# FILED
December 9, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE SEPTEMBER 1997 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 03C 01-9702-CR-00057 Appellee, ) ) HAMILTON COUNTY VS. ) ) HON. DOUGLAS A. MEYER, JEFFERY SCOTT SCHAFER, ) JUDGE ) Appellant. ) (First-degree murder)

FOR THE APPE LLANT: FOR THE APPELLEE:
LARRY G. RODDY JOHN KNOX WALKUP P.O. Box 714 Attorney General & Repor ter Sale Creek, TN 37373 MICHAEL J. F AHEY, II Asst. Attorney General 450 Jame s Roberts on Pkwy. Nashville, TN 37243-0493 WILLIAM H. COX, III District Attorney General C. LELAND D

AVIS Asst. District Attor

ney General 600 Market St., Suite 300 Chattanooga, TN 37402

OPINION FILED:____________________

REVERSED AND

REMANDED JOHN H. PEAY, Judge2 O P I N I O N

The defendant wasindicted for first-degree premeditated murder. After a jurytrial, he was conv

icted of that offense and sentenced to life imprisonment

. He now appeals, raising the following issues:

1. The sufficiency of the evidence; 2. Whether the trial court erred in admitti ng into evidence a photograph of the victim; 3. Whe ther the tri al cour t erred in allo wing a lay witness to testify about her opinion of the defendant and his ac tions; 4. Whethe rthe tr ial court erred in its treatment of one of the State's wi tnesses, thereby causing the witness to change his test imon y to the defendant's prejudice; and 5. Whether th e trial court erred w hen it instructed the jury about parole eligibility dates. Upon our review of the record, w e reverse the judgment below and remand this cause for a new trial.

FACTS

On the evening of August 31, 1 99 4, the defendant and the victim, Gary Lynn Branum, were dri nking beer together in a bar called Fuzz

y’s Place. Kellie Denise Sherrill, who was worki ng as a ba rtender that night, testified that Br anum had been a regular customer but that she had never seen the defendant before. She arriv ed at the bar at approximately 7:00 p. m.; Branum and the defendant were already there, drinking beer.

Vicki Irene Jentry was a friend of Sherrill ’s and a lso arrived at the bar at about 7:00 p.m . She had never met either ma n, and wh ile s he was talking to Sherrill, Branum walked over to her and Sherill introduced them. Jentry t estified that Branum had then asked her if he could sit next to her, that the defendant was “getting o n [his] nerves.”1 Elsewhere in the record it is established that the two men walked out of the bar shortly before 11:00 p.m

. 3 After Bra nu m sat next to her, the defendant came and sat on the other side of her, continuing to talk to Branum. She testified that, e ach time she had moved, this s cene would replay. She testified that the men had talked about the Vietnam w ar and her impression was that the defendant had serv ed there. According to J entry, r i ght before the two men walked outside the bar, 1

they got to talking about

having to kill people when [Bran um] was in Vietnam and [the defendant] said something about he understood how he felt and [Branum] looked at him and told him, he said, ‘You don’t know what you’re talking about.’ He said, ‘You ain’t never

killed nobody.’ He said, ‘If [si c] you didn’t ever

serve,’ he said, ‘I can tell by the way -- the look in your eyes,’ he said,‘I’ve been through it .’ And [the defendant] said, ‘Not in the Army.’ When asked about Branum's demeanor duri ng this conversation,Jentrytestified that he had been “just calm, he never -- his voice nev

er cha n ged or anything.” Following this exchange, according to Jentry , the two men rose and wal ked out the front door of the bar, the victim in front and the defendant following him.

Because the men l eftthe door open and the air conditi oner was on, Jentry wentto close it. As sh e di d so, she testified, she saw Branum and the defendant standing behind Branum’s car. Branum was facing her and the defendant had his ba ck to her. After closing the door, she went back to the bar and within one or two minutes heard a “pop.” Sheand Sherrill then “screa med he shot him” and she saw th e defendant walk by the

window going to the side of the building. She testified that she and Sherrill had then run to thefront door and saw Branum “l aying there.” The nex t time she saw

the defendant, she testified, w as when “[h ]e comein the back door, walk ed around and sat at the end of the bar . . . and he looked a t [Sherrill] and he said, ‘Have you seen my checkbook?’ ” She testified that he had said nothing about hear ing a gunshot

and that4

“he was just as calm as he could be.” She admitted on cros s-examination that she had not seen the defendant with a gun.

