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State v. Peek5/3/2000
ny chance that a juror might see behind the defense table. The defendant is unable to provide the court with any specific incidence when he was seen in leg shackles by any member of the jury. Given the strength of the State's case, we hold that no prejudice to the defendant occurred as the result of the trial court's error in failing to comply with proper procedures for employment of shackles such as to put into question the validity of the outcome of this trial.
IV. TESTIMONY OF WITNESS
In his fourth issue, the defendant asserts that the trial court erred in admitting the testimony of Rebecca Adams pursuant to Tennessee Rules of Evidence 404(b).
During a jury-out hearing, required by Rule 404(b)(1) before the admission of evidence of other crimes, wrongs, or acts for a non-propensity purpose, Adams testified that two days before the defendant raped G.C. at the same apartment complex, she had turned on the defendant who was following her in a manner that caused her to fear for her safety. The defendant had emerged from shadows when Adams got out of her car late in the evening and started to walk toward her building, arms filled with groceries. Adams was able to positively identify the defendant as that person both in the jury-out hearing and at trial.
The trial court ruled that the testimony of Adams was admissible for the non-propensity purpose of identification of the defendant, the central issue of this trial. We agree. Defendant further argues that, even if the trial court held a jury-out hearing and even if the evidence was admissible for a non-propensity purpose, the trial court failed to comply with Rule 404(b)(3) and exclude the evidence if its probative value was outweighed by the danger of unfair prejudice. One of the factors in weighing probative value is the degree of relevance of the evidence. See State v. Edwards, 868 S.W.2d 682, 691(Tenn. Crim. App.1993). "The similarity of the acts makes the probative value particularly significant." Id.
The testimony of Adams, up to the point of her turning to the defendant, is strikingly similar to that of G.C., even to the detail of carrying groceries. The defendant's method of waiting in the dark, dressed so as to veil his identity, for a lone, white female to emerge from her car in the apartment complex parking lot and start for her apartment, often with some item in her arms, and then of moving into a position where he could grab her from behind and quickly control her are present in both the stalking of Adams and the rape of G.C.. This identity evidence was highly probative, especially since the defendant claimed he was not guilty of this or any of the other four rapes for which he was convicted. The probative value of Adams's testimony far outweighed any unfair prejudice to the defendant, and the trial judge did not err in admitting her testimony. This issue is without merit.
V. EXPERT TESTIMONY
The defendant asserts next that the trial court erred in allowing Tennessee Bureau of Investigation Agent Joe Minor to testify as an expert regarding the DNA evidence after defendant's timely objection.
The admission of expert testimony is governed by Tennessee Rules of Evidence 702 and 703. The qualification of a witness as an expert is left to the sound discretion of the trial court. See State v. Ballard, 855 S.W.2d 557 (Tenn. 1993); Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439 (Tenn. 1992). Principles for the trial court to follow in deciding whether to admit scientific or technical evidence are set out in Rule 702, which states the following:
Testimony By Experts. - If scientific, technical, or other specialized knowledge will substanti
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