# FILED
November 10, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE JUNE 1997 SESSION
STATE OF TENNESSEE, ) ) APPELLEE, ) ) No. 01-C-01-9608-CR-0 0357 ) ) Davidson County ) v. ) Seth Norman, Ju dge ) ) (Second Degree Murder) ) ) PATRICK V. KELFALLA, ) ) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: Jeffrey A. DeVasher John Knox Walkup Assistant Public Defender Attorney General & Repor ter 1202 Stahlman Building 500 Charlotte Avenue Nashville, TN 37201-5730 Nashville, TN 37243-0497 David M. Siegel Peter M. Coughlan Assistant Public Defender Assistant Attorney Gener al 1202 Stahlman Building 450 James Robertson Parkwa y Nashville, TN 37201-5730 Nashville, TN 37243-0493 Ralph W. Newman Victor S. Johnson III Assistant Public Defender District Attorney General 1202 Stahlma n Building 222 Second Avenue, Suite 500 Nashville, TN 37201-5730 Nashville, TN 37201-1649 Kymberly Haas Assistant District A

ttorney General 222 Second Avenue, Suite 500 Nashville, TN 37201-1649

OPINION FILED: REVERSED AND REMAND ED FOR A NEW TRIAL Joe B. Jones, Pre siding Judge2 

## OPINION

T he appellant, Patrick V. Kelfalla (defendant), was conv icted of second d egre e murder, a Class A f elony, by a jury of his peers. The tr ial court found the defendant was
a standard offender and imposed a Ra nge I sentence of fifteen (15) year s in the Departmentof Correction. In this C ourt the de fendant con tends (a) the evidence is insufficientto support his conviction and (b) the trial court abu sed its discretion in per mitting improper rebuttal testimony. After a thorough review of the record, thebriefs submitted by the parties, and the law governin g the issues presented for review, it is the opinion of this Court that the judgment of the tr ial court should be rev

ersed. The victim, Tim othy Gibso n, had harassed the defendant on several occasions. In April of 1994, the victim told the defendant to “go back to Africa and sw ing the trees like
a monkey” after losing a b asketball game to the defendant. The victim then pulled a gun out of his pocket and waved it at the defendant. In May of 1994, the victim r obbed the defendant, taking his paycheck from Captain D’s restaurant and ten dollars. Also in May of 1994, the victim confronted the defenda nt while he was walking wit h Ronald Pe tway. The victim said, “every time I see y ou when you got

some money in your pocket , I’m going to keep it.” The vict im then reached into the defendant’s pocket and took fiv e dollars. Later that month, the victim chased the defendant w ith a gun u ntil he ran into a Krys tal restaurant. The defendant spoke with the police about the incident but did not rev eal the identity o f the person w

ho chased him. On May 27, 1994, the defendant and the victim hadan argument in the parking lot of the Woodhaven Apartments. The victim confronted the defendan t in fron t of several onlookers about “snitching” on hi m to t he police, s aying “if you don’t s tay out of my business, I’m going to kill you before I go to jail.” The victim pulled a gun on the defendant during this altercation. The defendant was also in possession of a revolv er which he

had obtained from his friend, Mario, a few moments before the confrontation. Approximately thirty minutes into the argument, the victim r eturned to his apartment1 The defendant contends the victim did not return his gun to his apartment during th e argument. He also states the victim a ctually held the gu n to his head du ring t h e altercation.