Sherrill also testified that she had seen the tw o men walk out the front door of the bar, both leaving ha lf-empty beer bottlesbehind and the defendant also leaving his checkbook

beh ind. She saw Jentry shut the door and after Jentry had r eturned to the bar, she testified, she “heard a pop a nd I looked at [Jentry] and I said, ‘Oh, my God, he shot him.’ ” She further testified that she had “just assumed [the defendant] shot him and about the time I looked up [the defendant] w alked by theside windo w.” Like Jen try, she testified that the defendant ha d subsequently walked in the back door and asked her if she had seen his checkbook.

During the commotio n, som eone called 911 and after the defendant had reentered the bar, Sherrill rec eived aphone call from the police department. Officer Max Edward Johnson of the Hamilton County Sheriff’s Department arrived shortly thereafter. When h e got there, he found the victim lying in the park ing lot; he did not see any on e else outside. While he was outside, he testif ied, Sherrill had come to the door and told him that “[t]he guy that shot him” was stil l there. Jo hnson went into the bar, met the defendant, patted him down for weapons and put him in the patrol car. He subsequently located a shell casing underneath Branum’s car

and the murder weapon approximately forty feet to the right and towar d the back of the building. A holster for the weapon was found on the driver’s seat of Br anum’s car.

Officer Larry Sneed of the Hamilton County Sheriff's Department testified that he had arrived

at the scene after Officer Johnson was already there. He identified the murder weapon as a “Star 388 automatic pistol” and stated that the holster found in the victim’s car “appear s to fit a 380.” Thegun was stipulated as belonging to the vic

tim.2 The defendant tol d Officer Sneed t hat he did not know the other man's name. 5 Several hours after

the murder, Officer Sneed took a st atement from the defendant, in which the defendant acknowledged hav ing been talking with another man at the bar 2 and “talking about being in the serv ice.” He denied going

outside with Branum to Branum’s car, stating “I was inside the bar until the police came and got me.” In response to Officer Sneed’s question, “Where did [Branum] go?” the defendant responded “I didn’t know he left.” In response to the officer’s q uestion about whethe r he had m entioned anything about having killed someone before , th e defendant stated, “That would be har d to do because I’ve never kill ed anything, you know , except a deer once, you know, and a squirrel, but . . . ”

Lloyd Dorn testified that he had been dr iving by the bar on the nig ht in question and saw Branum, whom he knew, and another man in the parking lot of the bar. He testified that Branum had been at the back of a car with the other man about two feet behind him. He testi fie d that he hadn't seen anyone else in the parking lot. On crossexamination, he testified that the defendant was not the other person that

he had seen. An extensive jury-out hearing was then had, during which both the prosecuting attorney and the trial judge threat ened Dorn with a perjur y investigation. At the State’s request, the trial judge declared Dorn to be a hostile wi tness. The n ext da y, the State recalled Dorn and asked him, inter alia , “you can’t tell the j ury with a ny certain ty whether or not you saw this man on that parki ng lotornot; can you?” Dorn r esponde d, “As tod ay I cannot.” On further cross-exami nation, Dorn de scribed th e man he had seen as “probably 5'5", 5'6", around 150 or 160 pounds, curly hair and stuff.” Although the record does not include the height and weight of the

defendant, the record does indicate that the defendant’s physical descri ption varies somewhat from this.

Oakley McKinney of th e Tennessee Bureau of Investigati on testified that6

he had tested the murder weapon for lat ent fing erprints and did not find any . James Russell Davis, II, of the TBI testified that the results of tes ting for gunshot residue o n the defendant’s hands were “inconclus ive.” In other wor ds, the residue test could nei ther implicate nor exclude th e defendant as the person who had shot the weapon.

