        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs December 18, 2013

            STATE OF TENNESSEE v. MICKEY LEE WILLIAMS

                  Appeal from the Circuit Court for Grainger County
                  Nos. 3689-IV & 7994-IV     O. Duane Slone, Judge


                No. E2013-01110-CCA-R3-CD - Filed February 4, 2014


This case is before this court on a delayed appeal of appellant’s 2004 convictions for second
degree murder and arson. Appellant received an effective sentence of twenty-four years.
Appellant now argues that the trial court erred by (1) allowing a witness to testify about
appellant’s propensity for violence during the State’s case-in-chief; (2) allowing the
testimony of a witness when appellant did not have notice of her testimony until two days
before the trial; (3) incorrectly instructing the jury on self-defense; and (4) ruling that a
defense witness’s testimony was irrelevant. Following our review, we affirm the judgments
of the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
N ORMA M CG EE O GLE, J., joined.

Heather N. McCoy, Sevierville, Tennessee, for the appellant, Mickey Lee Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Bradshaw, Assistant
Attorney General; James B. Dunn, District Attorney General; and Charles L. Murphy,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                               I. Procedural History and Facts

       Appellant was indicted by a Grainger County grand jury on a fourteen-count
indictment stemming from the death of Terry Johnson and the circumstances surrounding his
death. The State proceeded to trial on first degree murder, arson, and aggravated assault
charges. In his first direct appeal, this court summarized the evidence presented at trial as
follows:

               Around 11:30 A.M. on March 12, 2002, the [a]ppellant and his
       longtime friend, Billy Joe Coffey, purchased three eighteen packs of beer
       which they began drinking at Coffey’s residence in Rutledge.                 At
       approximately 2:30 or 3:00 P.M., the two went to the home of the [a]ppellant’s
       brother, Louis Williams, on Poor Valley Road in Grainger County to play
       cards and continue in their drinking endeavors. While there, the [a]ppellant
       professed his love for Patricia Johnson. Johnson lived across the street from
       Louis Williams, and the [a]ppellant made several visits to the Johnson home
       that afternoon to see Mrs. Johnson. Coffey and his wife returned the
       [a]ppellant to his home a little after 7:35 P.M. that evening. Coffey testified
       that the [a]ppellant had drunk at least a case of beer.

               Patricia Johnson, the victim’s wife, testified that the [a]ppellant came
       to her home on the afternoon of March 12th while her husband was away and
       asked whether “God would forgive him of murder.” She responded that
       murder was wrong. Mrs. Johnson explained that she had developed a romantic
       relationship with the [a]ppellant around October of 2001 when her husband
       was on the road for long periods of time as a truck driver and that she had tried
       to end the relationship in January of 2002 when she told her husband about the
       affair.

               Johnny Bowens, who lived on Poor Valley Road near the Johnsons,
       testified that the [a]ppellant came to his home on the evening of March 12th
       and cryptically “told [him] to watch and learn” and to “put it in the newspaper”
       before going up the road toward the Johnson house. Barbara Bowens, who
       also lived on Poor Valley Road, received a phone call from the [a]ppellant on
       the night of the incident, inquiring whether the victim was at his house. She
       testified that she thought the [a]ppellant was joking when he stated during the
       conversation that he loved Mrs. Johnson and was going to kill Mrs. Johnson’s
       husband.

              Around 9:30 P.M., the [a]ppellant returned to the Johnson home. The
       victim, Terry Johnson, answered the door, and the two began to argue. Mrs.
       Johnson testified that her husband asked the [a]ppellant to leave and told the
       [a]ppellant that they would talk the next day. The [a]ppellant walked out the
       door but quickly reentered with a six pack of beer, pointing his finger at the
       victim and calling him a son of a bitch. The [a]ppellant then went back

