State v. Parris

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

January 2007 Session

JERRAL D. PARRIS V. STATE OF TENNESSEE

Appeal as of Right from the Circuit Court for Warren County

No. F-9916 Larry B. Stanley, Jr., Judge

No. M2006-00148-CCA-R3-CD - Filed March 15, 2007

The Defendant, Jerral D. Parris, was indicted on two counts of extortion. A Warren County jury

convicted the Defendant of two counts of attempted extortion. On appeal, the Defendant alleges the

following: (1) attempted extortion is not a crime in Tennessee; (2) there was insufficient evidence

to convict the Defendant of attempted extortion; (3) the trial court improperly denied a motion for

a change of venue; (4) the trial court erred in refusing to allow the Defendant to test and inspect

audio tape evidence; (5) the trial court erred in not declaring a mistrial after the Defendant was

compared to a notorious murderer; (6) the trial court erred by failing to instruct the jury as to the

affirmative defense to extortion; and (7) the trial court erred in sentencing the Defendant. After a

thorough review of the record and applicable law, we determine that attempted extortion is a crime

in Tennessee and that there was sufficient evidence to convict the Defendant of this crime. His

conviction, however, must be reversed because the trial court improperly refused to allow a jury

instruction on an applicable affirmative defense. Thus, we reverse the judgment of the trial court

and remand for further proceedings consistent with this opinion.

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

Remanded

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and

THOMAS T. WOODALL, JJ., joined.

Patrick G. Frogge (on appeal), Nashville, Tennessee, and Charles P. Dupree (at trial), Chattanooga,

Tennessee, for the Appellant, Jerral D. Parris.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney

General; Dale Potter, District Attorney General; Thomas J. Miner, Assistant District Attorney

General, for the Appellee, State of Tennessee.

OPINION

I. Facts

This appeal arises from the Defendant’s conviction by a Warren County jury of two counts

of attempted extortion. The facts relevant to this appeal are as follows:

A. Motions

Prior to trial, the defense made a motion to change venue due to one of the victim’s position

in the community as the sitting General Sessions Judge in Warren County, where this case was tried.

The Defendant alleged that general members of the community would be frequently in front of Judge

Ross, and it would be difficult to voir dire concerning that issue without putting ideas into the

potential jurors’ heads. The motion was overruled.

Additionally, prior to trial, while the Defendant was proceeding pro se, the Defendant made

a motion to obtain a copy of the audio tape recordings that were to be used in the trial. That motion

was not ruled upon, but the Defendant did obtain copies of the tapes from the State. Following trial,

the Defendant moved to examine the original audio tapes stating that he suspected tampering. That

motion was denied by the trial court, who stated the motion should have been made before trial.

B. Guilt Phase

Of the Defendant’s two counts of extortion, one concerned his actions towards Tami P. Ross,

and the other concerned his actions towards Judge Larry G. Ross, Tami Ross’s husband.

The State’s first witness, Leeann Redmon, testified that she was Tami Ross’s legal assistant.

Her responsibilities included answering the phone, making appointments, and speaking with clients.

She became familiar with the Defendant through her job, and, on March 2, 2004, he brought a

package to Tami Ross’s office. The package contained papers, which Redmon examined. Upon

reading the papers, Redmon became concerned and called Tami Ross. Redmon left the documents

for her boss, who presumably picked up the documents when she came back into the office after

Redmon had gone home for the day. The next morning, Redmon returned to work and, throughout

the day, received three phone calls from the Defendant wishing to speak with Tami Ross. At some

point, Tami Ross returned the Defendant’s phone call, and the Defendant later visited that office.

At the office, the Defendant met with Tami and Judge Ross, and upon the conclusion of the meeting

the Defendant was arrested.

On cross-examination, Redmon stated that the Defendant was pushy in his phone calls the

day of his arrest. Additionally, Redmon described the layout of the office and admitted someone

could hear her telephone conversation if they were sitting on the sofa in the reception area.

Tami Ross testified she is an attorney, and she primarily works in the area of family law, and

her husband is the General Sessions Judge in the county. Irina Parris (“Parris”) came to Tami Ross

in order to file a complaint of divorce against the Defendant. Tami Ross aided her in so doing and

represented her in the divorce proceedings. The Defendant was initially represented by an attorney,

but that attorney was fired after the Defendant lost the initial “battle” for temporary custody. The

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Defendant proceeded pro se and apparently had a reasonable working knowledge of the general

course of proceedings because he filed motions, subpoenaed witnesses, and conducted discovery.

