this
case, the prior statements of C.S. could have been considered by the jury as substantive evidence of
the appellee’s guilt, and that these statements adequately corroborated the appellee’s two confessions
so as to support the jury’s verdict. Because we also disagree that the trial court committed plain
error in this case, we reverse the judgment of the Court of Criminal Appeals.
I. SUFFICIENCY OF THE EVIDENCE
The State’s primary argument in this case is that the Court of Criminal Appeals erred in
reversing and dismissing the appellee’s conviction for lack of substantive evidence. When the
sufficiency of the evidence is challenged, “the standard for review by an appellate court is whether,
after considering the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” State v. Buggs,
995 S.W.2d 102, 105 (Tenn. 1999); see also Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); State
v. Burns, 979 S.W.2d 276, 286-87 (Tenn. 1998); Tenn. R. App. P. 13(e). On appeal, the State is
entitled to the strongest legitimate view of the evidence and to all reasonable and legitimate
inferences that may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). In
determining the sufficiency of the evidence, this Court does not re-weigh the evidence, id., or
substitute its inferences for those drawn by the trier of fact. Liakas v. State, 199 Tenn. 298, 305, 286
S.W.2d 856, 859 (1956).
A. Prior Inconsistent Statements as Substantive Evidence
Because the sufficiency of the evidence question turns on the effect given to C.S.’s prior
statements, the first issue we must resolve is whether the prior inconsistent statements in this case
could have been considered by the jury as substantive evidence of the appellee’s guilt. As with any
evidence, a prior inconsistent statement may be offered for any purpose at all, although its
admissibility may be limited to certain issues depending upon the purpose for which it is offered.
It is an elementary principle of evidence law that certain types of evidence may be admissible for
some purposes but not for others. See Tenn. R. Evid. 105; see also, e.g., Tenn. R. Evid. 404(b), 406-
409, 801.
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Our cases have consistently held that a prior inconsistent statement is admissible under the
Rules of Evidence when the prior statement is used to impeach the credibility of a witness. See, e.g.,
Jones v. Lenoir City Car Works, 216 Tenn. 351, 356, 392 S.W.2d 671, 673 (1965) (stating that “prior
inconsistent statements of a witness are admissible for the purposes of impeachment and testing the
credibility of the witness”). On the other hand, the restriction on hearsay evidence limits the
admissibility of prior inconsistent statements when a party offers the prior statements as evidence
to prove the matter asserted in the statement, or as substantive evidence. See id. (stating that prior
inconsistent statements “are not to be considered as substantive evidence of the truth of the matter
asserted therein”); see also Rhea v. State, 208 Tenn. 559, 563, 347 S.W.2d 486, 488 (1961) (stating
that “any prior contradictory statements shown are not to be taken as evidence of the facts therein
stated but are simply limited to the function of discrediting the witness”).6 Upon timely objection,
the trial court should exclude a prior inconsistent statement when offered as substantive evidence
of guilt or innocence, and upon request, the court should instruct the jury that the prior statement may
only be considered as reflecting upon the credibility of the witness. See Tenn. R. Evid. 105 (stating
that “[w]hen evidence which is admissible . . . for one purpose but not admissible . . . for another
purpose is admitted, the court upon request shall restrict the evidence to its proper scope and instruct
the jury accordingly”).
A trial court, however, generally has no duty to exclude evidence or to provide a limiting
instruction to the jury in the absence of a timely objection. A party may consent to the admissibility
of evidence which is otherwise prohibited by the Rules, so long as the proceedings are not rendered
so fundamentally unfair as to violate due process of law. Cf. Clarke v. State, 402 S.W.2d 863, 869
(Tenn. 1966). As early as 1885, this Court has stated that parties “may admit illegal evidence, if they
don’t choose to object. If they do not want to admit it, they should object as soon as it is offered, or
its illegality appears.” See Baxter v. State, 83 Tenn. (15 Lea) 657, 665 (1885) (allowing statements
of victim identifying the defendant, though inadmissible under the dying declaration exception to
the hearsay rule, because the defendant chose not to object to the statements). See also Harless v.
