           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE             FILED
                        SEPTEMBER 1997 SESSION        December 9, 1997

                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

STATE OF TENNESSEE,              )
                                 )    C.C.A. NO. 03C01-9702-CR-00057
           Appellee,             )
                                 )    HAMILTON COUNTY
VS.                              )
                                 )    HON. DOUGLAS A. MEYER,
JEFFERY SCOTT SCHAFER,           )    JUDGE
                                 )
           Appellant.            )    (First-degree murder)



FOR THE APPELLANT:                   FOR THE APPELLEE:


LARRY G. RODDY                       JOHN KNOX WALKUP
P.O. Box 714                         Attorney General & Reporter
Sale Creek, TN 37373
                                     MICHAEL J. FAHEY, II
                                     Asst. Attorney General
                                     450 James Robertson Pkwy.
                                     Nashville, TN 37243-0493

                                      WILLIAM H. COX, III
                                      District Attorney General

                                      C. LELAND DAVIS
                                      Asst. District Attorney General
                                      600 Market St., Suite 300
                                      Chattanooga, TN 37402




OPINION FILED:____________________



REVERSED AND REMANDED


JOHN H. PEAY,
Judge
                                       OPINION



               The defendant was indicted for first-degree premeditated murder. After a

jury trial, he was convicted of that offense and sentenced to life imprisonment. He now

appeals, raising the following issues:

               1.     The sufficiency of the evidence;

               2.     Whether the trial court erred in admitting into evidence a
                      photograph of the victim;

               3.     Whether the trial court erred in allowing a lay witness to testify
                      about her opinion of the defendant and his actions;

               4.     Whether the trial court erred in its treatment of one of the State's
                      witnesses, thereby causing the witness to change his testimony
                      to the defendant's prejudice; and

               5.     Whether the trial court erred when it instructed the jury about
                      parole eligibility dates.

Upon our review of the record, we reverse the judgment below and remand this cause

for a new trial.



                                          FACTS

               On the evening of August 31, 1994, the defendant and the victim, Gary

Lynn Branum, were drinking beer together in a bar called Fuzzy’s Place. Kellie Denise

Sherrill, who was working as a bartender that night, testified that Branum had been a

regular customer but that she had never seen the defendant before. She arrived at the

bar at approximately 7:00 p.m.; Branum and the defendant were already there, drinking

beer.



               Vicki Irene Jentry was a friend of Sherrill’s and also arrived at the bar at

about 7:00 p.m. She had never met either man, and while she was talking to Sherrill,

Branum walked over to her and Sherill introduced them. Jentry testified that Branum had

then asked her if he could sit next to her, that the defendant was “getting on [his] nerves.”

                                             2
After Branum sat next to her, the defendant came and sat on the other side of her,

continuing to talk to Branum. She testified that, each time she had moved, this scene

would replay. She testified that the men had talked about the Vietnam war and her

impression was that the defendant had served there. According to Jentry, right before

the two men walked outside the bar, 1


                they got to talking about having to kill people when [Branum]
                was in Vietnam and [the defendant] said something about he
                understood how he felt and [Branum] looked at him and told
                him, he said, ‘You don’t know what you’re talking about.’ He
                said, ‘You ain’t never killed nobody.’ He said, ‘If [sic] you
                didn’t ever serve,’ he said, ‘I can tell by the way -- the look in
                your eyes,’ he said, ‘I’ve been through it.’

                And [the defendant] said, ‘Not in the Army.’

When asked about Branum's demeanor during this conversation, Jentry testified that he

had been “just calm, he never -- his voice never changed or anything.” Following this

exchange, according to Jentry, the two men rose and walked out the front door of the bar,

the victim in front and the defendant following him.