During these proceedings, Tami Ross learned that the Defendant was worth over one million dollars.

The divorce was finalized on February 6, 2004, and on February 17 the Defendant filed a motion to

alter or amend the judgment. Tami Ross discussed the motion with Parris, who stated she did not

want to change anything in the final property disposition. Tami Ross then advised the Defendant

that his only option was to appeal the ruling.

Tami Ross further testified that on March 1, 2004, she was in court. She received a call from

her secretary, Redmon, who told her that the Defendant had delivered a package. Tami Ross

instructed Redmon to leave the package on her desk so she could examine it when she returned.

Tami Ross recognized the Defendant’s signature and reviewed the documents. The letter made

settlement demands including property, reduction in child support, attorney’s fees, and other fees.

The second page of this letter began with the sentence, “I follow this request with incentives for its

early acceptance.”

After the letter, two photographs were included that were of a marquee. One side stated,

“Judge Jeff Stewart ignored suffering child - Whitney Duran says ‘Lesson Number 1.’” The other

side stated, “Lawsuit filed against Ross - ‘trauma upon children’ - time for change.” Following the

pictures was a map with cities circled. Those were the cities where the Grundy County judge would

run for election. Following the pictures and map were two complaints, one against Parris and one

against Tami Ross. Tami Ross discussed the situation with her husband, Judge Ross, because she

felt it threatened her livelihood. The next day, the Rosses determined they should contact law

enforcement, but they could not get in contact with the district attorney. The Defendant repeatedly

called and demanded that Tami Ross return his call. Because they could not get in touch with the

District Attorney, Tami Ross and her husband went to Radio Shack and bought a listening devise

to record the next phone conversation.

Tami Ross called the Defendant, and they discussed the documents that had been delivered

to Tami Ross.1 During the conversation, the Defendant repeated his requests and stated that he

would campaign against Judge Ross and file the two lawsuits if those requests were not fulfilled.

The Defendant also stated that he had the witnesses and documentation to backup his promises of

lawsuits and campaigning. After the conclusion of the phone conversation, Tami Ross stated she

felt as if the Defendant wanted her to sell out her client. The Rosses were then able to contact the

authorities, and members of the Tennessee Bureau of Investigation (“TBI”), the District Attorney’s

Office, and the Warren County Sheriff’s Office all came to Tami Ross’s law office. Subsequently,

another phone call was made, and the Defendant came to the office. The Defendant met with Judge

Ross, and when they walked outside the office the Defendant was arrested.

On cross-examination, Tami Ross testified that the Defendant had filed many motions at the

divorce trial, and he and his wife could not agree on many things. Tami Ross and the Defendant had

1

A tape of the conversation was entered into evidence and played for the jury.

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negotiated both the property division and the parenting plan. After the property division and the

parenting plan had been ruled on by the judge, the Defendant contacted Tami Ross in a persistent

attempt to adjust the settlements more to his liking.

Addressing the specific requests, Tami Ross admitted that she did not know that the piece

of land the Defendant demanded was landlocked, and Parris would be required to traverse his land

to get to it. Additionally, the fee that was owed to the Department of Labor was applied via lien to

a piece of property that the Defendant and Parris had split. The Defendant requested that Parris pay

her half of the fee if she was to get half of the land. In addressing the complaint addressed to her,

Tami Ross stated that the general complaint was that she somehow prevented the Defendant from

adequate visitation with his children, and, although she thought the complaint was frivolous, she did

not want to hire an attorney to defend her. However, her main concern was that the Defendant was

attempting to get her to persuade her client to do something she did not want to do. Tami Ross

admitted that filing the lawsuits against both her and her client were within the rights of the

Defendant. Tami Ross did not feel as though this was a pre-appeal negotiation; rather, she thought

it was extortion.

On re-direct examination, Tami Ross testified that a lawsuit filed against her could go on for

a year or more, and the marquee could stay up indefinitely. On re-cross examination, Tami Ross

admitted that everything the Defendant threatened to do was legal.

Judge Larry Ross testified he was aware of, but not involved in, the Parris’ divorce. The

package delivered to Tami Ross was actually addressed to him. He reviewed the contents and called

the Administrative Office of the Courts, who directed him to local police. Judge Ross attempted to

contact the District Attorney’s Office and the TBI, but to no avail. Feeling pressure from the

Defendant’s persistent calls, Judge Ross and his wife got a recorder from Radio Shack and recorded

the next phone conversation. A second phone call was made to the Defendant, which was also

taped.2 Judge Ross and the Defendant discussed where the two should meet, and the following

exchange took place:

Defendant: I don’t want to do anything illegal on or off the phone. I’m not a

criminal.