State, 189 Tenn. 419, 422, 225 S.W.2d 258, 259 (1949) (“No objection being interposed to the
testimony of the officer as to what a bystander said[,] it may properly be considered and given its
natural probative effect as if it were in law admissible.”). This same principle is reflected today in
Rule of Evidence 103(a)(1), which requires that a timely objection be made to preserve an error, and
it is also reflected in Tennessee Rule of Appellate Procedure 36(a), which requires that a party take
any action reasonably available so as to prevent an error or to mitigate its harm.
When a party does not object to the admissibility of evidence, though, the evidence becomes
admissible notwithstanding any other Rule of Evidence to the contrary, and the jury may consider
that evidence for its “natural probative effects as if it were in law admissible.” State v. Harrington,
627 S.W.2d 345, 348 (Tenn. 1981). If a prior inconsistent statement does not fall within a
recognized exception to the hearsay rule, for example, it is certainly subject to objection as hearsay
6
In contrast to our Rules, the Federal Rules of Evidence do allow prior inconsistent
statements to be considered as substantive evidence under some circumstances. See Fed. R. Evid.
801(d)(1)(A).
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and limitation under the Rules of Evidence. Merely being subject to objection, however, does not
mean that such evidence cannot be considered for its substantive value when no objection is raised.
In cases of hearsay evidence in particular, this Court has stated that when such evidence is
admitted without objection, “it is, therefore, rightly to be considered as evidence in the case and is
to be given such weight as the jury think[s] proper.” State v. Bennett, 549 S.W.2d 949, 950 (Tenn.
1977). Indeed, in Casone v. State, 193 Tenn. 303, 315-16, 246 S.W.2d 22, 28 (1952), this Court
went so far as to say that “it has been held almost universally that when hearsay testimony is
admitted without objection[,] it may probably be considered and given its natural probative effect
as if it were in law admissible, the only question being with regard to how much weight should be
given thereto.” (emphasis added). See also In re Estate of Parsley, 864 S.W.2d 36, 39 (Tenn. Ct.
App. 1988) (“The general rule is that hearsay, unobjected to, may be considered and given its natural
probative effect . . . .”).
We are simply unable to conclude that the prior inconsistent statements of C.S., although
subject to objection and limitation, could not be used as substantive evidence of the appellee’s guilt
when the appellee made no objection to the State’s repeated use of the statements. As our cases
make clear, a failure to object to otherwise inadmissible evidence will allow that evidence to be
considered as if it were, in fact, fully admissible under the law of evidence. We decline to depart
from this long standing rule in this case.
We note that a growing number of jurisdictions have adopted the position that prior
inconsistent statements may be used as substantive evidence of the matters asserted therein,
particularly when the declarant testifies at trial and is subject to cross-examination.7 Our holding
today does nothing to change our now minority position that such statements are inadmissible
hearsay if offered as evidence of the facts to which the prior statement relates, although we do
continue to allow the parties to waive this objection if they so choose.
7
See generally Andrea G. Nadel, Use or Admissibility of Prior Inconsistent Statements of
Witness as Substantive Evidence of Facts to Which They Relate in Criminal Cases—Modern State
Cases, 30 A.L.R.4th 414 (1984 & Supp. 2000). In discussing Pennsylvania’s switch to allow
substantive use of prior inconsistent statements, one commentator asserts that
Relying primarily on the same rationale as that employed in [Commonwealth v.]
Brady, [507 A.2d 66 (Pa. 1986),] forty-one states have elected to follow some version
of the modern rule, and thus allow the admission of a non-party witness’ prior
inconsistent statements as substantive evidence. Only eight states and the District of
Columbia still fully adhere to the orthodox rule and refuse to admit a witness’ prior
inconsistent statements as substantive evidence.
See Jennifer L. Hilliard, Substantive Admissibility of a Non-Party Witness’ Prior Inconsistent
Statements: Pennsylvania Adopts the Modern View, 32 Vill. L. Rev. 471, 489-91 (1987).
Tennessee is listed among the nine jurisdictions that still retain the “orthodox” rule.
