IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON MAY SESSION, 1999 FILED September 20, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9803-CR-00075 Cecil Crowson, Jr. ) Appellate Court Clerk Appellee, ) ) SHELBY COUNTY V. ) ) ) HON . JAME S C. B EASLE Y, JR., DOR OTH Y J. FL EMIN G, ) JUDGE ) Appe llant. ) (AGGR AVATED ASSAUL T)

FOR THE APPELLANT: FOR THE APPELLEE: WAYN E CH ASTAIN JOHN KNOX WALKUP Monroe, Suite 804 Attorney General & Reporter Memphis, TN 38103 PETE R M. C OUG HLAN STEFFEN SCHREINER Assistant Attorney General North Main Street 2nd Floor, Cordell Hull Building Memphis, TN 38103 425 Fifth Avenue North Nashville, TN 37243 JOH N W. P IERO TTI District Attorn ey Ge neral PAUL H. WULFF Assistant District Attorney General Criminal Justice Center, Suite 301 Poplar Avenue Memphis, TN 38103

OPINION FILED ________________________ REVERSED AND REMANDED THOMAS T. WOODALL, JUDGE OPINION On April 10, 1997, the Shelby County Grand Jury indicted Appellant Dorothy J. Fleming and co-defendant James W. Fleming for aggra vated as sault. Following a jury trial on January 6–8, 1998, Appellant was convicted of aggravated assault and the co-de fenda nt was convic ted of s imple assa ult. After a sen tencin g hearing on February 6, 1998, the trial court sentenced Appellant as a Range I standard offender to three months of house arrest followed by two years and nine months of probation and the cour t placed th e co-de fendan t on judicial d iversion. A ppellant challenges her conviction, raising the followin g issue: wheth er the trial court erred when it ruled that Appellant could not introduce evidence about an alleged prior incident in which the victim acted violently toward s a third party. T he co -defen dant h as no t joined in this appeal. After a review of the record, we reverse the judgment of the trial court and w e rem and th is ma tter for a new tria l.

FACTS

Michael Smith testified that in November of 1996, he was living in an apartment with Appellant’s daughter Delois Pate Smith and two of Ms. Smith’s young children. Although Mr. Smith and Ms. Smith were not married a t that time, they were marr ied at th e time of trial.

Mr. Smith te stified that wh ile he was alone w ith Ms. S mith’s two sm all children on November 20, 1996, he received a te lepho ne ca ll from A ppella nt at ap proxim ately 4:30 p.m. During the conversation, Appellant and Mr. Smith began cursing each

-2- other and Appellant then stated that she was going to come to the apartment.

Shortly thereafter, Ms. Smith arrived home from work.

Mr. Smith testified that later that day, he heard pounding on the door. When he opened th e door, Appellant’s son James Fleming entered the apartment, pointed a gun at him, an d orde red him to get o n the flo or. Sh ortly the reafter , Appe llant, Appe llant’s son Lemoyne Pate, and Ms. Smith’s son Terrence Clark entered the apartm ent. App ellant then grabbe d Mr. Sm ith and he knocke d her ha nd awa y.

Mr. Smith testified that at th is poin t, Appe llant sta bbed him w ith a knife and then Mr. Fleming stabbed him. Mr. Smith then fell to the ground, and Appellant, Mr. Clark, Mr. Pate, and Mr. Fleming began kicking him . Mr. Smith testified that he was unarm ed durin g this incide nt.

Delo is Pate Smith testified that on Novem ber 20, 1996 , Mr. Smith opened the door to their apartment and Appellant, Mr. Fleming, Mr. Pate, and Mr. Clark came rushing in and M r. Flemin g bega n waiving a gun. Ms. S mith th en too k her tw o sm all children to a back room and when she returned , she saw he r family members beating and kicking Mr. Smith. Ms. Smith then c alled 911 and her family me mbers left the apa rtment.

