         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    December 5, 2000 Session

                      STATE OF TENNESSEE v. SAMMY GOFF

                   Direct Appeal from the Circuit Court for Chester County
                             No. 98-010    Roger A. Page, Judge



                    No. W1999-01976-CCA-R3-CD - Filed January 31, 2001


The defendant, after being convicted by a jury of first degree murder and sentenced to life without
the possibility of parole, appeals his conviction and asserts that the trial court erred in three respects:
(1) the trial court incorrectly allowed testimony from three witnesses attacking the defendant’s
reputation for truthfulness; (2) the trial court erred in allowing the State to question the defendant
about a prior felony conviction; and (3) the trial court erred in allowing testimony about a prior
statement made by the defendant. After review, we affirm the trial court’s rulings in all respects.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOE G. RILEY and ROBERT
W. WEDEMEYER , JJ., joined.

Lloyd R. Tatum, Henderson, Tennessee, for the appellant, Sammy Goff.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; James
G. (Jerry) Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                               OPINION

                                              Introduction

        After being convicted of first degree murder and sentenced to life without the possibility of
parole by a Chester County jury, the defendant appeals that conviction and asserts that the trial court
erred in three respects: (1) the trial court incorrectly allowed testimony from Clint Goff, Wanda Goff,
and Gary Stinnett regarding the defendant’s reputation for truthfulness in the community; (2) the trial
court erred in allowing the State to question the defendant about a prior felony conviction after the
State had apparently completed its cross examination of the defendant, thus violating the defendant’s
right against incrimination; and (3) the trial court erred in allowing testimony that the defendant had
previously stated that “If you shoot someone, make sure they are dead so they can’t be a witness
against you.” The defendant’s appeal is now properly before this court and we affirm the trial court
in all respects.

                                                Facts

        On December 5, 1997, the defendant entered the Chester County Sheriff’s office and reported
that he had found his wife dead and claimed that she had been robbed and murdered. Upon arrival
at the defendant’s house, the sheriff found no signs of forced entry and found the victim on her side
with gunshot wounds to her head and abdomen.

         The defendant gave a tape recorded statement later on December 5, 1997, and said that he
had spent the day at home with his wife. He stated that at about 9:30 p.m. he went for a drive and
left his wife asleep on a mattress on the floor. The defendant claimed that upon returning he found
her dead and the contents of her purse dumped on the floor.

        In the early morning hours of December 6, 1997, Mark Lewis of the Tennessee Bureau of
Investigation met with the defendant and took his statement. The defendant repeated his story about
finding his wife dead, the purse being emptied, and a Winchester 30-30 rifle missing. On December
12, 1997, the defendant met with Scott Walley of the Tennessee Bureau of Investigation, and again
denied shooting his wife; however, he maintained that his wife had committed suicide. He further
stated that because he did not want anyone to know that his wife had committed suicide, he emptied
her purse and threw the rifle into a nearby creek so it would appear that she had been robbed and
murdered.

       The defendant later told investigators that he and his wife made a deal in which he would kill
her and then kill himself. However, the defendant claimed that when he returned to the house his
wife had already taken her life. He then stated that he did not want people to know his wife
committed suicide so he shot her again and made the scene look like a robbery.

        At trial, the defendant testified on his own behalf and continued his claim that he did not kill
his wife, rather she took her own life. Several medical examiners and forensic pathologists testified
for both the State and the defense about the cause of death. At issue was whether the victim
committed suicide or whether someone shot and killed her. Because of the defendant’s statements
to police and his testimony at trial, suicide was the crux of the defendant’s defense to the murder
charge. The defendant’s credibility was clearly at issue in this case as he sought to persuade the jury
that his wife had shot herself in the head and he later shot her in the abdomen to make the incident
look like a robbery rather than a suicide. Although one of the defendant’s experts testified that the
shot to the victim’s head could have occurred first, the jury had sufficient evidence to conclude that
the defendant could have fired both shots. The jury apparently accredited the State’s expert and
rejected the defendant’s expert and the defendant’s contentions and concluded that the defendant
shot his wife in the head and she did not commit suicide.