                Because the men left the door open and the air conditioner was on, Jentry

went to close it. As she did so, she testified, she saw Branum and the defendant

standing behind Branum’s car. Branum was facing her and the defendant had his back

to her. After closing the door, she went back to the bar and within one or two minutes

heard a “pop.” She and Sherrill then “screamed he shot him” and she saw the defendant

walk by the window going to the side of the building. She testified that she and Sherrill

had then run to the front door and saw Branum “laying there.” The next time she saw the

defendant, she testified, was when “[h]e come in the back door, walked around and sat

at the end of the bar . . . and he looked at [Sherrill] and he said, ‘Have you seen my

checkbook?’ ” She testified that he had said nothing about hearing a gunshot and that


        1
         Elsewhere in the record it is established that the two men walked out of the bar shortly before
11:00 p.m .

                                                    3
“he was just as calm as he could be.” She admitted on cross-examination that she had

not seen the defendant with a gun.



              Sherrill also testified that she had seen the two men walk out the front door

of the bar, both leaving half-empty beer bottles behind and the defendant also leaving his

checkbook behind. She saw Jentry shut the door and after Jentry had returned to the

bar, she testified, she “heard a pop and I looked at [Jentry] and I said, ‘Oh, my God, he

shot him.’ ” She further testified that she had “just assumed [the defendant] shot him and

about the time I looked up [the defendant] walked by the side window.” Like Jentry, she

testified that the defendant had subsequently walked in the back door and asked her if

she had seen his checkbook.



              During the commotion, someone called 911 and after the defendant had

reentered the bar, Sherrill received a phone call from the police department. Officer Max

Edward Johnson of the Hamilton County Sheriff’s Department arrived shortly thereafter.

When he got there, he found the victim lying in the parking lot; he did not see anyone

else outside. While he was outside, he testified, Sherrill had come to the door and told

him that “[t]he guy that shot him” was still there. Johnson went into the bar, met the

defendant, patted him down for weapons and put him in the patrol car. He subsequently

located a shell casing underneath Branum’s car and the murder weapon approximately

forty feet to the right and toward the back of the building. A holster for the weapon was

found on the driver’s seat of Branum’s car.



              Officer Larry Sneed of the Hamilton County Sheriff's Department testified

that he had arrived at the scene after Officer Johnson was already there. He identified

the murder weapon as a “Star 388 automatic pistol” and stated that the holster found in

the victim’s car “appears to fit a 380.” The gun was stipulated as belonging to the victim.


                                            4
Several hours after the murder, Officer Sneed took a statement from the defendant, in

which the defendant acknowledged having been talking with another man at the bar2 and

“talking about being in the service.” He denied going outside with Branum to Branum’s

car, stating “I was inside the bar until the police came and got me.” In response to Officer

Sneed’s question, “Where did [Branum] go?” the defendant responded “I didn’t know he

left.” In response to the officer’s question about whether he had mentioned anything

about having killed someone before, the defendant stated, “That would be hard to do

because I’ve never killed anything, you know, except a deer once, you know, and a

squirrel, but . . . ”



                   Lloyd Dorn testified that he had been driving by the bar on the night in

question and saw Branum, whom he knew, and another man in the parking lot of the bar.

He testified that Branum had been at the back of a car with the other man about two feet

behind him. He testified that he hadn't seen anyone else in the parking lot. On cross-

examination, he testified that the defendant was not the other person that he had seen.

An extensive jury-out hearing was then had, during which both the prosecuting attorney

and the trial judge threatened Dorn with a perjury investigation. At the State’s request,

the trial judge declared Dorn to be a hostile witness. The next day, the State recalled

Dorn and asked him, inter alia, “you can’t tell the jury with any certainty whether or not

you saw this man on that parking lot or not; can you?” Dorn responded, “As today I

cannot.” On further cross-examination, Dorn described the man he had seen as

“probably 5'5", 5'6", around 150 or 160 pounds, curly hair and stuff.” Although the record

does not include the height and weight of the defendant, the record does indicate that the

defendant’s physical description varies somewhat from this.