Dr. Frank

King, aforensic pathologist and medi cal examiner, testified that Branum had died from a singl e gunsho t wound “that entered th e left

side of the head just above the left eyeball and just below the left eyebrow .” He further testified that this shot had been fired “within two feet of the body” and that the injury was “100 percent fatal.”

The defendant did not offer any proof.

ANAL YSIS The defendant contends that the evidence is insufficient to supp ort a finding that the homicide was committed w ith premeditation and deliberation as required for firstdegree (premeditated) murder. He argues that the evi dence supports no more than a second-degree murder conv iction. We agree.

When a defendant challenges the sufficiency of the convic ting evidence,
we must review the evidence in the light most favorab le to the prosecutionin determining whether “ any

rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We do not reweigh or re-evaluate the evidence and are required to afford the State the strongest legitimate view of the proof contained in the record as well
as all rea

sonable and leg itimate

infe rences which may be draw n therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).7 Questions concerning the credibility of witnesses, the weight and valu e to be given to the evidenc e, as well as factual issues raised by the evidenc

e are resolved bythe trier of fact, not this Cour t. Cabbage , 571 S.W.2d 832, 83 5. A guilty verdict rendered by the jury and a pproved by the trial judge accredits the testimony of the witnesses

for the State, and a presumption of gui lt replaces the pres um ption of innocence. State v. Grace , 493 S.W.2d 474, 47 6 (Tenn. 1973).

At the time this homicide wa s committed, first-degree premeditated murder was defined asthe “intentional, premeditated and deliberate ki lling of another.” T.C.A. § 39-13-202(a)(1) (Supp. 1994). A deliberate and premeditated kil ling was “one perform ed with a cool purpose” and “one done after the exercis e of reflecti on an d judgment.”T.C.A. § 39-13-20 1(b)(1) & (2) (1991). Where no direct evidence of the de fe ndant's state of mind at the time of the kill ing is available, “[d]eliberation and pre meditation may be inferred from the circumstanc es where th ose circums tance s affirmatively establish that the defendant premeditated his assault and then deliberately performed the act.” State v. James Dumas , No. 02C01-9502-CR-00031, Shelby County (Tenn. Crim. App. filed Oct. 4, 1995, at Jackson). However, circumstantial eviden ce of
a defendant's state of

mind will not support a jury verdict of premeditated murder unless the proof of premeditation and deliberati on is “so strong and cog ent as to exclude every other reasonable hypothesis sav e the guilt of th e defendant, and that beyond a reasonable doubt.” Stat e v. Cra wford , 470 S.W.2d 610, 612 (Tenn. 1971). “A web of guilt must be woven around the defendant from which he cannot esc ape and from which facts and circumstances the jury could draw no other reasonable inference save the guilt of the defendant beyond a reasona ble doubt.” Id. at 613.

T his Court has previously recognized the nature o f proof which must be presented before a jury may properly infer either deliberation or premeditati on:8 (1) facts about how and what the defendant did prior to the actual killing w

hich show he

was engaged in acti

vity directed toward the killing , that is, planning activity ; (2) facts about the defendant's prior relationsh ip and conduct with the victim from w

hich motive may be inferred; and (3) facts about the nature of th e ki lling from which it may be inferred that the manner o f killing wa s so p articular and exacting that the defend ant mu st hav e intentionally kill ed according to a preconcei ved design. State v. Gentry , 881 S.W.2d 1, 4-5 (Tenn.Crim. App. 1993), quoting 2 W. LaFave and A. Scott, Substantive Criminal La w§ 7.7 (1986) (emphasis in original). In this case, there is simply no proof in the record which indi cates that the defendant planned to murder the victim. Indeed, the evi dence points instead to a spontaneous act of killing. The victim
was killed with his ow

n gun, and there is no proof w hatsoever that the defenda nt was
even aware that the victim had this gun. Nor is there any proof that the defendant might have planned to mur

der the vic

tim by some

other method. In short, there is no evidence of “planning activity.”

