# FILED
February 16, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE NOVEMBER 1998 SESSION
STATE OF TENNESSEE, ) ) C.C.A. No. 03C01-9806-CR-00211 Appellee, ) ) Knox County v. ) ) Honorable Ray L. Je nkins, Judge PAUL ANTHONY DEJONGH, ) ) (First Degree Murder) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Susan E. Shipley John Knox Walkup 602 South Gay Street Attorney General & Repor ter Suite 501 425 Fifth Avenue, North Knoxville, TN 37902 Nashville, TN 37243-0493 Todd R. Kelley Assistant Attorney Gener al 425 Fifth Avenue, North Nashville, TN 37243-0493 Randall E. Nichols District Attorney General 400 Main Street P. O. Box 1468 Knoxville, TN 37901- 1468 William H. Crabtree Assistant District A

ttorney General 400 Main Street P. O. Box 1468 Knoxville, TN 37901- 1468 Sally Jo Helm Assistant District A

ttorney General 400 Main Street P. O. Box 1468 Knoxville, TN 37901- 1468
OPINION FILED: __________________________
REVERSED AND REMAND ED FOR A NEW TRIAL L. T. LAFFERTY, SENIOR JU DGE 

### O P I N I O N2 The appellant, Paul Anthony Dej ongh, referred herein as “the defendant,” appeals
as a matter of right from his conv iction by a Knox County jury

of murder first degree. The trial court i mposed a sentenc e of life imprisonment. The defendant presents the following issues f or appell ate review:

1. Whethe r

there was sufficient evidence as a matter o f law for a rational trier of

fact to find the defendant guilty beyond a reasonable doubt of premeditated murder first degree. 2. Whether the trial court erred in allowing the prosecution to co ver gl ossy, color photographs of obscene, vulgar graffiti with translucent masking tape in the presence of the jury. 3. Whether the trial court erred in granting the state’s oral moti on in limi ne to preclude cr oss-ex aminati on of th e state’s witnesses of the issues o f the dec edent’s possession of a gun, as well as hi s violent and threatening conduct. 4. Whether the trial court erred in precludi ng the defense from cross-examining pr osecution witnesses on the context and substance of admissions alleg edly made by the defendant. 5. Whether t he tri al court erred in prev enting the defendant from offering a proffer of a witness to perfect the appellate record. 6. Whether the trial cou rt erred in failing to ins truct the jurors on the le sser included offenses of murder first degree.
After a thorou gh review of the entir e recor d, brie fs of the parties, and appl icable la w, we reverse the tri al court’s judgment and r emand for a new trial.

FACTUAL BA

CKGROUND

On January 22, 1996, D eputy D rew Martin, patrol officer with the Knox Cou nty Sheriff’s Department, responded to a complai nt at the Red Roof Inn in Knox Count y. Deputy Martin tal ked to Holly (Martin) Dailey and Floyd Anderson Petgrave. After their conversation, Petgrave gave Deputy Martin some keys to apart ment K7 in the Walker Springs Apartments. Deputy Martin went

to the apartment where he found bloo d around1 The “ball room” appeared to be a bedroom in the apart men t that had been

converted into a play or game room. The floor

of the bedroom was covered w ith hundreds of round, multi-colored balls similar to those found in children’s play grounds in fast food restaurants. 3 the door handle and blood droplets on the ground. After obtaining gloves, Deputy Martin opened the door and observed a pool of blood in the foyer. Upon entry i nto the apartment, Deputy Martin found the victim, Michael Evans, lying face down in some multi-coloredballs that were strewn about in one of the rooms. Evans had no pulse. Deputy Martin and the other officers secured the apartment.
Holly (Martin) Dailey