Judge Ross: Well I understand.

Defendant: I’ve never been. I never will be.

Judge Ross: What you’re asking me to do could make me lose my license and get

me disbarred.

Defendant: Don’t do anything.

2

A tape recording of this phone conversation was played to the jury.

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Judge Ross: Okay. So you don’t want me to - -

Defendant: I want you to talk with me. I want Tami to respond to my letter.

Judge Ross: Uh huh.

Defendant: I’m not asking anybody to do anything illegal.

Judge Ross: Well, as a public official and as a lawyer, if I get involved in

something I don’t have any business in, it could be for me.

Defendant: Don’t do it. Don’t do it.

The Defendant and Judge Ross then met together at Tami Ross’s law office.3 At that

meeting, Judge Ross and the Defendant came to an agreement that if Judge Ross would attempt to

persuade his wife to settle the case favorably the Defendant would not campaign against Judge Ross

and would not file any lawsuits against Tami Ross or Parris.

On cross-examination, Judge Ross testified that he viewed the situation as a threat that if he

did not pressure his wife to settle the Defendant’s case favorably then the Defendant would ruin his

political career. Judge Ross also stated that he was in fear of physical harm because the Defendant

once pointed his finger at Tami Ross and told her, “you are at risk.” However, Judge Ross admitted

the Defendant never stated exactly for what she was at risk. Judge Ross said he felt entitled to

believe that the Defendant was physically threatening his wife because:

[I]t’s based on prior cases I’ve worked. I worked a murder of an attorney right over

here across the street in a similar situation with a man very similar to this guy who

had a problem over a deed who walked in and shot him five times in his office one

morning. Very similar situation, very similar man. In fact, we talked about it and all

the officers agreed, this man is just like J.B. McCord.4 That’s what I was concerned

about. (footnote inserted)

After this statement, defense counsel moved for a mistrial due to Judge Ross comparing the

Defendant to J.B. McCord. The trial court declined to declare a mistrial, and instead it gave a

clarifying instruction.

3

Judge Ross was wired for sound recording, and a tape of the meeting was played for the jury.

4

J.B. McCord is an apparently infamous murderer in the McMinnville area. For general information concerning J.B.

McCord, see State v. J.B. McCord, No.03C01-9403-CR-00110, 1997 W L 732513 (Tenn. Crim. App., at Knoxville, Nov.

26, 1997), Tenn. R. App. P. 11 application denied (Tenn. Oct. 12, 1998).

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Judge Ross admitted that, at times, cases do settle prior to an appeal. Additionally, there is

nothing that Judge Ross could have personally done in this situation except pressure his wife; there

was nothing he could do legally in his position as a judge. However, Judge Ross drew an analogy,

describing the situation as if “someone call[ed] someone who is going to serve on the jury and sa[id]

I want a particular plea [in] that case and unless you do it I’m going to make your husband lose his

job[,] or I’m going to call and put your husband’s name in the paper.”

The Defendant testified he was generally in the construction business. Although he began

his divorce proceedings with an attorney, he represented himself the majority of the time. The

Defendant described his interaction with the judge on his case, Judge Stewart, saying, “I don’t think

I was his favorite person.” Additionally, the Defendant repeatedly asked Judge Stewart to prevent

Parris and Tami Ross from discussing the divorce in front of his children. Judge Stewart never acted

on those requests. Once the court ruled on the Defendant’s case, the Defendant prepared an appeal,

but, due to the cost of prosecuting an appeal, he contacted Tami Ross in an attempt to mediate and

settle the case. Tami Ross told him to come to her office, which the Defendant did. While there,

the situation apparently became heated, and the Defendant, from about five feet away, told Tami

Ross she was “putting herself at risk” for, in his mind, a lawsuit. She stated she would call the

police, and the Defendant responded she could call the National Guard if she wanted to, and he left

his card for her. At this point, the Defendant testified, he felt he had no other choice but to exercise

his First Amendment rights to publicize his discontent with the judicial system via the marquee.

Overall, the Defendant simply wanted to sit down and work out a reasonable compromise.

On cross-examination, the Defendant testified he had obtained approximately fifteen to

twenty federal government contracts for construction work. The Defendant stated he was essentially

broke due to his mortgage and child support. However, the Defendant had trouble explaining exactly

what he was worth. The Defendant admitted he wished to settle the case prior to filing an appeal.