As to motive, the State concedes that the proof demonstratesno argument between the two men. T he proof further demonstrates little to no prior relationship between the defendant and Branum: the only ev idence of any prior meeting is the defendant's statement to Officer Snee d that he had “se en the gu y [he] was talking to
once before” and Sherrill's testimony that Branum had said “something about he met him
once before.” Moreover, i n his statement the defendant said that he did not ev en know t he victim 's name. The State posits the theory that the defe ndant took silent offense when Branum indicated his disbelief that thedefendant had ever killed any one. Yet the onlyproof the State offers up o f this is the murder itself. A s succinctly put by

our SupremeCourt in State v. West , 844 S.W.2d 144, 148 (Te nn. 1992), “[w]hile the state's theory ma y be true, i t remains only a theory, because the prosecution has no evidence to support it .” There simply is no proof in the record of a pr ior relationship and/or the9

defendant's conduct with Branum from w hich a motive for premeditated mur der may be inferred.

The nature of the killing support s only the inference that the defendant made a spontaneous and impulsive decision to shoot the victim. The proof demonstrates that they were outs ide the bar and out of sight for only moments before the victim was shot. Moreover, he was shot with his own gun: a nd, as pointed out above, there is absolutely no proof that the defendant was aware that

the victim even had this gun, much less that he would be giv en an opportunity to get hi s hands on it. TheState points to the defe ndant's “calm demeanor and his immediate c oncealment of the weapon” after the shooting as “indica tive of a cool, dispassionate premeditated murde r.” We ackno wledge that “[c]almness immedi ate ly after a killing may be evidence of a cool, di spassionate, premeditated murder.” West , 844 S.W.2d at 148. Under the circumstances of this case, however, we simply do

not think the defendant's demeanor after the shooting establishes that he planned the murder prior to committing it

. Cf. West , 844 S.W.2d at 148 (“[W ]hile the def endant's behavior manifests . .. indifference to the victi m and fear of detection [such] t hat the jury might dis credit his self-defense story, [his] failure to report the shooting to the police fails to establish premeditation and deliberation in advance of the murder.”)
Similarly, that the defendant appa rently th rew the gun to the side of the buildi ng after shooting Branum is not s ufficient evidence of premeditation an d/or deliberation. See State v. Mason , ___ S.W.2d ___, __ _ (Tenn. Crim. App. 1997) (”While
we cannot infer premeditation and deli beration from [the defendant's] concealment of the weapon after the shooting, concealment d oes contradict the [defendant's] the ory ofselfdefense by illustrating fear of detection.”). See al so State v. West , 844 S.W.2d at 148 (“The concealment of evidence . . . may be associated with the

commission of any

crime1 0

and the accompanying fear of punishment .”) (emphasis in orig inal).

“ The law in Te nnessee has l ong recogn ized that o nce the homi cide ha s been established, it is presumed to be murder i n the second degree. The state bears the burden of proof on the issue of premeditation and del iberation s ufficient to elevate the offense to first-degre e murder.” State v. B rown , 836 S.W.2d 530, 543 (Tenn. 1992) (citation omitted). In this case, the State has simpl y failed to meet this burden and the presumption of second-degree murder is therefore unrebut ted. Acco rdingly, were it not forour remand of this case due to the r eversible trial er

ror set forth below, we would reduce the defendant's conviction to second-degree mu rder.

In his second issue, the defendant contends that the trial court err

ed when it admitted int o evidence a photograph of the victim showing the gunshot wound. He argues that defense counsel offered to stipulate to t he only fact which the photog raph
was offered to prove: that the shot had been fired at very close range, thereby causing powder burns to the victim's face. Moreover, he points out, there was e xpert testimony about the “stippling” and the nearness of the range from whi ch the shot was fired. Accordin gly, the photo graph became needlessly

cumulativ

e and served merely to

inflame the jury in viola

tion of Tennessee Rule of Evidence 403 (“[a]lthough relevant, evidence maybe excluded if its probati ve value is substanti ally outweighed by the danger of

unfair prejudice, confusion of the issues, or misl eading the jury, or by considerations

of undue delay, waste of time, or needless presentation of cumula tive evidence.”)