2 Eyewitnesses

contend the defendantwas three to four car lengths from the victim when he began shooting and that he di d not start moving tow ards the victim until after the initial shots were fired. 3 and put away his gun. 1 The victim then went outside the apart ment an d began arguing with the defendant again. The victim’s sister,Vanessa Sharpton, arriv ed at the apartment complex and encouraged her brother to withdraw from the argument. The victim withdrew from the arg ument and rode away fromthe scene on a bicycle, stating that

he was going to the store to purchase beer. The defendant went across the streetto Marcus Johnson’s apartment in Terrace Hill s with Marcus Johnso n and two other friends, where he cried o ver the incident. The defendant left

Johnson’s apartment between twenty minutes to an hour later, cutting across the Woodhaven Apartme nt parking lot to go play basketball a t the apartmentcomplex. The victim r eturned, unarmed, to the parking lot on his bicycle. The defendant contends the victim began to push and threaten him whi le straddling the bicy cle, and then told the defendant to come closer to him. The defendant contends the victim said, “I ain’t through w

ith you yet. Don’t forget I’m -- kill y ou before I go to jail” and r eached behind his back. The defendant then shot the victim four

times while moving

towards the victim. 2 The victi m fell to the ground with his bicycle still between his legs. Eyewitnesses contend the defendant contin ued to shoo t the victim after he fell to the ground. The defendant stopped shooting when the back tire of the bicycle fell onto his feet. The victim died within a few minutes of being shot. The victim suffered gunshot wounds to the left back side of his head, the left side of his jaw, t he bicep

of h is right forearm, and his back. The victim also suffered a contemporaneoushead contusion consistent with hitting his head on the pavement when he fell to the ground. The patholog ist testified that the gun was at le ast two feet from the victim when it was fired. The pathologist testified the victim re ceived the wounds from three different directions. This coul d hav e been the result of the victi m moving while he
was being shot. The wounds coul d also have been receiv ed in this manner i f the victim had fallen fa

ce down to the g round be

fo re the final shots were fired. The r ight arm was4

extended away from t he body at the time it wa s shot, but t he pathologist was unabl e to conclusivelydetermine exactly how the arm was extended at the time of the shooting since this bullet exited the body and was not subsequently recovered. The cause of death was multiple gunshot wounds. The defendant fled to New York City, where he disposed of the murder weapon b y throwing it off the Brooklyn Bridg e. Once arrested, extr adition proceedings were beg un to return the defendant to Tennessee. However, the defendant eventually agreed to be extradited. I.

The defendant contends the evidence is insufficient, as a matter of law , to support
a finding by a rational

trier of fact that he was guilty of murder in the second degree be yond
a reasonable doubt. He argues he acted in self-defense. In the alternati ve, he claims the evidence establishes he was guilty at most of voluntary manslaughter.

A.

When an accused challenges the sufficiency of the convicti ng evidence, this Court must review the record to determine if the evidence adduced at trial is sufficient "to support the finding by the trier of fact of guilt beyond a reasonabl e doubt." Te nn. R. App. 13(e). This rule is applicable to f indings of guilt based upon direct ev idence, circumstantial evidence, or a combination of direct and circumstantial evidence. Stat e v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). In determin ing the su fficie ncy of the co nvicting evidenc e, this Court does not reweigh or reevaluate the evi dence. State v. Ma tthews , 805 S.W.2d 776, 779 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). Nor may this Court substitute its inferences for those drawn by the trier o f fact from circumstantial evi dence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859, cert
. denied , 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956). To the contrary, this Court is required to afford the State of Tenn essee the strongest legitimateview of the evidenc e contained in the record as w ell as all reasonable and5

legitimateinferences which may be drawn from t he evidence. State v. Cabbage , 571 S.W.2d 832, 835 (T enn. 1978). Questions concerning the cre dibilit y of the witnesses, the w eight and value to be given the evidence, as well as all factual issues raise d by the evidence are resolv ed by the trier of fact, not this Court. Cabbage , 571 S.W.2d at 835. In State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973), our Supreme Cour t said: "A guilty

verdict by the jur

y, approved by the trial judge, accredi ts the testimony of the witnesses for the State and resolv es all conflicts in favor of the theory of the State." Since a verdict of guilt removes the pres umption of innocence and replaces it with
a presumption of guilt, the accused, as the appella nt, has the burden in this Court of illustratingwhy the evidence i s insufficient to support the v erdicts returned by the

trier of fact. State v. Tuggle , 639 S.W.2d 913, 91 4 (Tenn. 1982). This Court will not dist urb a verdict of guilt due to the sufficiency of the evidence unless the facts containe d in th e record are insufficient, as a matter of law , for a rational trier of fact to find that the accused is guilty beyond a reasonable doubt. Tuggle , 639 S.W.2d at 914.

