# FILED
October 9, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE MARCH 1998 SESS ION

STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9704-CC-00151

) ) Humphreys County v. ) ) Honorable Robert E. Burch, Judge ) SHARON LEMING, ) (First degree murder) ) Appellant. ) For the Appellant : For the Appellee : Lionel R. Barrett, Jr. John Knox Walkup Wash ington Squ are Two Attorney General of Tennessee 222 2nd Avenue, North and Nashville, TN 37201 Ellen H. Pollack Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 Dan Mitchum Alsobrooks District Attorney General Court Square, P.O. Box 869 Charlotte, TN 37036 and George C. Sexton Assistant District A

ttorney General Humphreys County Courthouse Waverly, TN 37185

OPINION FILED:____________________
REVERSED AND REMAND ED Joseph M. Tipton Judge2 O P I N I O N
The def endant, Sharon L eming, was convicted by a jury in th e Humphr eys County Circui t Court of first degree murder. The defen dant rec eived a sentenc e of life imprisonment in the custody of the Department of Correction. I n this appeal as of right, the def endant p resents t he follo wing issues for our re view:

(1) whether the evidence i s sufficient to support the conviction; (2) whether th e trial cou rt erred by concl uding that the defendant was competent to stand tri al; and (3) whether the trial co urt erred by admitting into evidence statements m ade by the victim, Ch ris Leming. We reverse the judgment of the trial court and remand the case for a new trial.

The defend ant was tried for t he murder of h er husband, Chr is Leming, that occu rred eith er late Se ptembe r 11 or earl y Septemb er 12, 199 5. Humph reys County Sheriff Ronnie Toungette t estified that on the morning of September 12, 1995, Chief John Ethridge reques ted that he come to McEwen, Tennes see, to meet with Chester D uffiel d, the de fendan t’s fath er. He stat ed that h e went with a former d eputy, J.C. Damesworth. He s aid that Mr. Duffield wanted them to follow him to the home of the defendant and victim in McEwen because he was worried about the defe ndant. He stated that when they arr ived at the house, they c alled out but received no a nswer, and all the doors were loc

ked. He testified that he looked in the bedroom window and saw two bodies lying

in bed. He testified that he enter ed the house through the kitche n window, and once insi de, he made his way to the bedroom where he discov ered both the defendant and the victim ly ing in bed with ser

ious head wounds. He stated that there was blood every

where, and the victi m showed no signs of life, but the defendant moaned and was breathing. H e said that he told Dameswor th to call an ambulance.
Officer Toungette testified that he chec ked the house for forced entry, but everything looked normal and secure. He stated that he found a bloody handprint on3

the corner of the wall besi de the bed. He stated that he also found a handgun and a purse lying on the floor next to the bed on the defendant’s si de. He said that he found a clump of hair stuck to the ceiling. He testified that when he went outside, Mr. Duff ield asked him what kind of gun he found. He stated that when he tol d Mr. Duffield that he found a snub-no

sed .38, Mr.Duffield wa s very up

set and respo nded, “My God, it’s my gun.”
On cross-examination, O fficer Toungette stated that he did not notice any blood on the handle of the gun. He admi tted that the doors could hav e been locked without a key by s

omeone exiting. He als o stated that the clump of hair on the ceiling was located above the defendant’s head, and it appe ared to be the defendant’s hair.

The defendant’s father, Chester Duffield, tes tified that he did not know that the defendant and the victim w ere having marital pr

oblems until the defendant asked him to help her move. H e said that his wife told him that the defendant was moving out because the v ictim’s friends threatened to harm her if she was not out of the house by Sunday afternoon. He stated that he drove his tr uck to the home of the defendant and victim, they loaded it up, and then he drove it back to his house in Nashville. He state

d that while they w

ere at his house, the defendant took a . 38 caliber pistol from his car wi

thout his permission and that i t was loaded with a mi

xture of bullets. He said that w hen he questioned her about it i n front of the victim, she said that she took the gun because the victim’s drunk friends were going to be at their house when they went back, and she did not want them to beat her. He said that the defendant knew a little about fir earms and that she had shot before. He said that he tried to persuade the defendant not to go back to the house, but she said that she needed to go back to get her work clothes for the nex t morning. Mr. Duffield sai d that when the defendant did not come home that night, he told his wife to call her. He said that when his wife talk

ed to the defendant, the defendant said that ev erything was fine.1 His full name is Tomm y Howard Forrest er, and he i s referred t o as Tomm y Forrest er by other wit nesses. 4