test ified th at she, th e defen dant, An na Wa rren, “Pin k” Floyd Anderson Petgrave, and the victim shared the apa rtment in the W alker Springs Complex. On January 21, 1996, Mrs. D ailey left work at ap proximately 3:00 a.m. and a rrived home. After going to bed, Mrs. Dailey was awakened by “popping noises.” She then heard Ms. Warre n screamin g in the hallway and saw the defendant standing behi nd Ms. Warren. Michael Evan s was lying i n the doorway. Mrs . Dailey, the defendant, Ms. Warren, and Petgrave grabbed t heir clothe s and proceeded to leave. Before leaving, the defendant picked Evans up from the doorway and moved him into the “ball room.” 1 Mrs. Dailey observed blood all over the floor. All four left and drove to a w inery in Loudon. Duri ng the ride, the defendant talked to himself and said h e had shot the victim. La ter that d ay, Mrs. Dailey and Petgrave obtained a r oom at the Red Roof Inn. After a discussion with her fath er, Mrs. Dailey cal led 911. The Knox County sher iff deputies took her and Petgrav e backto the Walker Springs Apartments. Mrs. Dailey did not see the defendant witha gun, nor was she aware of any plan or plot to kill M ichael Evans.

Officer Miles Bradford Park, cr ime scene technician for the Knox County Sheriff’s Department, testified that, upon his arri val at th e Walker Springs Apartments, he began photographingthe entrance and interior of the apartment. Officer Parktook pictures of the dif ferent locati ons of blood and of a bullet found in the “bal l room” where the vi ctim was lying. The majority of the blood w as in the foyer of the apartment. Officer Park observed a bullet hole in the apartment’s front door and identified the hole as an exit hole. Officer Parkidentified two photographs of blood stains found on a wall in the liv ing room adjacent4

to some graffiti. During his examination of the victim, Officer Park found a live 16-gauge shotgun shell in the pocket of the victim’s leather c oat, but did not find a shotgun.
Richie Lee Gibby, a

resident of Palmetto, Georgia , testified hemet the defendant in Georgia at a music st ore. The y became f riends an d eventua lly Gibby fo und the defendant a construction job. The defendant tol d Gibby he lived in Knoxv

ille at one time in an apartment with a room full of balls. The d efend ant told Gibby he shot “Mikey” a couple of times.

Thomas L. Barnhart testified he met the defendant, known to him as Patrick Tate, through his friend, Richie Gi bby. The y became friends, and the defendant w orked for Barnhart’s father buildinghouses. The defendant once told Barnhart he lived in Knoxville in an apartment with a lot of balls. The defendant also told Barn hart tha t he shot “Mikey” two or three times in the head.

Dr. Sandra K. Elkins, Knox County Medical Examiner, t estified she performed an autopsy on the victim and determined the cau se of the victim’s death as tw o gunshot woundsto the head. Dr. Elkins found the gunshot wounds on the left side of the victim’s face. Dr. Elkins testified the first wound, a nonfatal woun d, entered the lower part of the victim’s left ear lobe an d traveled to the right side, fract uring t he victim’s jaw. She described this gunshot wound as a contact wound, in that, at the time ofthe firing, the gun
was actually pressed against the victim’s skin or was less than an inch aw ay. Dr. Elkins could not say whether the sh ooter was coming at the victim, or the victim was coming at the shooter. Dr. Elkins r ecovered a

bullet from this wound and gave it to theKnox County Sheriff’s Department.

As to the second gunshot wound, Dr. Elkins testified this bullet entered the left side of the victim’s face, traveled to the skull and passed through the brain. She described this wound as a near gunshot wound, i n that the g un’s muzzle was s ix to twelve i nches from the victim’s head whe n fired. After this shot, the v ictim was immobile and unc onscious.5 After attempting to call a w

itness and the state objecting, the defendant el ected not to prov ide any proof.

LEGAL ANALYSIS

Since we are reversing and remandin g t his cause for a new trial , it will only be necessaryto ad dress two specific appellate issues: (3) whether the trial court properly p recluded the defendant from introducing evidence of the victim’s prior violent conduct , an d (4) whether the trial cour t erred in prohibiting

the defendant from cross-examining prosecution witnesses on th e context and substance of admissions made by the defendant.

ISSUE 3

The defendant contends the t rial court erred in li miting t he cross-e xamination of state witnes

ses on th e issues

of the vi ctim’s

possess ion of a

firearm, as well as the victim’s violent and threatening conduct in the defendant’s prese nce. The state disagrees.