B.

The offense of murder in the second degree i s defined by statute as the “knowing killing of another.” Tenn. Code Ann. § 39-13-210(a)( 1 ). Before the defendant could be convicted of murder in the second degre e, the S tate of Tennessee was requir ed to establish beyond a reasonable doubt the defendant (a) unlawfully killed Gibson and (b) did
so knowingly. Tenn. C ode Ann. § 39-13-201(a) and 210(a )(1). The record establi shes both elements of this offense. The defendant admitted returning to W oodhaven Apart ments with a gun at least twenty minutes after he and the victim had an argument outside the co mplex. Th e defendant a dmitted t hat when the victim r eturned to the area on a bicy cle he no longer appeared to be in

possess ion of a

gun. The defendant began firing his gun at the victim afterhe claimed tosee the victim reach behi nd his back. The defendant moved tow ards the victim, firing the

gun until the tire of the bicycle the vic tim was straddling fell onto the6

defendant’s feet. The victim died within a few minutes of being shot. The defendant fled to New York City, where he dispo sed of the gun by throwi ng it off the Brooklyn Bri dge. While there was evidence the defendant killed the victi m in self-defense, it is obvi ous the jurydid not believe the statements given by th e d efendant. As previously stated, the resolution of conflicting evidence is for the jury, not this Court. The jury saw the witnesses, observed their demeanor, assessed theircredibility, and concluded that the defendant did not act in self-defense or in the he at of passion. There is suffi cient ev

idence t o suppor

t a fi n ding by a rational tr ier of fact the defendant was guilty of murderi ng Gibso n in the second degree beyond a reasonable doubt. Tenn. R. App. 13(e). This issue is without merit.

II.

The defendant next contends the trial court erred by denyi ng hi s motion t o strike,
or in the alternative, for a mistrial, following the introduction of improper r ebuttal testimony by the state.

A.

The defendant testified that at the time of the shooting the v ictim began pushing him and told the defendant to come closer. The defenda nt st ated he began to walk slowly towardsthe victim, thenproceeded at a faster pace when the vi ctim told the defendant to
move f aste r. The defendant indicated he kept the g un in his pocket while he walked towards th e victim. The state called Judy Brundi ge as a rebuttal witn ess. Ms. Brundi ge testified she
was a passenger in the car of M r. Sprague, the state ’s fi rst eyewitness, w hen she witnessed the shooting. Ms. Brundige stated she heard two “pops” and noti ced the victim immobile on the ground with a bicycle be tween his legs. Ms . Brundige then told jurors she saw a black male run tow ards the victim from three to four car lengths away and shoot a7

gun at the victim three times. Ms. Brundige’s name did not appear in the police repor ts or in the assistant district attorney general’s notes. The first encounter between the assistant distri ct attorney general and Ms. Brundige occurr ed when theassistant district att orney general interv

iewed Mr. Sprague who was driving the motor vehicle in which Ms. Brundige was a passenger. The assistant district att orney general stated Spr ague domin ated the interview. Ms. Brundige became emotional duri ng the interview. The assistant district at torney general decided to use Sprague as a witness. It was also decided Ms. Brundige would not be called as a witness notwithstanding the fact s he had an unobstructed view of the murder
as the eventsunfolded. The events leading to the mur der occurred on the passeng er side of Sprague’s vehicle. The state did not subpoena Ms. Brundige as a witness. Prior to trial, defense counsel inq uired about thewitnesses known to the state. The assistant district attorney general advised defense counsel about a w oman who was riding in Sprague’s vehicle w