Mr. Duff ield test ified th at he went to the de fendan t’s house the next morning when she did not s how up for work. He s aid that he blew the horn and yelled, but ther e was no res ponse. He stated th at he not iced som ebody wash ing a car ne xt door, and then he saw that per son go into the defendant’s house. Because this scared him, he went to a market and so meone called the police for him. M r. Duffield stated that he met with Sheriff Toungette, and they traveled back to the home of the defendant and victim. He said that after Sheriff Toungette found the bodies and tol d him that the defendant was still breathi ng, he went back to Nash ville to tell his wife, and they went to Vanderbilt Hospital w

here the defendant was being tr eated. He said that the defendant remained at Vanderbilt for sev eral weeks, and she w

as later transferred to Stal lworth Rehabilitation Clinic . He stated that because of the defendant’s head wound, she had to relearn everything, and it was probably one and one-half months before she cou ld talk. He said that the defendant co uld not remember anything ab out the shooting, and she did not remember him or the v ictim until she was t

old who they were

.
On cross-examination, M r. Duffield stated that the vi ctim was not his usual self on the day of the move. He said that the victim was short with him. He also testified about an incident that the def endant related to him regarding a struggle between herself and Tommy How ard, 1 a friend of the victim, over a picture of Mr. Duffield that Howard was trying to tear. He said that the defendant told him that if anything ever happened t o her, he should look for John Wallace and Tommy H oward. He state d that when the d efendant returne d from Sta llwor

th to live with him and

his wife in Nashville, often she had difficulty sleeping at ni ght because she feared that someone was trying to break into the house. He stated that the doctors at Vanderbilt told him that the def endant may neve r regain her memo ry of the shootin g.5 Steve Watkins, an agent with the Tenness ee Bureau of Investigation, testified that when he arri ved at the scene at about 1:45 p.m. on September 12, the defendant had already been transpor ted to the hospital. He stated that his job was to secure the scene until the ag ents from the crime lab arriv ed. He stated that a gunshot residue test was performed o n both the defendant and the victim but that the results were inconclusiv

e. He said that for a bullet w ound to enter behind the left ear and deposit gunpowder insi de the left ear, as it did to the victim, the barrel of the discharging weapon would have to have been an undetermined distance from the head rather than a contact wound. He stated that he took Mr. Duffield’s statement and that Mr. Duffield d id not mention that he saw someo ne run into the h ouse that morn ing.

On cross-examination, M r. Watkins stated that the gun was tes ted for the presence of blood, but the handle may not have bee n tested. He said that he spoke with the doctors at Vander bilt Hospital and that no dete rmination could be made as to the distance from the barrel of the g un to the defendant’s head when the shot was fired. He said that the defendant’s gunsh ot wound was at the top l eft of her head.

Agent Stev

e Scott with the firear

ms identific

ation secti on of the TBI cr ime lab stated that he collected ev idence from the Leming house. He s tated that when he arrived, the defendant had alre ady been transported to the hos pital. He said that he picked up lead fragments in the bedroom and recovered a bu llet inside the victim’s pillow on the bed. He s aid that he cut the bloody pal m print out of the wall, as well as bloody fing erprints t hat were on an adjacent w

all. He sai d that he remov ed the clump of hair from the ceiling and r etrieved the gun. He t

estified that the gun had two fired cartridge cases in it and three unfired cartridg es in the cylinder. H e said that the bullets were made by

three differe nt manufacture rs. He stat ed that the fir

ed cartridg es came from the gun found at the scene and that the b ullet retrieved from the pi llow was fired from the gun. He said that he could not conclusively match the bullet from the victim’s6

head to the gun. He also sai d that he found unfired shot pellets from a s hotgun that he deemed unrelated to this case. H e said that neither the bloody palm print nor the fingerprints could be matched. Finally, he stated that although the trajectory of the defendant’s bullet could not be deter mined, he was able to determi ne that the first shot fired was t he shot to the victim.