In response, the State

argues that the photograph was properly admitted as illustrative of the ex

pert witness's testi mony. See State v. Stephenson , 878 S.W.2d 530, 542 (Tenn. 1994). It also contends that def ense co unsel' s stipulation is only one factor that the tri a l court must weigh i n determining whether the probative value of the3 The c hoice wa s ma de following defens e coun sel's obje ction and the trial court's ruling. Accor dingly, coun sel's particip ation in cho osing the photogr aph did n ot waive the defend ant's right to raise this is sue on ap pea l.

4 In response to the State' s question as t o what she meant by “ weird,” Sherril l explai ned that she had noticed t hat whenever t he defendant spoke to Branum, he would l ook up rather t han at him. She also said t hat the defen dant had “kept bug ging” Branum. 1 1 photograph outweighs the danger of unfair prejudice, citing State v. Norris , 874 S.W.2d 590, 597 (Tenn. Crim. App. 1993).

This Court will not ov

erturn a trial court's

decision to admit a photogr aph absent a clear showing of abuse of discretion. State v. Banks , 5 64 S. W. 2d 947, 9 49 (Tenn. 1978). No such showin g has been made he re. With def e nse c ounsel participating, the photograph was selec ted from several as being the least gruesome. 3 The trial court determined that the probative value of the photograph outweighed “ any prejudice”and that, in spite of defense counsel's of fer to stipulate (to which th e prosecution did not agree), “the picture is wor th a thousand words.” We see no abuse of discretion in the trial court's ruling, and this issue is therefore w ithout merit.

The defendant also complain s that the trial court er red when it permitted Sherrill to testify that, in her per sonal opinion, he was “w eird” and that she had “assumed” and “suspected” that he had sho t Branum. He argues that her descr iption of him as “weird” amounted t o charact er evidence and that “If the j ury accredited [her] t estimony then it could have been a substi tute for motive.”

The State responds that, follow ing her labeling of the defendant as “weird,” Sherrill testified about specif ic instances of his behavior which had led her to that conclusion. 4 Thus, according to the State, “Sherrill
was not testifying about possi ble motives, she was merely giving a simple description of [the defendant's] behavior.” The State also argues

that Sherrill's stated suspicion helped the jury to understand

why she had told the police dispatcher (who had called in response to the 911 call) that the shooter was still at the bar.1 2 At the time of this trial in 1 995, our rules of evidence pr ovided that a lay witness could testify “in the form of opinions or inferences” onl y where the opinions and inferences “(1) . . . do not require a special kno

wledge, skill, ex

perience, or

training; (2) The witness ca nnot rea dily and wi th equal accuracy and adequacy communicate what the witness has perceiv ed to the trier of fact without testi fying in terms of opinions o r inferences; and (3) The opini o ns or inferences will not mislead the trier of fact to the prejudice of the objecting party.” Tenn. R. Evi d. 701(a) (1995). Our standard of review in determining whether th e trial court erred in allowingthe testimony at issue is abuse of discretion. See State v. Caughron , 855 S.W.2d 526, 540 (Tenn. 1993) (“It is w ell-settled that the propriety, scope, manner and control of the examination of witnesses is a matter within the discretion of the trial judge, subject to appellate review for abuse of discretion.”)

In this case, we think

the court abused its discr etion in allowing

Sherrill to testify that the defend ant wa s “weird” and that she had suspected him of shooti ng Branum. Her testimony should have been limited to descr ibing her observations of the defendant's behavior. Thejury could then have drawn appropriate inferences from these observations. Instead, Sher rill was allow

ed to testify that she had found the defendant

“ weird” with very li

ttle factual basis on whic h to support this opinion. Worse, her assumption that the defendant had shot Branum -- voiced before she ev en saw Branum
on the ground -- was ba sed on no spe c ific event or conduct or w ords about which she testified, other than having heard a “pop.” We find that this testimony was misleading to the defendant 's prejudice. Thus, this testi mony did not satisfy the r equirements of the applicable rule of evidence and should have been excl uded.
However, that portion of Sherrill’s testimony at issue w as useful to the State onlyfor proof of premeditation and/or delibe ration, insofar as i t may have assisted the jury in determ ining why the defendant killed Branum (because he was “weird”) or in1 3