After the completion of proof, the judge instructed the jury on extortion and attempted

extortion. In addressing the defense request that the jury be instructed on the affirmative defense of

restitution, the trial court stated, “I don’t think the evidence in this case preponderates in favor of

finding that they met either one of those burdens of why he was claiming restitution or whatever it

was on a legitimate basis.” The jury returned with verdicts and found the Defendant not guilty of

the two counts of extortion but guilty of the two lesser-included counts of attempted extortion.

B. Sentencing Phase

At the sentencing hearing, Tami Ross testified that she disputed the Defendant’s assertion

that he was a non-violent man and no violence was involved in this case. The Defendant once came

to her office and told her she was at risk. She called the police because she felt threatened.

Additionally, the Defendant was argumentative when he would call on the telephone. At that point,

Tami Ross sent the Defendant a certified letter telling him not to call or come by her office, and any

correspondence should be mailed or faxed. Tami Ross also felt threatened because she knew that

Parris, the Defendant’s ex-wife, had a restraining order placed on him.

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Additionally, the Defendant alleged he did not have a questionable business reputation, and

Tami Ross disputed this stating she knew of a fine against the Defendant by the Department of Labor

for employing minors at inappropriate hours. Additionally, it appeared that the Defendant had been

investigated by the Department of Labor three times from 1980 to 1987 for failure to pay back

wages. The Defendant further published articles in his newspaper, The Front Page, which referenced

Tami Ross and Judge Stewart’s actions in relation to the divorce.

On cross-examination, Tami Ross also admitted she never complained to the judge in the

divorce case about the Defendant’s actions at her office. Tami Ross also conceded she had no

firsthand knowledge of the Defendant’s business reputation in Grundy County. On re-direct

examination, Tami Ross testified that the Defendant’s business reputation in Grundy County was

not good. On re-cross examination, Tami Ross admitted that, in the divorce proceedings, she

believed that the Defendant was successful and would continue to be successful.

Donna Dunlap testified that she prepared the pre-sentence report for this case. She had some

trouble getting in touch with the Defendant, frequently calling his office and only reaching his

secretary. While she normally met with individuals face to face, she merely spoke with the

Defendant over the phone in this case. Dunlap noted that the Defendant did have a misdemeanor

assault conviction in 1981.

On argument, the defense requested judicial diversion so the Defendant’s business,

construction through government contracts, would not be hampered. The State argued this was a

crime against the entire judicial system. After hearing arguments, the Court found the enhancing

factors set forth by the State were minor and sentenced the Defendant to one year on each count, to

run concurrently. In determining whether to grant probation or judicial diversion, the trial court

considered the fact that the Defendant threatened the victims physical harm when he said, “You are

at risk.” Additionally, attempting to get a lawyer to sell out a client by offering money or a job was

“abhorrent.” It found confinement was needed to provide a suitable deterrent to others. Judicial

diversion, as a result, would not be appropriate. The Defendant was sentenced to serve 210 days in

jail with the remainder of his sentence to be served on probation.

II. Analysis

The Defendant has alleged the following errors: (1) attempted extortion is not a crime in

Tennessee; (2) there was insufficient evidence to convict the Defendant of attempted extortion; (3)

the trial court improperly denied a motion for a change of venue; (4) the trial court erred in refusing

to allow the Defendant to test and inspect audio tape evidence; (5) the trial court erred in not

declaring a mistrial after the Defendant was compared to a notorious murderer; (6) the trial court

erred in not allowing a “just compensation” jury instruction to be given; and (7) the trial court erred

in sentencing the Defendant.

A. Attempted Extortion

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In the Defendant’s first assignment of error, he alleges he cannot be convicted of attempted

extortion due to the fact that attempted extortion is not a crime in Tennessee. This question appears

to be an issue of first impression in Tennessee. Because this is purely a question of law, our review

is de novo. Whaley v. Perkins, 197 S.W.3d 665, 670 (Tenn. 2006). Extortion in Tennessee is

statutorily defined as follows: “A person commits extortion who uses coercion upon another person

with the intent to: (1) obtain property, services, any advantage or immunity; or (2) restrict unlawfully

another’s freedom of action.” T.C.A. § 39-14-112 (2006). The Sentencing Commission Comments

provide the following additional guidance: “Because the harm is the use of coercion for the above

purposes, the offense is committed even though the offender’s efforts are unsuccessful and, for

example, do not result in obtaining any property.” Id. at Sentencing Comm’n Cmts. We observe

that “coercion” is defined in the Code as:

[A] threat, however communicated, to:

(A) Commit any offense;

(B) Wrongfully accuse any person of an offense;

(C) Expose any person to hatred, contempt or ridicule;

(D) Harm the credit or business repute of any person; or

(E) Take or withhold action as a public servant or cause a public servant to

take or withhold action

T.C.A. § 39-11-106(3) (2006). Tennessee Code Annotated section 39-12-101(a) (2006) further

states:

A person commits criminal attempt who, acting with the kind of culpability

otherwise required for the offense:

(1) Intentionally engages in action or causes a result that would

constitute an offense if the circumstances surrounding the conduct

were as the person believes them to be;

(2) Acts with intent to cause a result that is an element of the offense,

and believes the conduct will cause the result without further conduct

on the person’s part; or

(3) Acts with intent to complete a course of action or cause a result

that would constitute the offense, under the circumstances

surrounding the conduct as the person believes them to be, and the

conduct constitutes a substantial step towards the commission of the

offense.5

The Defendant alleges that the statute and sentencing commission comments preclude any

crime of attempted extortion because, even if the extorter is unsuccessful in obtaining the goal of his

5

See State v. Elder, 982 S.W .2d 871, 875 n.2 (Tenn. Crim. App. 1998) (outlining examples of each criminal attempt

subsection).

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scheme, he is still guilty of extortion. The Defendant has presented two examples of extortion

statutes from other states, and he notes that Florida, with a statute similar to our own, has determined

there is no attempted extortion. See Fla. Stat. § 836.05 (1977); Achin v. State, 436 So.2d 30, 30-31

(Fla. 1982). California, on the other hand, requires actual obtainment of property for there to be a

completed extortion. See Cal. Pen. Code § 518 (2004); People v. Sales, 10 Cal. Rptr. 3d 527, 532

(Cal. Ct. App. 2004). California has determined that, if eventual possession of the property is

required to complete the extortion, then one could attempt to extort by making an ineffectual attempt

to possess the property with the specific intent to commit extortion. Sales, 116 Cal. App. 4th at 749.

The Defendant likens attempted extortion to attempted resisting arrest. One is guilty of

resisting arrest if he merely attempts to resist, as the actual completion of the resister’s goal, to free

himself from the officer, is irrelevant. Thus, one cannot attempt to attempt to resist arrest. See State

v. William Harlon Adams, No.M2003-02952-CCA-R3-CD, 2005 WL 1353301, at *9-10 (Tenn.

Crim. App., at Nashville, June 8, 2005), perm. app. denied (Tenn. Dec. 5, 2005). In our view, the

analogy is not completely congruous. In determining whether attempted extortion is or is not a

crime, it is useful to consider whether there is a hypothetical factual scenario wherein one could

commit attempted extortion.

In examining the definition of extortion, we see that first and foremost one must “use

coercion.” Coercion, being defined as “a threat, however communicated . . . ,” provides us with a

situation where one could attempt extortion if he makes a threat, but the threat is not communicated

to the extortee. For example, an extorter writes a letter to the extortee and leaves the letter on the

extortee’s desk one afternoon. That night, the building burns to the ground, and the threat, although

the extorter attempted to communicate it, goes uncommunicated. Alternatively, an extorter leaves

a threat on the extortee’s voice-mail. Before the extortee can check his messages and receive the

threat, he dies. The uncommunicated threat constitutes an attempt to extort. Once the threat is

actually communicated, the crime becomes extortion, irrespective of whether or not the extorter

accomplishes his goal. See § 39-14-112, Sentencing Comm’n Cmts. Thus, we conclude that the

crime of attempted extortion exists in Tennessee because the crime of extortion does not include

every attempt to complete the crime. Having so concluded, we turn to decide whether the evidence

in this case was sufficient to support the Defendant’s convictions.

B. Sufficiency of the Evidence

When an accused challenges the sufficiency of the evidence, this Court’s standard of review

is whether, after considering the evidence in the light most favorable to the State, “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 (1979); see Tenn. R. App. P. 13(e); State v. Goodwin, 143 S.W.3d

771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies

to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of both

direct and circumstantial evidence. State v. Pendergrass,13 S.W.3d 389, 392-93 (Tenn. Crim. App.

1999).