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B. Prior Statements as Corroborating Evidence
The appellee argues that even if the prior statements of C.S. are considered as substantive
evidence, the inconsistencies between her prior statements and her trial testimony fail to sufficiently
corroborate the confession so as to sustain the conviction. It is a well-established principle of law
in this state that a conviction cannot be founded solely upon a defendant’s confession, and our cases
have long required some corroborating evidence in order to establish the corpus delicti. See Ashby
v. State, 124 Tenn. 684, 697-98, 139 S.W. 872, 875 (1911). The term corpus delicti refers to “the
body of the crime [or] evidence that a crime was committed at the place alleged in the indictment,”
Van Zandt v. State, 218 Tenn. 187, 202, 402 S.W.2d 130, 136 (1966), and the state needs “only
slight evidence of the corpus delicti . . . to corroborate a confession and sustain a conviction.” See,
e.g., State v. Driver, 634 S.W.2d 601, 606 (Tenn. Crim. App. 1981). Indeed, as this Court has
discussed in connection with a confession supporting an arson conviction,
[the corroborating] evidence is sufficient if . . . it tends to connect the defendant with
the commission of the offense, although the evidence is slight, and entitled, when
standing by itself, to but little consideration. Thus when we have a verdict[,] even
though founded on slight evidence of corroboration connecting the defendant with
the crime, it cannot be said, as a matter of law, that the verdict is contrary to the
evidence.
Ricketts v. State, 192 Tenn. 649, 664-65, 241 S.W.2d 604, 606 (1951).
When the prior statements of C.S. are considered as proof of the matters stated therein, we
find that the statements fully corroborate both of the appellee’s confessions. C.S. admitted at trial
that her original allegations contained the following facts: (1) that the incident occurred in January
of 1996; (2) that it happened in the evening while her mother was at work; (3) that her brother was
at home in his bedroom; (4) that she was watching T.V. in the living room with her father, who was
sitting on the couch; (5) that her father asked her to sit on the couch with him; (6) that her father
began to rub the inside of her leg with his hand; (7) that he ran his hand underneath her shorts and
underwear; (8) that her father touched her “private parts”; and (9) that she told him to stop.
By way of comparison, the appellee, who apparently knew nothing of the particulars of these
allegations, stated the following facts in his first confession: (1) that the incident occurred in January
of 1996; (2) that he rubbed his daughter’s leg; (3) that he rubbed under her clothes; and (4) that he
touched her in her groin area. In addition to these facts, the appellee in his written confession
admitted that (1) his son was at home in his bedroom; (2) that he and his daughter were sitting on
the couch at the time the incident happened; and (3) that his daughter told him to stop.
When the prior statements of C.S. are considered for their substantive value, as the jury was
entitled to do in the absence of an objection or limiting instruction, it is clear that there was
substantial corroboration of the confession to establish the corpus delicti. In fact, the allegations that
C.S. made to her mother, Ms. Gore, and Officer Vandiver, corroborate virtually every aspect of both
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of the appellee’s confession in substantial detail. Under these circumstances, we have no hesitation
in concluding that the evidence was more than sufficient to convict the appellee of aggravated sexual
battery.
The appellee argues that a confession cannot be corroborated by a recanted accusation. We
disagree. Although the jury in this case was presented with alternative versions of the facts, it was
entitled to decide and resolve for itself the inconsistencies in the evidence presented to it. It is clear
from the verdict in this case that the jury chose to credit the prior statements of C.S. over her
testimony at trial, and we will not re-weigh this finding. All three judges on the intermediate court
agreed that if the prior statements are considered for their substantive value, then the evidence is
sufficient in this case to support the conviction beyond a reasonable doubt. We agree with this
determination and conclude that when the prior statements of C.S. are substantively considered along
with the two confessions given by the appellee, the corpus delicti of the crime has been acceptably
demonstrated. Accordingly, we hold that the proof is sufficient to establish the appellee’s guilt of
the charged offense beyond a reasonable doubt.
Citing this Court’s opinion in Johnson v. Cincinnati, N.O. & T.P. Railway Co., 146 Tenn.
135, 240 S.W. 429 (1922), the appellee contends that when the sole witness both affirms and denies
that a particular act happened, “it would be mere caprice in a jury upon such evidence to decide [the
issue] either way.” We agree with the appellant that if C.S.’s prior statements were the only evidence
of the crime committed, then a conviction could not be sustained. Nevertheless, the prior statements
in this case are needed only to corroborate the appellee’s confessions, and “even though the
corroborative evidence may be slight, such evidence does not need to be as convincing in
establishing the corpus delicti as when no confession exists . . . .” State v. Jackson, 506 S.W.2d 146,
148-49 (Tenn. 1974). The prior statements, as substantive evidence credited by the jury, far exceed
the relatively low threshold required to corroborate a confession, and we hold that the State has met
its burden in this case.