hen the murder occurred. She also told counsel that

“I couldn’t tell what she [Brundige] saw and what she didn’t see.” Ms. Brundige appeared at the trial. She sat outside the courtroom during the entire trial because she felt a “kinship” with the victim’ s family. Theassistant district attorney general spoke with Ms. Brundi ge during the morning hours of the second day of the trial. It was during this c

onversation the

assistant district att

orney general learned the defendant ran, not walked, towards the victim as he fired the pistol at the vic tim. This information was obtained “hours” before the defendant tes tified in support of his defense. When the assistant

district attorney general received this i nformation, the statewas presenting its evidence in chief. However, the assi stant district attorney general opted not to call Ms . Brundige before resting the state’s case-in-chief prior to the noon brea k. Furthermore, the assistant district attorney general did not tell defense c ounsel of Ms. Brundige’s presence at the trial, she was available and could be interviewed, or the nature of her testimony until after the defendant had rested . This re velation was made immediately before Ms. Brundige was called as a rebuttal witness. The assistant district att orney general stated she did not decide to call Ms. Brundige
as a rebuttal witness until the defendant testified he was walking, not running, toward the8

victim after the vi ctim direct ed the defendant

to approach h im. As the assistant district attorney general stated , Ms. Brundige’s testi mony would contradict this testimony and show “he was not running tow ard the victim because the victim called him ov

er. He was running toward the victim bec

ause he was shooting at the victim.” When defense counsel completed his cro ss-examination of Ms. Bru nd ige, he requested a jury-out he aring. Counsel moved the trial court to strike Ms. Brundige’s test imony, or in the alterna tive, grant a mistria l. Counsel conte nded Ms. Brundi ge ’ s rebuttal testimony was

improper pursuant to State v. West , 825 S.W.2d 695, 698 (Tenn. Crim. App. 1982). He argued Ms . Brundige’s testimony should have been pr

es ented during the state’s case-in-chief as opposed to presenting this te stimony in rebuttal. The trial court denied the motion

. B.

The defendant asserts thetrial court’s refusal to grant his motion to strike, or in the alternative, for a mistrial, due to the state’s introduction of an improp er rebuttal witness constitutesreversible error pursuant to State v. West , 825 S.W.2d 695 (Tenn. Crim. App. 1992). West is factually similar to the present case. In West , this Court held that rebut tal testimony

is not proper if the witness was an eyewitness, provides the state’s strongest evidence, and the w

itness should h ave been present ed durin g the st

ate’s c ase-in- chief. West , 825 S.W .2d at 69 8. Additi onally, thi s Court found that the failure to pr ovide the defendant with notice of a rebuttal witness kno wn to the prosecution before t rial was not “within the conte xt of the applicable norms of a lev el-handed prosecution” and w as therefore prejudicial err or. West , 825 S.W.2d at 698. In this case, Ms. Brundige was an ey ewitness to

the shooting whose pers pective as
a passenger with an unobs tructed view

of the crime made her a potentially better witness than the driver, who tes ti fied forthe state in its case-in-chief. The state was aware Ms. Brundige was a witness to the shooting prior to tr ial, yet no not ice was provide d to the defendant of her existence. The state also failed to noti fy the defen dant that Ms. Bru ndige was outside the courtroo m and available to testify throughout the course of the tr ial.9 The state contends that Ms. Brund ige was a proper rebuttal witne ss pursuant to State v. Sinclair , Madison County No. 02C01-9503-CC-00066, slip op. 11-12 (Tenn. Crim. App., Jackson, April 17, 1996), per . app . denied (Tenn. October 7, 1996). In Sinclair , an eye witness testifi ed as a r ebuttal witnes s to cont radict

the defen dant’s c

laim of self
d efense. The witness testified the victim was not wielding a knife prior to the sh ooting

