### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE September 29,

1999 Session STATE OF TENNESSEE v. TERESA E VERETT Direct Appeal from the Criminal Court for Loudon County

No. 9538 E. Eugene Eblen, Judge

No. E1999-02647-CCA-R3-CD February 15, 2001 Following a trial on September 28, 1998, a Loudon Count y jury convic ted Teresa Everett, the defendant and appellant, of attempt to commit second-degree murder. The trial court subsequently sentenced her to serve fifteen (15) years in the Tennessee Department of Corrections. The defendant presents the following issues on appeal (1) Whether the evidence was sufficient to conv ict her ; (2)Whether

the trial court erred by

allowing imprope

r impeachment;

(3) Whether the trial court erred by allowing a lay-witness to testify to his opinion; (4) Whether the trial court erred by allowing the state to introduce character evidence; (5) Whether the state’s closing arguments were

improper; and (6) Whether the defendant should be granted a new trial based on newly discovered evidence. Al though the evidence is sufficient to support the verdict, we find the cumulative effect of all the remaining errors deprived the defendant of a fair trial. Accordingly, we reverse the judgme nt of the trial court and remand the case for a new trial.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt is Reversed a

nd Remanded
J ERRY S MITH , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., joined. J AMES C URWOOD W ITT , J R ., J, j oin ed i n res ult s on ly. Rex A. Dale, Le

noir City, Te

nnessee for the a

ppellant, Teresa

Everett. Paul G. Summers, Attorney General and Reporter; Ellen H. Pollack, Assistant Attorney Gener al; J. Scott McCluen, District

Attorney General; Roger

Delp, Assistant District Attorney, for the appellee, State of Tennessee.-2- OPINION FACTUAL BACKGROUND During September of 1997 , Charles Mills and Wo odrow Fritts (the

victim) were roommates in Mr. Fritts’s mobile home. On the evening of September 9, 1997, the two roomma tes were home together when Mr. Fritts

received a telephone

call from the defendant, who had been a friend of Mr. Fritts for several years. On the phone, the defendant told Mr. Fritts

that her boyfriend had assaulted her. Mr. Fritts then left

to retrieve the defendant. Mr. Fritts and the defendant returned to the mobile homewithsome beer and cigarettes about forty-five ( 45) minutes later, some time before10:00 p.m. Mr. Mills went to his bedroom to sleep shortly after the couple’s arrival. He was awakened shortly after 1:00 a.m. the next morning by the victim, who was shouting f

or Mr. Mills to help hi

m. After Mr. Mills awoke, he left his bedroom to find Mr. Fritts bleeding profusely from apparent stab wounds to his neck, chest, and hands. Mr. Mills also saw th e defendant, holding a knife, standing over the chair in which he assumed Mr. Mills had been sitting. The defendant was covered in blood, andappeared intoxicated. She started screaming at Mr. Mills and threatening to k ill him. Mr. Fritts told Mr. Mills that the defendant had cut him, and he told Mr. Mills to call 911. Mr. Mills called 911, and the police and paramedics arrived shortly thereafter. A fter police arrived, the defendant, who was still irate and screaming, told one of the officers that she had tried to kill Mr. Fritts. Police could smell alcohol on both Mr. Fritts and the defendant. Upon inspection of the residence, police found several knives. T

he paramedics tr

eated Mr. Fritts , and he was flown to the University of Tennessee Hos pita l. Although his wounds were severe, he survived. Before trial, however, he died of an unrelated cause. SUFFICIENCY When an appellant challenges the sufficiency of the evidence, this court

is obliged to review that challenge according to certain well-settled principles. A verdict of guilty by the jury , approved by the trial judge,

accredits the te

stimony of the

State 's witnesses an d resolves all conflicts in the testimonyin favor of the State. State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994). Although an accused ori gina lly e njo ys a presumption of innocence, a jury verdict removes this presumption and replaces it with one of guilt. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appea l, the burden of proof rests with the appellant to demonstrate the insufficiency o f the convicting evidence. Id. On appeal, the state is entitled to the strongest legitimate view of the evidence as well as all reasonable