The record establishes that the defendant intended to cross-ex amine the first state witness, Holly (Martin) Dailey , about the victim’s pri or acts of violence and possess ion of
a firearm. The trial court granted the state’s motion in limine t o reject this testimony

on the ground that the defendant would have to first raise the i ssue of sel f-defense or the first aggressor

theory issue. The trial court denied the d efendant a proffer of proof, but permitted the proffer at the conclusionof the state’s proof in chief. Fir st, we note the better practice would have been for the tr ial court to listen to th e proffer of proof at the outset, rather than at the conclusion of the case. Proffe rs of pro of, w hen appropriate, are preferred, and the trial court must allow them. Alley v. State, 882 S.W.2d 810, 817 (Tenn. Crim. App. 1994); Neil P. Cohen, et al., Tennessee

Law of Evidence § 103.4 at 20 (3d ed. 1995).6 At the proffer ofproof, Holly (Martin) Dailey testified that the victim was a very violent and aggressive p erson. T he victim a lways carried a gun in his pocket and showed it every day. Mrs. Dailey descr ibed an incident when she, the defendan t, the victim, and Ms. Warren were in a car. The victim and Ms. Warren began arg uing, and thevictim pulled out a gun and told her to “shut the hell up” or he would kill her.

Rule 404(a)(2) , Tennessee Ru les of Evide nce, permits a defendant to offer proof of the victim’s charact

er for violent behavior

to help establish the victim was the aggressor. Rule 405(a) permits such proof by reputati on or opinion evidence and only on crossexamination under certain c ircumstances: (1) The court upon request must hold a hearing outside the jury’s presence, (2) The court must determine that a reasonable factual basis exists for the inq uiry, and (3) The court must determine that the probati ve val ue of a specific instance of conduct on thecharacter witness’s credibility

outweighs its

prejudic ial eff ect on sub stantive issues. Rule 405(b) regarding specific instances of conduct states: “In cases in which character
or a trait of character

of a person is an essential el ement of a charge, claim, or defense , proof may also be made of specific instances of that pe rson’s conduct.” (emphasis added).

The principles gover

ning the admissibility

of specific violent acts of the victim ag ai nst third persons are somewhat more s tringent than those gov erning the adm issib ility of opinion or reputation evidence. If the defendant was aware of the victim’s violent conduct against individuals at the ti me of the offen se, such proo f is admi ssible as substan tive evidence of the defendant’s state of mind. State v. Ruane, 912 S.W.2d 766, 779 (Tenn. Crim. App. 1995) (citin g State v. Hill, 885 S.W.2d 357, 36 1 (Tenn. Crim . App. 1994))

. Because such evidence is offered to establish the defendant’s state of mind with respect to the vict im, the d efe ndant’s knowledge of the specific violent acts of the victim against others is required. See Williams v. State, 565 S.W.2d 503, 505 (Tenn. 1978). Since the defendant was prese nt when the v ictim alle gedly threatened a third party and the victim7

was known to carry a fir earm, the trial court w

as in error for limitin g the cross-examinati on of the witness, Holly

(Martin) Dailey

. State v. John D. Joslin, No. 03C01-9510-CR-00299 (T enn. Crim. App., Knoxvil le, September 18, 1997). The defendant w ould be en titled t o cross-examine, even the first stat e witness, to estab lish a self -defen se theory. Accordin gly, we conclude that the trial court’s error req uires a remand for a new tr ial.

ISSUE 4

The defendant contends that the trial co urt erred in precluding the defendant from cross-examining

state witnesses onthe cont ext and substance of admissions made by the defenda nt. The state concedes the trial court should have allowed such crossexamination, but argues th at the error was harml ess beyond a reasonable doubt.

