         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 September 29, 1999 Session

                  STATE OF TENNESSEE v. TERESA EVERETT

                 Direct Appeal from the Criminal Court for Loudon County
                            No. 9538    E. Eugene Eblen, Judge



                                 No. E1999-02647-CCA-R3-CD
                                      February 15, 2001

Following a trial on September 28, 1998, a Loudon County jury convicted Teresa Everett, the
defendant and appellant, of attempt to commit second-degree murder. The trial court subsequently
sentenced her to serve fifteen (15) years in the Tennessee Department of Corrections. The defendant
presents the following issues on appeal (1) Whether the evidence was sufficient to convict her;
(2)Whether the trial court erred by allowing improper impeachment; (3) Whether the trial court erred
by allowing a lay-witness to testify to his opinion; (4) Whether the trial court erred by allowing the
state to introduce character evidence; (5) Whether the state’s closing arguments were improper; and
(6) Whether the defendant should be granted a new trial based on newly discovered evidence.
Although the evidence is sufficient to support the verdict, we find the cumulative effect of all the
remaining errors deprived the defendant of a fair trial. Accordingly, we reverse the judgment of the
trial court and remand the case for a new trial.


  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed and
                                        Remanded

JERRY SMITH, J., delivered the opinion of the court, in which GARY R. WADE, P.J., joined. JAMES
CURWOOD WITT, JR., J, joined in results only.

Rex A. Dale, Lenoir City, Tennessee for the appellant, Teresa Everett.

Paul G. Summers, Attorney General and Reporter; Ellen H. Pollack, Assistant Attorney General; J.
Scott McCluen, District Attorney General; Roger Delp, Assistant District Attorney, for the appellee,
State of Tennessee.
                                              OPINION

                                   FACTUAL BACKGROUND

         During September of 1997, Charles Mills and Woodrow Fritts (the victim) were roommates
in Mr. Fritts’s mobile home. On the evening of September 9, 1997, the two roommates were home
together when Mr. Fritts received a telephone call from the defendant, who had been a friend of Mr.
Fritts for several years. On the phone, the defendant told Mr. Fritts that her boyfriend had assaulted
her. Mr. Fritts then left to retrieve the defendant. Mr. Fritts and the defendant returned to the mobile
home with some beer and cigarettes about forty-five (45) minutes later, some time before 10:00 p.m.
         Mr. Mills went to his bedroom to sleep shortly after the couple’s arrival. He was awakened
shortly after 1:00 a.m. the next morning by the victim, who was shouting for Mr. Mills to help him.
After Mr. Mills awoke, he left his bedroom to find Mr. Fritts bleeding profusely from apparent stab
wounds to his neck, chest, and hands. Mr. Mills also saw the defendant, holding a knife, standing
over the chair in which he assumed Mr. Mills had been sitting. The defendant was covered in blood,
and appeared intoxicated. She started screaming at Mr. Mills and threatening to kill him. Mr. Fritts
told Mr. Mills that the defendant had cut him, and he told Mr. Mills to call 911.
         Mr. Mills called 911, and the police and paramedics arrived shortly thereafter. After police
arrived, the defendant, who was still irate and screaming, told one of the officers that she had tried
to kill Mr. Fritts. Police could smell alcohol on both Mr. Fritts and the defendant. Upon inspection
of the residence, police found several knives. The paramedics treated Mr. Fritts, and he was flown
to the University of Tennessee Hospital. Although his wounds were severe, he survived. Before
trial, however, he died of an unrelated cause.

                                            SUFFICIENCY
        When an appellant challenges the sufficiency of the evidence, this court is obliged to review
that challenge according to certain well-settled principles. A verdict of guilty by the jury, approved
by the trial judge, accredits the testimony of the State's witnesses and resolves all conflicts in the
testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Although an
accused originally enjoys a presumption of innocence, a jury verdict removes this presumption and
replaces it with one of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal,
the burden of proof rests with the appellant to demonstrate the insufficiency of the convicting
evidence. Id.
        On appeal, the state is entitled to the strongest legitimate view of the evidence as well as all
reasonable and legitimate inferences that may be drawn therefrom. State v. Cabbage, 571 S. W. 2d
832, 835 (Tenn. 1978). Where the sufficiency of the evidence is contested, the relevant question for
the reviewing court is whether any rational trier of fact could have found the accused guilty of every
element of the offense beyond a reasonable doubt. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992);
Tenn. R. App. P. 13(e). In conducting our evaluation of the convicting evidence, this court is
precluded from reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383
(Tenn. Crim. App. 1996). Moreover, this Court may not substitute its own inferences "for those
drawn by the trier of fact from circumstantial evidence." State v. Matthews, 805 S. W. 2d 776, 779
(Tenn. Crim. App. 1990).

