FILED

September 20, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MAY SESSION, 1999

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9803-CR-00075

)

Appellee, )

) SHELBY COUNTY

V. ) 

)

) HON. JAMES C. BEASLEY, JR., 

DOROTHY J. FLEMING, ) JUDGE

)

Appellant. ) (AGGRAVATED ASSAULT) 

FOR THE APPELLANT: FOR THE APPELLEE:

WAYNE CHASTAIN JOHN KNOX WALKUP

66 Monroe, Suite 804 Attorney General & Reporter

Memphis, TN 38103 

PETER M. COUGHLAN

STEFFEN SCHREINER Assistant Attorney General

369 North Main Street 2nd Floor, Cordell Hull Building

Memphis, TN 38103 425 Fifth Avenue North 

Nashville, TN 37243

JOHN W. PIEROTTI 

District Attorney General 

PAUL H. WULFF

Assistant District Attorney General

Criminal Justice Center, Suite 301

201 Poplar Avenue 

Memphis, TN 38103

OPINION FILED ________________________

REVERSED AND REMANDED 

THOMAS T. WOODALL, JUDGE
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OPINION

On April 10, 1997, the Shelby County Grand Jury indicted Appellant Dorothy

J. Fleming and co-defendant James W. Fleming for aggravated assault. Following

a jury trial on January 6–8, 1998, Appellant was convicted of aggravated assault and

the co-defendant was convicted of simple assault. After a sentencing hearing on

February 6, 1998, the trial court sentenced Appellant as a Range I standard offender

to three months of house arrest followed by two years and nine months of probation

and the court placed the co-defendant on judicial diversion. Appellant challenges

her conviction, raising the following issue: whether the trial court erred when it ruled

that Appellant could not introduce evidence about an alleged prior incident in which

the victim acted violently towards a third party. The co-defendant has not joined in

this appeal. After a review of the record, we reverse the judgment of the trial court

and we remand this matter for a new trial.

FACTS

Michael Smith testified that in November of 1996, he was living in an

apartment with Appellant’s daughter Delois Pate Smith and two of Ms. Smith’s young

children. Although Mr. Smith and Ms. Smith were not married at that time, they were

married at the time of trial.

Mr. Smith testified that while he was alone with Ms. Smith’s two small children

on November 20, 1996, he received a telephone call from Appellant at approximately

4:30 p.m. During the conversation, Appellant and Mr. Smith began cursing each
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other and Appellant then stated that she was going to come to the apartment.

Shortly thereafter, Ms. Smith arrived home from work.

Mr. Smith testified that later that day, he heard pounding on the door. When

he opened the door, Appellant’s son James Fleming entered the apartment, pointed

a gun at him, and ordered him to get on the floor. Shortly thereafter, Appellant,

Appellant’s son Lemoyne Pate, and Ms. Smith’s son Terrence Clark entered the

apartment. Appellant then grabbed Mr. Sm ith and he knocked her hand away. 

Mr. Smith testified that at this point, Appellant stabbed him with a knife and

then Mr. Fleming stabbed him. Mr. Smith then fell to the ground, and Appellant, Mr.

Clark, Mr. Pate, and Mr. Fleming began kicking him . Mr. Smith testified that he was

unarmed during this incident. 

Delois Pate Smith testified that on November 20, 1996, Mr. Smith opened the

door to their apartment and Appellant, Mr. Fleming, Mr. Pate, and Mr. Clark came

rushing in and Mr. Fleming began waiving a gun. Ms. Smith then took her two small

children to a back room and when she returned, she saw her family members

beating and kicking Mr. Smith. Ms. Smith then called 911 and her family members

left the apartment.

Tracy Rivers testified that on November 20, 1996, she looked out of her

apartment and saw Appellant, Mr. Fleming, Mr. Pate, and Mr. Clark in the Smiths’

apartment. Rivers could hear Appellant and Mr. Smith cursing at each other and

shortly thereafter, she saw Mr. Fleming point a gun at Mr. Smith and order him on

the floor. Mr. Fleming then stabbed Mr. Smith with a knife.
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Officer Melanie Lewis of the Memphis Police Department testified that on

November 20, 1996, she went to Appellant’s residence and talked to Appellant about

the stabbing. During the discussion, Appellant stated that she had stabbed Mr.

Smith and thrown the knife under a red Ford Escort that was parked next to the

apartment complex. Officer Larry Colburn of the Memphis Police Department

testified that on November 20, 1996, he discovered a knife under a red Ford Escort

that was parked next to the apartment complex.