and legitimate inferences that may be drawn therefrom. Statev. Cabbage , 571 S. W. 2d 832, 835 (Tenn. 1978). Where the sufficiency of the evidence is contested, the rele vant question for the reviewing court is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992); Tenn. R. App. P. 13(e). In conducting our eval uation of the convicting e vidence, this cou

rt is precluded from reweighing or reconsidering the evidenc e. State v. Morgan , 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996). Moreover, this Court may not substitute its own inferences "for tho s e drawnby the trier of

fact from circumstantia l evidence." State v. Matthews , 805 S. W. 2d 776, 779 (Tenn. Crim. App. 1990).-3-

The defendant arg

ues that the State f

ailed to present e

vidence suffici

ent to supp ort an attemptedsecond-degre

e mu rde r conviction and that the jury should have found that her actions were taken in self-defense. Second-degree murder is the "knowing killing of another." Te nn. Code Ann. § 39-13-210(a)(1). Attempted second-degree murder can be prove n by evidencethat the defendant kn owingly

acted with the intent t o kill her victim and that the defendant's actio ns constituted "a substantial step toward the commission" of the murder. Tenn. Code Ann. § 39-12-101(a)(3). In this case, Mr. Mills testified that, when he went to sleep, the defendant and the victim were in the trailer together. Mr. Mills was l ater awakened by the victim’s cries for help. When he responded

to the cries for help, Mr. M ills found t he victim with his thr oat slit and severe stab wounds to his hand s and che st. The victim then told M r. Mil ls that t he defendant had cut him. Mr

. Mills also saw the de fendant holding a bloody knife, s creaming and swearing. Finally, after polic e arrived, the d efendan t told a police officer that she had tr

ied to kill t

he vict im. The jury wa s justified in inferring t hat the defendant had

knowingly tri

ed to kill t

he vict im. Furthermore, the only evidence of self- defense was the defendant’s testimon y that Mr. Fritts struck her fir

st and that she had no mem ory beyond that. The question of whether a criminal defendant has acted i

n self-defense i s one for the jury’ s determination. It is appa rent the jury rejected the defendant’s version of events a s was their perogat ive. Tenn. Code Ann. § 39-1 1-201 (a)(3). State v. Belser , 945 S .W.2d 776, 78 2 (Ten n. Crim . App. 1 996). This issue is w ithout merit.

PRIOR CONVICTIONS In September of 1985 , twelv e years before trial, the defendant had bee n convicted of

one count of sal e of marijuana a nd received one

year prob

ation, one count of

sale of a control

l e d substance and received

five years probation, and one count of grand larc eny, for which she

received three years probation. Al l three sentences were to be served concurrently . The defendant’s probation was subsequently revoked, and she was ordered to serve the re mainder of her sentence in the Community

Corrections program. Subseq uently, her Community Corr

ections sentence

was also revoked, and in November of 1986 she was ordered to serve the remainder of her sen tence in the Department

of Corrections. She was paroled sometime after that, but her parole was revoked, and she was returned to theDepartment of Corrections in September of 1989. Following her return to the pen ite nti ary, the defendant wa s granted a fur

lough from which

she did not return.

For this, she was charged with and convicted of escape in May of 1991. Before trial, the state gave t

he defendant not

ice, pursuant to Ru

le 609(a)(3) of the Tennessee Rules of Evidence, that it intended to use all of the above convictions to impeach thedefendant if she testified. At a he

aring immediate

ly before t he trial, the def

endant only

objected to

the state’s use of the marijuana conviction for impeachment, arguing that more than ten y ears had passed between the time that she had been released on that charge and the time of trial. The trial court disag reed: [T]he court feels that [all four of the convictions] are relevant in this situation, since all of these were concu rrent charges, and she was serving pro bat ion , an d th en C omm uni ty C orrections, and then-4- penitentiary

time, and then violation of parole time and e veryth ing. None o f them would have been completed under them all being served concurrently until she was finally released. The court also held that the state would be limited to impeaching the defendant with the convictions themselves and would not be allowed to question the defendant ab out any probation or parole violations. During trial, however, the state questioned the defendant about her prior co nvictions and about her prior drug and alcohol use which led to the revocation of her probation a nd community corrections.The defend a nt now challenges the t rial court ’s ruling as