                  Oakley McKinney of the Tennessee Bureau of Investigation testified that


        2
            The defendant told Officer Sneed that he did not know the other man's name.

                                                    5
he had tested the murder weapon for latent fingerprints and did not find any. James

Russell Davis, II, of the TBI testified that the results of testing for gunshot residue on the

defendant’s hands were “inconclusive.” In other words, the residue test could neither

implicate nor exclude the defendant as the person who had shot the weapon.



              Dr. Frank King, a forensic pathologist and medical examiner, testified that

Branum had died from a single gunshot wound “that entered the left side of the head just

above the left eyeball and just below the left eyebrow.” He further testified that this shot

had been fired “within two feet of the body” and that the injury was “100 percent fatal.”



              The defendant did not offer any proof.



                                        ANALYSIS

              The defendant contends that the evidence is insufficient to support a finding

that the homicide was committed with premeditation and deliberation as required for first-

degree (premeditated) murder. He argues that the evidence supports no more than a

second-degree murder conviction. We agree.



              When a defendant challenges the sufficiency of the convicting evidence,

we must review the evidence in the light most favorable to the prosecution in determining

whether “any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979). We do not reweigh or re-evaluate the evidence and are required to

afford the State the strongest legitimate view of the proof contained in the record as well

as all reasonable and legitimate inferences which may be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).




                                              6
             Questions concerning the credibility of witnesses, the weight and value to

be given to the evidence, as well as factual issues raised by the evidence are resolved

by the trier of fact, not this Court. Cabbage, 571 S.W.2d 832, 835. A guilty verdict

rendered by the jury and approved by the trial judge accredits the testimony of the

witnesses for the State, and a presumption of guilt replaces the presumption of

innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).



             At the time this homicide was committed, first-degree premeditated murder

was defined as the “intentional, premeditated and deliberate killing of another.” T.C.A.

§ 39-13-202(a)(1) (Supp. 1994).      A deliberate and premeditated killing was “one

performed with a cool purpose” and “one done after the exercise of reflection and

judgment.” T.C.A. § 39-13-201(b)(1) & (2) (1991). Where no direct evidence of the

defendant's state of mind at the time of the killing is available, “[d]eliberation and

premeditation may be inferred from the circumstances where those circumstances

affirmatively establish that the defendant premeditated his assault and then deliberately

performed the act.” State v. James Dumas, No. 02C01-9502-CR-00031, Shelby County

(Tenn. Crim. App. filed Oct. 4, 1995, at Jackson). However, circumstantial evidence of

a defendant's state of mind will not support a jury verdict of premeditated murder unless

the proof of premeditation and deliberation is “so strong and cogent as to exclude every

other reasonable hypothesis save the guilt of the defendant, and that beyond a

reasonable doubt.” State v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971). “A web of

guilt must be woven around the defendant from which he cannot escape and from which

facts and circumstances the jury could draw no other reasonable inference save the guilt

of the defendant beyond a reasonable doubt.” Id. at 613.



             This Court has previously recognized the nature of proof which must be

presented before a jury may properly infer either deliberation or premeditation:


                                           7
              (1) facts about how and what the defendant did prior to the
              actual killing which show he was engaged in activity directed
              toward the killing, that is, planning activity;

              (2) facts about the defendant's prior relationship and conduct
              with the victim from which motive may be inferred; and

              (3) facts about the nature of the killing from which it may be
              inferred that the manner of killing was so particular and
              exacting that the defendant must have intentionally killed
              according to a preconceived design.

State v. Gentry, 881 S.W.2d 1, 4-5 (Tenn. Crim. App. 1993), quoting 2 W. LaFave and

A. Scott, Substantive Criminal Law § 7.7 (1986) (emphasis in original). In this case, there

is simply no proof in the record which indicates that the defendant planned to murder the

victim. Indeed, the evidence points instead to a spontaneous act of killing. The victim

was killed with his own gun, and there is no proof whatsoever that the defendant was

even aware that the victim had this gun. Nor is there any proof that the defendant might

have planned to murder the victim by some other method. In short, there is no evidence

of “planning activity.”