Tracy Rivers tes tified that on November 20, 1996, she looked out of her apartment and saw Appellant, Mr. Fleming, Mr. Pate, and Mr. Clark in the Smiths’ apartment. Rivers could hear Appellant and Mr. Smith cursing at each other and shortly thereafter, she saw Mr. Fleming point a gun at Mr. Smith and order him on the floor. Mr. Fleming then stabbed Mr. Smith with a knife.

-3- Officer Melan ie Lew is of the Mem phis P olice Department testified that on November 20, 1996, she went to Appellant’s residence and talked to Appellant about the stabb ing. During the discu ssion, Appe llant stated that she h ad stabbed Mr. Smith and thrown the knife under a red Ford Escort that was parked next to the apartment complex. Officer Larry Colburn of the Memphis Police Department testified that on Nove mber 20 , 1996, he disco vered a knife un der a red Ford Escort that was parke d next to the apa rtment com plex.

Appellant testified that on November 20, 1996, she telephoned her grandchildren who we re staying at the Sm iths’ apartm ent. During the conversation, she heard Mr. Smith cursing the grandchildren and then Smith took the phone and began cursing A ppellant. Appellant then became concerned about the safety of her grandchildren.

Appellant testified that after the telephone conversation, she went to the Smiths’ apartment to get her g randch ildren. After she arrived at the apartment and knocked on the door, Mr. Smith opened the door and then grabbed Appellant and began hitting and kicking he r. Mr. Smith then stated, “I’m go[ing] to beat your ass just like I do your daug hter and your kids too.” After Mr. Smith got on top of Appellant and started beating her, she stabbed him with a knife that she had put in her pocket after peeling some pears earlier that day. At this point, Mr. Fleming and Mr. Pate entered the apartment and Mr. Fleming pulled Mr. Smith off of Appella nt.

Appellant testified that the only rea son wh y she we nt to the ap artmen t was to retrieve her grandchildren. Appellant testified that she did not go to the apartment in order to stab Mr. Smith and she only stabbed him because she was afraid he

-4- would kill her while he was beating her. Appellant also testified that she never saw Mr. Fleming with either a gun or a knife.

Terrence Clark tes tified that he w ent with A ppellant to the Smiths’ apartment on November 20, 1996. Whe n Appellant knocked on the door, Mr. Smith opened the door, pu lled App ellant into the apartm ent, and began beating her. Mr. Fleming then entered the apartment and pu lled Mr. Sm ith off of Appellant. Mr. Clark denied that he, App ellant, Mr. F leming , and Mr. P ate had kicked Mr. Smith. Mr. Clark also testified that he did not see Appellant stab Mr. Smith.

Lemoyne Pate te stified that he drove Appellant to the Smiths’ apartment on November 20, 1996 . Pate te stified th at he w aited in his vehicle while Appellant went into the apa rtment. Wh en App ellant did n ot return, P ate ente red the a partme nt and saw Mr. Smith on top of Appellant. Pate then knocked Mr. Smith off of Appellant and Pate an d Appe llant left the ap artmen t.

James Fleming testified that on November 20, 1996, his younger brother Tracy called him and stated that Appellant was upset and was going to the Smiths’ apartment. Mr. Fleming then went to the Smiths’ apartment and he saw Appellant and Mr. Clark standing in front of the door. Shortly thereafter, Mr. Fleming saw Appellant being pulled into the apartment. When Mr. Fleming entered the apartm ent, he saw M r. Smith on top o f Appellant. Mr. Fleming the n pulled Mr. Smith off of Appellant an d the two m en began fighting. After a brief altercation, Mr. Fleming, Appellant, Mr. Pate, and Mr. Clark left the apa rtment. Mr. Fleming did not see Appellant stab Mr. Smith. Mr. Fleming denied that he had a gun o r a knife while he was in the apa rtment.

-5- ANALY SIS

Appellant contends that the trial court erred when it ruled that she could not testify about a n alleged prior incide nt in which Mr. Sm ith cut Mr. Clark with a kn ife and she could not question other witnesses about the alleged incident. Appellant argues that evidence of the prior allege d incid ent wa s adm issible b ecau se it supported her claim that Mr. Smith was the first aggressor and her claim that she stabbed M r. Smith beca use she w as afraid that he w ould kill her.

