### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs O ctober 7, 2003 STATE OF TENN ESSEE v. JULIUS L. JONES Direct Appeal from the Criminal Court for Shelby County

No. 01-12258 W. Fred Axley, Judge

No. W2002-02336-CCA-R3-CD - Filed December 30, 2003

The defenda

nt was co nvicted o f facilitation of f elony murder, a Class A f

elony , and sen

tenced t o twenty-three

years. The

defendant conten ds on appeal that the trial court erred in 1) allowing testimonyby D ozier that

the defe ndant told her the victim

had been involved in the robbery because t he statement was inadmissible hearsay , and 2) refusing to admit the prior written stat ement o f Dozier int

o evidenc e under Tennesse e Rule of Evidence 613(b). We remand for correction of the j udgment form to re

flect the correc t felony

classifi cations. The judg ment of the trial cou rt is affirmed in all other respects. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cr

iminal Court Affirm

ed and Remande

d for Corr

ected Ju dgment
J OHN E VERE TT W ILLI AMS , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R . and N ORMA M C G EE O GLE , JJ., joined.
Christine W. Stephens (on appeal), Memphis, T ennesse e, and Jame s T. Allison (at tria l), Memph

is, Tenness ee, for

the appe llant, Julius L. Jone s. Paul G. Summers, Attorney Gene ral and Reporter; Thomas E. Williams, II I, Assistant Attorney Genera l; William L . Gibbons, District A ttorney Genera l; and Reg

inald Henderson a

nd Eric Christensen, Assistant District Attorneys Gene ral, for the appellee, State of Tennessee

. OPINION
The defenda

nt, Julius L . Jones, wa s convict ed of fa cilitation of felon y mu rder, a Class A fe lo ny, and sentenced to twenty -three y ears in the Tennessee Department of Correction. This appeal timely followed. The defendant

contends on appeal that

the trial court erred in 1) allowing testimony by Dozier that the defendant told her the victim had been involved in the robbery be cause the statement was inad missible hearsay , and 2) refusing to admit the prior written statement of Dozier into evidence under Tennessee Rule of Evidenc e 613(b). The judgment of the trial court is affirmed.-2- Facts
On November 28, 1998, Nathenia Dozier arrived home and discovere d that someone had broken into her apartment. Upon entering the apar tment, she noticed that the phone lines had been cut. The ph ones w ere mi ssin g, along w ith two hund red dolla rs and a l eather

jacket. She went t

o a downstairs apartment and paged an acquaintance, Norman Dixon , and requested that he come to the apartme nt. Dixon arrived at the apartment in a car being driven by

the defendant. The three of them left together and went to the defenda nt’s house. Shortly after arriving at the defe

ndant’s house, the defendant and Dixon left without Dozier and were gone for a

ppr oximately

an hour a

nd a half . When the m

en retur ned, they spoke with Dozier, and the defendant told her that as a result of an “investigation” conducted by him and Dixon, they had determined that Maurice Pay ton and another man had broken into her apartment. Dozier asked the defendant and Dixon if they would accompany

her back to her apartm ent to get a cha nge of clothes so that she could spend the night at the defendant’s house. The defendant drove her and Dixon back to Dozier’s apartment. After she retrieved clothes from the apartment, the def en dant drove the three of them out of

the park ing lot.
Moments after

leaving the park

ing lot of the apar tment comp lex, Dixon spot ted the vi ctim, Maurice Payton, standing near the road. As the defe

ndant pull ed along side the v ictim, Dixon asked the victim toget into the car, and the victim complied. After a few minutes of conversation, Dixon brandisheda g u n and ask ed the vic tim about br

eaking into the a

partmen t. The victim told “hi m everything

he wanted to hear.” The victim cried and be gged as the defenda nt stopped the car. Dozier exited the ca r, a nd the defendant “came after” Dozier. Around that time, Dozier heard a gunshot and realized that Dixon had shot the victim. The defendant asked Dixon why he had n ot allowed the defendant to be the first one to use his own gun. There after, the defendant and Dixon pulled the victim out of

the car and dumpe d his body beside the roa d. The victim died of the gunshot wound to his head. The defendant drove Dixon and Dozier back to his house where the defendant and Dixon attempted to clean out evidence of the shooting from the bac kseat of the car.
The defendant was arrested a fe w months later and charged with felony murder. After a jury trial, the defendant was convicted of the lesser included offense of fac ilitation of felony murder a nd sentenced to twenty -three ye ars in the Tennessee Department of Correction. He now appeals from that conviction. Analysis
The defendant first contends that the trial court erred in allowing testimony by Dozier that the defenda

nt told her t he victim had been involved in the robbery , because the statement was inadmissib le hearsa

y. T he admiss ibility

of evide nce is a m atter within the discretion of the trial court and must not be disturbed on appeal absent an abuse of discretion. State v. Ballard , 855 S.W.2d 557, 562 (Tenn. 1 993). He arsay is a state ment, other than one made by the declarant