               As to motive, the State concedes that the proof demonstrates no argument

between the two men. The proof further demonstrates little to no prior relationship

between the defendant and Branum: the only evidence of any prior meeting is the

defendant's statement to Officer Sneed that he had “seen the guy [he] was talking to

once before” and Sherrill's testimony that Branum had said “something about he met him

once before.” Moreover, in his statement the defendant said that he did not even know

the victim's name. The State posits the theory that the defendant took silent offense

when Branum indicated his disbelief that the defendant had ever killed anyone. Yet the

only proof the State offers up of this is the murder itself. As succinctly put by our

Supreme Court in State v. West, 844 S.W.2d 144, 148 (Tenn. 1992), “[w]hile the state's

theory may be true, it remains only a theory, because the prosecution has no evidence

to support it.” There simply is no proof in the record of a prior relationship and/or the


                                            8
defendant's conduct with Branum from which a motive for premeditated murder may be

inferred.



              The nature of the killing supports only the inference that the defendant

made a spontaneous and impulsive decision to shoot the victim. The proof demonstrates

that they were outside the bar and out of sight for only moments before the victim was

shot. Moreover, he was shot with his own gun: and, as pointed out above, there is

absolutely no proof that the defendant was aware that the victim even had this gun, much

less that he would be given an opportunity to get his hands on it. The State points to the

defendant's “calm demeanor and his immediate concealment of the weapon” after the

shooting as “indicative of a cool, dispassionate premeditated murder.” We acknowledge

that “[c]almness immediately after a killing may be evidence of a cool, dispassionate,

premeditated murder.” West, 844 S.W.2d at 148. Under the circumstances of this case,

however, we simply do not think the defendant's demeanor after the shooting establishes

that he planned the murder prior to committing it. Cf. West, 844 S.W.2d at 148 (“[W ]hile

the defendant's behavior manifests . . . indifference to the victim and fear of detection

[such] that the jury might discredit his self-defense story, [his] failure to report the

shooting to the police fails to establish premeditation and deliberation in advance of the

murder.”)



              Similarly, that the defendant apparently threw the gun to the side of the

building after shooting Branum is not sufficient evidence of premeditation and/or

deliberation. See State v. Mason, ___ S.W.2d ___, ___ (Tenn. Crim. App. 1997) (”While

we cannot infer premeditation and deliberation from [the defendant's] concealment of the

weapon after the shooting, concealment does contradict the [defendant's] theory of self-

defense by illustrating fear of detection.”). See also State v. West, 844 S.W.2d at 148

(“The concealment of evidence . . . may be associated with the commission of any crime


                                            9
and the accompanying fear of punishment.”) (emphasis in original).



              “The law in Tennessee has long recognized that once the homicide has

been established, it is presumed to be murder in the second degree. The state bears the

burden of proof on the issue of premeditation and deliberation sufficient to elevate the

offense to first-degree murder.” State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992)

(citation omitted). In this case, the State has simply failed to meet this burden and the

presumption of second-degree murder is therefore unrebutted. Accordingly, were it not

for our remand of this case due to the reversible trial error set forth below, we would

reduce the defendant's conviction to second-degree murder.



              In his second issue, the defendant contends that the trial court erred when

it admitted into evidence a photograph of the victim showing the gunshot wound. He

argues that defense counsel offered to stipulate to the only fact which the photograph

was offered to prove: that the shot had been fired at very close range, thereby causing

powder burns to the victim's face. Moreover, he points out, there was expert testimony

about the “stippling” and the nearness of the range from which the shot was fired.

Accordingly, the photograph became needlessly cumulative and served merely to inflame

the jury in violation of Tennessee Rule of Evidence 403 (“[a]lthough relevant, evidence

may be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.”)



              In response, the State argues that the photograph was properly admitted

as illustrative of the expert witness's testimony. See State v. Stephenson, 878 S.W.2d

530, 542 (Tenn. 1994). It also contends that defense counsel's stipulation is only one

factor that the trial court must weigh in determining whether the probative value of the


                                           1 0
photograph outweighs the danger of unfair prejudice, citing State v. Norris, 874 S.W.2d

590, 597 (Tenn. Crim. App. 1993).