                                                  -2-
        The defendant argues that the State failed to present evidence sufficient to support an
attempted second-degree murder conviction and that the jury should have found that her actions were
taken in self-defense. Second-degree murder is the "knowing killing of another." Tenn. Code Ann.
§ 39-13-210(a)(1). Attempted second-degree murder can be proven by evidence that the defendant
knowingly acted with the intent to kill her victim and that the defendant's actions constituted "a
substantial step toward the commission" of the murder. Tenn. Code Ann. § 39-12-101(a)(3).
        In this case, Mr. Mills testified that, when he went to sleep, the defendant and the victim were
in the trailer together. Mr. Mills was later awakened by the victim’s cries for help. When he
responded to the cries for help, Mr. Mills found the victim with his throat slit and severe stab
wounds to his hand s and che st. The victim then told M r. Mills that the defendant had cut
him. Mr. Mills also saw the defendant holding a bloody knife, screaming and swearing.
Finally, after polic e arrived, the d efendan t told a police officer that she had tried to kill the
victim. The jury wa s justified in inferring that the defendant had knowingly tried to kill the
victim.
        Furthermore, the only evidence of self-defense was the defendant’s testimon y that Mr.
Fritts struck her first and that she had no mem ory beyond that. The question of whether a
criminal defendant has acted in self-defense is one for the jury’s determination. It is apparent
the jury rejected the defendant’s version of events as was their perogative. Tenn. Code Ann.
§ 39-1 1-201 (a)(3). State v. Belser, 945 S .W.2d 776, 78 2 (Ten n. Crim . App. 1 996).
This issue is w ithout merit.


                                       PRIOR CONVICTIONS
        In September of 1985, twelve years before trial, the defendant had been convicted of one
count of sale of marijuana and received one year probation, one count of sale of a controlled
substance and received five years probation, and one count of grand larceny, for which she received
three years probation. All three sentences were to be served concurrently. The defendant’s probation
was subsequently revoked, and she was ordered to serve the remainder of her sentence in the
Community Corrections program. Subsequently, her Community Corrections sentence was also
revoked, and in November of 1986 she was ordered to serve the remainder of her sentence in the
Department of Corrections. She was paroled sometime after that, but her parole was revoked, and
she was returned to the Department of Corrections in September of 1989. Following her return to
the penitentiary, the defendant was granted a furlough from which she did not return. For this, she
was charged with and convicted of escape in May of 1991.
        Before trial, the state gave the defendant notice, pursuant to Rule 609(a)(3) of the Tennessee
Rules of Evidence, that it intended to use all of the above convictions to impeach the defendant if
she testified. At a hearing immediately before the trial, the defendant only objected to the state’s use
of the marijuana conviction for impeachment, arguing that more than ten years had passed between
the time that she had been released on that charge and the time of trial. The trial court disagreed:
                [T]he court feels that [all four of the convictions] are relevant in this
                situation, since all of these were concurrent charges, and she was
                serving probation, and then Community Corrections, and then

                                                  -3-
               penitentiary time, and then violation of parole time and everything.
               None of them would have been completed under them all being
               served concurrently until she was finally released.

The court also held that the state would be limited to impeaching the defendant with the convictions
themselves and would not be allowed to question the defendant about any probation or parole
violations.
        During trial, however, the state questioned the defendant about her prior convictions and
about her prior drug and alcohol use which led to the revocation of her probation and community
corrections. The defendant now challenges the trial court’s ruling as to all of the prior
convictions and the ad mission of the state’s cross-examination reg arding the defenda nt’s
prior drug and alcohol use leading to her probation violatio ns. Because the defendant did not
object to the introduction of the convictions for possession of a controlled substance, grand
larceny or escape prior to or during trial, however, she has waived her right to object here.
Tenn. R. Evid. 103(a); Furtherm ore, we ne ed not dec ide wheth er the trial court e rred in
finding that the con viction for th e sale of marijuana was not stale, because any error in that
regard was harm less in light of th e introductio n of all of the other convictions. Tenn. R. App.
P. 36(b); Tenn. R. C rim. P. 52(a).
        However, we are not inclined to ignore the state’s impeachment of the defendant
regarding her past alcohol and drug use, because the state clearly violated a pre-trial ruling
by the court when the District Attorney General questioned the defendant in that regard.
Even after the court clearly held that the state was prohibited from questioning the defendant
about the circumstances that led to the violation of her probation or parole, the state initiated
the follow ing dialogu e during its q uestioning o f the defe ndant:

               Q: Now I believe you had told us that eventually you had to go
               and serve that sentence.

