         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
66 Monroe, Suite 804                 Attorney General & Reporter
Memphis, TN 38103
                                     PETE R M. C OUG HLAN
STEFFEN SCHREINER                    Assistant Attorney General
369 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
                                     201 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-
