IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 7, 2003

STATE OF TENNESSEE 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 defendant was convicted of facilitation of felony murder, a Class A felony, and sentenced to

twenty-three years. 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 because

the statement was inadmissible hearsay, and 2) refusing to admit the prior written statement of

Dozier into evidence under Tennessee Rule of Evidence 613(b). We remand for correction of the

judgment form to reflect the correct felony classifications. The judgment of the trial court is

affirmed in all other respects. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed and

Remanded for Corrected Judgment

JOHN EVERETT WILLIAMS,J., delivered the opinion of the court, in which JAMES CURWOOD WITT,

JR. and NORMA MCGEE OGLE, JJ., joined.

Christine W. Stephens (on appeal), Memphis, Tennessee, and James T. Allison (at trial), Memphis,

Tennessee, for the appellant, Julius L. Jones.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney

General; William L. Gibbons, District Attorney General; and Reginald Henderson and Eric

Christensen, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

The defendant, Julius L. Jones, was convicted of facilitation of felony murder, a Class A

felony, and sentenced to twenty-three years 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 because the

statement was inadmissible hearsay, and 2) refusing to admit the prior written statement of Dozier

into evidence under Tennessee Rule of Evidence 613(b). The judgment of the trial court is affirmed.
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Facts

On November 28, 1998, Nathenia Dozier arrived home and discovered that someone had

broken into her apartment. Upon entering the apartment, she noticed that the phone lines had been

cut. The phones were missing, along with two hundred dollars and a leather jacket. She went to a

downstairs apartment and paged an acquaintance, Norman Dixon, and requested that he come to the

apartment. Dixon arrived at the apartment in a car being driven by the defendant. The three of them

left together and went to the defendant’s house.

Shortly after arriving at the defendant’s house, the defendant and Dixon left without Dozier

and were gone for approximately an hour and a half. When the men returned, 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 Payton and another man had broken into her apartment. Dozier

asked the defendant and Dixon if they would accompany her back to her apartment to get a change

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 defendant

drove the three of them out of the parking lot.

Moments after leaving the parking lot of the apartment complex, Dixon spotted the victim,

Maurice Payton, standing near the road. As the defendant pulled alongside the victim, Dixon asked

the victim to get into the car, and the victim complied. After a few minutes of conversation, Dixon

brandished a gun and asked the victim about breaking into the apartment. The victim told “him

everything he wanted to hear.” The victim cried and begged as the defendant stopped the car.

Dozier exited the car, and 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 not

allowed the defendant to be the first one to use his own gun. Thereafter, the defendant and Dixon

pulled the victim out of the car and dumped his body beside the road. 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 backseat of the car.

The defendant was arrested a few months later and charged with felony murder. After a jury

trial, the defendant was convicted of the lesser included offense of facilitation of felony murder and

sentenced to twenty-three years 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 defendant told her the victim had been involved in the robbery, because the statement was

inadmissible hearsay. The admissibility of evidence is a matter 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. 1993). Hearsay is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tenn. R. Evid.
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801(c). Generally, hearsay is not 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 admission of testimony indicating the

“declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent,

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 defendant to Dozier were not offered to prove the truth of the matter asserted, whether the victim

was actually involved in the robbery, but were offered to show the defendant’s state of mind at the

time. The defendant’s belief that the victim was involved in the robbery was offered to show what

provoked him to harm the victim. See State v. Caughron, 855 S.W.2d 526, 537 (Tenn. 1993); State

v. Miller, 737 S.W.2d 556, 559 (Tenn. Crim. App. 1987). The court did not err in admitting the

testimony by Dozier concerning the statements made by the defendant because they were not

hearsay. This issue is without merit.

The defendant next contends that the trial court erred in refusing to admit the prior written

statement of Dozier into evidence under Tennessee Rule of Evidence 613(b). As noted in the

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, 855

S.W.2d at 562. Rule 613(b) states in pertinent part:

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible

unless the witness is afforded an opportunity to explain or deny the same and the

opposite party is afforded an opportunity to explain or deny the same and the

opposite party is afforded an opportunity to interrogate the witness thereon, or the

interests of justice otherwise require.

Tenn. R. Evid. 613(b). Rule 613(b) allows the introduction of otherwise inadmissible extrinsic

evidence for impeachment purposes only and not as substantive evidence. State v. Martin, 964

S.W.2d 564, 567 (Tenn. 1998) (citation omitted). Extrinsic evidence is inadmissible unless the

“witness either denies or equivocates as to having made the prior inconsistent statement.” Id.

“Accordingly, the admissibility of the extrinsic evidence is contingent upon whether the witness

admits or denies having made the prior inconsistent statement.” Id. As the State correctly points out,

the witness unequivocally admitted making the prior statements. She did clarify some of the alleged

inconsistencies, but never denied making the statements. The trial court did not err in refusing to

admit the prior statement of Dozier. This issue is without merit. 

The defendant also generally avers, without citing any authority, that the prior statement of

Dozier should have been admitted, because “defense counsel was somewhat limited by the trial

judge as to what he could ask Dozier about her prior inconsistent statement.” The right to effectively

cross-examine is fundamental; however, the propriety, scope, and control of cross-examination are

left to the sound discretion of the trial judge. State v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim.

App. 1995). We will not interfere with the exercise of that discretion absent a clear and plain abuse.

See State v. Fowler, 213 Tenn. 239, 373 S.W.2d 460, 464 (1963). The trial court did not allow the

defendant to cross-examine Dozier concerning certain statements made by Dixon. Earlier in the trial,
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the court sustained an objection by the defendant 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 objection by the defendant to now be brought in by the defendant through the prior statement of

Dozier. The trial court did not abuse its discretion in limiting the scope of cross-examination. This

issue is without merit. 

The judgment form incorrectly indicates that the defendant was charged with felony murder,

a Class A felony, and convicted of facilitation of felony murder, a Class B felony. Felony murder

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 judgment form should have reflected that the

defendant was charged with first degree murder and convicted of a Class A felony. We remand for

correction of the judgment form to reflect the correct felony classifications.

Conclusion

We remand for correction of the judgment form to reflect the correct felony classifications.

Based on the foregoing and the record as a whole, the judgment of the trial court is affirmed in all

other respects. 

___________________________________ 

JOHN EVERETT WILLIAMS, JUDGE