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In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate

the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this

Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,

995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). “Questions

concerning the credibility of the witnesses, the weight and value of the evidence, as well as all

factual issues raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d

651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at 859. “A guilty verdict by the jury, approved by the

trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor

of the theory of the State.” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493

S.W.2d 474, 476 (Tenn. 1973). The Tennessee Supreme Court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the jury see

the witnesses face to face, hear their testimony and observe their demeanor on the

stand. Thus the trial judge and jury are the primary instrumentality of justice to

determine the weight and credibility to be given to the testimony of witnesses. In the

trial forum alone is there human atmosphere and the totality of the evidence cannot

be reproduced with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523 (Tenn.

1963)). This Court must afford the State of Tennessee the strongest legitimate view of the evidence

contained in the record, as well as all reasonable inferences which may be drawn from the evidence.

Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because

a verdict of guilt against a defendant removes the presumption of innocence and raises a presumption

of guilt, the convicted criminal defendant bears the burden of showing that the evidence was legally

insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

As noted above, the Defendant could be found guilty of attempted extortion under the

criminal attempt statute if he, with the requisite culpability, acted with the intent to cause a result that

was an element of the crime extortion. See § 39-12-101(a)(2). More specifically, if the jury

concluded that the Defendant acted in a coercive manner to Tami Ross and Judge Ross, he could be

found guilty of attempted extortion if he also had the intent to “obtain property, services, any

advantage or immunity.”6 T.C.A. § 39-14-112 (2006). While it is clear that the evidence satisfies

the intent portion of the statute — the Defendant readily admitted he was attemping to obtain a more

satisfactory divorce settlement — whether he acted coercively towards Tami Ross and Judge Ross

is less clear. Again, “coercion” is defined as:

[A] threat, however communicated to:

(A) Commit any offense;

(B) Wrongfully accuse any person of an offense;

6

W e also note that section (c) states, “It is no defense to prosecution for criminal attempt that the offense attempted was

actually committed.” § 39-12-101(c). Thus, it would be no defense to attempted extortion for the Defendant to claim

the crime of extortion was actually committed.

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(C) Expose any person to hatred, contempt or ridicule;

(D) Harm the credit or business repute of any person; or

(E) Take or withhold action as a public servant or cause a public servant to

take or withhold action

T.C.A. § 39-11-106(3).

As to Tami Ross, the evidence at trial viewed in the light most favorable to the state showed

that the Defendant sent a package to Tami Ross. The letter, actually addressed to Judge Ross, began

with, “I am addressing this correspondence to you because I feel you should have some input into

decisions that affect your and your wife’s future professional and economic well being.” A list of

demands connected to a divorce which Tami Ross was handling for the Defendant’s ex-wife

followed, and the letter concluded with, “I follow this request with incentives for its early

acceptance.” Those incentives included a draft of a complaint against Tami Ross, a draft of a

complaint against the Defendant’s ex-wife, and a photo of a marquee purporting to be used in a

campaign against Judge Stewart, the judge who handled the Defendant’s divorce, and Judge Ross.

The complaint against Tami Ross charged intentional infliction of emotional distress due to

her failing to advise the Defendant of critical visitation times and dates. As a result of these failures,

the Defendant’s children “waited and waited, with straining eyes, for your [Defendant] to appear,

but he was not allowed to appear because of the above alleged failure of [Tami Ross] to inform him

of the scheduled time and place.” As a result, the Defendant’s children were “led to believe that the

word of their Father would not be kept, that their Father did not care for or love them, and that they

should not trust their Father.” As a result of the emotional distress which ensued, the Defendant

prayed for $500,000 in relief.

We conclude a jury could have determined that this complaint exposed Tami Ross to “hatred,

contempt, or ridicule” by alleging she improperly prevented a father from seeing his children.

Additionally, a jury could have rationally determined it was calculated to harm the business repute

of Tami Ross by potentially discouraging persons from hiring her as their lawyer. Thus, there is

sufficient evidence for a jury to determine that the Defendant acted by delivering the package, which

was intended to coerce Tami Ross to the advantage of the Defendant.

As to Judge Ross, the jury heard evidence that the Defendant stated he would campaign

against Judge Ross in the upcoming election if the divorce was not settled to his satisfaction. The

purported marquee advertising against Judge Ross is less than conclusive as it merely states,

“Lawsuit filed against [Tami] Ross - ‘Trauma Upon Children’ - Time For Change.”7 However, the

letter sent by the Defendant to Judge Ross, listed in its “incentives” an enclosed advertising format

7

The picture of the marquee that was delivered to Tami Ross was entered into evidence. The picture appears to be a

photograph of a marquee with the noted phrasing on it. However, what appears to this Court to be “Tami” is in very

small lettering compared to the rest of the statement. There was a dispute at trial at to what exactly the marquee said,

but we observe four distinct letters, which clearly precludes either “Larry” or “Judge.” Further, “Tami” is the logical

Ross here due to the previously mentioned lawsuit, and the wording of this particular marquee.