concluding that Sherrill suspected him because shehad observed some behavior on his part that indicated his intent or plan to kill Branum: but which observation was otherwise not elicited during her t es timony. In o ther words, the jury may have inferred from Sherrill’s inferences that thedefendant had i n fact demonstr ated some

premeditation or deliberation, and that

Sherri ll simp ly did

not testify

about all of the specifics underlying her opinions. Ye t, even wi th this erroneously admitted testimony, we hav e found the evidence to be insufficient to su pp ort a verdict of premeditated first-degree murder. Thus, it is unnecessary for this Court to determine whether its admission constituted reversible error. We caution the trial court, however, th at this opinion testimony would be irrelevant in the defendant's new trial.

The defendant also contends that the trial court committed reversible er ror in its treatment of Lloyd Dor n. We agree. On initial cross-examination, defense counsel asked Dorn, “You can't identi fy the other person that was there, can you tell me whether
or not it was him?” apparently pointing to the defendant. Dorn responded, “No, it wasn't that guy.” On redirect, the prosecutin g attorney asked, “Y ou're saying today , you see this man here [again, apparently poi nting tothe defendant] and you don't recog nize him as the person you saw in th e parking lot?” to w hich Dorn responded, “No, I do not rec ognize him.” The State then asked, “Is it y our testimony today that you can describe

what that other person looked like or y ou just don't know?”

and Dorn said, “The other pers on was shorter than this guy.” The prosecutor then asked that Dorn be declared a hostile witness because he “interviewed this man on Sunday and he told me very specifically he had no idea.”

The jury was remov ed and the State proceede d to voir dire the witness. Dorn indicated that the man he had seen on the parking was not only shorter t ha n the defendant, but his hair was different and he was stockier than the defendant. The1 4

prosecuting attorney then review ed w i th Dorn the statement that Dorn had given to Officer Sneed during

the investigation in

which no me ntion was m ade of the other person's build. Dorn testified that “he didn' t ask me, you know, w

hat the person looked like.” The prosecutor then questioned Dorn about a conversation between D orn, the attorney and Officer Sneed on the Sunday precedin g the trial:

Q: And do yo u remember us asking y ou about him? A: You just asked me, yo u know, who I seen. Q: Yeah, I asked you a l ot of things; didn't I? A: And you asked me if I knew the other person and I said no. Q: And I asked you what he looked like? A: Now, I don't remember y ou asking me that. Q: You don't remember, you don' t remembe r me as king you what he looked like and you said, “I don't know, I couldn't identify him”? A: No, I co uldn't identify him because I don't -- I never hav e seen the person in my life. Q: . . . Did y

ou or did y

ou not tell me

on Sunday

that yo u couldn 't identify the man who was on that parking lot if he was standing right there in front of you, weren't those your words? A: No, I don't think so. At this point, the prosecutor admonished Dorn, “I want you to think about that answ er.” Defense counsel objected, andthe trial judge stated t o Dorn, “No, I've got to caution Mr. Dorn that you know that you are under oath? . . . Perjury is lyi ng under oath . . . . And it carries one to six years in the penitentiar y . . . . So just remember that when you 're answering questio ns.”

The trial court did not err in instructing t he wit ness about the significance of his o ath. However, at this point in the proceedings, defense counsel stated, “W ell, Judge, I don't think there's any reason to think that

this witness is lying” and the judge responded, “Well, I think there's every reason to belie ve that.” After some further1 5

discussion with defense counsel, the trial court declare d Dorn to be a hostile witness. The prosecutor subsequently stated, “I have a goodfaith basis to believe that this man is committing perjury and I'm on the verge o f recomm ending th at we go to the grand jury with it and I'm going t o give you an opportuni ty to explain your

answer clearly at 12 o'clock-- ” Defense counsel then as ked to state an objection to which the court responded, “No, let

the Attorney General continue.” Defense counsel attempted again, and the judge stated, “Mr. Roddy, sit down.”

