# FILED September 20, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON MAY SESSION, 1999
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9803- CR-00075 ) Appellee, ) ) SHELBY COUNTY V. ) ) ) HON . JAME S C. B EASLE Y, JR., DOR OTH Y J. FL EMIN G, ) JUDGE ) Appe llant. ) (AGGR AVATED ASSAUL T)

FOR THE APPELLANT : FOR THE APPELLEE : WAYN E CH ASTAIN JOHN KNOX WALKUP 66 Monroe, Suite 804 Attorney General& Reporter Memphis, TN 38103 PETE R M. C OUG HLAN STEFFEN SCHREINER Assistant Attorney General 369 North Main Str

eet 2nd Floor, Cordel l Hull Bui lding Memphis, TN 38103 425 Fifth Avenue North Nashvill e, TN 37243 JOH N W. P IERO TTI District Attorn ey Ge neral PAUL H. WULFF Assistant Distri ct Attor ney General Criminal Just ice Center, Suite 301 201 Poplar Avenue Memphis, TN 38103

OPINION FILED ________________________ REVERSED AND REMANDE D THOMAS T. WOODALL, J UDGE-2- 

# OPINION

On April 10, 1997, the Shelby County Grand Jury i ndicted Appel lantDorothy J. Fleming and co-defendant James W. Fleming for aggra vated as sault. Following
a jury t rial on J anuary 6–8, 1998, Appellan t was convicted of aggravated assault and the co-de fenda nt was convic ted of s imple assa ult. After a sen tencin g hearing on February 6, 1998, th e trialcourt sentenced Appellant as a Range I standard off ender to three months of house arrest followed by two years and nine months of pr obation and the cour t placed th e co-de fendan t on judicial d iversion. A ppellant cha llenges her conviction, raising the followin g issue: wheth er the trial court erred when it ruled thatAppellant could not i ntroduce evi dence about an all eged prior i ncidentin which the victi m acted violently toward s a third party. T he co -defen dant h as no t joined in this appeal. After a revi ew of the recor d, we revers e the judgmentof the trial court and w e rem and th is ma tter for a new tria l.

FACTS

Michael Smith testified that in November of 1996, he was livi ng in a n apartmentwith App el lant’s daughter Deloi s Pate Smith and two of Ms. Smith’s y

oung children. Although Mr. Smith and Ms. Smith were not married a t that time, they were
marr ied at th e time of trial.

Mr. Smith te stified that wh ile he was alone w ith Ms. S mith’s two sm all children
on November 20, 1996, he r ec ei ved a te lepho ne ca ll from A ppella nt at ap proxim ately 4:30 p.m. During the conversation, Appellant and Mr. Smith began cursing each-3-

o therand Appe ll ant

the n state d th at s he wa s go ing to come to th e apa rt me nt
. Shortly thereafter, Ms. Smith arrived home from work.

Mr. Smith testified that later t hat day, he heard poundi ng on the door. When he opened th e door, Appellant’ s son James Fleming enter ed the apartment, pointed
a gun at hi m, an d orde red him to get o n the flo or. Sh ortly the reafter , Appe lla nt , Appe llant’s son Lemo ynePat e, a nd Ms . Smi th’ s son Terrence Clar k entered the apartm ent. App ellant then grabbe d Mr. Sm ith and he knocke d her ha nd awa y.

Mr. Smith testified that at th is poin t, Appe llant sta bbed him w it h a knife an d then Mr. Fleming stabbed hi m. Mr. Smith t hen fell to the ground, and Appellant, Mr. Clark, Mr. Pate, and Mr. Fleming began kicking him
. Mr. Smith testifi ed that he was
unarm ed durin g this incide nt.

Delo is Pate Smith testified that on Novem ber 20, 1996 , Mr. Smith opened the d oor to t hei r ap art ment and Appe ll ant , Mr . Fl emin g, M r. Pat e, a nd Mr . Cl ark came rushing in and M r. Flemin g bega n waiving a gun. Ms. S mith th en too k her tw o sm all children to a back room and when she returned , she saw he r family membe rs beating and kicking Mr. Smith. Ms. Smith then c alled 911 and her family me mbers left the apa rtment.
Tracy Rivers tes tified th at on No vember 20, 1996, she looked out of her apartmentand saw Appellant , Mr. Flemi ng, Mr. Pate, and M r. Clark in the Smiths’ apart ment
. Rivers coul d hear Appellant and Mr. Smith cur