                 This Court will not overturn a trial court's decision to admit a photograph

absent a clear showing of abuse of discretion. State v. Banks, 564 S.W.2d 947, 949

(Tenn. 1978).         No such showing has been made here.                          With defense counsel

participating, the photograph was selected from several as being the least gruesome.3

The trial court determined that the probative value of the photograph outweighed “any

prejudice” and that, in spite of defense counsel's offer to stipulate (to which the

prosecution did not agree), “the picture is worth a thousand words.” We see no abuse

of discretion in the trial court's ruling, and this issue is therefore without merit.



                 The defendant also complains that the trial court erred when it permitted

Sherrill to testify that, in her personal opinion, he was “weird” and that she had “assumed”

and “suspected” that he had shot Branum. He argues that her description of him as

“weird” amounted to character evidence and that “If the jury accredited [her] testimony

then it could have been a substitute for motive.” The State responds that, following her

labeling of the defendant as “weird,” Sherrill testified about specific instances of his

behavior which had led her to that conclusion.4 Thus, according to the State, “Sherrill

was not testifying about possible motives, she was merely giving a simple description of

[the defendant's] behavior.” The State also argues that Sherrill's stated suspicion helped

the jury to understand why she had told the police dispatcher (who had called in response

to the 911 call) that the shooter was still at the bar.



        3
          The c hoice wa s ma de following defens e coun sel's obje ction and the trial court's ruling.
Accor dingly, coun sel's particip ation in cho osing the photogr aph did n ot waive the defend ant's right to
raise this is sue on ap pea l.

        4
         In response to the State's question as to what she meant by “weird,” Sherrill explained that she
had noticed that whenever the defendant spoke to Branum, he would look up rather than at him. She
also said that the defendant had “kept bugging” Branum.

                                                       1 1
               At the time of this trial in 1995, our rules of evidence provided that a lay

witness could testify “in the form of opinions or inferences” only where the opinions and

inferences “(1) . . . do not require a special knowledge, skill, experience, or training; (2)

The witness cannot readily and with equal accuracy and adequacy communicate what

the witness has perceived to the trier of fact without testifying in terms of opinions or

inferences; and (3) The opinions or inferences will not mislead the trier of fact to the

prejudice of the objecting party.” Tenn. R. Evid. 701(a) (1995). Our standard of review

in determining whether the trial court erred in allowing the testimony at issue is abuse of

discretion. See State v. Caughron, 855 S.W.2d 526, 540 (Tenn. 1993) (“It is well-settled

that the propriety, scope, manner and control of the examination of witnesses is a matter

within the discretion of the trial judge, subject to appellate review for abuse of discretion.”)



               In this case, we think the court abused its discretion in allowing Sherrill to

testify that the defendant was “weird” and that she had suspected him of shooting

Branum. Her testimony should have been limited to describing her observations of the

defendant's behavior. The jury could then have drawn appropriate inferences from these

observations. Instead, Sherrill was allowed to testify that she had found the defendant

“weird” with very little factual basis on which to support this opinion. Worse, her

assumption that the defendant had shot Branum -- voiced before she even saw Branum

on the ground -- was based on no specific event or conduct or words about which she

testified, other than having heard a “pop.” We find that this testimony was misleading to

the defendant's prejudice. Thus, this testimony did not satisfy the requirements of the

applicable rule of evidence and should have been excluded.



               However, that portion of Sherrill’s testimony at issue was useful to the State

only for proof of premeditation and/or deliberation, insofar as it may have assisted the

jury in determining why the defendant killed Branum (because he was “weird”) or in


                                              1 2
concluding that Sherrill suspected him because she had observed some behavior on his

part that indicated his intent or plan to kill Branum: but which observation was otherwise

not elicited during her testimony. In other words, the jury may have inferred from

Sherrill’s inferences that the defendant had in fact demonstrated some premeditation or

deliberation, and that Sherrill simply did not testify about all of the specifics underlying her

opinions.   Yet, even with this erroneously admitted testimony, we have found the

evidence to be insufficient to support a verdict of premeditated first-degree murder.