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outside, and the victim followed. Barbara Bowens, Johnny Bowens, and
Shawn Bolen, all neighbors on Poor Valley Road, heard what sounded like “a
bunch of dogs fighting.” Mrs. Johnson heard “grunting noises and thumping
outside” and tried to call the police. Johnny Bowens and Bolen both testified
that they saw the victim shove the [a]ppellant first while on the porch. The
victim was heard telling the [a]ppellant to stay away from his family and get
off of [sic] his property. The fight then moved to the yard. Soon thereafter,
the victim was seen holding his stomach and retreating to his home with the
[a]ppellant following. The [a]ppellant was yelling to the victim that “he
[would] put his soul in hell.” Mrs. Johnson testified that when her husband
came inside, he told her to call the police. “[H]is right arm was cut, and he
was holding his arm up, and his left hand was on his chest.” Blood was
everywhere. The victim went into the bathroom and closed the door. The
[a]ppellant then came inside the house and held a knife to Mrs. Johnson’s
throat and pushed her, along with her fifteen-month-old and five-year-old
daughters, into the back bedroom. Afterwards, the [a]ppellant beat on the
bathroom door, yelling and screaming. Mrs. Johnson and her two children
escaped through a bedroom window and hid in an old truck parked nearby.

        Shawn Bolen testified that when he saw what was happening, he went
to get the [a]ppellant’s brother Steve who lived down the street. The
[a]ppellant came out of the Johnson’s house, and Steve called out to him. The
[a]ppellant walked to Steve’s house with blood covering his pants and asked
for a cigarette lighter. He made a slicing motion across his throat and said that
Terry Johnson was dead and “had gone to hell.”

        Officer Jeff Daniel with the Rutledge Police Department testified that
upon responding to the scene at the Johnson’s home, he knocked on the door,
but no one answered. There was blood both on the front porch and in the yard.
Daniel drove up the road to Steve Williams’ house, where Williams and Bolen
were on the front porch. The [a]ppellant was standing nearby with a knife in
his hand and blood covering his pants. When Officer Daniel asked the
[a]ppellant what was going on, the [a]ppellant responded, “I killed him. . . . He
hit me. . . . I killed him. . . . And I’m tired of everybody out here.” When
Daniel tried to question him further, the [a]ppellant walked back across the
road to the Johnson’s house. Officers at the scene asked the [a]ppellant to
come out of the house, but he refused, repeatedly opening and shutting the
door. When asked for access to the house to check on the victim, the
[a]ppellant replied, “I’ll drag him to you.” He later announced, “He’s too big.
I can’t drag him.” Shortly thereafter, a fire was seen engulfing the interior of

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       the house, and the [a]ppellant was observed running from the residence. Upon
       exiting the house, the [a]ppellant ran toward Chief Holt, who ordered the
       [a]ppellant to drop the knife. The [a]ppellant refused and was shot by Chief
       Holt.

               Approximately four hours after the incident occurred, a blood sample
       was taken from the [a]ppellant which indicated a blood alcohol level of 0.11
       percent. Special Agent Russell Robinson with the State of Tennessee’s Bomb
       and Arson Section investigated the murder and fire. He testified that the fire
       had multiple points of origin and concluded that it was “intentionally set.”
       During the investigation, Robinson was forced to enter the bathroom through
       a window because the victim’s body was against the door. Additionally, he
       noted that there were marks on the bathroom door which appeared to be made
       by a sharp-bladed tool. He found a Bic lighter on the kitchen table and a
       twenty-two inch hunting knife on the front porch. The victim’s blood was
       found on the [a]ppellant’s pants and on the knife. Doctor Cleland Blake
       performed an autopsy on the victim. He described five deep stab wounds
       penetrating into the lungs and the vena cava, and he found the cause of death
       to be internal and external hemorrhaging.

               At trial, the [a]ppellant testified that on the night of the incident, he
       became intoxicated after drinking beer and did not know his purpose in going
       to the Johnson residence. He related that the victim hit him with a broom and
       tried to choke him, and, further, that he “didn’t have no choice,” that he “had
       to cut at [the victim]” to get him off. Regarding the fire, the [a]ppellant
       testified that he was “probably trying to kill [himself]. I’s panicked, scared.
       I don’t know, really.”

State v. Mickey Lee Williams, No. E2004-01617-CCA-R3-CD, 2005 WL 2240736, at *1-3
(Tenn. Crim. App. Sept. 15, 2005), perm. app. denied (Tenn. Feb. 21, 2006).

