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November 8, 1996


HAMILTON COUNTY. HON. STEPHEN M. BEVIL, JUDGE. First degree murder; Possession of prohibited weapon.

Permission to Appeal Granted June 2, 1997,

John K. Byers, Senior Judge, Concur: (See separate Concurring opinion) John H. Peay, Judge, (See separate Concurring in part Dissenting in part opinion) Jerry L. Smith, Judge.

The opinion of the court was delivered by: Byers

The defendant was tried by jury on September 20-23, 1994 and found guilty of one count of first degree murder and one count of unlawful possession of a machine gun.

In this appeal, the defendant presents the following issues for our review:

(1) Whether the trial court erred in allowing testimony of the deceased given in an unrelated matter in juvenile court and on police 911 tapes;

(2) Whether the defense trial attorney provided constitutionally ineffective assistance;

(3) Whether the trial court erred in allowing evidence of a prior conviction without proper notice of the State's intention to use the evidence for impeachment; and

(4) Whether the trial court erred in refusing to instruct the jury on voluntary manslaughter and other lesser charges.

Because the trial court failed to charge the lesser offense of voluntary manslaughter, the judgment must be reversed. A new trial is ordered.

At approximately 4:40 a.m. on July 24, 1993, Delany Thomas was found dead of a gunshot wound to his head as he sat in the driver's seat of his automobile in the alley adjoining his mother's home. The car's engine was still running.

Prior to discovering Thomas' body, the Chattanooga Police Department had received several telephone calls that morning concerning Thomas and defendant.

At 3:37 a.m., Thomas phoned 911 and reported that he ". . . had a conflict for my [unintelligible] momma's brother-in-law, he just shot at my car. He shot it up. There's some bullet holes in it right now. If they don't come, I'm gonna get him."

At 4:37 a.m., defendant phoned 911 and reported ". . . I believe I shot somebody . . . I followed him and he laying in the car . . . Get the police out here right now. The man might be dying, he might be dead, I don't know. He around the corner from me. He in a Cadillac . . . I got the gun in the house now . . ."

A police officer arrived and found defendant at his home. She went with defendant and defendant's brother to a nearby alley where she found Thomas dead in his car. Defendant's brother went into defendant's house, brought out a Norinco AK-47 semi-automatic rifle and gave it to the officer. Fourteen shells of bullets from the rifle were found in Thomas' car and on the street nearby.

Defendant gave a statement to police indicating that Thomas had fired gunshots at his home and that in response, he had chased Thomas and fired shots to draw Thomas away from his home. Defendant stated he only fired one shot toward Thomas, and then only because Thomas pointed a handgun at him from the auto.

The Hamilton County medical examiner testified that the victim was not facing the shooter when he was shot and that had the victim been holding a gun, the gun should have been in his hand or nearby in the auto. No such gun was found.

A neighbor testified that she heard shots and then saw a man drive up in a small car, get out, approach the alley, return to his car and leave. Soon afterward, she saw two men walk down the street, reach behind a wall, retrieve a gun while looking furtively around, and walk off.

Evidence was introduced at trial that Thomas was, at the time of his death, living with a woman whose daughter, Glorissa Buchanan, had been in a knife fight with defendant's sister, Valencia Williams. The week before Thomas was murdered, Glorissa Buchanan had been found delinquent at a juvenile hearing and sent to a juvenile detention facility.

Defendant first raises the issue of whether the trial court erred in allowing testimony about Thomas' statement at Glorissa Buchanan's juvenile hearing. The following testimony is challenged:

Q: What did your boyfriend, Delaney Thomas, the victim in this case, what did he say about what Willie Williams did with respect to your daughter in court, what did he testify to?

A: He said when my daughter stabbed Valencia, Willie hit her with a rifle here and here.

Defendant says this testimony was inadmissible hearsay.

Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Rule 801, Tenn. R. Evid.

When the declarant is unable to be present or to testify because of his death, his hearsay statement is admissible as evidence of the truth of the matter asserted in a limited number of situations. Rule 804(b)(1 - 4), Tenn. R. Evid.

Defendant argues that Thomas' statement at the juvenile court hearing was inadmissible hearsay because it was admitted for the truth of the matter asserted and does not meet the test of the exception in Rule 804(b)(1) dealing with former testimony. Rule 804(b)(1) allows hearsay of a deceased declarant when the declarations are in the form of:

Defendant argues that since he was not present at the juvenile hearing and did not have an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination, the testimony is inadmissible under Rule 804(b)(1).

We agree with defendant that the evidence is hearsay and does not fall within any of the statutory exceptions to the hearsay rule. The rule is clear that former testimony is only admissible when the party against whom the testimony is now offered had both an opportunity and a similar motive to develop the testimony by direct, cross, or redirect examination. Tenn. R. Evid. Rule 804(b). Since defendant was not at the hearing, the testimony is inadmissible. At retrial, if the defendant presents a witness who was actually present at the altercation between the two girls and has knowledge of defendant's intervention, such testimony about the defendant's allegedly "hitting her with a rifle here and here" as the cause of "bad blood" between the victim and defendant would be an admissible prior bad act to show motive. However, as presented for this appeal, the evidence is inadmissible and therefore it was error for the trial Judge to allow it.

Defendant next contends that the trial Judge erred in permitting the introduction into evidence of a police 911 tape on the day of the murder in which Thomas complained that defendant was shooting at his house. Defendant argues this tape was inadmissible because it was prejudicial and not relevant.

The State argues that the 911 tape is admissible as a public record (Tenn. R. Evid. Rule 803[8]), because it is an excited utterance (Tenn. R. Evid. Rule 803[2]), and because, although prejudicial, it was relevant and necessary to establish the sequence of events and who called the police at what times.

The argument that a police 911 call is admissible as a public record is unpersuasive because Rule 803(8) specifically excludes "matters observed by police officers and other law enforcement personnel." However, we find the State's other arguments to be persuasive. The transcript of Thomas' 911 call, as quoted infra, indeed demonstrates it was an excited utterance, admissible under 803(2). Furthermore, the jury was instructed not to consider the tape for the truth of the matter asserted, but to establish the time of ...

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