State v. Nesbit

In State v. Nesbit, 978 S.W.2d 872 (Tenn. 1998), the defendant, Clarence Nesbit, was ultimately convicted of premeditated first degree murder in the shooting death of Miriam Cannon. In that case, a prosecution witness also was questioned during cross-examination as to the defendant's reputation for peace and quietude: Here, the alleged error arose during the guilt phase of the trial when defense counsel, at the end of his cross-examination of James Shaw, a witness for the State, asked Shaw if he was familiar with the defendant's reputation in the community for peacefulness and violence. Shaw, who had dated the defendant's aunt and known the defendant for twelve years, responded, "Yeah. He didn't bother nobody. You know, he'd help you if he could, but he never did -- he never did bother nobody. He seemed like to me he always tried to stay away from, you know, trouble." (978 S.W.2d at 883.) Following this statement by the witness regarding Nesbit's character, the prosecutor asked for a bench conference and told the court that, to test Shaw's knowledge, the State wanted to inquire whether Shaw had heard "that the defendant claimed he worshiped Satan and had to kill two people to get power." Id. The defense then requested a jury-out hearing so that Shaw's knowledge of these allegations could be explored. Following that hearing, and with the jury back in the courtroom, the State was permitted to ask additional questions to Mr. Shaw, which included the following: Prosecutor: In forming your opinion of his reputation in the community in which he works and lives for peacefulness and quietude, had you heard that the defendant had told others that he worshiped Satan and needed to kill two people in order to get some power? Shaw: No, I had not heard that. (Id. at 884.) The court in Nesbit then applied Rule 405(a), Tenn. R. Evid., to analyze whether the witness who had opined as to the defendant's character was then properly questioned as to his knowledge of the alleged satanic beliefs and practices of the defendant. The court explained why such a witness could be asked about specific acts: Pursuant to Rule 405 (a), Tenn. R. Evid., a witness offering testimony about the defendant's character may be impeached by questions which test the character witness's knowledge of "relevant specific instances of conduct." The purposes served by such inquiries has been explained as follows: Specific instances of conduct are permissible on cross- examination for several reasons. First, they test the credibility of the character witness by providing information on the underlying data upon which the opinion or reputation was formed. If an opinion witness, who testifies that the defendant was an honest person at the critical time, did not know that the defendant had a prior embezzlement conviction, the opinion may have been formed on the basis of inadequate information or a careless (and therefore suspect) approach to assessing a person's reputation. Second, the specific acts help the trier of fact assess the standards used by the character witnesses. For example, if a witness who gave the opinion that the defendant is an honest person also knew that the defendant had ten shoplifting convictions, the trier of fact may choose to discount the opinion evidence because of the character witness's low standards for measuring honesty. (Id. at 881.)