The prosecutor then continued its voir dire of Dorn, stating that he had asked Dorn on Sunday, “could y ou give me any descr

iption of the person who w as on the lot that night?” Dorn res ponded, “I understand you asked me did I know the person that
w as there and I said no.” After furth er fruitless questioning , the State called Officer Sneed to the stand to discuss Sunday 's discussion with Dorn. Officer Sneed testified that the prosecuting attorney had “asked [Dorn] abou t the othe r person and Mr. Dorn did make the statement that h e didn't be lieve he could identify that man or recognize that
man if he was on the parking lot with us at that time.” On cro ss-ex amination defense counsel asked Officer

Sneed if he had ever asked Dorn to describe the pers on he had seen, and Officer Sneed responded, “No, sir.” He also admitted that he had not shown Dorn any photographs. Dorn was then recalled to the witness st and and he re iterated in response to further question ing by the State that he had never seen the defendant “until this morning.”

The judge then questioned Dor n, asking him if he hadspoken with any of the defendant 's friends or family, or if he had discussed the matter w ith anyone other than defense counsel, to wh ich Dorn replied no.

At t his pointin the proceedings, it i s obvious that the State had been unpleasantly surprised by Dorn's te stimony. Howev er, sta ting th at you c

ould not identif y or recognize someone if you saw them again is different from, but not inconsistent with ,1 6

later stating that a particul ar person is not the person you had seen earlier. During its voir dir e of both Dorn and Office Sneed, the St ate did not establish that Dorn had earlie r refused to give a description of the man he had seen. Nor did it establi sh that it had provided Dorn with an opportunity to identify or recognize the defendant in whic h Dorn responded differently than he did at trial. Thus, the State failed to establish on the record that there was a good faith basi s to suspect Dorn of perjury. Indeed, after the prosecuting attorney finished examin in g Dorn he stated to the court, “I think the man's offered perjured testimo ny, but I do n't think it's stron g enough t o move for an indictment
on it.” The court responded, “No, I don't think [so] either. ” However, the judge then stated, in Dorn's presence, “Ithink that Mr. Sneed or members of the sheriff's department should investigate this case further to see if [Dorn] has had contact with any one else and if he has then he should be indicted for perjury.”

When the court reiterated its declarati on of Dorn as a hostile witness, defense counsel objected. The judge responded, still in Dorn's presence, “I believe that Mr. Dorn is lyi ng under oath. I don't think ther e's sufficient proof at

this time, but I think he thinks that he can come into court like other witn esses do a t times, u nfortun ately we do have too much perjury in court and I think that this man is committing perjury. ” In its continuing colloquy

with counsel, the cour

t went on: I think th e man is co mmittin g perjury.

. . . And he may suffer the consequences if --

. . .

-- the coun ty i nv estigates and can prove it because to me murder is extremelyserious and is something that we sho uld defi nitely try, but to me the second thing is perjur y. Anything that c

orrupts th e judicia l process is a very serious

off ens e and all efforts should be expended to prosecute anyone who commits perjur y so they should inv

estigate.

. . . I'm a pretty good lie detector.

. . . I think the man is lying

under oath. It's that simple.

. . . But as I say

if he's not then nothing will happen, if he is hopefully they will be able to prosecute him for it because I do not think that -- treat that very5 The only “i nformation” r eflected i n the record i s the wit ness' pri or relat ionship with defense counsel and defense cou nsel's father. We are aware of nothi ng which establ ishes that such a relatio nsh ip is pr oba tive of perju ry. 1 7

lightly that anyon e would come into court and lie under oath. Defense counsel then repeated its objection to Dorn b eing declared a hostile witness.

The prosecutor

then spoke up, and the trial judg e stated to him, “But I think Mr

. Davis you'd be pret ty foolish to question hi m much further because I think he' s already testified and I think

the best thing you could do is move on and hope that the jury believesthe other witnesses . . . . Because you don't wantto get off on trying this man

. . . . Because see, you know, that's always a good ploy is to try somebody else so I think it would be best if we continue trying Mr. Schafer.” The jury was subsequently returned to the courtroom and the State initially passed on further q uestions. Defense couns el then asked Dorn, “Is that the man that was out there when y ou drove by?” and Dorn responded, “To my best recol lection, no.” The State follow ed with a short redir

ect.