John Wallace testified that he was one of the v ictim’s best friends and had known him since 1989. He s aid that before the victim st arted working as a g uard at Turney Center, they worked together at Riverbend Maximum Security Institution. He said that he had known the defendant for about two years. He said that when he and the victim worked t

ogether at Riverbend, the defendant called the victi m several times every day. He s

tated that the victim call ed him Thursday night before the shooting and asked if he could bring his guns over to Wallace’s house. He said that when he asked the victim why he

wanted to bring his guns over, the vic tim said, “I’m afraid of her and don’t know what she’l l do,” and he then said, “That bitch took my f---ing .3 57.”
On cross-examination, Wallace stated that he had liked the defendant at one time. He said that he and Tommy Forrester were cous ins. He said that he wa s not aware that the defendant thought th at he and Forrester wer e bad influences on her husband, although he admitted that pr eviously he had told a TBI investigator that he knew what the defendant thought. He said that the vic tim stopped by his house thr ee or four times each week and tha t they would drink beer. He said that sometimes t hey would drink at the v

ictim’s house but not as often. H e said that the defendant cared a great deal about the victim, but he could not tell if the victim loved the defen dant. He said that he had never brandished a gun on the defend ant and was not aware of any ill feelings between the defendant and Fo rrester. He admitted that h e and the victim had a fallin g out in 19 94 becau se he tho ught the vi ctim may h ave helpe d his ex-wif e leave him, but he said that he had apolog ized to the victim.7 Tommy Forrester testified tha t he met the victim throug h Wallace and that he had known him about six months before he died. He said that he had been to the victim’s house about four ti mes and that he and the defendant had met a couple o f times. He said that he rode t o Wallace’s wedding with the defendant , and he had no problems with her or t he victim. He said tha t he had neve r threatened either of the m.
On cross-examination, he stated that he did not know th at the defendant was concerned about the amount of ti me the victim was spendi ng drinking with him and Wallace. He said that he was with Wallace on Sunday before the shootings, but he could not remember where they went. He said that it was possible that they went by the victim’s house, but he did not remember stopping there. He admitt ed that he told Agent Watkins that he had not been by the v ictim’s house that day. On redirect, Forrester stated that he w as at home Sunday night.
Sandra Buck, a neighbor of the defendant and victim, testified that s he saw the defendant and the vict im moving on Sunday afternoon.She said that the defendant seemed to be in good spirits. She said that she did not he ar any shots Sunday evening. She sai d that she and her husband wer e not at home Monday morning, but her son had stopped by to borrow their lawnmower.

Dr. Charles Harlan, the medical examiner, performed the autopsy on the victim. He said that the victim died instantl y from the gunshot wound tha t entered behind his left ear and passed thr ough the brain. He said th at he retrieved a .38 cal iber bullet from the victim’s skull. He said that it was a near gunshot w ound, meaning that the muzzle was tw

elve to twenty-four

inches from the victim’s skin when the shot w

as fired. He said that the victim could not have made the bloody handprint on the wall because the gunshot wound w ould have rendered him unconsc ious immediately, and8

he would not have had any control over his moti ons. He also said that for that reason, the defendant could not have throw n anything across the r oom after he was shot.

Patricia Duffield, the defendant’s mother, testified that the defendant worked with her at

Al Phillips’ Insuranc

e Agency before the shooting . She said that when she saw the defendant at Van derbilt Hospital, she not iced bruises on the inside of the defendant’s arms. She said that the defendant did not know her the fir st day but that she recognized her after that day. She said that the defen dant’s thinking was very slow at first but that sh e had been able to communicate better as the months passed. She said that the defendant was w orking as a receptioni st at the time of the trial. She said that she had urged the defendant t o tell her about the shooting , but the defendant could not reme mber anything.

Mrs. Duffield testified that she and her husband helped the defendant move out of the house she shared w ith the victim on Sunday before the shootings. She said that the victim w

as very angry , which was not li ke him, but she did not interfere. She said that after they finished putting up boxes in Nas hville, the defendant and the victim left to go back t

o their house in McEwen . She said that the defendant called h er twice that night. She said that during the first conversation, the defendant told her that the victim had taken up for her in front of his friends. She said that the defendant said, “He told them that just becaus e I’m not going to be here, that there wasn’t goi ng to be a swinging door for them to run in and out of.” Mrs. Duffield stated that based upon her conversation with the defendant, she believed that the defendant was speaking about the victim’s friends, J ohn Wallace and Tommy Forrester. She testifie d that the defendant called her again before 9:00 p.m. and said, “So far so good. They’re fixing to leave.” She said that i n the background she could hear the victim talking

to another person and that she believed somebody else was there.She said that the defendant told her, “Everyth ing is going to be o kay. It’s all ri ght, right now.”9 On cross-examination, Mrs. Duffield said that she assumed tha t the purse underneath the bed was the defendant’s . She also said that the pist ol lying next to the purse looked like her husband’s.

