# FILED

January 29, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON APRIL 1998 SESSION

STATE OF TENNESSEE, ) No. 02C01-9709-CC-00337 ) Appellee ) ) MADISON CO UNTY V. ) ) HON. FRANKLIN MURCHISON, TIFFANY LAFONZO BETTS, ) JUDGE ) Appellant. ) (Second Degree Murder) ) )

For the Appellant: For the Appellee: George Morton Goo ge John Knox Walkup District Public Defender Attorney General and Repor ter Daniel J. Taylor Elizabeth T. Ryan Assistant Public Defender Assistant Attorney Gener al 227 W. Baltimore Street 425 Fifth Avenue North Jackson, TN 38301 Nashville, TN 37243-0493 (At trial) Clifford K. McGown, Jr. James G. Woodall 113 N. Court Square District Attorney General Waverly, TN 37185 (On appeal) Alfred L. Earls Assistant District A

ttorney 225 Martin Luther King Dr. Jackson, TN 38302

OPINION FILED: ___________________

AFFIRMED AS MODIFIED

William M. Barker, Specia l Judge2 OPINION
The appellant, Tiffany Lafonzo Betts, appeal s as of right his conv ictions in the Madison County Circui t Court of second

degree murder a nd unlaw

ful possession o

f a weapon with the intent to employ it in the commission of a criminal off ense. He received respectiv

e sentences of twenty y ears and eleven months, tw enty-nine days. The sentences were ordered t o be served concurrentl y. On appeal, appellant raises the following four issues: (1) whether the trial court erred in admitting photographs of the victim and crime scene; (2) whether the trial

court erred in permitti ng Richard Siler to t estify as an expert witness; (3) whether the trial

court erred in allow

ing the State to impeach the testimony of an unavailable witness with prev ious inconsistent statements; and (4) whether the evidence is sufficient to support the convictions. After a thorough review of the record before us, we conclude that the trial court committed no reversible er ror and we affirm its judg ment. On April 8, 1993, appellant was visiting with friends at 98 Davis Street in Jackson. At some point during the afternoon, Kenneth Avery, the victim, and Hiawatha Scott arriv

ed at the residence. The vic tim owed appellant money and appellant was expecti ng to be repaid that day. When the victim arrived, appellant asked him for the money. When the victim res ponded that he did not have the money, an argument ensued. The argument began inside of the home but later moved outside in the yard. Appellant was armed wi th a double-barreled, saw ed-off shotgun. The victim w as not armed. However, the v ictim grabbed appellant bel ow the knees, picked him up to shoulder height, and threw him down. The two men continued arguing and the victim began to walk towar

ds his van parked on the cu rb. Suddenly, the vic tim turned around and began walking towards appellant. As he approached, the appellant shot3

him in the chest with the shotgun. Appellant ran from the scene, bu t turned himself in to authorities later that da y. The weapon was nev er recovered. Dr. O. C. Smith performed an autopsy on the victim. He testified that the victim died from a single gunshot w ound to the chest. The ammunition w ent through his right lung and into the heart, leav ing a hole measuring 1.95 inches by 1.77 inches. The shot was fired from more than thr ee feet away, but Dr. Smith was unable to determine the gauge of the weapon. Dr. Smith testified that the pellets entered the victim at an angle from right to left, i ndicating that the vic tim was not directly

facing the shooter. He further testified that the v ictim’s blood alcohol cont ent was .23% and he detected cocaine in his urine. However, since no cocaine was found in the victim’s bloodstream, Dr. Smith testi fied that the victim was not under the influence of that drug at the time of his death. Appellant pursued a theory of self-defense at trial. Three defense w itnesses testified that the victim w as armed with a box cut ter or utility knife and had the blade exposed when he turned and w alked towards the appella nt. They each testified that appellant never got upset during the argument and never pointed the gun at the victim until the shot was fired. Two defense witnesses als o testified that appellant told th e victim, during the ar

gument, to leave and forget the money. None of the witness es saw the victim with a weapon until he turned around and approached appellant. All eyewitnesses who testified at trial, including State’s witness Hiawatha Scott, were impeached with prior i nconsistent statements and prior convictions. The twenty-two-y

ear-old appellant testified th at he was nineteen when th e offense was committed. He said that the victim owed him abo ut $40 and he was expecting the victim to pay him that day. When the vict im arrived, appellant as ked for the money. The victim stat ed he did not have it and asked to borrow more money, but appellant refused. Appellant testified that he w as not upset by the vic