This Court has noted that there is a distinction between the use of evidence of prior acts of violence by the victim against third parties to corroborate the defense theory that the victim was the first aggres sor and the use o f such evid ence to establish the defendant’s fear of the victim at the time of the offense. See State v. Ruane, 912 S.W.2d 766, 779 (Tenn. Crim. App. 1995). “If the defend ant was aw are of the victim’s violent conduct against other individuals at the time of the offense, such proof is admissible as substantive evidence of the defendant’s state of mind.”

State v. John D. Jos lin, No. 03C01-9510-CR-00299, 1997 WL 583071, at *36 (Tenn. Crim. App., Kn oxville, Sep t. 22, 1997), perm. to appeal denied, (Tenn. 199 8).

“Because such evidence is offered to establish the defen dant’s sta te of mind with respect to the victim, the defendant’s knowledge of the specific violent acts of the victim is required.” Id., 1997 WL 583071, at *36. “Thus, the defendant may testify about the victim’s threatening or violent conduct toward other individuals as long as the defendant was aware of that co nduct at the time of the offense.” Id., 1997 WL 583071, at *36.

-6- On the other hand, if the defendant was not aware of the victim’s violent conduct toward others, the eviden ce is not adm issible as substa ntive evidence of the defen dant’s state of mind, but is admissible for the limited purpose of corroborating a self-d efens e claim that the victim was the first aggres sor. Id., 1997 WL 583071, at *36.

Thus, individuals other tha n the de fendant may testify on direct or cross- examination about threatening or violent conduct of the victim, even though the defendant had no knowledge of the conduct at the time of the offense, as long as the tes timony is o ffered on ly to corrob orate the defend ant’s self- defense claim that the victim was the first aggressor. Id., 1997 WL 583071, at *36.

A. Evidence of the Victim’s Prior Acts of Violence

The record indicates that before trial, the State filed a motion in limine in which it asked the trial court to prohibit Appellant and her co-defendant from making reference to or questioning any witnesses about prior acts of violence committed by Mr. Smith a gainst third parties. Afte r a hearin g on the motion , the trial court ruled that it would grant the motion as to opening statements and the defense could not mentio n the spe cifics of any a cts of violen ce during its openin g statem ent.

After Mr. Sm ith’s direct examination, the defense asked the trial court whether it would allow cros s-exam ination of M r. Smith about an alleged prior incident in which he cut Mr. Clark with a knife . During a jury-ou t hearing, defens e counse l asked Mr. Smith whethe r the police had ord ered him to leave the apartm ent after he cut Mr. Clark while Mr. Clark was living in the apartment during O ctober o f 1996. M r. Smith initially admitted that he had been in a confronta tion with Mr. Clark and that the police had been called as a result, but he denied that he cut Mr. C lark with a k nife -7- during the confrontation. After additional questioning, Mr. Smith admitted that he had “grabbed [Mr. Clark ] and sho ok him up.” Mr. Smith also stated that he could not recall whe ther he h ad use d a knife d uring the confron tation.

After listening to the testimony of Mr. Smith during the jury-out hearing, the trial court ruled that the defense co uld not cross-exa mine Mr. Smith about the prior incident because it was not relevant to any issue in the case. Defense counsel then asked for perm ission to vo ir dire App ellant abo ut the prior in cident in o rder to demo nstrate the relevance of the evide nce. Th e trial court g ranted th e reque st, and defense couns el called A ppellant to testify during the jury-out hearing. Appellant testified that Mr. Clark had come to live with her after he had been in a confrontation with Mr. Sm ith. Appe llant testified that Mr. Clark had told h er that ab out a m onth before the incident in this case, Mr. Smith had cut him during a fight that ended when Ms. Smith intervened. After he aring Appe llant’s testimony, the trial court ruled that evidence of the prior incident was not admissible because the proof that had been introduced up to that point did not implicate a self-defense claim. The trial cou rt did grant the de fense ’s request to keep Mr. Smith under subpoena in order to allow eventual cross-examination about the prior incident if further proof indicated that evidenc e of the prio r incident w as releva nt.