       Appellant was convicted at trial of second degree murder and arson, and the jury
found him not guilty of aggravated assault. The trial court originally sentenced him to
twenty-four years and five years, respectively. However, the trial court later modified the
murder sentence to twenty-three years. Appellant filed an untimely motion for new trial,
which was denied by the trial court. Id. at *3. Subsequently, appellant appealed his
convictions and sentences to this court, but because his motion for new trial was not timely,
this court only considered the sufficiency of the evidence and sentencing issues. Id. at *4.
This court affirmed his convictions and reinstated his twenty-four-year sentence for second
degree murder. Id. at *6.

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       In April 2006, appellant filed a petition for post-conviction relief. The post-
conviction court appointed counsel, and appellant filed an amended petition for post-
conviction relief in August 2010. The post-conviction court granted relief in the form of a
delayed appeal and gave appellant the opportunity to file a motion for new trial. The court
heard the motion for new trial on April 23, 2013, and denied the motion. This appeal
follows.

                                          II. Analysis

                        A. Admissibility of Witnesses’ Testimonies

                                    1. Standard of Review

        The determination of whether evidence is admissible at trial is a matter left to the
sound discretion of the trial court and will not be reversed absent an abuse of that discretion.
State v. Dellinger, 79 S.W.3d 458, 485 (Tenn. 2002); State v. McLeod, 937 S.W.2d 867, 871
(Tenn. 1996). “Relevant evidence” is “evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401. All relevant evidence
is admissible unless specifically excepted by constitution, statute, rules of evidence, or rules
of general application. Tenn. R. Evid. 402. One such exception sets forth that 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.” Tenn. R. Evid.
403.

                                      2. Billy Joe Coffey

        Appellant argues that under Tennessee Rule of Evidence 404(b), the trial court erred
by allowing the State to elicit testimony from Billy Joe Coffey during its case-in-chief
regarding appellant’s propensity for violence. The State agrees with appellant that the trial
court erred but contends that the issue is better analyzed under Tennessee Rule of Evidence
404(a). The State further contends that the error was harmless. We agree with the State in
all regards.

        In this case, the State paused its re-direct examination of Billy Joe Coffey to ask the
trial court, in a bench conference, for permission to question Mr. Coffey about appellant’s
behavior when he was inebriated, whether he was peaceful or violent. Appellant’s counsel
objected, arguing that the testimony would be a reference to a prior bad act, but the trial court
allowed the questioning. The trial court ruled that appellant had raised the issue of self-

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defense in his opening statement and agreed with the State that Mr. Coffey’s testimony was
relevant to the question of whether appellant or the victim was the first aggressor. The
following exchange then occurred:

       PROSECUTOR:           Mr. Coffey, when the Defendant’s drinking[,] what kind
                             of - would you say he’s a peaceful man or a fighting
                             man?

       COFFEY:               Most time he’s peaceful.

       PROSECUTOR:           Does he ever have a reputation for being otherwise when
                             he’s drinking?

       COFFEY:               If he gets mad, you know. Somebody makes him mad or
                             something.

       PROSECUTOR:           Somebody makes him mad, he gets - he’s a fighting man;
                             is that correct?

       COFFEY:               Yeah. Yeah.

        In general, evidence of an accused’s “pertinent trait of character” or his prior bad acts
is not admissible to prove “action in conformity” with that character trait. See Tenn. R. Evid.
404(a), (b). There are exceptions, however, to the general rule, and the application of the
exceptions depends on whether the evidence is offered under Rule 404(a) or 404(b). In this
case, the State argues that the admission of Mr. Coffey’s testimony should be analyzed under
Rule 404(a), and we agree because Mr. Coffey testified as to appellant’s general character,
not a specific prior bad act, which would fall under Rule 404(b).

        Rule 404(a)(1) provides that an accused may present evidence of his own character
and that the prosecution may present character evidence to rebut that presented by the
accused. In addition, if an accused offers evidence under Rule 404(a)(2) regarding the
character of the victim, the prosecution may present evidence that the accused had the same
character trait as the victim. See Tenn. R. Evid. 404(a)(1). Thus, when a defendant raises
a self-defense claim and alleges that the victim was the first aggressor, the State may present
evidence that the victim had a peaceful character. See State v. Copenny, 888 S.W.2d 450,
455 (Tenn. Crim. App. 1993). Furthermore, when a defendant accuses the victim of being
aggressive or violent, for example, the State may introduce character evidence that the
defendant was also violent. See State v. Jason Allen Cobb, No. W2011-02437-CCA-R3-CD,
2013 WL 1223386, at *13 (Tenn. Crim. App. Mar. 26, 2013). However, the State may only

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introduce such character evidence in rebuttal, not in its case-in-chief. Copenny, 888 S.W.2d
at 455.