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for “Judge Ross.” While campaigning against Judge Ross would not be considered a threat to

commit an offense, or wrongfully accuse Judge Ross of an offense, the jury could have concluded

that it may bring “hatred, contempt, or ridicule” upon Judge Ross, harm his business repute, or cause

Judge Ross, a public servant, to take action in persuading his wife to do something. While we do

not know the specifics of the contents of the campaign against Judge Ross, the jury could have

reasonably concluded that it would be similar to that which alleged Judge Stewart ignored a suffering

child. That would suffice to potentially bring “hatred, contempt, or ridicule” on Judge Ross. Thus,

there was sufficient evidence to convict the Defendant of attempted extortion as to Judge Ross.

The Defendant encourages us to adopt a reading of the “coercion” definition to only include

unlawful or wrongful acts. We decline this invitation. While campaigning and filing a lawsuit in

and of themselves are not illegal or wrongful, they may still be the basis for a charge of extortion.

This Court has stated with regards to another generally legal act, picketing, “when the objectives of

the picketing changes from legitimate labor ends to personal payoffs, then the actions become

extortionate.” Moore v. State, 519 S.W.2d 604, 608 (Tenn. Crim. App. 1974) (quoting United States

v. Emmons, 410 U.S.396, 406 n.16 (1972)). The Defendant argues that, if his limiting definition

were not adopted, one could be convicted of extortion for merely threatening to expose a crooked

merchant if that person’s money were not refunded. We feel this type of situation is adequately

covered by the affirmative defense to extortion: a reasonable claim for “(1) Appropriate restitution

or appropriate indemnification for harm done; or (2) Appropriate compensation for property or

lawful services.” T.C.A. § 39-14-112(b) (2006). The Defendant is not entitled to relief on this issue.

C. Change of Venue

The Defendant’s next allegation of error is that the trial court erred when it declined to

change trial venue. The Defendant admits the change of venue request was not due to pre-trial

publicity but merely the profession of one of the victims. The Defendant alleges that Judge Ross’s

position as a sitting Warren County General Sessions Judge, with the potential power to sit in

judgment over jurors in the future, precluded the Defendant from getting a fair trial. See Tenn. R.

Crim. P. 21. A trial court’s decision to deny a motion to change venue can only be reversed by this

court upon a clear showing of abuse of discretion. State v. Davidson, 121 S.W.3d 600, 611-12

(Tenn. 2003); State v. Dellinger, 79 S.W.3d 458, 481 (Tenn. 2002). When determining whether a

motion to change venue should be granted, a trial court should look to a number of factors, some

being concerned with pre-trial publicity. See State v. Hoover, 594 S.W.2d 743, 746 (Tenn. Crim.

App. 1979) (listing seventeen factors, six of which mention “publicity”).

The Defendant has not made any specific allegations with regards to the factors listed in

Hoover. Instead, the Defendant essentially alleges that anytime a sitting judge is a victim, the trial

must be moved because there is the potential that the judge will someday sit in judgment over one

or more jurors. We believe this rule would be too restrictive and not in the spirit of Hoover. Judges

are to use various factors to determine if a change of venue is necessary for a fair trial. We conclude

that the Defendant has not shown a clear abuse of discretion on the part of the trial court, in part,

because he has not established that “the jurors who actually sat were biased and/or prejudiced.”

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Davidson, 121 S.W.3d at 612. The Defendant was able to voir dire the jurors, and, although they

may have known Judge Ross, there is no indication they were biased or prejudiced. The Defendant

is not entitled to relief on this issue.

D. Inspection and Testing

The Defendant alleges that the trial court erred in not allowing the Defendant to inspect and

test the audio tape recordings.8 The Defendant alleges that he made a motion before trial to inspect

the audio recordings, and this motion was never ruled upon. During trial, the Defendant did not

object to the playing of the audio tapes, but he merely objected to the transcripts that were given to

the jurors. After trial, the Defendant “renewed” his request to inspect the audio tapes for tampering.

This request was denied.