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        In an effort to impeach the defendant’s credibility, the State offered several witnesses to
attack the defendant’s reputation for truthfulness. The State also questioned the defendant about his
prior theft felony to further attack his reputation for truthfulness. These two efforts to attack the
defendant’s reputation for truthfulness are the subject of the first two issues before this Court. The
defendant further challenges the trial court’s allowance of testimony that the defendant had
previously stated, “If you shot someone, make sure they are dead so they can’t be a witness,” or
words to that effect.

                                               Analysis

        The general admissibility of character evidence is governed by Tennessee Rule of Evidence
404(a), which provides that evidence of a person’s character is not admissible to prove that the
person acted in accordance with his or her character on the occasion in question. However, Rule
404(a)(3) provides that evidence is allowed when authorized by Rules 607, 608, and 609. In this
case, the trial court allowed the State to present testimony under Rule 608(a) that the defendant’s
reputation for truthfulness was bad.

        The defendant challenges the trial court’s decision to allow the testimony of Clint Goff,
Wanda Goff, and Gary Stinnett about the defendant’s reputation for truthfulness. The State
presented these witnesses in an effort to attack the defendant’s credibility after the defendant testified
on his own behalf. Rule 608(a) generally permits reputation evidence of a witness’ character for
truthfulness or untruthfulness, and provides that

                [t]he credibility of a witness may be attacked or supported by
                evidence in the form of opinion or reputation, but subject to these
                limitations: (1) the evidence may only refer to character for
                truthfulness or untruthfulness, and (2) the evidence of truthful
                character is admissible only after the character of the witness for
                truthfulness has been attacked.

        Although not specifically in the rule, testimonial character evidence pertaining to a witness’s
reputation for truthfulness is admissible only after a proper foundation is established. See State v.
Dutton, 896 S.W.2d 114, 118 (Tenn. 1995); see also Cohen, Paine, & Sheppard, Tennessee Law of
Evidence, § 6.08 (3)(b) (4th ed. 2000). The defendant claims that the proper foundation was not
established to admit these witnesses’ testimony and that the trial court erred in allowing their
testimony. The defendant’s argument is twofold: that the witnesses lacked adequate knowledge of
the defendant’s reputation in the community and that any knowledge the witnesses had was too far
removed in time from the defendant’s testimony at trial. We reject both contentions pertaining to
all three witnesses, as did the trial court.

       We recognize that different standards apply to establishing the proper foundation for the
admissibility of testimony about a witness’ truthfulness. See, e.g., Dutton, 896 S.W.2d at 118. This
testimony can be divided into two types: reputation testimony and opinion testimony. See id.;


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Tennessee Law of Evidence, § 6.08 (3)(b). The proper foundation for testimony about a witness’
reputation in the community is established by showing an acquaintance with the witness under
attack, an acquaintance with the community where the witness has lived, and an acquaintance with
the circles in which the witness has moved. Dutton, 896 S.W.2d at 118. Prior to allowing opinion
testimony about a witness’ character, “it must be established that the character witness is ‘sufficiently
personally familiar with [the primary witness’s] character to offer an opinion on the subject.’” Id.
(quoting Tennessee Law of Evidence, § 6.08 (3)(c)) (alterations in original).

         In reviewing the record, defense counsel timely objected to each of the three witnesses’
testimony that are being challenged. Specifically, defense counsel asserted that in order to allow
testimony about a witness’ truthfulness, such proof must relate to the witness’ character at the time
of trial and none of the witnesses had even spoken to or seen the defendant in over a year. However,
the trial court considered this fact and noted that the defendant had been incarcerated during this time
period. In fact, the trial court refused to allow another witness to testify about the defendant’s
truthfulness because that witness had not seen the defendant in several years prior to the defendant’s
incarceration.

         The witnesses that did testify were the defendant’s nephew, the defendant’s sister-in-law, and
the defendant’s niece’s husband, each whom had known the defendant for approximately twenty
years, thirty-five years, and fourteen years, respectively. Furthermore, each of the three witnesses
testified under oath that they were familiar with the defendant’s reputation in the community. While
we recognize that these witnesses’ acquaintance with the community was not clearly set out at the
time of their testimony, upon reviewing the record as a whole, these witnesses were from this
community, were relatives of the defendant, and had known him for fourteen to thirty-five years.
Therefore, the trial court properly allowed their testimony. We also agree with the trial court’s ruling
that the witnesses’ testimony about the defendant’s truthfulness was not too far removed as to
preclude their testimony because the defendant had been incarcerated during the time they had no
communications with him.