tim’s request. Because he could tell that the vic

tim had been drinking, he beg an “picking on” him and t rying to1 Unlawful possessi on of a weapon wit h intent to employ i t in t he commission of a criminal offense is a Class E felony. Tenn. Cod e Ann. §39-17-1307(c )(2) (1991). However, the judgm ent form for that convicti on reflect

s it i s a Class A misdemeanor and the trial cour t sentenced appel lant accord ingly. W e mo dify that sente nce to on e year, the m inimum senten ce for a C lass E fe lony. Becau se the s entenc es are c oncurr ent, no pre judice inur es to the a ppellant. 4 agitate him. He stated that the victim got upset and raised his voice. Ac cording to appellant, the victim told Hiawatha Scott to “go get his piece” and he thought the victim was talking about a g un. The victim continued to as k to borrow more money and eventually asked appell ant to go outside. Appellant testified that as he walked out the door, someone nudged him and handed him a shotgun. Appellant said that they co ntinued arguing once outsi de and the victim picked him up and threw him down.At that point, he stated he knew the victim was not “playing” any mor

e and became scared. He asked the victim to leave, but he continued to argue. Appellant said that the victim tur ned and began walking t owards his van. Suddenly, he t urned around with a raz or in his hand and began w alking quickly towar

d appellant. After the vict im got “so close,” he fir ed the shot. Appellant testified tha

t he was in

fear and beli eved the victim was going to h urt him. Photographs taken at the scene r eveal a utility kn ife on the ground and a trail of blood from this point approximately 36 feet to the locatio n of the victim’s body. There were no visible signs of blood on the knife. The photographs also reveal $15 in cash which had b lood on it next to the decease d’s body. Although indicted for first d egree premeditated murder, the jury found appellant guilty of the lesser offense of sec ond degree murder. Appellant was later sentenced to twenty years a

s a Range I offender on that convi ction. The jury also found appellant guilty of unlawful possession of a deadly weapon with intent to employ it in the commission of a criminal offense, for w hich he received a concur rent sentence of eleven months, twenty-nine days. 1 See Tenn. Code Ann. §39-17-1307(c)( 1) (1991).5 Appellant fir

st contends that the tria l court err ed in admitti ng gruesom e photographs of the crime scene bec ause their prejudicial e ffect outweighed the probative value. He argues that the p hotos added n othing to the jury’s knowledge because detailed testimony regarding the crime scene, as well as a diagram, were introduced. We conclude the pictures w ere properly admitted. The admissibility of photogr aphic evidence is within the sound discretion of the trial court. State v. Banks , 564 S.W.2d 947, 949 (Tenn. 1978). Admissibility hinges upon relevance and a determinat ion that the probative v alue of the photographs is not outweighed by the dang er of unfair prejudice. Id. ; see also Tenn. R. Evid. 401, 403. On appeal, we will

not reverse a decisio n to admit evidence absent a cl ear showing of abuse of discretion. Banks , 564 S.W.2d at 949. The record before us demonstrates no such abuse. The State int roduced several p hotographs tak en at the crime sc ene, although not all of them included the vi ctim. They depicted the v ictim’s body beside his

van, as well as other items found near by. They also showed

a trail of blood from the location of the sho

oting t o the va n where

the vic tim col lapsed. There w as also a pictur

e of a utility knife found in the g rass. The trial court found tha t the pictures were mater ial to show the position of the body and items of evidence and their relationship to one another. We agree. Investigators testified that the shooting did not occ ur at the location where the body was found. The utility knife was found thirty-six feet from the body and they were connected by a trail of blood.The photographs were neces sary for the jury to gain a complete understanding of the ev ents which transpired at the crime scene, making their probative val ue great. The trial court was careful to not admit any repetitious photos. Since, the prejudici al effect did not substantially outweigh the probativ

e value, the trial court did not abus e its discretion.6 Appella nt next

argues that the trial c ourt er red in a llowi ng Ric hard Sil er to tes tify as an expert witness