II. PLAIN ERROR ANALYSIS
Although the appellee did not raise the issue in the intermediate court, the Court of Criminal
Appeals found that the failure of the trial court to instruct the jury in this case as to the evidentiary
effect of C.S.’s prior statements constituted plain error. We disagree.
Notwithstanding our finding that a failure to object to the introduction of C.S.’s prior
inconsistent statements as substantive evidence, Rule of Appellate Procedure 36(b), Rule of
Evidence 103(d), and Rule of Criminal Procedure 52(b) allow this Court to take notice of “plain
errors” that were not raised in the proceedings below. No guidance is given by any of these rules
as to when an error will rise to the level of plain error, but we have previously stated that “[w]hether
or not an appellate court should recognize the error and grant relief in the absence of an objection
in the trial court must depend upon the facts and circumstances of the particular case.” State v. Ogle,
666 S.W.2d 58, 61 (Tenn. 1984).
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The Court of Criminal Appeals has developed five factors to consider when deciding whether
an error constitutes “plain error” in the absence of an objection at trial: “(a) the record must clearly
establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been
breached; (c) a substantial right of the accused must have been adversely affected; (d) the accused
did not waive the issue for tactical reasons; and (e) consideration of the error is ‘necessary to do
substantial justice.’” State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994); see also
Ogle, 666 S.W.2d at 60 (discussing this issue in the context of a Bruton error, and stating that a
conviction based on improper evidence admitted without objection may be reversed when “(1) the
statement constitutes plain error, (2) the statement was an important part of the state’s case, and (3)
the objection was not intentionally waived for tactical purposes”).
Because the Adkisson test provides a clear and meaningful standard for considering whether
a trial error rises to the level of plain error in the absence of an objection, we formally adopt this test
when reviewing a record for plain error. We re-emphasize that the presence of all five factors must
be established by the record before this Court will recognize the existence of plain error, and
complete consideration of all the factors is not necessary when it is clear from the record that at least
one of the factors cannot be established. In addition, the “‘plain error’ must [have been] of such a
great magnitude that it probably changed the outcome of the trial.” Adkisson, 899 S.W.2d at 642.
After a thorough review of the record in this case, we conclude that the plain error doctrine
can afford no relief for the appellee. As the fourth factor in the Adkisson test recognizes, “it is
well-established that [the] plain error rule is not applicable when the record reflects that a defendant
made a deliberate, tactical choice to waive an objection.” State v. Walker, 910 S.W.2d 381, 399
(Tenn. 1995) (Anderson, C.J., concurring, joined by Drowota, J., and Birch, J.). According to the
concurring opinion in Walker, the rationale behind this exception to the plain error rule is that
[t]he plain error rule “should not be used to provide a second bite at the apple for a
defendant whose deliberate trial strategy failed.” United States v. Valencia-Lucena,
925 F.2d at 514. To apply the plain error rule under such circumstances would
encourage defense counsel to gamble for a favorable verdict, and should the verdict
be unfavorable, resort to appeal on errors which might have been obviated on
objection. United States v. Campbell, 419 F.2d 1144, 1145 (5th Cir.1969).
910 S.W.2d at 400. The Court of Criminal Appeals has also recognized that “a party cannot, either
in a civil or criminal case, sit by and not object to testimony, take his chance of acquittal or
conviction on testimony deemed incompetent, and then ask a reversal for such testimony in this
court.” See McKenzie v. State, 3 Tenn. Crim. App. 362, 368, 462 S.W.2d 243, 246 (1970)).
The record is clear in this case that the decision not to object to the prior inconsistent
statements of C.S. was a result of a deliberate, tactical trial strategy.8 The appellee’s theory of the
8
Although the intermediate court found plain error in this case relying on the Adkisson
factors, it did not address the fact that the decision to forgo objection to the prior statements was the
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case all along has been that inconsistent statements by one witness cannot be the sole proof used to
corroborate a confession. To this end, the appellee did not object to any of C.S.’s prior inconsistent
statements when the State questioned C.S. herself, when the State questioned her mother, when the
State questioned Ms. Gore, or when the State questioned Officer Vandiver. Moreover, defense
counsel cross-examined all four witnesses at length about the prior inconsistent statements. For
example, counsel questioned C.S. about her motives in making the prior statement, how she knew
exactly what type of accusations to make, and who told her the particular words to use. When the
State places objectionable evidence before the jury, and defense counsel inquires at length about the
evidence on cross-examination, any error in admitting the evidence is generally cured. Marable v.
