Evidence At 104 (4Th Ed. 1992) See Also State v. Randall Gibbs, Dickson Co., No.

• Court: Court of Criminal Appeals of Tennessee
• Decided: July 14, 1995
• Docket: 01C01-9507-CR-00220
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FEBRUARY 1996 SESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9507-CR-00220 ) ) Davidson County v. ) ) Hon. Ann Lacy Johns, Judge ) ROBERT LEE BAILEY, JR., ) (Sale of Cocaine and Evading Arrest) ) Appellant. ) FILED CONCURRING OPINION May 9, 1996

Cecil W. Crowson Appellate Court Clerk I concur in the majority opinion, but I write separately to stress my concern

about the use of evidence of complaints about drug dealing near a school for the

ostensible purpose of explaining why the police were conducting the undercover

investigation where they did. We need not “assume” it to be inadmissible -- we should

declare it to be because its risk of prejudice substantially outweighs its nominal

relevance. There was no good reason for the police to explain anything other than that

they were conducting an undercover drug investigation. One treatise has recognized as

an “area of apparently widespread abuse” the allowing of police officers to relate

hearsay statements, such as complaints and reports, for the supposed purpose of

explaining the officers’ presence and conduct. 2 John William Strong McCormick On

Evidence at 104 (4th ed. 1992); see also State v. Randall Gibbs, Dickson Co., No.

01C01-9409-CC-00300 (Tenn. Crim. App. July 14, 1995) (Summers, concurring). Such

an abuse occurred in this case. It is only because the evidence is overwhelming in

showing the defendant’s guilt that I agree that the conviction should be affirmed.

Joseph M. Tipton, Judge