on shotguns. He argues that Siler was not q ualified to testify as an expert and the admission of hi s opinion was in vi olation of Tennessee Rule of Evidence 702. After the defense rested, the State soug ht to introduce rebuttal test imony from Sergeant Richard Siler of the Jackson Police Department ’s Tactical Unit. The State sought to elicit testimony from Siler that a shotgun will not fire unless the hammer is cocked. The assistant district attorney argued that it was proper rebuttal because appellant testified that he neve r cocked the hammer on the shotg un; he just pulled the trigger. The trial court stated that the witness was “a borderline expert -- you know. It is not really exactly an expert’s testimony. He is not going to give his opinions, as I understand it. He is goi ng to state facts about it. I d on’t call him an expert. ” Siler was thereafter permitted to testify and the following colloq uy occurred: Q. Do you know of any ty pe of break-action double barrel shotgun, that once it is broken open and c losed, will simply

fire by pulling the trigger and nothing more? A. The double barrels that I hav e had dealings with -- once you breech the shotgunn [sic] t o load the rounds -- once y ou close the breech, it cocks the w

eapon itself because there are no ex ternal hammers on the weapon unless it is a real old model shotg un. Once the breech is closed, it will cock the hammers, but there is a safety that is usually mounted on top of the shotg un that engages -- that i n order to fire that weapon, that safety h as to be taken off to fire the weapon. Q. And that has to be d one man ually? A. Yes, sir. Q. Okay. If it is not that ty pe of shotgun, do you have to cock the hammer back? A. Any other type, such as that, would have a hammer -- an external hammer. The hammer would have to be cocked before the weapon can be fired. Q. That is manual? A. That is manual; yes, sir.2 While the State ar gues on appeal t hat the expert testi mony was relevant to show the premeditati on necessary for first degree murder, appel lant was acquitted of t hat charge. Hence, he can claim no prejudi ce in that regard. 7 The admission of opinion testimony from lay witnesses i s restricted by our rules of evidence. Tenn. R. Evid. 701. However, if a witness possesses scientific, technical, or specializ

ed knowledge, he or she may qualify as an expert

and opinion testimony may be proper. See Tenn. R. Evid. 702. Questi ons concerning the qualifications, admissibility, relevancy, and competency of expert testimony are matters which rest w

ithin the sound discretion of the trial court. State v. Begley , 956 S.W.2d 471, 475 (Tenn. 1997); State v. Ballard , 855 S.W.2d 557, 562 (Tenn. 1993). Determining the qualific ations of an expert is a pre dicate to admitting such tes timony. Bryant v. State , 539 S.W.2d 816, 819 (Tenn. Crim. App. 1976). The trial court was hes itant to rule that Siler was going to offer expe rt testimony and it made no finding about his q ualifications. In fact, the State did not attempt to qualify the witness

as an expert during i

ts direct examination. However, a reading of Siler’s testimon y reveals that he of fered testim ony requiring special ized knowledge that would have been appropr iate only from an expert on firearms. It was err

or to admit his testimony wi

thout first considering hi s qualifications as a firea rm expert. Although the testimony w as admitted in error, w

e cannot say that it affected the outcome of appellant’s case. Tenn. R. App. P. 36(b); Tenn. R. Cri m. P. 52(a). Appellant was not prejudiced by the testimony because it was wholly irrelevant to his theory of self-defense. He neve r denied firing the fatal shot.Therefore, whether he cocked the hammer before firing the shot was of no consequence. 2 Appellant is entitled to no relief.3 The prior te stimony was gi ven during appel lant’ s first trial on these charges i n September 1994, whic h end ed in a mis trial du e to a hung jury. T he ins tant c onvic tions resu lted fr om a sec ond trial in October 1996. 8 Appellant next argues that the trial court erred in allowing the State to impeach the testimony of an unavailabl e defense witness with p rior inconsistent statement s. Robert James Johnson was una vailable to testify at

appellant’s trial, but had testified at an earlier proc eeding. 3 The State and defense counsel agreed that Johnson’s prior testimony could be introduced and it was read into the record at trial. At the close of defense proof, the prosecut or informed the trial court that the State wished to impeach Johns on’s testimony using pr ior inconsistent statements given to Officer Leslie H allenback of the Jackson Polic e Department. After hearing argument on the issue, the tr ial court allowed Officer Hallenback to read the pri or statements into the record. The trial court permitted the impeachment of Johnson’s prior tes timony pursuant to Rule 806 of the Tennessee Rules o f Evidence. That rule states: When a hearsay statement has been admitted in ev idence, the credibility of the declarant may be attacked and , if attacked, may be supported by any evidence whic