       It is clear that the trial court erred by allowing the State to present character evidence
during its case-in-chief; however, we must determine whether the error more probably than
not affected the verdict. See Tenn. R. App. P. 36(b). Here, appellant presented a self-
defense claim during his case-in-chief, contending that the victim was the first aggressor.
Consequently, Mr. Coffey’s testimony about his observations of appellant’s being a “fighting
man” when he was mad would have been admissible during the State’s rebuttal.
Furthermore, appellant presented evidence in his case-in-chief about his alcohol use and his
violent tendencies, and the evidence of appellant’s guilt was overwhelming. Thus, we
conclude that the error in the admission of the character evidence would have had no impact
on the jury’s decision. Appellant is without relief as to this issue. See Tenn. R. App. P.
36(b).

                                      3. Barbara Bowens

        Appellant contends that the trial court erred by allowing the testimony of Barbara
Bowens when he had only learned two days prior to trial that the State intended to call her
to testify. The State responds that appellant has not shown that the trial court abused its
discretion in allowing her testimony.

       Tennessee Code Annotated section 40-17-106 directs the district attorneys general to
endorse each indictment with the names of the witnesses the State intends to summon in the
matter. “The purpose of this statute is to prevent surprise to the defendant at trial and to
permit the defendant to prepare his or her defense to the State’s proof.” State v. Kendricks,
947 S.W.2d 875, 883 (Tenn. Crim. App. 1996). However, the statute is directory in nature,
not mandatory. See id. (citing State v. Harris, 839 S.W.2d 54, 69 (Tenn. 1992)). Thus, a
witness is not automatically disqualified from testifying if the State did not include her name
on the indictment. Id. To obtain relief, a defendant “must demonstrate prejudice, bad faith,
or undue advantage,” but the decision of whether to allow a witness to testify is left to the
sound discretion of the trial judge. Id. “‘In this context, it is not the prejudice which resulted
from the witness’ testimony but the prejudice which resulted from the defendant’s lack of
notice which is relevant to establish prejudice.’” Id. (quoting State v. Jesse Eugene Harris,
No. 88-188-III, 1989 WL 60393, *4 (Tenn. Crim. App. June 7, 1989)).

        In this case, the trial court ruled that appellant would not be prejudiced by allowing
Barbara Bowens to testify. It noted that the prosecutor had not known that she was a witness
until just before trial and that appellant’s counsel had the opportunity to interview her. On
appeal, appellant contends that he was prejudiced because Ms. Bowens was the only person

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whose testimony tended to indicate that appellant had a preconceived plan to kill the victim
and because the late notice did not allow the defense to obtain telephone records that might
have impeached her testimony. However, any prejudice from her testimony is not relevant
to establish prejudice from lack of notice. See Kendricks, 947 S.W.2d at 883. Furthermore,
appellant has not shown that he would have been able to obtain the telephone records had he
known about Ms. Bowens’s testimony earlier,1 and he has not shown that the State acted in
bad faith or had undue advantage because of the late notice. Therefore, we conclude that the
trial court did not abuse its discretion by allowing the State to present Ms. Bowens’s
testimony.

                                     4. Richard McElhaney

         Appellant contends that the trial court erred by not allowing him to present the
testimony of Richard McElhaney on grounds of relevancy.2 The State responds that the trial
court did not abuse its discretion because Mr. McElhaney’s testimony was irrelevant. At
trial, appellant’s counsel proffered that Mr. McElhaney would have testified that appellant’s
sister approached him with concerns about appellant’s safety. Counsel stated that the
purpose of the testimony was to bolster the testimony of appellant’s sister, who would be
testifying during appellant’s case-in-chief. The trial court ruled that it would allow counsel
to question appellant’s sister with regard to her concerns but that Mr. McElhaney’s testimony
was irrelevant. On appeal, appellant argues that Mr. McElhaney’s testimony “would make
it more probable that [appellant] acted in self-defense.” However, under the circumstances
of the case, we fail to see how Mr. McElhaney’s testimony would have supported appellant’s
defense when he could only testify about what appellant’s sister told him. Therefore, we
conclude that the trial court did not abuse its discretion by disallowing this testimony.
Appellant is without relief as to this issue.