Thus, it is unnecessary for this Court to determine whether its admission constituted

reversible error. We caution the trial court, however, that this opinion testimony would

be irrelevant in the defendant's new trial.



               The defendant also contends that the trial court committed reversible error

in its treatment of Lloyd Dorn. We agree. On initial cross-examination, defense counsel

asked Dorn, “You can't identify the other person that was there, can you tell me whether

or not it was him?” apparently pointing to the defendant. Dorn responded, “No, it wasn't

that guy.” On redirect, the prosecuting attorney asked, “You're saying today, you see this

man here [again, apparently pointing to the defendant] and you don't recognize him as

the person you saw in the parking lot?” to which Dorn responded, “No, I do not recognize

him.” The State then asked, “Is it your testimony today that you can describe what that

other person looked like or you just don't know?” and Dorn said, “The other person was

shorter than this guy.” The prosecutor then asked that Dorn be declared a hostile witness

because he “interviewed this man on Sunday and he told me very specifically he had no

idea.”



               The jury was removed and the State proceeded to voir dire the witness.

Dorn indicated that the man he had seen on the parking was not only shorter than the

defendant, but his hair was different and he was stockier than the defendant. The


                                              1 3
prosecuting attorney then reviewed with Dorn the statement that Dorn had given to

Officer Sneed during the investigation in which no mention was made of the other

person's build. Dorn testified that “he didn't ask me, you know, what the person looked

like.” The prosecutor then questioned Dorn about a conversation between Dorn, the

attorney and Officer Sneed on the Sunday preceding the trial:

              Q: And do you remember us asking you about him?

              A: You just asked me, you know, who I seen.

              Q: Yeah, I asked you a lot of things; didn't I?

              A: And you asked me if I knew the other person and I said no.

              Q: And I asked you what he looked like?

              A: Now, I don't remember you asking me that.

              Q: You don't remember, you don't remember me asking you what he
              looked like and you said, “I don't know, I couldn't identify him”?

              A: No, I couldn't identify him because I don't -- I never have seen the
              person in my life.

              Q: . . . Did you or did you not tell me on Sunday that you couldn't identify
              the man who was on that parking lot if he was standing right there in front
              of you, weren't those your words?

              A: No, I don't think so.

At this point, the prosecutor admonished Dorn, “I want you to think about that answer.”

Defense counsel objected, and the trial judge stated to Dorn, “No, I've got to caution Mr.

Dorn that you know that you are under oath? . . . Perjury is lying under oath . . . . And

it carries one to six years in the penitentiary . . . . So just remember that when you're

answering questions.”



              The trial court did not err in instructing the witness about the significance

of his oath. However, at this point in the proceedings, defense counsel stated, “W ell,

Judge, I don't think there's any reason to think that this witness is lying” and the judge

responded, “Well, I think there's every reason to believe that.” After some further


                                           1 4
discussion with defense counsel, the trial court declared Dorn to be a hostile witness.

The prosecutor subsequently stated, “I have a good faith basis to believe that this man

is committing perjury and I'm on the verge of recommending that we go to the grand jury

with it and I'm going to give you an opportunity to explain your answer clearly at 12

o'clock -- ” Defense counsel then asked to state an objection to which the court

responded, “No, let the Attorney General continue.” Defense counsel attempted again,

and the judge stated, “Mr. Roddy, sit down.”