We agre e w ith the state that the trial court erred in restri cting the defendant as to the cross-examination of pros ecution witne sses, butdisagree that it was harmless error beyond a re asonable d oubt. Ge nerally, a defe ndant is prohibi ted from i ntroducing selfserving statemen ts without testif ying:

A declaration made by a defendant in his own favor, unless part of the res gestae or o f a confession offered by the prosecution, is not admissible for the defense. Aself-serving declaration is excluded because there is nothing to guar antee it s testimonial trustwor thiness. If such evidence wer e admissible, the door would be thrown open to obvious abuse: an accused coul d create evidence for himself by making statements in his favor for subsequent use at his trial to show his innocence.
2 Charles E. Torcia, Wharton’s Criminal Evidence § 294 at 284-86 (14th ed. 1986); Hall v. State, 552 S.W.2d 417, 418 (Tenn. Crim. App.), cert. denied (Tenn. 1977).

At the conclusion of the direct test imony of state witnesses,Richie Gibby and Thomas L. Barnhart, the defenda nt attem pted to elicit from their testimony certain statements made by the defendant surrounding the necessity to shoot the victim. The tr ial court sustained the state’s objection and deni ed the defendantan opportunity to present8

a proffer of proof as to the relevancy of such state ments. It was the defendant’s theory that he shot the victim in self-defense. At the conclusion of the stat e’s proof in chief, the defendant attempted to call Holly (Martin) Dailey

to test ify concerning certai n acts of violence committed by th e victim in her and the defendant’s presence, including c arrying
a gun. The trial court sustained the state’s objection on the ground that the issue of selfdefe nse had not been fairly raised. The defendant f elt compelled to rest his case an d mak e a proffer of proof on the relevancy of this testimony. The trial court permitted the defendant

to present the p roffer of proof.

In the proffer of proof, the witness, R ichie Gibby, related the defendant’s version of the shooting. In summ a ry, when the defendant and Anna W arren returned to their apartment, they heard what they thought w ere gunshots coming from their apartment. The defendant found several strangers in the apartment, who

were acquaintances

of the victi m, and asked them to leave. The strangers left, a nd the vict im and the defendant began arguing. The

defendant told Ms. Warren to take his gun to the back, because he did not wantit around for

any reason. Howev

er, the defendantand the victim continued a h eated argument. The victim refused to leav e the apartmentand told the defendant, “You ain’t got the balls to kick me out or t o shoot me.” At that

time, the victim jumped back quickly and wentinto his pocket

“to draw.”

The defendant informed the witness he was afraid for his lifeand had to defend himsel f. In cross-examination, the witness disagreed w ith many statements he had made to law enforcement off icers in Atlanta concerning the defendant’s version of the shooting. Apparently , th e wit ness had previously told law enforcement officers that the defendant may have poi nted the gun at the victi m during the argument.

Thomas L. Barnhart testified that the defendant told him he returned home one night to find the victim and the vi ctim’s friends in the apartment c ausing a disturbance. After telling the victim’s friends to leave, the victim began arguing with the defendant andrefused to leave. Duri ng the argu ment, th e victim to ld the de fendan t that th e defen dant “did n’t have the guts to shoot him; he didn ’t have it in him.” The de fendant told the witness that th e
v ictim quickly reached for h is pocket, as if he were going to draw a g un. At that point i n9

time, the defendant shot the victim. Althou gh the wit ness disagreed with some of his statements given to law enforcement officers, he did relate that the defendant told him the defendant shot the victim three ti mes in the head, and that the victim usually carried a gun, but the defendant did not find one on the vi ctim.

The trial court cited State v. Turnmire, 762 S.W.2d 893, 897 ( Tenn. Crim. App.), per. app. denied (Tenn. 1988), as controlli ng authority for denying the defendant’s proffer of proof. In Turnmire, 762 S.W.2d at 897, the defen se called a witness to relate the statements of the defendant as to how she killed her parents. This Court upheld the trial court’s decisio n in fi nd in g t he se stat em en ts

we re se lf -s er vi ngan d n ot

ad mi ss ib le . We note the defendant in Turnmir e did not c laim self-defense. W e believe the trial court misapplied the reasoning i n Turnmire to the facts in this record.