Agent Steve Watkins was called bac k to the stand to identify the r eport of the gunshot residue tests performed on both the defendant and the victim. On crossexamination, Watkins testified that any t ype of liquid substance i n which a hand was immersed would have a detr imental effect on the reliability of gunshot residue testing

. He stated that in the picture of the crime scene of the defendant and the v ictim, the defendant’s hands appeared to be cover ed with blood. After looki ng at a photograph of the victi m’s hands, he

said that th ey did not a ppear to hav e blood on them

.

I. SUFFICIENCY OF THE EVIDENCE The defendant contends that the evidence i s insufficient to support a conviction for either fir

st or second degree murder because no evidence was submitted that would indicate that the defendant exercised the ref lection and judgment necessary to support such a convict ion. The state argues that the evidence presented at tri al showed that the defendant brought the gun home and intentionally , knowingly, and w ith premeditati on shot her hu sband in the h ead and kill ed him.

Our standard of review when the sufficiency of the ev idence is questioned on appeal is "whether, after v iewing the evidenc

e in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements o f the crime beyond a reasonable doubt ." Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that w e do not reweigh the ev idence, but presume that the jury has resolv

ed all conflicts in the test imony and drawn all r easonable inferences from the evidence in favor of the s tate. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978).10 Viewing the evidenc

e in a light most favorabl e to the state, we conclude that the evidence is sufficient to support the convicti on. The defendant correctly arg ues that the state’s case is pur ely circumstantial. However, it is well established that circumstantial evidenc

e may be used exclusiv ely to establish gui lt for a criminal act. See State v. Smith , 868 S.W.2d 561, 569 (Tenn. 1993). Furthermore, the w eight of such circumstantial ev

idence is for the jury t

o determine. See Williams v. State , 520 S.W.2d 371, 374 (Tenn. Crim. App. 1977). The eviden ce presented at trial establ ished that the defendant and the victim w ere separating and that on Sunday, September 11, 1995, the defendant took a loaded pistol fr om her father’s car without permission. The defendant’s father tried to persuade th e defendant to stay with him that night, but she refused. The following mornin g, the victim was found dead lying in bed w ith a gunshot wound to his head. The bullet found in the victim’s head came from the defendant’s father’s gun, the same gun that was found lying on the flo or on the defendant’s side of the bed. The victim received the first shot fired, which would have rendered him completely immobile. We cannot say that the evidence presented is i nsufficient to support the jury’s findi ng of guilt.

The defendant further argues that because the case is circumstantial , the jury could not have found that the facts presented excluded e very other reasonable theory or hypothesis

except that of guilt. Es sentially, the defendant arg ues that the facts did not exclude the poss ibility that a thir d party shot both the vi ctim and the defendant. However, w hether other reasonable inferences are excluded by the circumstantial evidenc

e is also a question for the jury. See State v. Crawford , 470 S.W.2d 610 (Tenn. 1971). At trial, the defendant present ed evidence to suggest that a third party may have committed the shootings, but the jury rejected that evidence in favor of the state’s theory. In the light most favorable to the state, the evidence excludes every r

easonable hypothesis but that of guilt.11 II. COMP ETE NCE TO S TAND T RIAL The defend ant argues that the trial court erre d by allowing the trial to go forward even though the de fendant was incompetent due to her amnes ia surrounding the shootings. The state arg ues that amnesia, in and of itself, does not constitute incompetency. The state further argues that the def endant was competent because she was functioning and communi cating well, could consult with her attor

ney, and understood the proceedings at trial.

The standard for determining w hether a defendant is competent to stand trial is set forth in Dusky v. United St ates , 362 U.S. 402, 80 S. Ct. 788, 789 (1960): [T]he “test must be whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding - - and whether he has a rational as well as a factual understanding of the proceedings against him.” Id . The Duskystandard has been adopted in Tennessee. See State v. Black , 815 S.W.2d 166, 174 (Tenn. 1991); State v. Benton , 759 S.W.2d 427, 429 (Tenn. Crim. App. 1988); Mackey v. State , 537 S.W.2d 704, 707 (Tenn. Crim. App. 1975). The burden is on the de fendan t to estab lish his in compete ncy to stan d trial by a preponderance of the evidence. See State v. Oody , 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). On appeal, the trial court’s findings are conclusive unless the evidence preponderates otherwise. Id

.