             The prosecutor then continued its voir dire of Dorn, stating that he had

asked Dorn on Sunday, “could you give me any description of the person who was on the

lot that night?” Dorn responded, “I understand you asked me did I know the person that

was there and I said no.” After further fruitless questioning, the State called Officer

Sneed to the stand to discuss Sunday's discussion with Dorn. Officer Sneed testified that

the prosecuting attorney had “asked [Dorn] about the other person and Mr. Dorn did

make the statement that he didn't believe he could identify that man or recognize that

man if he was on the parking lot with us at that time.” On cross-examination defense

counsel asked Officer Sneed if he had ever asked Dorn to describe the person he had

seen, and Officer Sneed responded, “No, sir.” He also admitted that he had not shown

Dorn any photographs. Dorn was then recalled to the witness stand and he reiterated

in response to further questioning by the State that he had never seen the defendant

“until this morning.” The judge then questioned Dorn, asking him if he had spoken with

any of the defendant's friends or family, or if he had discussed the matter with anyone

other than defense counsel, to which Dorn replied no.



             At this point in the proceedings, it is obvious that the State had been

unpleasantly surprised by Dorn's testimony. However, stating that you could not identify

or recognize someone if you saw them again is different from, but not inconsistent with,


                                           1 5
later stating that a particular person is not the person you had seen earlier. During its voir

dire of both Dorn and Office Sneed, the State did not establish that Dorn had earlier

refused to give a description of the man he had seen. Nor did it establish that it had

provided Dorn with an opportunity to identify or recognize the defendant in which Dorn

responded differently than he did at trial. Thus, the State failed to establish on the record

that there was a good faith basis to suspect Dorn of perjury.             Indeed, after the

prosecuting attorney finished examining Dorn he stated to the court, “I think the man's

offered perjured testimony, but I don't think it's strong enough to move for an indictment

on it.” The court responded, “No, I don't think [so] either.” However, the judge then

stated, in Dorn's presence, “I think that Mr. Sneed or members of the sheriff's department

should investigate this case further to see if [Dorn] has had contact with anyone else and

if he has then he should be indicted for perjury.”



              When the court reiterated its declaration of Dorn as a hostile witness,

defense counsel objected. The judge responded, still in Dorn's presence, “I believe that

Mr. Dorn is lying under oath. I don't think there's sufficient proof at this time, but I think

he thinks that he can come into court like other witnesses do at times, unfortunately we

do have too much perjury in court and I think that this man is committing perjury.” In its

continuing colloquy with counsel, the court went on:

              I think the man is committing perjury.
              ...
              And he may suffer the consequences if --
              ...
              -- the county investigates and can prove it because to me murder is
              extremely serious and is something that we should definitely try, but to me
              the second thing is perjury. Anything that corrupts the judicial process is
              a very serious offense and all efforts should be expended to prosecute
              anyone who commits perjury so they should investigate.
              ...
              I'm a pretty good lie detector.
              ...
              I think the man is lying under oath. It's that simple.
              ...
              But as I say if he's not then nothing will happen, if he is hopefully they will
              be able to prosecute him for it because I do not think that -- treat that very

                                                     1 6
                 lightly that anyone would come into court and lie under oath.

Defense counsel then repeated its objection to Dorn being declared a hostile witness.



                 The prosecutor then spoke up, and the trial judge stated to him, “But I think

Mr. Davis you'd be pretty foolish to question him much further because I think he's

already testified and I think the best thing you could do is move on and hope that the jury

believes the other witnesses . . . . Because you don't want to get off on trying this man

. . . . Because see, you know, that's always a good ploy is to try somebody else so I think

it would be best if we continue trying Mr. Schafer.” The jury was subsequently returned

to the courtroom and the State initially passed on further questions. Defense counsel

then asked Dorn, “Is that the man that was out there when you drove by?” and Dorn

responded, “To my best recollection, no.” The State followed with a short redirect.



                 The next day, the State again called Dorn to the stand outside the presence

of the jury and established that he knew defense counsel and defense counsel's father

independently of the case. Following this, Dorn asked to make a statement and the court

said,

                 Okay. See, let me advise you of this, Mr. Dorn, you have
                 every right to be represented by a lawyer because this Court
                 believes that you lied under oath yesterday, just flat lied and
                 you thought that you could get away with it and you may be
                 able to get away with it because the State may not be able to
                 prove that you lied under oath, but it looks like they've done a
                 pretty good job in one evening of digging up some information
                 about you5 so if you want to say anything I'll let you say
                 anything you want to say, but I want to caution you that
                 anything you say could be used against you and everything
                 you say is being taken down.