. Sinclair , slip op. a t 11. Thi s court ref used to a pply West because the rebuttal witness was “not called to recount eyew itness testimony; she w as called directly to refute the Defendant’s testimony.” Sinclair , slip op. at 12. The court also noted prosecutor s were not
aware of the existence of the witness until the n ightbefore t he witness was called to testif y. Sinclair , slip op. at 12. Although Ms. Brundige was an eyewitness to the shooting, her testimony did directly refute the testimony

of the defendant. The state contend s the testimon y of Ms. Brundige refutes why the defendant was mov ing towar

ds the victim. The state contends Ms. Brundige’s testimo ny shows the defendant was moving tow ards the victim because he was shooting the victim, not because the victim called the defendant ov er. A stronger arg ument
can be made that the testimony w as proper

rebuttal evidence because it contradictedthe defendant’s statements that he did not shoot the victim after he had fallen to the ground and that he was close enoug h to the victim to be pushed by him immediately prior to th e shooting. However, the state’s reliance on Sinclair is misplaced because the stat e was aware Ms. Brundige was an eyewitnes s prior to trial. The state contends Sinclairapplies because the pros ecution was “not awar e of the substance or value of the w itness’ testimony unti l the trial” since the state had no notice of the defendant’s claim of self-defense u ntil h e testified. It is irrelevant that the st ate may not have been awar e of the defendant’s claim of self-defense in the present case because the defendan t did not make a statement prior to trial. Sinclair

does notaddress the failure of the state to fully understand the significance of a known e yewitness’s testi mony. Sinclair only provides for use of a rebuttal witness without notice to thedefense when the state is unaw are that the individual

is an eyewitness prior to trial. In the present case, the state w as aware prior to tr

ial that Ms. Brundige w as an ey ewitness to the shooting . The burden of the state’s failure to fully dete rmine th e10

content of an eyewitness’s testimony falls upon the state

.

C.
The phrase “rebuttal evide nce” may be defined as evidence “which tends to explain
or controvert evidence produced by an adverse party.” Cozzolino v. St ate , 584 S.W.2d 765, 768 (Tenn. 1979). This phrase encompas ses “[a]ny competen t evi dence which explainsor is a direct reply to, o r a contradiction of, material ev idence introduced” by an adverse party. Nease v. State , 592 S.W.2d 327, 331 (Tenn. Crim. App.), per . app . denied (Tenn. 1979). Questions concer ning the admission or

rejection of

rebuttal evidence rest within the sound discretion of the trial court; and anappellate court will not interfere with the exercise of this discretion unless it is clear on the face of the record that the trial court has abused its discretion. State v. Scott , 735 S.W.2d 825, 828 (Tenn. Crim. App. ), per . app . denied (Tenn. 1987). The tes timonyby Ms. Brundige was sufficiently contradictory to the defendant’s testimony

to constitute proper rebuttal testimony. However, the state should have called this witn ess d uring its case-in-chief. Moreover, by not providing notice to the defendant regarding the

existence of Ms. Brundige as an eyewitness the state fell short of meeting “the applicable norms of a level-handed prosecution.” West , 825 S.W.2d at 698. The defendant had no prior notice of the subs tance of Ms. Bru ndige’s te stimony. The rebuttal testim ony was n ot merely corrobativ e testimony; the testimony showed the defendant ran towards the victim after the initial shots were fired and that he conti nued to shoot the victim after he fell to the ground. Thus, the in for mation given by the as sistant district attorney general to defense counsel prior to tri al was no longer v alid. The assistant district attorney generalhad a duty to promptly di sclose this newly acquired informationto defense counsel rather than wait un til Ms. Brundige was being called as a rebuttal witness. Consideringthe record as a whole,allowing this tes timony asrebuttal evidence and without prior notice to the defense of the eyewitness’s ex

istence constituted error involving
a substantial right w

hich may have affected the ver dict ofthe jury or resulted in prejudice to the judicial process. Tenn. R. App. 36(b). It was therefore prejudici al error for the trial court to deny the defendant’s moti on to strike or for a mistr ial.11 _______ ________________

________________

_ JOE B. JONES, PRESID ING JUDGE
CONCUR:

___________________________________ WILLIAM M. BARKER, JUDGE

___________________________________ THOMAS T. WOODALL, JUDGE