In State v. Robinson, 622 S.W.2d 62, 71 (Ten n. Crim. App. 1981), this Court clearly stated the law on this sub ject:
When a confession is admissible, the who le of wh at the accused said upon the subject at the time of making the confession is admissible and should be taken together; and if the prosecu tion fa iled to prove the whol e statement, the accused is entitled to put in evidence all that was said to him and by him at the time whic h bear s upon the subject of controversyincludin g any exculpatory or self-serv in g declarations connected therewith. It is for the jury to s ay what weight shall be given to the several part s of the statement, for they may well believe

that part which charges the prisoner, and reject th at which tends to exculpat e him.
Id

. (citing Espitiav. State, 199 Tenn. 696, 288 S.W.2d 731 (1956)); see State v. Caldwell, 696 S.W.2d 541, 542 ( T enn. Crim. App. 1985); State v. Calvin Lee Sneed, No. 03C01- 9611-CR -0044 4 (Tenn. Crim. App., Knoxville, June 12, 1998). W hen the state offers witnesses

to testify concerning

statements of the defendant , which imply an admission of guilt, the defendant is entitled through cross- examination to establish th e defendant was
a cting in self-defense in homicide cases. We find the trial cour t was in error for not permitting cross-examination of the witnesses, Richie Gibby and Thomas L. Barnhart, to establish the viabi lity ofself-defense. It would be the function of the jury to determine if2 There is an inference in the record that Anna Warren may have been present at the

time of the shooting. This is based o n the testimony of HollyDailey, wherein she stated she was awakened by

Ms. Warren, and the proffered testimony of Rich ie Gibby and Thomas Barnhart. Ms. Warren was not call ed by either party i n this cause. 10 such defense, under the facts in this record, was credibl e.

The state urges this Court to find such error w as harmless, citing State v. Howell, 868 S.W.2d 238 (Tenn. 1993). In Howell, 868 S.W.2d at 253, our S upremeCourt set forth the standards to determine when constitutionally impr

oper restrictions on the

right of crossexamination constitute harmless error:

In determining whether the constitutionally improper denial of a defendant’s opportunity to impeac h a witne ss is harmless under the Chapman standard, the cor rect inquiry is whether, assuming tha t the dam aging potential of the cros s-examination were f ully realized, th e error was nonetheless harmless beyon d a reasonable doubt. Delaware v. V anArs dall, 475 U.S. 673, 684-85, 106 S.Ct. 1431, 1438, 89 L.Ed.2 d 674 (1986). A numberof factors are relevant to this inquiry includi ng th e importance of the witness’ testimony in the prosecution’s case, the cumulative nature of the testi mony, the presence or absence of evidence corroborating or contradicting

the witness on material points, the extent of cross-examination otherwise permitted, and the overall streng th of the prosecuti o n’s case.

In the instant case, the state i ntroduced the defendan t ’s statements of criminal involvement

in the death of the victim in w hich he admitted shooting the victim. The only other admission on the part of the defendant was to

Holly (Martin)

Dailey during the ride to the winery, but the defendant did not divulg e any of the details of the shooting. There
were no factual witnesses pres ented by the st ate to shed further light on the exact circumstances

surroundin g the death of the victi m. 2 Thus, the testimony of Richie Gibby and Thomas Barnhart becomes crucial to establish some explanati on as to w h y the defendant believed i t necessa ry to kill the victim. We disagree with the state that the testimony

of these two witnesses was of no great importance.We find the trial court was in error for restricti ng the cross-examinati on of the state witnesses, Ric hie Gibby and Thomas Barnhart, and remand for a new trial.

As to issues 1 and 2, we elect not to address in lieu of a remand for a new trial. As11

to the defendant’s claim of the trial court’s failur e to charge the lesser i ncluded offense of voluntarymanslaughter, the trial court may wish to r

eaddress this request bas ed upon the testimony in the new tr ial.

This cause is reversed and remanded for a new trial.

_____________

_______________________ ___ _ L. T. LAFFERTY, SENIOR JU DGE
CONCUR:

___________________________________ DAVID H. WELLES, JUDGE

___________________________________ JAMES CURWOOD WITT, JR., JUDGE