State, 203 Tenn. 440, 456, 313 S.W.2d 451, 458-59 (1958) (stating that “the objectionable evidence
[results of a lie detector test] after being volunteered by a State witness was gone into at length by
further cross examination on the subject by the plaintiff in error. Under such circumstances, we
think that if the evidence was objectionable[,] it is cured.”).
Most importantly, though, counsel for the appellee conceded in oral argument before this
Court that the decision not to object to admission of the prior inconsistent statements was a “tactical
decision.” Because counsel and the appellee were concerned as to the ability of the appellee to make
a good witness, they both agreed that the best strategy was to forgo objection to the prior statements
in an effort to convince the jury that C.S. had no credibility. “It is difficult to conceive of evidence
more probative of an attorney’s reason for not objecting than the attorney’s own statement.” Walker,
910 S.W.2d at 400. Accordingly, for all of these reasons, we hold that because the decision to forgo
objection to admission of C.S.’s prior inconsistent statements as substantive evidence was a
deliberate, tactical decision by trial counsel, we can find no plain error in this case.9
Because we have concluded that the alleged plain error in this case was the result of a
deliberate, tactical decision on the part of counsel, our decision in State v. Reece, 637 S.W.2d 858
(Tenn. 1982), upon which the intermediate court relied, can provide no relief for the appellee. In
Reece, we held that “the failure to give the limiting instruction may amount to fundamental error
constituting grounds for reversal, even in the absence of a special request.” 637 S.W.2d at 861. We
expressly limited our holding, however, to “those exceptional cases in which the impeaching
testimony is extremely damaging, the need for the limiting instruction is apparent, and the failure
to give it results in substantial prejudice to the rights of the accused.” Id. Because a trial court’s
failure to give a limiting instruction must “result in substantial prejudice to the rights of the
accused,” Reece cannot afford relief when trial counsel makes a tactical decision to forgo an
result of a tactical decision.
9
Although the policy behind the plain error rule is “that the client should be protected
against egregious errors of counsel,” see Neil P. Cohen, et al., Tennessee Law of Evidence § 103.7,
at 24 (3d ed. 1995), the plain error rule cannot be used to second-guess the deliberate decisions of
trial counsel. “Whether a second-guessing appellate court thinks a tactical decision is inspired or
poor is not the issue on direct appeal. The issue is whether the action, or in this case, the inaction,
was the result of a deliberate, tactical decision.” Walker, 910 S.W.2d at 400.
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objection. When a defendant makes a considered and deliberate choice to waive a proper objection
in an effort to gain tactical advantage, he or she will not later be heard to complain that the trial
court’s failure to provide a limiting instruction “substantially prejudiced” his or her rights.10
CONCLUSION
In summary, we hold that a prior inconsistent statement by a witness may be considered by
the trier of fact as substantive evidence of the matters asserted therein, but only when the party
against whom the statement is offered fails to object to its admission or fails to request a limiting
instruction. Consequently, we conclude that the appellee’s confessions in this case, taken together
with the prior statements of the victim, furnished sufficient evidence to support a finding of guilt of
aggravated sexual battery beyond a reasonable doubt. Further, because the appellee’s waiver of any
objection to the admission of the hearsay evidence was the result of a deliberate, tactical trial
strategy, we are precluded from finding that the plain error doctrine affords any relief in this case.
Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the appellee’s
conviction and sentence for aggravated sexual battery.
Costs of this appeal shall be paid by the appellee, Donald Ray Smith, for which execution
shall issue if necessary.
10
Of course, a different case may be presented if trial counsel makes a deliberate, tactical
decision to waive a fundamental right of the accused without first obtaining his client’s informed
consent. See Momon v. State, No. E1996-00007-SC-R11-PC,1999 WL 1146746 (Tenn. filed at
Knoxville Nov 15, 1999), reh’g granted, March 20, 2000. In this case, though, it is not argued that
the right to exclude hearsay is a fundamental right guaranteed by the state constitution and statutes,
or that the appellee himself did not consent to the trial strategy of counsel. Accordingly, we cannot
conclude that the rights of the appellee have been substantially prejudiced so as to require relief
under the plain error doctrine.
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