sing at each ot her and shortly thereafter, she saw Mr. Fleming point a gun a t Mr. Smith and or der him on the floor . Mr. Fl eming then stabbed Mr. Smith with a knife.-4- Officer Melan ie Lew is of the Mem phis P oli ce Department test ified t hat on November 20, 1996, she went to Appellant’ s residence and talked to Appel lantabout the stabb in g . During the discu ssion, Appe llant stated that she h ad stabbed Mr. Smith and thrown the k nife under a red Ford Escort that was parked n ext to t he apartmentc omplex. Officer Larry Colburn of the Memphis Poli ce Department testif ied that on Nove mber 20 , 1996, he disco vered a knife un der a red Ford Escort that was parke d next to the apa rtment com plex.
Appellant

testified that on N ovember 20, 1996, she telephoned her grandchildr

en who we re staying at the Sm iths’ apartm ent. During the conversation, she heard Mr. Smith curs ing the grandc hildren and then Smith took the phone and began cursing A ppellant. Appellant t hen became concerned about t he safety of her grandchildr

en.
Appellant

testif ied that after t he telephone conversati on, she went to the Smiths’ apartmentto get her g randch ildren. After she ar rived at the apartment and knocked o n the door, Mr. Smit h opened the door and t hen grabbed Appellan t and began hitting and kicking he r. M r. Sm ith then stated, “I’m go[ing] to beat your ass just like I do your daug hter and your kids t oo.” After Mr. Smith got on top of Appellant

and started beating her, she stabbed him wit h a knife t hat she had put in her poc ket

after p eel ing somepears earli er that day. At this p oint, Mr . Fleming and Mr. Pate entered the apartment andMr. Fleming pul led Mr. Smit h off of Appella nt. Appellant

testif ied that

the only rea son wh y she we nt to the ap artmen t was to retri eve hergrandchil dren. Appell ant testified that she did not go to the apartment in o rder to stab Mr. Smith and she only st abbed him because she was afraid h e-5-

would kill her while hewas beating her . Appellant also test ifiedthat she never saw Mr. Fleming wi th either a gun or a knife.

Terrence Clark tes tified that he w ent with A ppellant to the Smiths’ apartment
on November 20, 1996. Whe n Appellant knock ed on the door, Mr . Smith opened the door, pu lled App ellant into the apartm ent, and began beating her. Mr. Fleming then entered the apar tment and pu lled Mr. Sm ith off of Appel lant. Mr . Clark deni ed thathe, App ellant, Mr. F leming , and Mr. P ate had kicked Mr. Smith. Mr. Clark al so testif ied that h e did not see Appel lant sta b Mr. Smith.
Lemoyne Pate te stif ied that he drov e Appellant t

o the Smiths’ apartment on November 20, 1996 . Pate te stified th at he w aited in his vehicle whi le Appellant went into the apa rtment. Wh en App ellant did n ot return, P ate ente red the a partme nt and
saw Mr. Smith on top of Appellant . Pate then kn ocked Mr. Smith of f of Appell ant and Pate an d Appe llant left the ap artmen t.

James Fleming test ified t hat on November 20, 1996, his younger br other Tracy called hi m and stated that Appellant was upset and was going to the Smiths’ apartment. Mr. Fleming then went to the Smiths ’ apartment and he saw Appellant and Mr. Clark standing in fr on t of the doo r. Shortly thereaf ter, Mr. Fleming saw Appellant

being pull ed into th e a par tment. When Mr. Fleming entered the apartm ent, he saw M r. Smith on top o f Appellant. Mr. Fleming the n pulled Mr. Smith off of Appellant an d the two m en began fighting. After a b rief altercation, Mr. Fleming, Appellant, Mr. Pate, andMr. Clark left the apa rtment. Mr. Fleming di d not
see Appellant stab Mr. Smith. Mr. Fleming deni ed that he had a gun o r a knife while he was in the apa rtment.-6- ANALY SIS
Appellant

contends that

the tri al court erred when it ruled that she could not testify about a n alleged prior incide nt in which Mr. Sm ith cut Mr. Clar k with a kn ife and she could not question other witnessesabout the alle ged incident . Appellant argues that evi dence of the p rior allege d incid ent wa s adm issible b ecau se it supported her clai m that Mr. Smit h was the fi rst agg re ssor and her cl aim that she stabbed M r. Smith beca use she w as afraid that he w ould kill her.