        The defendant next asserts that the trial court erred by allowing, over the defendant’s
objection, the State to call the defendant back to the stand after the State had apparently completed
its cross examination of the defendant. The defendant asserts that because the State had dismissed
the defendant and defense counsel had called its next witness then the State was precluded from
calling the defendant back to the stand to question him about a prior felony conviction. After
reviewing the briefs and the record, it is necessary for us to set out exactly what took place at trial
in order to fully understand the parties’ positions. The following took place at the conclusion of the
defendant’s cross examination by the State:

                MR. THOMPSON [for the State]: The witness [defendant] is
                excused.
                (Witness excused.)
                MR. TATUM [for the defense]: Your Honor, we call Doyle Goff.
                THE COURT: We are going to take a break.


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                (A break was taken.)
                (Before the jury returned to open court the following proceedings
                were had to-wit:)
                THE COURT: General Thompson, did you have something?
                MR. THOMPSON: Your Honor, I apologize. I have done it again. I
                finished with a witness before I was finished. I would request Your
                Honor to allow me to open redirect and go into Mr. Goff’s prior
                conviction.
                THE COURT: You mean recross?
                MR. THOMPSON: Recross, which was the subject of the Morgan
                hearing that we had earlier this afternoon. I apologize. Just in the
                excitement of the moment I forgot about it. I’m asking that recross
                be reopened for that purpose and that purpose alone.
                THE COURT: Mr. Tatum?
                MR. TATUM: Your Honor, for the record I think the Court should
                note that Mr. Goff has been sitting down next to counsel or at counsel
                table for the past fifteen or twenty minutes. Immediately after Mr.
                Thompson purportedly finished his cross-examination defense
                counsel rose and called the next witness, Doyle Goff. I think the
                record would reflect that. At that point the Court informed me that
                we were going to take a break.

The discussion over whether to allow the State to recall the defendant to the stand continued and the
Court cited Tennessee Rule of Evidence 611 and noted the Court’s discretion in controlling trial
matters and the mode of interrogation. The trial judge then allowed the State to recall the defendant
and limited the interrogation to simply asking the defendant if he had been convicted of theft over
$10,000 in Carroll County Circuit Court. After the defendant admitted to the conviction, the trial
judge then instructed the jury that the conviction was to only be considered for impeaching the
defendant’s credibility as a witness.

         The defendant claims that because he was dismissed and defense counsel called the next
witness, allowing the State to call the defendant to the stand amounted to the State calling the
defendant to testify against himself, thus violating his constitutional right against self incrimination.
The defendant in this case had already testified on his own behalf and had waived his right not to
testify, submitting himself to cross-examination. The trial court, by exercising its discretion under
Rule 611, simply allowed the State to continue with its cross examination. We find no error in the
trial court’s exercise of its discretion, much less any plain abuse of that discretion to constitute
grounds for reversal. See, e.g., State v. Gaylor, 862 S.W.2d 546 (Tenn. Crim. App. 1992).

       Finally, the defendant asserts that the trial court erred in allowing Gary Stinnett, the
defendant’s neighbor, to testify that the defendant had previously stated that “If you shoot someone,
make sure they are dead so they can’t be a witness against you.” The statement was allegedly made
a couple of weeks before the victim’s death. The defendant alleges that the statement was made too


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far in advance of the events alleged in the indictment and that it was made in the context of an old
shooting incident where the defendant was acting in self defense. The defendant claimed that the
statement was highly prejudicial because introduction of the statement would force the defendant
to explain the context in which the statement was made, thus informing the jury that the defendant
had previously shot someone. The trial court, however, allowed this testimony under Tennessee
Rule of Evidence 403, finding its probative value toward the issue of the defendant’s state of mind
outweighing any unfair prejudice to the defendant. We agree with the trial court’s ruling.

                                            Conclusion

         After review of the record before us and consideration of the defendant’s claims, we hold that
the trial court did not err in allowing the testimony of three character witness to impeach the
defendant’s testimony, did not err in allowing the State to continue its cross examination of the
defendant regarding a prior felony conviction, and did not err in allowing the defendant’s neighbor
to testify about the defendant’s prior statement. We affirm the trial court in all respects.




                                                        ___________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE




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