to all of the pr

ior convictions and the ad missio n of t he state’s cross-examination reg arding the defenda nt’s prior drug and alcohol use l

eading to her probat

ion violatio ns. Because the defendant di d not object to the intr

oduction of the convictions for posse ssion of a control led substance,grand larceny or escape prior to or dur ing trial , however, she has waived her right to obj ect here. Tenn. R. Evi d . 103(a); Furtherm ore, we ne ed not dec ide wheth er the trial court e rred in finding that the con viction for th e sale of marijuana was not stale, because any error i n that regard was harm less in light of th e introductio n of all of the other convictions. Tenn. R. App. P. 36(b); Tenn. R. C rim. P. 52(a). How ever, we are not inclined to ignore the s tate’s i mpeachment of the defendan t regarding her past alcohol and drug use, because t he state clearly violated a pre-trial r uling by the court when the Dist rict Attor

ney Genera l questioned t he defendant in that

regard. Even after the court

clearly held that the

state was prohibited fr

om questioning the def

endant about the circumstanc es that led to t he violation of he

r probation or

parole, the state init

iated the follow ing dialogu e during its q uestioning o f the defe ndant:

Q: Now I believe you had told us t hat eventuall

y you had to go and serve that se

ntence. A: Yes, sir. Q: The reason for that being basically your usage of alcohol and drugs; wa sn’t it?
A: Excuse me? Q: The reason you eventua lly had t o go s erve tho se sentences was your use of alcohol and drugs?
A: Yes, sir , I guess. I don’t know. I violated my probati on by not doing my community service.-5- Q: Let’s talk about the next pro gram. I’m not ta lking about probation; I’m ta lking about Commun ity Correc tions, where y

ou had another op portunity not to h ave to go s erve th at sentence. Do you remember Comm unity Corrections? A: Yes, sir. Q: The reason youeventually had to go to the women’s pri son was your us e of alcoh ol and dru gs on that o ccasion, w asn’t it? A: Yes, sir. Although the defendant did not timely obj ect to the i

ntroduction of suc

h evidence, "[w]hethe

r or not an appellat

e court should rec ognize the error and grant reli

ef in the absence o f a n ob jection

in the tri al court must depend upon t he facts and circ

umstances of the part

icular cas e." State v. Ogle , 666 S.W.2d 58, 61 (Tenn. 1984) . If the admiss ion of the improper impeachment were the o nly error in the rec ord, we m ight o rdinarily find it ha rmless. See Tenn. R. Ap p. P. 36(b). However, in this cas e, it is the cumulative eff

ect of the error

s that requires rev ersal.

OPINION TESTIMONY During the state’s direct

examination of Criminal Investigator Jerry Ly nn Rabern, one of the Police Officers that in

vestigated the c

rime scene that n

ight, and in an at

tempt to show that ce

rtain wounds received by

the defendant we

re not inflicted by

the victim but were

self-inflicted t hereby negatinga claim of self-defense, the following colloq uy occ urred between the prosecutor and the officer: Q: Officer Rabern, would you look at what has been mark ed as Exhibit Number 18, and tell us whether you can identify what you see here? A: I see cut marks

on the wrist of [the d

efendan t]. Q: Is this a

photograph of th

is defendant on the

early morning of the 10 th of September, 1997? A: Yes, it is. Q: And did you take this photograph yourself? A: Yes, I did.-6- Q: And does thi s ph oto grap h fai rly a nd a ccur ate ly de pic t an inj ury, or a slice wound acr

oss the wrist of this i

ndividual? A: Yes, it does. Q: Officer Rabern, have you seen injuries like this before? A: Yes, I have Q: Have you

seen them on attem

pted suicide kind of

persons?
MR

. DALE: I object to that, Your Honor. He’s going to try to say this looks like

an attempted suicide. A cut’s a cut. He can only testify to his own personal knowledge of what he saw and observed. ASST. GENERAL