This Court has noted that ther e is a dist inctio n between the use of evidence of prior act

s of viol ence by the victi m against thi rd parti es to corrobor ate the defense theory that the victim was the first aggres sor and the use o f such evid ence to establi sh the defendant’s fear of t he victi m at the ti me of the offense. See State v. Ruane , 912 S.W.2d 766, 779 (Tenn. Cri m. App. 1995). “If the defend ant was aw are of the vict im’s viol ent conduct agai nst other i ndividual s at the t ime o f the offen se, such proofis admissibl e as substantive evidence of the defendant ’s state of mind.” State v. John D. Jos lin , No. 03C01-9510-CR-00299, 1997 WL 583071, at *36 (Tenn. Cri m. App., Kn oxville, Sep t. 22, 1 997), per m. to appeal deni ed , (Tenn. 199 8). “Because such evidence i s offered to establish the defen dant’s sta te of mind with respect to the vi ctim, thedefendant’s knowledge of t he specifi c violent acts of t he victim is required.” Id. , 1997 WL 583071, at *36. “ Thus, the defendant maytestify about the victi m’s threateni ng or viol ent conduct toward other i ndividual s as long as the defendant

was aware of that co nduct at the time of the offense.” Id. , 1997 WL 583071, at *36.-7- On the othe r hand, i f the defendan t was not aware of the vict im’s viol ent conduct toward others, the eviden ce is not adm issible as substa ntive evidence of the defen dant’s state of mind, but i s admissible for the l imited purpos e of corrobor ating a self-d efens e claim that the victim was the first aggres sor. Id. , 1997 WL 583071, at *36. Thus, individuals other tha n the de fe ndant may testifyon direct or crossexamination about threatening or vi olentcondu ct of the victi m, even though the defendant had no knowl edge of the conduct at the time of

the offens e, as long as the tes timony is o ffered on ly to corrob orate the defend ant’s selfdefense claim that the victim was the first aggressor. Id. , 1997 WL 583071, at *36.

A. Evidence of

the Victim’s Pr ior Acts of Violence

The record indi cates that before trial, the State fil ed a motion in limine in whi ch it asked the tr ial court to prohibit Appellant and her co-defendant from making reference to or questio ning any wit nesses about prior acts of vi olence committed by Mr. Smith a gainst third parties. Afte r a hearin g on the motion , the trial court r uled that it would grant

the motion as to opening statements and the defense coul d not mentio n the spe cifics of any a cts of violen ce during its openin g statem ent.

After Mr. Sm ith’s directexamination, the defense asked t he trialcourt whether it would allow cros s-exam ination of M r. Smith about an alleged prior i ncident in which he cut Mr. Clark with a knife
. During a jury-ou t hearing, defens e counse l asked Mr. Smith whethe r the police had ord ered him to leave the apartm ent a fte r he cut Mr. Clark while Mr. Clark was livi ng in the apar tment during O ctober o f 1996. M r. Smith initially admitted that he had been in a co nfronta tion wit h Mr. Clark and t hat the police had been called as a result, but he denied that he cut Mr. C lark with a k nife-8-

during the confront

ation. Af

ter addit ional ques tioning, Mr. Smith admit ted that he had “grabbed [Mr. Clark ] and sho ok him up.” Mr. Smith al so stated t hat he could not recall whe ther he h ad use d a knife d uring the confron tation.

After listening to t he testi mony of Mr. Smith during the j ury-out hearing , th e trialcourt rul ed that thedefense co uld not cross-exa mine Mr. Smith about the prior incident because it was not

relevant

to any iss ue in the case. Defense counsel then asked for perm ission to vo ir dire App ellant abo ut the prior in cident in o rder to demo nstrate the relev ance of the evide nce. Th e trial court g ranted th e reque st, and defense couns el called A ppellant t o testi fy duri ng the jury-out heari ng. Appellant testif ied that Mr. Clark had come to l ive wit h herafter he had b een in a confr ontation with Mr. Sm ith. Appe llant testi fied that Mr. Clark had told h er that ab out a m onth before the inci dent in th is case, Mr. Smith had cuthim during a f ightthat ended when Ms. Smith intervened. After he aring Appe llant’s testimony, the trial court ruled that evidence of t he prior i ncident wasnot admissibl e because the proof that had been introduced up to that point di d not implicate a self-defense claim. The trial cou rt did grantt he de fense ’s request to k eep Mr. Smith under

subpoena in order

to all ow eventual cross-examinat ion about the prior incident

if fur ther proof

indicated that evidenc e of the prio r incident w as releva nt.