while testifying a

t the trial or hearing, offered in e vidence to prove t

he truth of the matter asserted. Tenn. R. Evid.-3-

801(c). Generally , hearsay is no t admissible; however, numerous exceptions exist to this general rule. See Tenn. R. Evid. 802. The State asserts that the trial court properly ruled that the testimony was admissible hearsay

under Rule 803(3), which allows adm ission of testimony indicating the “declarant’s then existin g state of mind, e

motio n, sensatio n, or phy sical co ndition (su ch as inte nt, plan, motive, design, mental feeling, pain, and bodily health).” Tenn. R. Evid. 803(3).
We conclude that the statements complained of were not hearsay . The statements made by the defenda

nt to Dozier

were no t offered to prove the truth o f the matt

er asse rted, whether the victim was actually involved

in the robbery, but we

re offered to show the

defendant’s state of mind at the time. The def

endant’ s belief t

hat the vi ctim was in

volved in the robbery

was offered to show what provoked him to harm

the victim

. See State v. Caughron , 855 S.W.2d 5 26, 537 (T enn. 1993 ); State v. Miller , 737 S.W.2d 556, 559 (Tenn. C rim. App. 1987). The court did not err in admitting the testimonyby Dozier conce rning the statements made by the defendant because they were not hearsa y. T his issue iswithout me

rit.
The defendant next contends that the trial court erred in refusing to admit the prior written s tatement of Dozier into evidence under Tennessee Rule of Evidenc e 613(b). As noted in th e previous issue, the admission or exclusion of evidence is a matter within the trial court’s discretion, and the trial court’s decision will not be overturned absent an abuse of discretion. Ballard , 85 5 S.W.2d at 56 2. Rule 613 (b) state s in pertinent part : Ex tr insic evidenc e of a pr ior incon sistent sta

tement by a witnessis not admis sible unless the witne ss is afford ed an opportunity to explain or deny the same and the opposite party is aff

orded an op po rt un it y t o explain or deny the same a nd the opposite party is aff

ord e d an opportunity to interrog ate the witness thereon, or the interests of justice otherwise require. Tenn. R. Evid. 613(b). Rule 613(b) allows the introduction of o therwise inadmissib le extrinsi c evidence for impeachment purposes only and not as substantive evidence. State v. Ma rtin , 96 4 S.W.2d 564, 567 (Te nn. 1998) (citation omitted). Extrinsic evidence is inadmissible unless the “witness either d

enies or equivoca tes as to having made the prior inconsistent statement.” Id. “Accor dingly , th e admissib ility

of the extr

insic evid ence is c ontinge

nt upon whe

ther the witness admits or denies having made the prior inconsistent statement.” Id. As the Stat e correctly

points out, the witness un

equivoca lly admitted m aking th

e prior s tatement s. She did clarify some of the alleged inconsiste ncies, but never denied making the statements. The trial cour t did not er r in refu sing to admit the prior statement of Dozier. This issue is without merit.
The defenda

nt also gener

ally avers, without citing any authority, that the prior stateme nt of Dozier should have bee n admitted, because “defense counsel wa s somewhat limited by the trial judge as to what he c ould ask D ozier about her pr ior incon sistent sta

tement.” The rig

ht to effec tively cross-examine is fundamental; however, the propriety, scope , and control of cross-examination are left to the sound discretion of the trial judge. Statev. Dishman , 915 S.W.2d 458, 463 (Ten n. Crim. App. 1995). We will not interfere with the exercise of that discretion absent a clear and plain abuse. See Statev. Fowler , 213 Tenn. 239, 373 S.W.2d 460, 464 (1963). The trial court did not allow the de fendant to cross-examine Dozier concerning certain state ments made by Dixon. Earlier i n the trial ,-4-

the court sustained an obj ection by the def endant to the admission of these statements. The court stated that it

would not allow testimony that it had already ruled inadmissible hearsay in sustaining an objectio n by

the defe ndant tonow be brought in by the defendant through the prior statement of Dozier. The trial court did not abuse its discretionin limiting the scope of cross-examination. This issue is without merit.
The judgment

form inco

rrectly indicate s that the d

efenda nt was ch arged

withfelony murder , a Class A f

elony , and con

victed of facilita tion of fe lony murder, a Class B felony

. Felony murde r is first degree murder. Tenn. Code Ann. § 39-13-202. The defendant was convicted of the lesser included offense of facilitation of felony murder , which is an offense of the next class below felony murder, a Class A felony. Id. § 39-11-403. The judgmen t form should have reflected that the defendant was charged with first deg ree murder and convicted of a Class A felony. We remand for correc tion of the

judgmen t form to r

eflect t he corr ect felo ny c lassific ations.
Conclusion
We remand for correction of the judgment form to reflect the correc t felony

classifi cations. Based o n the for

egoing and the r ecord a s a whole , the judgment of the trial cou rt is aff irmed in a

ll other respects.

___________________________________ JOHN EVERETT WILL

IAMS, JUDGE