h would be admissible for th ose purposes if declarant had testified as a witness.Evidence of a statement or conduc t by the declarant at any time, inc onsistent with the decla rant’s hearsay stateme nt, is not subject t o any requir ement th at the de clarant m ay have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declaran t as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination. Tenn. R. Evid. 806. While acknowledg ing that the rule and case l aw supports the admission of the inconsistent st atements, appellant, without explanation, insists that the trial court erred. We disagree. The prior testimony of Johnson i ntroduced by the defense was hearsay admitted pursuant to Tennessee Rule o f Evidence 804(b)(1). The clear language of the Rule 806 permits the impeachment of a hearsay declarant, jus t as if the declarant had been a trial witness . The Advisory Commiss ion Comments explicitly state that impeachment using prior in consistent statements is per mitted under the rule and9

eliminates the traditional requirement that the declar ant be given the opportunit y to explain or deny. Tenn. R . Evid. 806 Advisory Commission Comments; State v. Philpott , 882 S.W.2d 394, 406 (Tenn. Crim. App. 1994). The statements introduced on rebuttal were given to Officer

Hallenback by Johnson on two occasions dur ing her investig ation of Kenneth Avery’s de ath. In certain respects, each of these statements were different from the tes timony read into the record. As a result, it was proper for the Stat e to impeach Johnson, the hearsay declarant, by using hi s inconsistent statements. See State v. Zirkle , 910 S.W.2d 874, 891 (Tenn. Crim. App. 1995); Phillpott , 882 S.W.2d at 406. Appellant has provided no rationale, nor have w

e found any, to conclude that the tr ial court erred. In his final issue, appellant contends that the evidence w as insufficient to support his convicti ons for second de gree mur der and u nlawful

possess ion of a weapon. The record before us cl early supports both conv ictions. With regard to the murder conviction, appellan t’s challenge to the sufficiency relates to his dissatis

faction with the jury

’s decision to reject hi s theory of self-defense. Whether or not a defendant acted in self-defense is a que stion for the trier of fact to determine. See Arterburn v. State , 391 S.W.2d 648, 653 (Tenn. 1965); State v. Fugate , 776 S.W.2d 541, 54 5 (Tenn. Crim. App. 1988). Wh ether an accused acted in self-defense requires the jur y to determine whether the defendant's belief in imminent danger was reasonable, whether the force used was reasonable, and whether the defendant was without fault. State v. Renner , 912 S.W.2d 701, 704 (Tenn. 1995). Consistent with common law, our self-defense statute only permits a person to use the force reasonably neces sary to protect himself or herself. See Tenn. Code Ann. §39-11-611 Sentencing Commi ssion Comments; Long v. State , 443 S.W.2d 476, 479 (Tenn. 1969). Therefore, the defense is not available if the defendant uses excessive force. Id.10 The state contended in final argument that the absence of blood on the utility knife indicated it was not in the victim’s hand at the time of the shooting and had fallen out of his pocket earlier in the confrontation. The state further contended the victim was clutching only

the money in his hand whi ch was corroborated by the money with blood on it found by his body

. The state further argued that the appe llant was the initial aggressor who provoked the victim’ s actions, and the appellant di d not abandon the encounter or clearly communicate to the victim his intent to do so. Self-defense is unavailable under these circumstances. See Tenn. Code Ann. § 39-11-611(d). Admittedly, this is a c

lose question. Never

theless, this Court must v iew the evidence in a light mos t favorable to the state. We are unable to say that a rational jury could not adopt the st ate’s theory of the homicide. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Tenn. R. App. P. 13(e). This is especially tr

ue in light of the state’s pr oof that the appellant armed himself w ith a sawed-off shotgun prior to any physical confrontation. Appellant’s argumen t is without merit. Moreover, we find the e vidence sufficient to support appellant’s conviction for unlawful possession of a w eapon. The record clearly demonstrates that appellant possessed a deadly weapon,i.e. a double-barreled, sa wed-off shotgun. His intent to employ it in the commissi on of an offense was evidenced by the fact that he was armed during the course of an ar gument which culminated i n his shooting the vic tim. See Tenn. Code Ann. §39-17-1307(c)(1) (1991).11 We have considered the entire record before us and conclude that the trial court committed no revers ible error. We remand to the trial cour t solely for the correction of the judgment for unlawful possession of a weapon to reflect a Class E felony and a sentence of one year. The judgment of the trial court is affirmed in all other respects.

_______________________________ William M. Barker, Specia l Judge

CONCUR:

____________________________ David G. Hayes, Judge

___________________________ Joe G. Riley, Judge