DELP: Your Honor, I

believe he can te

ll us if he’s seen such wounds before on– THE COURT: Overrule the objection. Q: Are those wounds ty

pical of persons w

ho would “cut their wrist s?” A: Yes, it is.
Because the state did not se

ek to qualify

Officer Raber

n as an expert,

the defendant c

laims that this tes tim ony c ons tit ute s im perm iss ibl e op ini on t est imo ny. Init ial ly, we note that the admissibility of evidence is generally within the broad discretion of the trial court. Absent an abuse of that discretion, the trial court's decision will not be reversed. Statev. McLeod , 937 S.W.2d 867, 871 (Tenn. 1996). Rule 70 1(a) of the Tennessee Rules of Evidence addresses the admissibility of opinion testimony offered by non-ex perts. The rule provides, in rele

vant part: (a) If a witness

is not testifying

as an expert, the witness's testimony in the form of opinions or inferences is limited to those opi nions or inferences which are: (1) rationally based on the perception of the witness; and (2) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.
TennesseeRule 701(a). The Rule was amended because, prior to 1996, it “precluded any lay opinion if the lay witness could substitute facts for opinion.” Tenn. R. Evid. 701, Advis ory Commission1 Before 1996, Rul e 701 provided: (a) Gene rally. If the witness is not testifying as an expe rt, the witness's testimon y in the form of

opinions or inf

erences is l

imited to t

hose opinions or i

nferences wher

e: (1) The opinions an d inferences do not req uire a specia l knowledg e, skill, experience, or training;

(2) The witnes s cannot rea dily and with equal accuracy and ade quacy commu nicate what the witness has perceived to the trier of fact without testif

ying in terms of opinions or inf erences; and (3) The opinions or inf

erences will

not mislead t

he trier of

fact to the prejud ice of the ob jecting party.

-7- Comments (1996). 1 Although the 1996 amendment e

liminate d certain restrictions on opinion tes tim ony, it was not meant to eliminate the distinction between expert and lay testimony. See Tenn. R. Evid. 702-706; Neil P. Cohen et al., Tennessee Law of Evidence § 701.3 (3d ed. Supp. 1999). “The distinction between an expert and a non-expert witness is that a non-expert witness’s testimony results from a

process of reasoning familiar in everyday life and anexpert’s testimony results from a process of reasoning which can be mastered only by specialists in the

field.” State v. Brown , 836 S.W.2d 530, 549 (Tenn. 199 2). In this ca

se, an opinion as to

whether the defendant’s wounds were self-inflicted c

ould only res

ult from expertise o

r considerable e

xperience with suc

h wounds. Furthermo

re, subsection (a)(1) “now tracks Federal Rule 701, which has long be e n interpreted

to require that the lay witness first lay a foundation as to the basis of his or her personal knowledge of

the facts forming the basis of the opinion.” SeeCohen, supra ; see also Tenn. R. Evid. 602 (st ati ng th at a wit nes s th at i s no t an exp ert may not testify absent a showing of personal knowledge). In this case, the witness said that he had seen the types of wounds found on the defendant before, but he never

answered where

he had seen them. Merely stating that he had seen those types of wounds before, without more,is notenough to satisfy the foundation requirement of Rule 7 01(a)(1). State v. Sparks , 891 S.W.2d 607, 614 (Tenn. 1995). Although again, thi s error , standing alone, might not require reversal, we consider this issue in light of the other errors noted below. PRIOR BAD ACTS During the state’s direct examination of Officer Brown , the firs t Officer to arrive on the scene, the following colloquy occurred:

Q: What kind of shape was the defendant in? A: I found her to be intoxicated, sort of uncooper ating with me, and in an irate state, basically, until she wore down. Q: Officer Bro

wn, do you kno

w this defendant? A: Yes, sir, fairly, yes, sir.-8- Q: Have you seen h er before when she’d been d rinking? A: Oh, yes, sir. Q: And have you seen her in states like you sa w her on that occasion? A: Yes, sir. Q: On one or many

occasions? A: Several. Q: Have you

seen her fighti

ng or attacking

other persons? A: Oh, yes, sir. Q: Would you

say you’ve seen that ac

tually once or more than once? A: More than once. Q: And if you h

ave known her fo

r how many y

ears? A: Thirteen or better, maybe. Q: Was she acting ou

t of character

on th is occ asion, assuming that she had been drinking? A: Out of character, sir? Q: Out of her normal char acter when sh e’d been dri nking? A: That’s – that’s how I see her when she’s drinking. She ’s pretty wild. Q: Have you come into contact with her on a lot of occas ions that way? A: Several occa

sions, yes. Q: Have you been

sent to ot her places over time when she was actually having a physica l battle with other people? A: Yes, sir.2 Rule 404 of the T ennessee Rules of Evid ence provides: (a) Character Evidence General ly. Evidence

of a person 's cha

racter or a trait of charac

ter is not admissi

ble for the purpo se of provin g action in co nformity with the c haracter or trait on a particu lar occasio n, except:

(1) Character of Accused . Evidence of a pertinent c haracter tr

ait offer ed by the accused or by the prose cution to rebut the s ame.

(2) Chara cter of Victim

. Evidence of a perti nent character

trait of the victi m of crime offer

ed by an accused or by the prose cution to reb ut the same, o r evidence of a characte r trait o f peacefulness of the victi m offered by the prosecution in a homicide case to rebut evidence that the vi ctim was the first

aggressor. (3) Charact

er of a Witne ss. Evi

dence of t

he charact

er of a wi

tness a s provided i

n Rules 607,

608, and 609. (b) Other Crimes, W rongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character

of a person in order to s how action i

n conformi

ty wit h the char

acter t rait.It may,

however, be admissi

ble for other purposes. The condi tions which

must be sati sfied before al lowing such evi

dence are: (1) The court upon request must hold a heari

ng outside th

e jury's presence; (2) The court must determine that a material iss ue exists other than conduct c onforming with a charac ter trait and must upon request state on the record the material issue, t he ruling,

and the reasons f

or admitting the evidence;and (3) The co urt must exclud e the eviden ce if its probativ e value is outweig hed by the

danger of

unfair preju

dice.

-9- The defendant now complains that Officer Brown’s testimony was offered to prove the defendant’s propensity

for violence, and thus should have been excluded as impermissible character evidence. The general rule

is that evidence o

f prior conduct is

inadmissible, especially when previous crimes or acts are of the

same character as the charged offense, beca use such evidence is irrelevant andinvites the "finder of fac t to infer guilt from propensi ty." State v. Hallock , 875 S.W.2d 285, 290 (Tenn. Crim. App. 1993). Mo reover, "[e]vide

nce of other cri

mes, wrongs, or

acts is not admissibl

e to prove the character

of a pers on in order to show action in conformity with the character trait." Tenn. R. Evid. 404(b). 2 Under Rule 404(b), the state could have introduced the disputed evidence if the evidence wa

s pertinent to issue

s other than char

acter. Howeve

r, while we have

previously observed that prior violent

acts by a defendant aga inst a vict im "are relev ant to show the defendan t's hostility toward the victim,

malice, intent, an

d a settled purpose

to harm the victim," State v. Smith , 86 8 S.W.2d 561, 574 (Tenn. 1993), the defendant's prior violent acts toward a third party is not relevant to show her intent to

kill t he vi ctim in this case. Moreover, we have previously declined to allow evidence o

f a defendant's prior violent ac ts, submitted by th

e State to rebut defense

claims that the victim was the first aggressor. State v. Henderson , No. 03C01 -9804-CR- 00139, 199