The next day, the State again called Dorn to the stand outside the presence of the jury and established that he knew defense counsel and defense counsel's father independently of the case. Following this,Dorn asked to make a statement and the court said, Okay. Se e, let me advise you o f this, Mr . Dorn, you have

every right to be represen ted by a lawyer because this Court believesthat you lied under oath yesterday, j ust flat lied and yo u tho ught that you could get away with it and you may be able to get away with it because the State may not be able to prove that you lied under oath, but it looks like they'v e done a pretty good job in one evening of diggin g up some information about you 5 so if you want to say anything I'll let you s a y anything you want to say, but I want to cautio n you that anything you say

could be used against you and ev erything you say is being t

aken down. Dorn then explained how he had t alked wit h his wife the night before a nd that he had “worried and worried and wor ried and run through my mind about se eing the person1 8

there.” He explained that he and his wife had driven by Fuzzy's again the night before and tested his ability

to recognize and remember the vehicles h e saw as the y drove by. He then said, “I could have made a mistake. I am only human, Judge.” The f oll o wing then took place:

THE COURT: Well, no, the Court just obvi ously thinks what you intended to do was assist Mr. Roddy. I don't accuse Mr. Rod dyof doing anything imprope r, but I accuse you o f wanting to help Mr. Roddy by saying that this man definitely wasn't the person you saw there and you never indicated that to Mr. Davis or to Detective Sneed ahead of time. THE WITNESS: Well, I was never actually askedabout that. THE COURT: No, I think y ou're trying to back

pedal now or something, but anyhow, you've had your say on that.

. . . THE COURT: So you could have been wrong about that not possibly being him? THE WITNESS: Yes. The jury was then returned to the courtroom and the pros ecutor asked, inter alia , “You can't tell us, you can't tel l the jury with a nycertainty whether or not you saw this man on that parking lot

or not; can you?” Dorn responded, “As today I cannot.” In response to further questioning, he testified , “I'm only human and a person can be wrong. . . . I was wrong yesterday , yes.”

Clearly, the multiple threats of prosecution by the State and the court , and the court's repeated declarati ons that it believed Dor n to be guilty of perjur

y in spite of the fact that Dor

n was no

t on tri al for sa me, had an effe ct on Dorn's testimony. Just as clearly, the change in testimony was to the defendant's detriment. W hile we agree that
a tria l court m ay properly advi se a witness of the sign ificance of lying under oath, the court in this case went far beyond an appropriate warning. In this case, the court went
so far in threatening and inti midating the witness, with resu lting prejudice to the defendant, that the defendant's right to a fai r trial was compromi sed and the outcome of the trial brought into question. Under t he circumstances of this case, the trial court's6 Given o ur ruling on the suffic iency of the evidenc e, the defe ndant's n ew trial is limited to second-degree murder and any appropriat

e lesser off

enses. 1 9 comments to the witness and the prosecution constitute d reversible error

. See T.R.A.P. 36(b) (“A final judgment from which relief is available and otherwise appropriate shall not be set aside unless, consider ing the whole record, error involving a substantial right more probably than not affected the judgment or w ould result i n p rejudice to the judicial process.”) Accordingly, w e reverse the judgment bel owand remand this matter for a new trial. 6
Finally, the defendant contends that the trial court erred w

hen it instructed the jury on parole eligibility dat es. However, he cand idly concedes that he “bel ieves the [trial court] correctly c

harged the jury pursu ant to [T.C.A. § 40- 35-201] but respectfully submits that the instruction denied hi m due proces s of law” under the fourteenth amendment to the United States Constitution. Bec ause he cites us to no authority in support of this proposition, this issue is waived. Ct. Crim. App. R. 10(b).

The evidence being insufficient to support a c onviction for first-deg ree premeditated murder and the court below having committed reversible error, we reverse the defendant's conviction for first-degree premeditated murder and remand this matter for a new trial on second-degree murder and any appropriate lesser offe nses.

______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ DAVID G. HAYES, Jud ge2 0

______________________________ WILLIA M M. BARKER, Judge