               A: Yes, sir.

               Q: The reason for that being basically your usage of alcohol and
               drugs; wa sn’t it?

               A: Excuse me?

               Q: The reason you eventually had to go serve those sentences
               was your use of alcohol and drugs?

               A: Yes, sir , I guess. I don’t know. I violated my probation by
               not doing my community service.


                                                -4-
               Q: Let’s talk about the next pro gram. I’m not talking about
               probation; I’m talking about Community Corrections, where you
               had another op portunity not to h ave to go s erve that sentence.
               Do you remember Comm unity Corrections?

               A: Yes, sir.

               Q: The reason you eventually had to go to the women’s prison
               was your us e of alcoh ol and dru gs on that o ccasion, w asn’t it?

               A: Yes, sir.

Although the defendant did not timely object to the introduction of such evidence, "[w]hether
or not an appellate court should recognize the error and grant relief in the absence of an
objection in the trial court must depend upon the facts and circumstances of the particular
case." State v. Ogle, 666 S.W.2d 58, 61 (Tenn. 1984). If the admission of the improper
impeachment were the o nly error in the rec ord, we m ight ordinarily find it ha rmless. See
Tenn. R. Ap p. P. 36(b). However, in this case, it is the cumulative effect of the errors that
requires rev ersal.

                                      OPINION TESTIMONY
         During the state’s direct examination of Criminal Investigator Jerry Lynn Rabern, one of the
Police Officers that investigated the crime scene that night, and in an attempt to show that certain
wounds received by the defendant were not inflicted by the victim but were self-inflicted thereby
negating a claim of self-defense, the following colloquy occurred between the prosecutor and the
officer:
                Q: Officer Rabern, would you look at what has been marked as
                Exhibit Number 18, and tell us whether you can identify what you see
                here?

               A: I see cut marks on the wrist of [the defendant].

               Q: Is this a photograph of this defendant on the early morning of the
               10th of September, 1997?

               A: Yes, it is.

               Q: And did you take this photograph yourself?

               A: Yes, I did.



                                                -5-
                Q: And does this photograph fairly and accurately depict an injury, or
                a slice wound across the wrist of this individual?

                A: Yes, it does.

                Q: Officer Rabern, have you seen injuries like this before?

                A: Yes, I have

                Q: Have you seen them on attempted suicide kind of persons?

                         MR. DALE: I object to that, Your Honor. He’s going to try
                to say this looks like an attempted suicide. A cut’s a cut. He can only
                testify to his own personal knowledge of what he saw and observed.

                        ASST. GENERAL DELP: Your Honor, I believe he can tell
                us if he’s seen such wounds before on–

                        THE COURT: Overrule the objection.

                Q: Are those wounds typical of persons who would “cut their wrists?”

                A: Yes, it is.

Because the state did not seek to qualify Officer Rabern as an expert, the defendant claims that this
testimony constitutes impermissible opinion testimony.
         Initially, we note that the admissibility of evidence is generally within the broad discretion
of the trial court. Absent an abuse of that discretion, the trial court's decision will not be reversed.
State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). Rule 701(a) of the Tennessee Rules of
Evidence addresses the admissibility of opinion testimony offered by non-experts. The rule
provides, in relevant part:

                (a) If a witness is not testifying as an expert, the witness's testimony
                in the form of opinions or inferences is limited to those opinions or
                inferences which are:

                (1) rationally based on the perception of the witness; and

                (2) helpful to a clear understanding of the witness's testimony or the
                determination of a fact in issue.

Tennessee Rule 701(a). The Rule was amended because, prior to 1996, it “precluded any lay opinion
if the lay witness could substitute facts for opinion.” Tenn. R. Evid. 701, Advisory Commission