Appellant testified that on November 20, 1996, she telephoned her

grandchildren who were staying at the Smiths’ apartment. During the conversation,

she heard Mr. Smith cursing the grandchildren and then Smith took the phone and

began cursing Appellant. Appellant then became concerned about the safety of her

grandchildren.

Appellant testified that after the telephone conversation, she went to the

Smiths’ apartment to get her grandchildren. After she arrived at the apartment and

knocked on the door, Mr. Smith opened the door and then grabbed Appellant and

began hitting and kicking her. Mr. Smith then stated, “I’m go[ing] to beat your ass

just like I do your daughter and your kids too.” After Mr. Smith got on top of

Appellant and started beating her, she stabbed him with a knife that she had put in

her pocket after peeling some pears earlier that day. At this point, Mr. Fleming and

Mr. Pate entered the apartment and Mr. Fleming pulled Mr. Smith off of Appellant.

Appellant testified that the only reason why she went to the apartment was to

retrieve her grandchildren. Appellant testified that she did not go to the apartment

in order to stab Mr. Smith and she only stabbed him because she was afraid he
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would kill her while he was beating her. Appellant also testified that she never saw

Mr. Fleming with either a gun or a knife.

Terrence Clark testified that he went with Appellant to the Smiths’ apartment

on November 20, 1996. When Appellant knocked on the door, Mr. Smith opened

the door, pulled Appellant into the apartment, and began beating her. Mr. Fleming

then entered the apartment and pulled Mr. Sm ith off of Appellant. Mr. Clark denied

that he, Appellant, Mr. Fleming, and Mr. Pate had kicked Mr. Smith. Mr. Clark also

testified that he did not see Appellant stab Mr. Smith.

Lemoyne Pate testified that he drove Appellant to the Smiths’ apartment on

November 20, 1996. Pate testified that he waited in his vehicle while Appellant went

into the apartment. When Appellant did not return, Pate entered the apartment and

saw Mr. Smith on top of Appellant. Pate then knocked Mr. Smith off of Appellant and

Pate and Appellant left the apartment. 

James Fleming testified that on November 20, 1996, his younger brother

Tracy called him 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 front of the door. Shortly thereafter, Mr. Fleming saw

Appellant being pulled into the apartment. When Mr. Fleming entered the

apartment, he saw Mr. Smith on top of Appellant. Mr. Fleming then pulled Mr. Smith

off of Appellant and the two men began fighting. After a brief altercation, Mr.

Fleming, Appellant, Mr. Pate, and Mr. Clark left the apartment. Mr. Fleming did not

see Appellant stab Mr. Smith. Mr. Fleming denied that he had a gun or a knife while

he was in the apartment.
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ANALYSIS

Appellant contends that the trial court erred when it ruled that she could not

testify about an alleged prior incident in which Mr. Smith cut Mr. Clark with a knife

and she could not question other witnesses about the alleged incident. Appellant

argues that evidence of the prior alleged incident was admissible because it

supported her claim that Mr. Smith was the first aggressor and her claim that she

stabbed Mr. Smith because she was afraid that he would kill her.

This Court has noted that there is a distinction between the use of evidence

of prior acts of violence by the victim against third parties to corroborate the defense

theory that the victim was the first aggressor and the use of such evidence to

establish the defendant’s fear of the victim at the time of the offense. See State v.

Ruane, 912 S.W.2d 766, 779 (Tenn. Crim. App. 1995). “If the defendant was aware

of the victim’s violent conduct against other individuals at the time of the offense,

such proof is admissible as substantive evidence of the defendant’s state of mind.”

State v. John D. Joslin, No. 03C01-9510-CR-00299, 1997 WL 583071, at *36 (Tenn.

Crim. App., Knoxville, Sept. 22, 1997), perm. to appeal denied, (Tenn. 1998).

“Because such evidence is offered to establish the defendant’s state of mind with

respect to the victim, the defendant’s knowledge of the specific violent acts of the

victim is required.” Id., 1997 WL 583071, at *36. “Thus, the defendant may testify

about the victim’s threatening or violent conduct toward other individuals as long as

the defendant was aware of that conduct at the time of the offense.” Id., 1997 WL

583071, at *36.
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On the other hand, if the defendant was not aware of the victim’s violent

conduct toward others, the evidence is not admissible as substantive evidence of the

defendant’s state of mind, but is admissible for the limited purpose of corroborating

a self-defense claim that the victim was the first aggressor. Id., 1997 WL 583071,

at *36. 

Thus, individuals other than the defendant may testify on direct or crossexamination about threatening or violent conduct of the victim, even though

the defendant had no knowledge of the conduct at the time of the offense, as

long as the testimony is offered only to corroborate the defendant’s selfdefense claim that the victim was the first aggressor.