When the State called Ms. Smith as its next witness, defense counsel asked for a bench conference. During the bench conference, defense counsel asked the trial court whether they could have a jury-out hearing to question Ms. Smith about the prior confrontation between Mr. Smith and Mr. Clark. The trial court ruled that it would not allow the defense to question Ms. Smith abou t the inc ident, b ut it wou ld agree to keep Ms. Smith under subpoena so that the defense could question her -8- about the prior incident if further proof indicated that the evidence was relevant to an issue in the case.

At the close of the State’s proof, the defense asked for a jury-out he aring in order to voir dire Mr. Clark about his prior confrontation with Mr. Smith. The trial court granted the request and allowed the defense to question Mr. Clark about the incident. Mr. Clark testified that a bout a month before November 20, 1996, he and Mr. Smith were involved in a confrontation during which Mr. Smith grabbed him and held a knife to his neck. Mr. Clark testified when he turned over, Mr. Smith “nicked” him in the back with the knife. Mr. Clark also testified that he told Appellant about this incide nt whe n he w ent to live with he r abou t a mo nth be fore the incide nt in this case. The trial court the n ruled that evid ence abou t the prio r incide nt was still inadmissible because it was not relevant to Appellant’s claim of self-defense.

After Appellant, Mr. Clark, and Mr. Pate testified on Appellant’s be half, defense coun sel m ade o ne m ore atte mpt to convin ce the trial cou rt to adm it evidence about the prior incident between Mr. Smith and Mr. Clark. Defense counsel argued that the evidence was relevant to Appellant’s state of mind at the time of the offens e and to Appellant’s claim that Mr. Smith w as the first aggress or. The trial court ruled that it would instruct the jury abo ut self-d efens e, but it would not change its ruling that evidence about the prior incide nt betwe en Mr. S mith and Mr. Clark was not admissible.

B. Appellant’s Testimony

-9- Appellant contends that the trial court erred when it prohibited her from testifying about the prior incident in which Mr. Smith cut Mr. Clark with a knife.

Specifically, Appe llant co ntend s that th e trial co urt sho uld ha ve per mitted this testimony because it was substantive evidence of her state of mind at the time she stabbed Mr. Smith.

W e conclud e that the trial court erred when it prohibited Appellant from testifying about the prior incide nt in which the victim d isplayed v iolent con duct.

There is no dispute that Appellant had know ledge of the incide nt in which Mr. Smith cut Mr. Clark with a knife. Inde ed, both Appellant and Mr. Clark testified during jury- out hearings that Mr. Clark told App ellant about this inciden t one mon th before Appellant stabbed M r. Smith w ith the knife. In addition, Appellant testified that she stabbed Mr. Sm ith because she was afraid that he would kill her while he was beating her. Appellant’s testimony about Mr. Smith’s violent conduct toward Mr. Clark was clearly relevant to establishing the reason for Appellant’s belief that Mr. Smith would kill her. Beca use App ellant had kno wledge of the p rior incident, Appe llant’s testimony about the incident was admissible as substantive evidence of her state of mind at the time of the offense. John D. Joslin, 1997 WL 583071, at *36; Ruane, 912 S.W .2d at 779 ; State v. Hill, 885 S.W.2d 357, 361 n.1 (Tenn. Crim. App. 1994). Thus, the trial court erred when it excluded this evidence.

The State contends that even if the trial court erred, the error was harmless because evidence about the prior incident of violence on the part of M r. Smith had already been intro duced or alluded to at one p oint or ano ther. This argu men t is inaccurate. A review of the reco rd indicates that the jury w as never inform ed that Mr. Smith held a knife to Mr. C lark’s th roat an d cut h im on the shou lder ap proxim ately -10- one mon th befo re the in cident at issue in this case. In short, the trial court’s error prevented Appellant from establishing a reaso n for he r belief th at Mr. S mith w ould kill her. T herefo re, we c onclu de that the trial court’s error requires a reman d for a new tria l.