                                       B. Jury Instructions

       On appeal, appellant challenges the trial court’s instructions to the jury regarding self-
defense. It is undisputed that when the trial court initially instructed the jury, the court
instructed the jury that appellant would have been acting in self-defense if he reasonably
feared death. The court failed to inform the jury that appellant could have properly acted in
self-defense if he reasonably feared serious bodily injury. Appellant contends that the trial


       1
          When the matter was raised in the motion for new trial hearing, the State contended that the
telephone records did not exist because of the length of time that had passed.
       2
           We glean from the record that Mr. McElhaney was a former police officer or law enforcement
agent in some capacity.

                                                 -8-
court did not cure its error in omitting fear of serious bodily injury from the instruction when
it subsequently told the jury that fear of serious bodily injury should also be considered in
addition to fear of death and when it partially corrected the written instructions.3 The State
responds that the trial court’s attempt to cure its instructions was sufficient. We agree with
the State.

       At trial, defendants have a ‘“constitutional right to a correct and complete charge of
the law.”’ State v. Wendy Nicole Garrison, E2011-00496-CCA-R3CD, 2012 WL 3079238,
at *6 (Tenn. Crim. App. July 27, 2012) (quoting State v. Teel, 793 S.W.2d 236, 249 (Tenn.
1990)). “A defendant has a right to have every issue of fact raised by the evidence and
material to his defense submitted to the jury upon proper instructions by the trial court.” State
v. Phipps, 883 S.W.2d 138, 149-50 (Tenn. Crim. App. 1994) (citing Casey v. State, 491
S.W.2d 90, 94 (Tenn. Crim. App. 1972)). Questions regarding the propriety of jury
instructions are mixed questions of law and fact; thus, our standard of review is de novo with
no presumption of correctness. State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001); State v.
Smiley, 38 S.W.3d 521, 524 (Tenn. 2001).

         On appeal, this court will only invalidate a jury instruction if, “when read as a whole,
it fails to fairly submit the legal issues or misleads the jury as to the applicable law.” State
v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995). “A challenge to a single jury
instruction must be judged in context of the entire jury charge.” State v. Bonam, 7 S.W.3d
87, 89 (Tenn. Crim. App. 1999). When reviewing a challenge to a particular jury instruction
on appeal, the key consideration is “‘whether the ailing instruction by itself so infected the
entire trial that the resulting conviction violates due process.’” State v. Odom, 336 S.W.3d
541, 568 (Tenn. 2011), cert. denied, 132 S. Ct. 397, 181 L. Ed. 2d 255 (U.S. 2011) (quoting
State v. Rimmer, 250 S.W.3d 12, 31 (Tenn. 2008)). A charge that results in prejudicial error
is one that fails to fairly submit the legal issues to the jury or misleads the jury about the
applicable law. Wendi Nicole Garrison, 2012 WL 3079238, at *6 (citing State v. Hodges,
944 S.W.2d 346, 352 (Tenn. 1997)).

       The self-defense statute, as it stood at the time of the offenses sub judice, stated that
a defendant “must have a reasonable belief that there is an imminent danger of death or
serious bodily injury” in order to be justified in using force against another person. Tenn.
Code Ann. § 39-11-611 (1997). In this case, the trial judge at first omitted the serious bodily
injury portion of the self-defense instruction, but when the omission was brought to the


        3
           According to the parties’ briefs, the judge corrected the written instructions by adding fear of
serious bodily injury in two locations but missed three others. The written instructions are not included in
the record; therefore, appellant has waived any argument with respect to deficiencies in the written
instructions. See State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993); Tenn. R. App. P. 24(b).

                                                    -9-
court’s attention, the judge instructed the jury that it should consider fear of serious bodily
injury in addition to death. We conclude that the trial court’s correction, along with the
remainder of the self-defense instruction, fairly submitted the legal issue without being
misleading. Therefore, appellant is without relief as to this issue.

                                      CONCLUSION

      Based on the record, the parties’ briefs, and the applicable law, we affirm the
judgments of the trial court.


                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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