Id., 1997 WL 583071, at *36.

A. Evidence of the Victim’s Prior Acts of Violence

The record indicates that before trial, the State filed a motion in limine in which

it asked the trial court to prohibit Appellant and her co-defendant from making

reference to or questioning any witnesses about prior acts of violence committed by

Mr. Smith against third parties. After a hearing on the motion, the trial court ruled

that it would grant the motion as to opening statements and the defense could not

mention the specifics of any acts of violence during its opening statement.

After Mr. Sm ith’s direct examination, the defense asked the trial court whether

it would allow cross-examination of Mr. Smith about an alleged prior incident in which

he cut Mr. Clark with a knife. During a jury-out hearing, defense counsel asked Mr.

Smith whether the police had ordered him to leave the apartment after he cut Mr.

Clark while Mr. Clark was living in the apartment during October of 1996. Mr. Smith

initially admitted that he had been in a confrontation with Mr. Clark and that the

police had been called as a result, but he denied that he cut Mr. Clark with a knife
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during the confrontation. After additional questioning, Mr. Smith admitted that he

had “grabbed [Mr. Clark] and shook him up.” Mr. Smith also stated that he could not

recall whether he had used a knife during the confrontation. 

After listening to the testimony of Mr. Smith during the jury-out hearing, the

trial court ruled that the defense could not cross-examine Mr. Smith about the prior

incident because it was not relevant to any issue in the case. Defense counsel then

asked for permission to voir dire Appellant about the prior incident in order to

demonstrate the relevance of the evidence. The trial court granted the request, and

defense counsel called Appellant to testify during the jury-out hearing. Appellant

testified that Mr. Clark had come to live with her after he had been in a confrontation

with Mr. Smith. Appellant testified that Mr. Clark had told her that about a month

before the incident in this case, Mr. Smith had cut him during a fight that ended when

Ms. Smith intervened. After hearing Appellant’s testimony, the trial court ruled that

evidence of the prior incident was not admissible because the proof that had been

introduced up to that point did not implicate a self-defense claim. The trial court did

grant the defense’s request to keep Mr. Smith under subpoena in order to allow

eventual cross-examination about the prior incident if further proof indicated that

evidence of the prior incident was relevant.

When the State called Ms. Smith as its next witness, defense counsel asked

for a bench conference. During the bench conference, defense counsel asked the

trial court whether they could have a jury-out hearing to question Ms. Smith about

the prior confrontation between Mr. Smith and Mr. Clark. The trial court ruled that

it would not allow the defense to question Ms. Smith about the incident, but it would

agree to keep Ms. Smith under subpoena so that the defense could question her
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about the prior incident if further proof indicated that the evidence was relevant to an

issue in the case.

At the close of the State’s proof, the defense asked for a jury-out hearing in

order to voir dire Mr. Clark about his prior confrontation with Mr. Smith. The trial

court granted the request and allowed the defense to question Mr. Clark about the

incident. Mr. Clark testified that about a month before November 20, 1996, he and

Mr. Smith were involved in a confrontation during which Mr. Smith grabbed him and

held a knife to his neck. Mr. Clark testified when he turned over, Mr. Smith “nicked”

him in the back with the knife. Mr. Clark also testified that he told Appellant about

this incident when he went to live with her about a month before the incident in this

case. The trial court then ruled that evidence about the prior incident was still

inadmissible because it was not relevant to Appellant’s claim of self-defense.

After Appellant, Mr. Clark, and Mr. Pate testified on Appellant’s behalf,

defense counsel made one more attempt to convince the trial court to adm it

evidence about the prior incident between Mr. Smith and Mr. Clark. Defense

counsel argued that the evidence was relevant to Appellant’s state of mind at the

time of the offense and to Appellant’s claim that Mr. Smith was the first aggressor.

The trial court ruled that it would instruct the jury about self-defense, but it would not

change its ruling that evidence about the prior incident between Mr. Smith and Mr.

Clark was not admissible.

B. Appellant’s Testimony
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Appellant contends that the trial court erred when it prohibited her from

testifying about the prior incident in which Mr. Smith cut Mr. Clark with a knife.

Specifically, Appellant contends that the trial court should have permitted this

testimony because it was substantive evidence of her state of mind at the time she

stabbed Mr. Smith.

We conclude that the trial court erred when it prohibited Appellant from

testifying about the prior incident in which the victim displayed violent conduct.

There is no dispute that Appellant had knowledge of the incident in which Mr. Smith

cut Mr. Clark with a knife. Indeed, both Appellant and Mr. Clark testified during juryout hearings that Mr. Clark told Appellant about this incident one month before

Appellant stabbed Mr. Smith with the knife. In addition, Appellant testified that she

stabbed Mr. Smith because she was afraid that he would kill her while he was

beating her. Appellant’s testimony about Mr. Smith’s violent conduct toward Mr.