Dorn then explained how he had talked with his wife the night before and that he had

“worried and worried and worried and run through my mind about seeing the person


        5
           The only “information” reflected in the record is the witness' prior relationship with defense
counsel and defense counsel's father. We are aware of nothing which establishes that such a
relatio nsh ip is pr oba tive of perju ry.

                                                     1 7
there.” He explained that he and his wife had driven by Fuzzy's again the night before

and tested his ability to recognize and remember the vehicles he saw as they drove by.

He then said, “I could have made a mistake. I am only human, Judge.” The following

then took place:

              THE COURT: Well, no, the Court just obviously thinks what
              you intended to do was assist Mr. Roddy. I don't accuse Mr.
              Roddy of doing anything improper, but I accuse you of
              wanting to help Mr. Roddy by saying that this man definitely
              wasn't the person you saw there and you never indicated that
              to Mr. Davis or to Detective Sneed ahead of time.

              THE WITNESS: Well, I was never actually asked about that.

              THE COURT: No, I think you're trying to backpedal now or
              something, but anyhow, you've had your say on that.
              ...
              THE COURT: So you could have been wrong about that not
              possibly being him?

              THE WITNESS: Yes.

The jury was then returned to the courtroom and the prosecutor asked, inter alia, “You

can't tell us, you can't tell the jury with any certainty whether or not you saw this man on

that parking lot or not; can you?” Dorn responded, “As today I cannot.” In response to

further questioning, he testified, “I'm only human and a person can be wrong. . . . I was

wrong yesterday, yes.”



              Clearly, the multiple threats of prosecution by the State and the court, and

the court's repeated declarations that it believed Dorn to be guilty of perjury in spite of the

fact that Dorn was not on trial for same, had an effect on Dorn's testimony. Just as

clearly, the change in testimony was to the defendant's detriment. W hile we agree that

a trial court may properly advise a witness of the significance of lying under oath, the

court in this case went far beyond an appropriate warning. In this case, the court went

so far in threatening and intimidating the witness, with resulting prejudice to the

defendant, that the defendant's right to a fair trial was compromised and the outcome of

the trial brought into question. Under the circumstances of this case, the trial court's

                                             1 8
comments to the witness and the prosecution constituted reversible error. See T.R.A.P.

36(b) (“A final judgment from which relief is available and otherwise appropriate shall not

be set aside unless, considering the whole record, error involving a substantial right more

probably than not affected the judgment or would result in prejudice to the judicial

process.”) Accordingly, we reverse the judgment below and remand this matter for a new

trial.6



                 Finally, the defendant contends that the trial court erred when it instructed

the jury on parole eligibility dates. However, he candidly concedes that he “believes the

[trial court] correctly charged the jury pursuant to [T.C.A. § 40-35-201] but respectfully

submits that the instruction denied him due process of law” under the fourteenth

amendment to the United States Constitution. Because he cites us to no authority in

support of this proposition, this issue is waived. Ct. Crim. App. R. 10(b).



                 The evidence being insufficient to support a conviction for first-degree

premeditated murder and the court below having committed reversible error, we reverse

the defendant's conviction for first-degree premeditated murder and remand this matter

for a new trial on second-degree murder and any appropriate lesser offenses.



                                                              ______________________________
                                                              JOHN H. PEAY, Judge



CONCUR:



______________________________
DAVID G. HAYES, Judge



          6
        Given o ur ruling on the suffic iency of the evidenc e, the defe ndant's n ew trial is limited to
second-degree murder and any appropriate lesser offenses.

                                                      1 9
______________________________
WILLIAM M. BARKER, Judge




                                 2 0