When the State cal led Ms. Smith as its next witness, defense counsel asked fora bench conference. During the bench conference, d efense counsel as ked the trialcourt whether

they could have a jur y-out heari ng to questi on Ms. Smith about the prior conf rontati on between Mr. Smit h and Mr. Clark. The trialcourt rul ed that it would not allow the defense to quest ion Ms. Smith abou t the inc ident, b ut it wou ld agree to keep Ms. Smith under subpoena so t hat the defens e could questi on her-9-

about the prior

incident if fur ther proof

indicated thatthe evidence was relevant to an issue in t he case.

At the close of

the State’ s proof, t he defense asked for a jury- out he aring in orderto voir

dire Mr. Clark about hi s prior con frontat ion w ith Mr. Smith. The tri al court granted the r

equest and all owed the defense to quest ion Mr. Clark about the incident. Mr. Clark testified that a bout a month before November 20, 1996, he and Mr. Smith were inv

olved in a

confrontat ion during which Mr. Smit h grabbed him and held a knife to his neck. Mr . Clark testifi ed when he turned over , Mr. Smith “ nicked” him in the back wit h the knife. Mr. Clark also test ified t hat he tol d Appellant about this incide nt whe n he w ent to live with he r abou t a mo nth be fore the incide nt in this
case. Th e trial c ourt the n ruled that evid ence abou t the prio r incide nt was still inadmissibl e because it was not relevant

to Appellant’s clai m of self-defense.

After Appellant, Mr. Clark, and Mr. Pate testifi ed o n Ap pellant’s be half, d efense coun sel m ade o ne m ore atte mpt to convin ce the trial cou rt to adm it evidence about the prio r incident between Mr. Smith and Mr. Cl ark. Defense counsel argued tha t the evi den ce was relevant to Appellant’s state of mind at t he time ofthe offens e and to Appellant’s claim that Mr. Smith w as the first aggress or. The trialcourt rul ed that it would inst ruct thejury abo ut self-d efens e, but it would not change its rul ing that evidence about the prior incide nt betwe en Mr. S mith and Mr. Clark was not admis sible.
B. Appel lant’ s Testimony-10- Appellant

c ontends t hat the trial court erred when it

prohibited her from testif ying about t he prior

incid ent in which Mr. Smith cut Mr. Clark wi t h a knife. Specifically, Appe llant co ntend s that th e trial co urt sho uld ha ve per mitted this testimony

because it was substantive evi dence of her state of mind at the t ime she stabbed Mr. Smit h.

We conclud e that the tr ial court erred when it

prohibited Appellant f rom t est ifyi ng about the prior incide nt in which the victim d isplayed v iolent con duct. There is no dispute that Appell ant had know ledge of the incide nt in which Mr. Smith cut Mr. Clark with a knife. Inde ed, both Appellant and Mr. Clark testified during juryout hear ingsthat

Mr
. Clark told App ellant about this inciden t one mon th before Appellant

stabbed M r. Smith w ith the knife. In addi tion, Appel lant testifi ed that she stabbed M r. Sm it h because she was afrai d that he woul d killher while hewas beating her. Appell ant’s te stimony about Mr . Smith’s violent con duct to ward Mr. Clark was clearl y relevant to establ ishing t he reason for Appel lant ’s belief that Mr. S mith would kill her. Beca use App ellant had kno wledge of the p rior i ncident , Appe llant’s testimony about the incident was admissibl e as substantive evidenceof her state of mind at the t ime of the of fense. John D. Joslin , 1997 WL 583071, at *36; Ruane , 912 S.W .2d at 779 ; State v. Hill , 885 S.W.2d 357, 361 n.1 ( Tenn. Crim. App. 1994). Thus, t he trialcourt err ed when it excl uded this evi dence.