Clark was clearly relevant to establishing the reason for Appellant’s belief that Mr.

Smith would kill her. Because Appellant had knowledge of the prior incident,

Appellant’s testimony about the incident was admissible as substantive evidence of

her state of mind at the time of the offense. 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, the trial court erred when it excluded this evidence.

The State contends that even if the trial court erred, the error was harmless

because evidence about the prior incident of violence on the part of Mr. Smith had

already been introduced or alluded to at one point or another. This argument is

inaccurate. A review of the record indicates that the jury was never informed that Mr.

Smith held a knife to Mr. Clark’s throat and cut him on the shoulder approximately
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one month before the incident at issue in this case. In short, the trial court’s error

prevented Appellant from establishing a reason for her belief that Mr. Smith would

kill her. Therefore, we conclude that the trial court’s error requires a remand for a

new trial.

C. Testimony of Other Witnesses

Appellant contends that the trial court erred when it prohibited her from asking

other witnesses about the prior incident in which Mr. Smith cut Mr. Clark with a knife.

Specifically, Appellant contends that the trial court should have permitted the other

witnesses to testify about the prior incident during direct or cross-examination

because the testimony was offered to corroborate her claim that Mr. Smith was the

first aggressor.

Initially, we note that in the previous cases in which this Court has addressed

the issue of whether a defendant could introduce evidence about the victim’s prior

acts of violence in order to corroborate the defendant’s theory that the victim was the

first aggressor, the defendant was unaware of the victim’s violent acts at the time of

the offense. See, e.g., John D. Joslin, 1997 W L 583071, at *37; Ruane, 912 S.W.2d

at 781; Hill, 885 S.W.2d at 361. However, we so no reason why a defendant should

be prohibited from questioning other witnesses about the victim ’s prior violent acts

in order to corroborate the defendant’s claim that the victim was the first aggressor

simply because the defendant was aware of the violent acts at the time of the

offense. 
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We conclude that the trial court acted properly when it prohibited Appellant

from cross-examining Mr. Smith and Ms. Smith about the prior incident during the

State’s case-in-chief. The general rule is that before witnesses other than the

defendant can testify about violent conduct of the victim in order to corroborate the

defendant’s theory that the victim was the first aggressor, the issue of first aggressor

must have been raised by the evidence. Ruane, 912 S.W.2d at 780. At the time

that Mr. Smith and Ms. Smith testified, no proof had been introduced that raised the

first aggressor issue. Thus, the trial court was correct when it initially refused to

allow cross-examination about Mr. Smith’s prior incident of violence.

On the other hand, we conclude that after Appellant testified that Mr. Smith

was the one who initiated the fight by immediately attacking her when he opened the

door, the trial court should have allowed Appellant to question Mr. Clark about the

incident on direct examination and to question Mr. Smith and Ms. Smith about the

incident on cross-examination for the limited purpose of corroborating her claim that

Mr. Smith was the first aggressor. See John D. Joslin, 1997 WL 583071, at *36

(holding that individuals other than the victim may testify on either direct or crossexamination about violent conduct of the victim in order to corroborate the

defendant’s theory that the victim was the first aggressor). Because the proof at that

point raised the first aggressor issue, Appellant was entitled to question the other

witnesses about Mr. Smith’s prior violent act.

The State contends that even if the trial court erred, the error was harmless

because the proof that Appellant was the first aggressor was overwhelming. We

disagree. In this case, the issue of who was the first aggressor was hotly contested.

Mr. Smith and Ms. Smith both testified that on November 20, 1996, Appellant, her
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two sons, and her grandson came bursting into the apartment and began attacking

Mr. Smith almost immediately. In contrast, Appellant and Mr. Clark both testified that

when Mr. Smith opened the door to the apartment, he immediately grabbed

Appellant and began beating her. In addition, Appellant, Mr. Clark, Mr. Pate, and Mr.

Fleming all testified that Mr. Pate and Mr. Fleming were not even in the apartment

when the initial confrontation began and they all essentially denied that anyone other

than Appellant had a weapon. In short, the trial court’s error prevented Appellant

from corroborating her claim that Mr. Smith was the first aggressor. Therefore, we

conclude that the trial court’s error requires a remand for a new trial.

CONCLUSION

For the reasons stated above, we REVERSE the judgment of the trial court

and we REMAND this m atter for a new trial.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

JOHN H. PEAY, Judge
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___________________________________

JOE G. RILEY, Judge