                                                  -6-
Comments (1996).1 Although the 1996 amendment eliminated certain restrictions on opinion
testimony, it was not meant to eliminate the distinction between expert and lay testimony. See Tenn.
R. Evid. 702-706; Neil P. Cohen et al., Tennessee Law of Evidence § 701.3 (3d ed. Supp. 1999).
“The distinction between an expert and a non-expert witness is that a non-expert witness’s testimony
results from a process of reasoning familiar in everyday life and an expert’s testimony results from
a process of reasoning which can be mastered only by specialists in the field.” State v. Brown, 836
S.W.2d 530, 549 (Tenn. 1992). In this case, an opinion as to whether the defendant’s wounds were
self-inflicted could only result from expertise or considerable experience with such wounds.
         Furthermore, subsection (a)(1) “now tracks Federal Rule 701, which has long been
interpreted to require that the lay witness first lay a foundation as to the basis of his or her personal
knowledge of the facts forming the basis of the opinion.” See Cohen, supra; see also Tenn. R. Evid.
602 (stating that a witness that is not an expert may not testify absent a showing of personal
knowledge). In this case, the witness said that he had seen the types of wounds found on the
defendant before, but he never answered where he had seen them. Merely stating that he had seen
those types of wounds before, without more, is not enough to satisfy the foundation requirement of
Rule 701(a)(1). State v. Sparks, 891 S.W.2d 607, 614 (Tenn. 1995). Although again, this error,
standing alone, might not require reversal, we consider this issue in light of the other errors noted
below.

                                      PRIOR BAD ACTS
        During the state’s direct examination of Officer Brown, the first Officer to arrive on the
scene, the following colloquy occurred:
                Q: What kind of shape was the defendant in?

                    A: I found her to be intoxicated, sort of uncooperating with me, and
                    in an irate state, basically, until she wore down.

                    Q: Officer Brown, do you know this defendant?

                    A: Yes, sir, fairly, yes, sir.


         1
             Before 1996, Rule 701 provided:

                  (a) Gene rally. If the witness is not testifying as an expe rt, the witness's testimon y
in the form of opinions or inferences is limited to those opinions or inferences where:

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

                  (2) The witnes s cannot rea dily and with equal accuracy and ade quacy commu nicate what the witness
has perceived to the trier of fact without testifying in terms of opinions or inferences; and

                    (3) The opinions or inferences will not mislead the trier of fact to the prejud ice of the ob jecting party.




                                                              -7-
Q: Have you seen her before when she’d been drinking?

A: Oh, yes, sir.

Q: And have you seen her in states like you saw her on that occasion?

A: Yes, sir.

Q: On one or many occasions?

A: Several.

Q: Have you seen her fighting or attacking other persons?

A: Oh, yes, sir.

Q: Would you say you’ve seen that actually once or more than once?

A: More than once.

Q: And if you have known her for how many years?

A: Thirteen or better, maybe.

Q: Was she acting out of character on this occasion, assuming that
she had been drinking?

A: Out of character, sir?

Q: Out of her normal character when she’d been drinking?

A: That’s – that’s how I see her when she’s drinking. She’s pretty
wild.

Q: Have you come into contact with her on a lot of occasions that
way?

A: Several occasions, yes.

Q: Have you been sent to other places over time when she was
actually having a physical battle with other people?

A: Yes, sir.


                                 -8-
The defendant now complains that Officer Brown’s testimony was offered to prove the defendant’s
propensity for violence, and thus should have been excluded as impermissible character evidence.
        The general rule is that evidence of prior conduct is inadmissible, especially when previous
crimes or acts are of the same character as the charged offense, because such evidence is irrelevant
and invites the "finder of fact to infer guilt from propensity." State v. Hallock, 875 S.W.2d 285, 290
(Tenn. Crim. App. 1993). Moreover, "[e]vidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in conformity with the character trait."
Tenn. R. Evid. 404(b).2 Under Rule 404(b), the state could have introduced the disputed evidence
if the evidence was pertinent to issues other than character. However, while we have previously
observed that prior violent acts by a defendant against a victim "are relevant to show the defendant's
hostility toward the victim, malice, intent, and a settled purpose to harm the victim," State v. Smith,
868 S.W.2d 561, 574 (Tenn. 1993), the defendant's prior violent acts toward a third party is not
relevant to show her intent to kill the victim in this case. Moreover, we have previously declined
to allow evidence of a defendant's prior violent acts, submitted by the State to rebut defense claims
that the victim was the first aggressor. State v. Henderson, No. 03C01-9804-CR-00139, 1999 WL
398087 at * 6, (Tenn. Crim. App. at Knoxville, June 18, 1999); State v. Nelson, No.
03C01-9706-CR-00197, 1998 WL 694971, at *11 (Tenn. Crim. App. at Knoxville, September 9,
1998).
        Furthermore, although the defendant did not object at trial to the evidence of prior bad acts,
we cannot ignore this error here. The state introduced improper, prejudicial evidence about the


         2
             Rule 404 of the T ennessee Rules of Evid ence provides:

         (a) Character Evidence Generally. Evidence of a person's character or a trait of character is not admissible for
the purpo se of provin g action in co nformity with the c haracter or trait on a particu lar occasio n, except:

          (1) Character of Accused . Evidence of a pertinent character trait offered by the accused or by the prosecution
to rebut the same.