The trial court conducted a hear ing on April 23, 1996, to det ermine whether the defendant was compet ent to stand trial. The defendant submit ted medical records from Vanderbilt Hosp ital that reflected that she had no recollection of the events surrounding the shootings. Counsel for the d efendant stated that when he was first retained, he had great difficulty communicating w ith the defendant, but she had made great progress. The defendant testified that she had no memory o f the circumstances surrounding the shooting of herself and the v ictim and that her parents12

told her of the victim’s d eath and her injury. The defendant t estified that she had no memory of the last six months of her marriage but that she mi ght remember something if asked about it specifically . She said that she had improv ed in other areas such as speaking, reading, writing, and walki ng. She said that she contin ued to receive medical treatment from a neurologist.

On cross-examination, t he defendant testified that she was no longer employed and that she lived with her parents. She said that she had been driving since November 1995 and was able to run errands. She said t hat she was able to read, cook, and clean. The defendant testified tha t she remembered going to hi gh school and graduati ng in 1987. She said that she also re membered marr ying the v

ictim, attending college, w

orking for three different employ ers, and having a son i n 1989.

The defendant testified that she had discuss ed with her lawy

er the criminal charge of first d egree murder and the lesser included offenses of second degree murder and voluntar y manslaughter. She sai d that she knew the conseq uences she faced if convicted of first deg ree murder but was not sur e about the consequences if she was convicted of a l esser offense. The defendant testified that she had talked with her attorney about possible defenses, such as her husband may have shot her or she may have been acting in self-defense. She said that she r emembered that the victim owned guns a

t the time of the shooting but that s he did not know what ki nd. The defendant testified that she reme mbered borrowing a gun from her father but she did not remember when. She said th at she understood that she might go to jail if convic

ted but did not know the punishment for first or second degree mur der.

Patricia Duffield, the defendant’s mother, testified that while at the hospital, she explained to the defendant who the victi m was and what had happened. She said that the defendant was at V anderbilt Hospital for about three weeks and was13

then transported to Stallw orth Rehabilitation Cli nic, where she stay ed until November 17, 1995. Mrs. Duffield testified that the defendant’s communication had impr oved since s he was f irst in

the hosp ital but

that the defendant

still had trou ble thin king of a word and saying it. Mrs. Duffield testified that the defendant did not remember the events in question.

On cross-examination, M rs. Duffield said that the defendant w as able to drive and do errands but that she did not drive much i n heavy traffic. She said that the defendant did not remember how to g et to the place she worked before the shooting. Mrs. Duffield testified that much of what the de fendant knew she was told by Mr. Duffield and herself. She stated that s he had explained to the defendant that s he had obtained her father’s gun. She s aid that there was stil l much that the defendant did not remember. Mrs. Duffield said that she did not know if the defendant r emembered the birth of her child and the ev ents of his growing up because they had not talked abo ut them. She said that the defendant was beginning to act normall y, but not to the point that she was able to w

ork. Mrs. Duffield stated th at although the defendant graduated with a 4.0 grade point average from Branell Col lege and was good at math, the defendant had trouble multiplyin g and adding.

Mrs. Duffield stated that she had told the defendant that the trial w as the next day, but she did not believe that the defendant fully understood the ramifications of a trial. Upon questioni ng by the trial cour t, Mrs. Duffield stated that she did not think that the defendant’s ability t o express herself woul d improve within four months, the time period for which the case would be delayed if a continuance was granted for a psychological evaluation. She said that she did not know whether the defendant’s memory would improve, but she believed that the defendant’s comm unication skills would get better. Mr

s. Duffield testified that the defendant’s ability to reason and14

understand, to calculate, and to understand the legal proces s had not improved. She said that the de fendant was mo re outgoing bef ore the shootin g.