C. Testimony of Other Witnesses

Appellant contends that the trial court erred when it prohibited her from asking other witnesses ab out the prior incident in w hich Mr. Smith cut Mr. Clark with a knife.

Specifically, Appellant contends that the trial court should ha ve permitted the other witnesses to testify about the prior incident during direct or cross-examination because the testimony was offered to corroborate her claim that Mr. Smith was the first aggressor.

Initially, we note that in the previous cases in which this Court has addressed the issue of whether a defendant could introduce evidence about the victim’s prior acts of violen ce in order to corroborate the defendant’s theory that the victim was the first aggressor, the defendant was unaware of the victim’s violent acts at the time of the offense. See, e.g., John D. Jos lin, 1997 W L 5830 71, at *37 ; Ruane, 912 S.W.2d at 781; Hill, 885 S.W.2d at 361. However, we so no reason why a defe ndan t shou ld be prohibited from questioning other witnesses about the victim ’s prior violent a cts in order to corroborate the defendant’s claim that the victim was the first aggressor simp ly becau se the de fendan t was aw are of the violent acts at the time of the offense .

-11- W e conclude that the trial cou rt acted prope rly whe n it proh ibited A ppellant from cross-examining Mr. Smith and Ms. Smith about the prior incident during the State ’s case-in-chief. The general rule is that before witnesses other than the defendant can testify about violent conduct of the victim in order to corroborate the defen dant’s theory that the victim was the first aggressor, the issue of first aggressor must have been raised by the evide nce. Ruane, 912 S.W.2d at 780. At the time that Mr. Smith and Ms. Smith testified, no proof had been introduced that raised the first aggres sor issue . Thus, th e trial court w as corre ct when it initially refused to allow cross-examination about Mr. Smith’s prior incident of violence.

On the other hand, we conclude that after Appellant testified tha t Mr. Sm ith was the one who initiated the fight by immediately attacking her when he opened the door, the trial court should have allowed Appellant to question Mr. Clark about the incident on direct e xamina tion and to question Mr. Sm ith and M s. Smith about the incident on cross-examination for the limited purpose of corroborating her claim that Mr. Smith w as the first ag gresso r. See John D. Jos lin, 1997 WL 583071, at *36 (holding that individuals other than the victim may testify on either direct or cross- examination about violent conduct of the victim in order to corroborate the defen dant’s theory that the victim was the first aggressor). Because the proof at that point raised the first aggressor issue, Appellant was entitled to question the other witnesse s abou t Mr. Sm ith’s prior violen t act.

The State contends that even if the trial court erred, the error was harmless because the proof that Appellant was th e first aggre ssor wa s overwh elming . We disagree. In this case, the issue of who was the first aggressor was hotly contested.

Mr. Smith and Ms. Smith both testified that on November 20, 1996, Appellant, her -12- two sons, and her grandson came bursting into the apartment and began attacking Mr. Smith a lmost im media tely. In contrast, Appe llant and Mr. Clark both testified that when Mr. Smith opened the door to the apartment, he immediately grabbed Appellant and be gan be ating her . In addition, Appellant, Mr. Clark, Mr. Pate, and Mr. Flem ing all testified that M r. Pate and Mr. Fleming were not even in the apartment when the initial confrontation began and they all essentially denied that anyone other than Appellant had a weapon. In short, the trial court’s error prevented Appellant from corroborating her claim that Mr. Smith was the first aggressor. Therefore, we conc lude th at the tria l court’s error re quires a rem and fo r a new trial.

CONCLUSION

For the reasons stated above, we REV ERSE the judgme nt of the trial court and w e RE MAN D this m atter for a new trial.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOHN H. PEAY, Judge

-13- ___________________________________ JOE G. RILEY, Judge

-14-