9 WL 398087 a t * 6, (Tenn. Crim. A pp. at Knoxville, June 1 8, 1999); State v. Nels on , No

. 03C01-9706-CR- 00197, 19 98 WL 694971, at *11 (Tenn. Crim. App. at Knoxville, September 9, 1998). Furthermore, although the defendant did not object at trial to the evidence of prior bad acts, we cannot ignore this error here. The state introduced improper, prejudicial ev i dence about the3 The court gav e patter n jury i nstruct ions on prior convictions and told the jury that counsel’ s arguments were not evidence. -10- defendant’s propensity for violence. We cannot imagine, and the state h as not offered, a ny legitima

te reasonfor this evidence to have been i ntroduced. That evidence, when viewed along with the inadmissible

opinion testimony and the improper impeachment evidence noted above, constitutes plain error. Tenn. R. Cr

im. P. 52(b); State v. Bigbee , 885 S.W.2d 797, 800 (T enn. 1994); State v. Maddox , 957 S.W.2d 547, 554 (Tenn. Crim. App. 1997). CLOSING STATEMENT During his closin

g statement, the

prosecutor told to

the jury: I think that you

have heard enou

gh today to

conclude that this defendan t is a virtual little buzz saw when she gets angry and when she gets very intoxicated.

. . . .

. . . [You also heard Off icer Brown testify] that he has been calledto numerous situations where this defendant was and had been engaging in physical -- I’ll

call it combat for lack of a better term for it – and was just meaner than hell, basically.

. . . .

. . . [The defendant] is a person wh o has done damage to herself on other occasions b

y cutting he

rself – and I think she said at least three – and I

suggest to

you that on this occasion you will find that number four occurred. Where argumen

t is found to be impro

per the establish

ed test for deter

mining whether th

ere is reversible error is whether the improper conduct "affected the ver dict to the prejudice of the defendant." Harrington v. Sta te , 215 Tenn. 338, 385

S.W.2d 758, 759 (1965) ; Bigbee , 885 S.W .2d at 8 09. The con duc t co mpl ain ed o f in thi s cas e is the imp rop er us e of o pin ion tes tim ony, impeachment evidence, and prior bad acts evidence in a closing statement. In determinin

g whether the im

proper argume

nt prejudiced the

defendant, we mu

st consider: 1) the conduct complained of, viewed in light of the facts and circumstances of the case; 2) the curative measures undertaken by the c ourt and the prosecution; 3) the intent of the prosecutor in making the improper arguments; 4) the cumulative effect of the improper conduc t and any other errors in the record; and 5) the rela tive strength and weakness of the case. State v. Middlebrooks , 995 S.W.2d 550, 560 (T enn. 1999); Bigbee , 885 S.W.2d at 809. In this case, the prosecutor’s ar

guments were imp

roper because

they were

based on evidenc

e that was imprope

rly before the jury

. Thus, the remain

ing issue is the ef

fect of the improp

er arguments. Because theevidence at issue was introduced, a

nd not objected to a

t trial, the use

of thi s evidenceduring closing, although erro neous, was not particu larly egr egious in the con

text of this case. Accordingly, the trial court gave only the standard pattern instruction in an attempt to cure these errors. 3 Furthermore, th e defendant has off

ered no evidence regarding the prosecutor’s motives. In short, factors one, two, and three do not weigh heavily either way.4 The defendant also arg ued on brief that

the defendant s

hould be granted a new t rial based on newl

y discovered evidence . Because this case is rema nded for a new trial, the defe ndant’s final argu ment is moo t. -11- Factor four, ho

wever, is dispositi

ve, because it is t

he cumulative ef

fect of these er

rors, and the state’s reliance on the erroneously introduced evidenc e, particularly the statement concerning the defendant’s propensity for violence , that denied the defendant her fundamental right to a fair trial in this case. See Darden v. Wainwright , 477 U.S. 168, 181, 106 S.Ct. 2464, 2471-72, 9 1 L.Ed.2d 144 (1986) (quo ting Donnelly v. DeChristoforo , 416 U.S. 637, 641, 94 S.Ct. 1868, 1870-71,

40 L.Ed.2d 431 ( 1974) (stating th at closing arg

uments could beco

me "so infected with unfairness as to make the resulting conviction a denial of due process")). Fin all y, we note that the last factor, the strength of the state’s case, does not save the error. The case was entirely circumstantial and was not strong enough to withstand errors of this magnitude. 4 Accordingly, the judgment of the trial court is reverse d, and the case is remanded for proceedings consistent with this opinion.

____________________________________ JERRY SMITH, JUDGE