Chester Duffield, the defendant’s father, testified that he was a reti red police officer who stayed at home with the defendant. He said th at the defendant’s ability to communicate had advanced quickly since she had been home. Mr. Duff ield said that he believed it likely that her ability to communicate with her attorney would improve. He stated that her ability to think and to reason had improved in certain areas, but he was unsure that the defendant understo od the penalty for the crime charged. He believed that the defendant was capable of understanding the penalty if it was explained to her. He sai d that the defendant was continuing to improve and was physically stronger but that she was not yet normal. Mr. Duffield stated that her best improvement was that she was relearning thi ngs. He said that her abi lity to think of words and t o verbalize her thoug hts had im proved gre atly.

At the end of the hearing, the tri al court denied the defendant’s motion

. Based on the testimony and the defendant’ s medical records, it found tha t there was no doubt that the defendant was suffering from amnesia but that there was no medical proof that her

condition w

ould ever i mprove. It

found that ther

e were some communication deficits but that they were not significant. The court found that amnesia does not constitute incompetency to stand trial. In support of its holding, the trial court relied upon State v. Dempsey Ray , No. 86-290-III, Davi dson County (Tenn. Crim. Ap p. Mar. 2, 1988) (holding that “[a]mnesia in and of itself does no t constitute incompetency to stand trial.”).

Regarding the proof intr oduced at trial, the defendant’s par ents testified that the defendant continued to ha ve problems communicating in that she was unable to think of a word and say it. Mr. and Mrs. D uffield both said that she had never15

remembered or related to them any thing that happened during th e time period when the victim was kill ed. He stated that the defendant had to r elearn everything

and was undergoing both physical and mental therapy. The defenda nt’s medical records were introduced at trial and documented the def endant’s “severe aphasia, making it difficult to assess orientation and cog nitive skills” and the language deficits.

The defendant contends that the trial cour t erred by finding her competent to stand trial. She argues that her amnesia precluded her from assisting counsel, rendering her incompetent to stand trial under the facts of thi s case. Specifically, the defendant argues that because she w as unable to remember anything surrounding the circumstances of the offense and because the e vidence was not so compel ling as to render her memory unnecessar y to assist counsel, a fair trial could not be held.
In analyzing the defendant’ s claim of incompetence, we fir st begin with the principle that amnesia, in a nd of itself, does not constitute in competency to stand trial. See Ray , slip op. at 7. However, the circumstances of the crime and of the amne sia may be such as to depriv e the defendant of a fair trial. Id . We also note that this court has previously rejected a defendant’s claim that he was deprived of a fair trial due to his inability to remember the events of the crimes. See State v. Neil M. Fr iedman , No. 03C01-9704-CR-00140, Carte r County (Tenn. Crim. Ap p. Apr. 14, 1998), applic

. filed (Tenn. June 15, 1998). An analysis of relevant cases leads us to the con clusion that in order to ensure that an amnesiac defenda nt receives the guarantees of due process, two inquiries must be made. First, there must be an analysis under Dusky as to whether the defendant has sufficient abi lity to consult w ith her attorney wi

th a reasonable degree of rational understanding and whether the defendant understands the proceedings against her. See Dusky , 362 U.S. at 402, 80 S. Ct. at 789. Second, there must be an analysis of w hether the defendant can receive a fair trial despite the amnesia, considering such factors as whether the crime and the def endant’s16

whereabouts can be reconstr ucted without the defendant’s tes timony and whether access to government files would assist the defendant in preparing a defense. See United States v. Swans on , 572 F.2d 523, 527 (5th Cir. 1978) (cited in Ray , slip op. at 7).
The first inquiry is whether the defendant has sufficient ab ility to consult with her attorney and whether the defendant understands th e proceedings against her

. We conclude that this inquiry is satisfied in the instant case. The facts produced at the competency hearing and at tr ial show that the defendant became abl e to talk with her attorney and discuss the c harges against her. Sh e discussed possible defenses w ith her attorney, including

the possibility that her husband or an intruder sho t her. Both her parents and her attorney st ated that she had made great improv ements in the area of communication. Furthermore, th e defendant understood the nature of the charg es against her. She stated that although she was unsure about the consequences of being convicted of a lesser offense, she understoo d that she would go to jail if she were to be convicted of first degr ee murder. Her father stated that she was capable of understanding the penalty of the crime charged if it w ere explained to her. Bas ed on these facts, we conclude that the standard for competency set for th in Dusky

is satisfied in the instant case.