         (2) Chara cter of Victim . Evidence of a pertinent character trait of the victim of crime offered by an accused
or by the prose cution to reb ut the same, o r evidence of a characte r trait of peacefulness of the victim offered by the
prosecution in a homicide case to rebut evidence that the victim was the first aggressor.

         (3) Character of a Witness. Evidence of the character of a witness as provided in Rules 607, 608, and 609.

         (b) Other Crimes, W rongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity with the character trait. It may, however, be admissible for
other purposes. The conditions which must be satisfied before allowing such evidence are:

         (1) The court upon request must hold a hearing outside the jury's presence;

        (2) The court must determine that a material issue exists other than conduct c onforming with a charac ter trait
and must upon request state on the record the material issue, the ruling, and the reasons for admitting the evidence; and

         (3) The co urt must exclud e the eviden ce if its probativ e value is outweighed by the danger of unfair prejudice.




                                                           -9-
defendant’s propensity for violence. We cannot imagine, and the state has not offered, any legitimate
reason for this evidence to have been introduced. That evidence, when viewed along with the
inadmissible opinion testimony and the improper impeachment evidence noted above, constitutes
plain error. Tenn. R. Crim. P. 52(b); State v. Bigbee, 885 S.W.2d 797, 800 (Tenn. 1994); State v.
Maddox, 957 S.W.2d 547, 554 (Tenn. Crim. App. 1997).

                                      CLOSING STATEMENT
         During his closing statement, the prosecutor told to the jury:
                        I think that you have heard enough today to conclude that this
                defendant is a virtual little buzz saw when she gets angry and when
                she gets very intoxicated.
                 ....
                        . . . [You also heard Officer Brown testify] that he has been
                called to numerous situations where this defendant was and had been
                engaging in physical -- I’ll call it combat for lack of a better term for
                it – and was just meaner than hell, basically.
                 ....
                        . . . [The defendant] is a person who has done damage to
                herself on other occasions by cutting herself – and I think she said at
                least three – and I suggest to you that on this occasion you will find
                that number four occurred.

Where argument is found to be improper the established test for determining whether there is
reversible error is whether the improper conduct "affected the verdict to the prejudice of the
defendant." Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758, 759 (1965); Bigbee, 885
S.W.2d at 809. The conduct complained of in this case is the improper use of opinion testimony,
impeachment evidence, and prior bad acts evidence in a closing statement.
        In determining whether the improper argument prejudiced the defendant, we must
consider: 1) the conduct complained of, viewed in light of the facts and circumstances of the
case; 2) the curative measures undertaken by the court and the prosecution; 3) the intent of the
prosecutor in making the improper arguments; 4) the cumulative effect of the improper conduct
and any other errors in the record; and 5) the relative strength and weakness of the case. State v.
Middlebrooks, 995 S.W.2d 550, 560 (Tenn. 1999); Bigbee, 885 S.W.2d at 809. In this case, the
prosecutor’s arguments were improper because they were based on evidence that was improperly
before the jury. Thus, the remaining issue is the effect of the improper arguments.
         Because the evidence at issue was introduced, and not objected to at trial, the use of this
evidence during closing, although erroneous, was not particularly egregious in the context of this
case. Accordingly, the trial court gave only the standard pattern instruction in an attempt to cure
these errors.3 Furthermore, the defendant has offered no evidence regarding the prosecutor’s
motives. In short, factors one, two, and three do not weigh heavily either way.


         3
          The court gave pattern jury instructions on prior convictions and told the jury that counsel’s arguments were
not evidence.

                                                        -10-
        Factor four, however, is dispositive, because it is the cumulative effect of these errors,
and the state’s reliance on the erroneously introduced evidence, particularly the statement
concerning the defendant’s propensity for violence, that denied the defendant her fundamental
right to a fair trial in this case. See Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464,
2471-72, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 641, 94
S.Ct. 1868, 1870-71, 40 L.Ed.2d 431 (1974) (stating that closing arguments could become "so
infected with unfairness as to make the resulting conviction a denial of due process")). Finally,
we note that the last factor, the strength of the state’s case, does not save the error. The case was
entirely circumstantial and was not strong enough to withstand errors of this magnitude.4
        Accordingly, the judgment of the trial court is reversed, and the case is remanded for
proceedings consistent with this opinion.

                                                                ____________________________________
                                                                JERRY SMITH, JUDGE




         4
          The defendant also argued on brief that the defendant should be granted a new trial based on newly discovered
evidence . Because this case is rema nded for a new trial, the defe ndant’s final argu ment is moo t.

                                                        -11-