The State contends that even if the trialcourt erred, the er ror was harmless because evidence about the prior

incident

of viol ence on the part of M r. Smith had already been intro duced or alluded to at one p oint or ano ther. T hi s argu men t is inaccurate. A review of the reco rd indicates that the jury w as never inform ed that Mr. Smith held a knife to Mr. C lark’s th roat an d cut h im on the shou lder ap proxim ately-11-

one mon th befo re the in cid ent at is sue i n this case. In short, the tri al court’ s error prevented Appel lantfrom establ ishing areaso n for he r belief th at Mr. S mith w ould kill her. T herefo re, we c onclu de that the trial court’s error requires a reman d for a new tria l.
C. Testimony of Other Witnesses
Appellant

contends that

the tri al court erred when it pr ohibitedher from aski ng otherwitnesses ab out the prior incident in w hich Mr. Smith cut Mr. Clark wit h a knife. Specifically, Appellant contends that the trial court should ha ve permitted t he other witnessesto testify about t he prior i ncident dur ing direct or cross-examinat ion because the testi mony was offered to corroborate her clai m that Mr. Smith was the first aggressor.
Initially, we note that

in the previous cases i n which thi s Court has addresse d the issueof whether a defendant coul d introduce evidence about the vict im’s pri or acts of violen ce in order to cor roborate t he defendant’ s theory t hat the victi m was the first aggressor, t he defendantwas unawareof t he v ict im’ s vi ole nt a cts at t he t ime of the offense. See, e.g. , John D. Jos lin , 1997 W L 5830 71, at *37 ; Ruane , 912 S.W.2d at 781; Hill , 885 S.W.2d at 361. Howeve r, we so no reason why a defe ndan t shou ld be prohibited from questi oning other witnesses about the victim ’s prior violent a cts in order to cor roborate t he defendant’ s claim that the victim was the fi rst aggressor simp ly becau se the de fendan t was aw are of the viol en t acts at the time of

the offense
.-12- We con clude that the trial cou rt acted prope rly whe n it proh ibited A ppell an t from cross-examini ng Mr. Smith and Ms. Smith abou t the pri or incide nt during t he State ’s case-in-c hief. The gener al rule i s that before w itness es other than the defendantcan testi fy about v iolent conduct of t he victim in order to corroborate the defen dant’s theory that the victim was the first aggressor, the issue of first aggressor must have been raised by the evide nce. Ruane , 91 2 S. W.2d at 78 0. At t he t ime thatMr. Smith and Ms. Smith testified, noproof had been i ntroduced that raised the first aggres sor issue . Thus, th e trial court w as corre ct when it i nitial ly refused to allow cros s-examinati on about Mr. Smit h’s prior incident

of viol ence.

On the other hand, we conclude that after App ellant t estified tha t Mr. Sm ith
was the one who initi ated the fi ght by immediate ly attacking her when he opened t he door, the trial court should have al lowed Appellant to questi on Mr. Clark about the incident on direct e xamina tion and to question Mr. Sm ith and M s. Sm ith about the incident on cross-examination for the li mited purpose of corroborat ing her claim that Mr. Smith w as the first ag gresso r. See John D. Jos lin , 1997 WL 583071, a t *36 (holding that individuals ot her than the v ictim may te stify on either d irect or crossexamination about viol ent conduct of the v ic tim in order to corrobor

ate the defen dant’s theory that the victim was the fi rst aggressor ). Because the proof at t hat pointraised thefirst

ag gressorissue, Appel lant was ent itled t o question t he other witnesse s abou t Mr. Sm ith’s prior violen t act.

The State contends that even if the trialcourt erred, the er ror was harmless because the proof t hat Appe l lant was th e first aggre ssor wa s overwh elming . We disagree. In thi s case, the i ssue of who was the fi rst aggressor was hotly contested. M r. Smith and Ms. Smith bot h testified that o n November 20, 1996, Appel lant, her-13-

two son s, a nd he r gr

ands on c ame bursting i nto the apart ment and began attacki ng Mr. Smith a lmost im media tely. In contrast, Appe llant and Mr. Clark both testifi ed that when Mr. Smith opened t he door to the apartment, he i mmediately grabbe d Appellant

and be gan be ating her
. In additi on, Appellant , Mr. Clark, Mr. Pate, and Mr. Flem ing all testified that M r. Pate and Mr. Fleming wer e not even in the apartment when the ini tial confrontat ion began and they all essent ially

denied that anyoneother than Appellant had a weapon. In shor t, th e trialcourt’s error prev ented Appellant from corrobor

ating her claim that Mr. Smith was the f irstaggressor . Therefore, we conc lude th at the tria l court’s error re quires a rem and fo r a new trial.

CONCLUSI ON

For the reasons stated ab ov e, we REV ERSE the judgme nt of the trial court and w e RE MAN D this m atter for a new trial.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOHN H. PEAY, Judge-14-

___________________________________ JOE G. RILEY, Judge