Our second inquiry is whether the defendant is abl e to receive a fair tri al despite the amnesia. In Ray , this court looked to Swanson for the relevant inquiry in determining an amnesiac defendant’s ability to receiv

e a fair trial. A main consi deration is whether the crime and the defendant’s whereabouts can be reconstructed without he r testimony. The evidence pr esented at trial in the ins tant case shows that the st ate was able to reconstruct the shooti ngs without the testimony of the defendant by analyzing the physical evidenc

e and the testimony of the witnesses. The state’s theory , based on the physical evidence and the testimony of witnesses, was that the defenda nt took a17

loaded pistol from her father without his permission, w ent back to the house she was formerly sharing w

ith the victim, and some ti me on September 11 or 12, 1995, shot the victim then herself. Thus, both the events and the defendant’s w hereabouts could be reasonably reconstruct ed.
Also, although the state did not provide the defendan t with completely open files, as suggested i n both Swanson and United States v. Stubblefield , 325 F. Supp. 485, 486 (E.D. Tenn. 1971), the def ense made extensive pretrial discovery motions to which the state responded by supplying the defense with the names and addresses of the state’s witnesses and access to the evidence presente d at trial, including the photographs, the pistol, the section of the wall containing the bloo dy palm print, hair and tissue, bed clothing, the bullet, bullet fragments, th e fingerprint analyses, toxicology repor

ts, and the autopsy report. The state notified the defendant of its intent to call Wallace and Forrester as w itnesses, and the defendant was abl e to construct a theory alternative t

o the state’s theory usi ng these witnesses and the physical evidence. The defense was able to cross-examine both Wallace and Forrester, as w ell as the agents from the crime lab w ho assisted the state in prepar ing its theory of the cas e. In light of these facts, we con clude that the state gave the defendant sufficient access to information such that the defend ant was not deprived of a fair trial.

In conclusion, we affirm the tr ial court’s determination that the defendant is competent to stand trial. Certainly, the presentation of a def ense was made more difficult by the defendant’s complete lack of memory surrounding the shootings. However, the defendant w as able to consult with her attorney, and she unders tood the nature of the charges against her. Furthermore, the crime itself and the defendant’s whereabouts were constructed without the defendant’s testimon y. In light of these circumstances, we conclude that the defendant’s due process rights were not v iolated by bringing her to trial.18 III. HEARSAY STA

TEMENT Finally, the defendant arg ues that the trial court er red by admitting into evidence the victim’ s statement to John Wallace when Wallace asked the vic tim why he wanted to bring his g uns over to Wallace’s house. The trial court allowed Wallace to testify that the victim told him, “Well I’m af raid of her and don’t know what she will do.” The trial court determined that the statement was admissibl e under Rule 803(3), Tenn. R. Evid., as a statement of the victim’s then existing state of mind. The trial court provided a limiting instruction, stating that the jury could not cons ider the testimony as proof that the defendant actua lly killed the victim. However, the trial court told the jury that they could “accept [the testimony], if you beli eve it, as proof of the fact that she may have been planning or deliberating murder pr ior to actually committ ing it.”
In admitting the statements, the trial court relied on State v. Charles N. Howell , No. 03C01-9406-CR-00203, Knox County (Tenn. Crim. App. Feb. 12, 199 6), app . denied (Tenn. July 9, 1996) (concurring in results only), in which this court upheld the admission of a murder victim’s statements expressing fear of the defendant. This court held that the statements w ere admissible under Rule 8 03(3), Tenn. R. Evid., as statements of the victim’s state of mind and also d etermined that the statements were relevant b ecause t hey relate d to prem editatio n. Slip op . at 8-9. Ho wever, we bel ieve that the trial court’s r

eliance on Howell was misplaced. Not onl y is the fact that the supreme court concurred only in the results of this court’s Howell opinion significant, but our review of the relevant case law and the Advisory Commission Comment to Rule 803(3) leads us to conclude that the statement ma de by the victim in the instant case is inadmissible hearsay r

elative to proving

the defendant’s conduct and mental state.

In State v. Farmer , 927 S.W.2d 582, 59 5 (Tenn. Crim. App. 1996), this court held that a statement made by a murder victim, reflecting that he and Farmer19

planned to meet to steal marijuana, was inadmissible under Rule 803(3). Although t he state argued that the statement w as admissible as evidenc e of the victim’s state of mind relative to his r

elationship with Far

mer, this court determined that the state’s real purpose in seeking to admit the statement was to show that the defendant planned to and did meet with the vi ctim. Id . Noting that the Advi sory Commission Comment to Rule 803(3) states that the s tate of mind exception to the hears ay rule “contemplates that only the declarant’s conduct, not some third party’s conduct, is provable by this hearsay exception,” this court concluded that it was not admissible to s how the defendant’s conduct. Id .; see also State v. Lucien Samuel Sherr od , No. 01C01-9505- CR-00157, Davidson County (Tenn. Crim. App. Jan. 30, 1997) (statemen ts of a first degree murder victim, expressing fear of the defendant, w ere not admissible under 803(3) because the statements w ere offered to prove the defendant’s cond uct, “and, therefore, his mental state of premedit ation.”); State v. John Parker Roe , No. 02C01- 9702-CR-00054, Shelby Cou nty (Tenn. Crim. App. Jan. 12, 1998), applic

. filed (Tenn. Mar. 5, 1998) (murder v ictim’s statements wer

e inadmissible hearsay because the statements were offered for the purpos e of proving the defendant’s pre meditation and deliberation).

The same result is warr anted in the instant case. Although the state argues that the statement was offered to show the victim’s state of m ind and to explain why the victim t

ook his guns over to Wallace’s hous e, the trial court’s i nstruction to the jury suggests oth erwise. The trial co urt instructed the jury that the victim’s stat

ement could be used to show the defendant’ s premeditation and deliberati on. Rule 803(3) does not encompass such statements. See Advisory Commission Comment, Tenn. R. Evid. 803(3) (“The commis sion contemplates that only the declarant’s conduct, not some third party’s conduct, is provable by this hearsay exception.”).20 We note, as well, that the victim’s statement expressing hi s fears about the defendant would not be relev ant for the state’s case to prov e the defendant’s guilt, even if viewed as ev

idence of the victim’s stat e of mind. In State v. Smith , 868 S.W.2d 561, 573 (Tenn. 1993), our supreme cou rt held that statements made by a murder victim that express

ed fear of the defendant were not direct ly probative of whether the defendant committed murder. Similar reaso ning applies in the present case. There was no evidence presented or claim made about the victim’s conduct that would make his state of mind as reflected by his statements relevant t o an issue on trial.
Having det ermined that the stateme nt should have been excluded , we must now determine whether the erroneous admission of the sta tement is harmless. See T.R.A.P. 36(b); Tenn. R. Cri m. P. 52(a). We conclude that it is not. I n Smith , this court determined that although the hearsay statements w ere admitted in error, the admission of the statements was harmless in light of the pr oof presented at trial. Smith , 868 S.W.2d at 573. This court determined that “[w ]hen one considers the proof of Defendant’s p revious t hreats and v iolent assa ults upon the victims, that [the victim] would have been afraid of the Defendant is obvious.” Id . This court has made similar determinations in other cases that are factually analog ous to Smith

. See , e.g. , State v. Bragan , 920 S.W.2d 227, 24 2 (Tenn. Crim. App. 1995) (“there was ample evidence in the record to conclude that the appellant had planned to kill the victim . . . .”); Farmer , 927 S.W.2d at 596 (even without the hearsay statements, “the evidence of the appellant’s guilt would simply be overwhelming.”).

The facts of the i nstant case a re disting uishable fro m Smith and its progeny because in the i nstant case, the evidence fall s far short of overwhelmi ng with respect to proof of the defendant’s premedit ation. Arguably, the fact that the defendant took a loaded gun from her father’s truck the day before the shooti ngs could indicate premeditation, even though t he defendant’s stated purpose for taking the gun was for21

protection from the victim’s friends, not to do harm to the defendant. With in this framework, though, the v ictim’s hearsay statement , which was admitted with the trial court’s instruction to the jury that it could be considered on the issue of premedi tation, would be important to the state relative to the defendant ’s mental state. Under these circumstances, we conclude that the statement’s erroneous ad mission more probably than not affected the verdict. Therefor e, we are compelled to rev erse and remand the case for a new trial.

In consideration of the foregoing and the record as a whole, we reverse and remand the case for a new tr ial based on the trial cour t’s erroneous admission of the hearsay statement made by the victim.

________________________________ Joseph M. Tipto n, Judge

_____________________________ David H. Wel les, Judge

_____________________________ Joe G. Riley, Judge