Tennessee Rule of Criminal Procedure 16(a)(1)(F) states, “Upon a defendant’s request, the

state shall permit the defendant to inspect and copy or photograph . . . tangible objects . . . if the item

is within the state’s possession, custody or control” and either the item is material to the defense or

intended to be used in the State’s case-in chief. The precise wording of the Defendant’s pre-trial

motion was, “Now comes defendant, Jerral Parris, and request[s]: (1) A copy of any and all audio

and video recordings developed by Marty McGinnis at the Tami Ross offices during 2004.” In his

pre-trial motion, the Defendant did not ask to inspect the tapes, he merely asked for a copy of the

tapes. At trial, the Defendant admits that no objection was made regarding the tapes themselves.

Finally, after trial, the Defendant asked to inspect the original tapes for possible tampering. But, in

the discussion with the trial court, the Defendant admitted he was given a copy of the tapes —

precisely what he asked for. Because the Defendant did not raise this issue until after trial, the issue

is waived. Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be

granted to a party responsible for an error or who failed to take whatever action was reasonably

available to prevent or nullify the harmful effect of an error.”). The Defendant is not entitled to relief

on this issue.

E. Mistrial

The Defendant argues error on the part of the trial court in not declaring a mistrial after a

State’s witness, Judge Ross, compared the Defendant to J.B. McCord. Specifically, defense counsel

questioned Judge Ross about why he believed his wife, Tami Ross, was in physical danger:

Defense Counsel: Was there ever any threat of physical harm?

Judge Ross: Yes, there was to my wife.

Defense Counsel: Was there any threat of physical harm to her?

8

The State declined to address this issue in its brief.

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Judge Ross: Yes, there was.

Defense Counsel: Where was that, please?

Judge Ross: In her office.

Defense Counsel: When was that?

Judge Ross: I guess a month or so before he came in her office [he] pointed his

finger at her, [and] told her she was at risk. She told him to leave the office. He

refused. She had to call the police and[,] before he left[,] he managed to give her a

card and said, [“]here give [this] to the police[,”] and she wrote him a letter and said[,

“]don’t you ever come in my office again[,”] and he never came in her office again

until he delivered this [package] to me, sir. Yes, I was concerned about physical

violence and threats from this man.

....

Defense Counsel: And you were assuming, of course, that means physical harm and

I think you’re entitled to that?

Judge Ross: I certainly am entitled to do that because I think that’s exactly what he

meant.

Defense Counsel: And you think that’s exactly what he meant?

Judge Ross: Yes.

Defense Counsel: And that’s based on what?

Judge Ross: Well, it’s based on prior cases I’ve worked. I worked a murder of an

attorney right over here across the street in a very similar situation with a man very

similar to this guy who had a problem over a deed who walked in and shot him five

times in this office on a morning. Very similar situation, very similar man. In fact,

we talked about it and all the officers agreed, this man is just like J.B. McCord.

That’s what I was concerned about. I was concerned about this but see this was a

crime when it started he didn’t have to do anything else. After that I was concerned

about - - (emphasis added)

Defense counsel then stopped his cross-examination and moved for a mistrial claiming the

Defendant could not receive a fair trial after he was gratuitously compared to a notorious murderer.

The State argued that the witness was merely responding to the question about why he felt his wife

was in danger. The trial court agreed, stating, “I think you did ask him why he felt that way and he

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told you.” Although the trial court refused to declare a mistrial, it instructed the jury not to consider

the testimony comparing the Defendant to J.B. McCord.

The decision to grant a mistrial is within the sound discretion of the trial court. State v.

Robinson, 146 S.W.3d 469, 494 (Tenn. 2004). A mistrial should be declared “upon a showing of

manifest necessity” and should be granted when “the trial cannot continue, or a miscarriage of justice

would result if it did.” Id. (citing State v. Saylor, 117 S.W.3d 239, 250-51 (Tenn. 2003) and State

v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000)). In order to reverse, we must find a clear

showing of abuse of discretion. Id. (citing State v. Reid, 91 S.W.3d 247, 279 (Tenn. 2002)).

In the present case, the testimony comparing the Defendant to a murderer was in response

to a question from defense counsel. The witness was asked why he felt his wife was in danger, and

he responded that he knew of other dangerous men to whom he felt the Defendant was similar. We

note that the comment was in response to a defense question, and a prompt curative instruction was

given. We presume juries follow curative instructions. Reid, 91 S.W.3d at 279; State v. Stout, 46

S.W.3d 689, 715 (Tenn. 2001). Thus, we conclude the Defendant has not shown by clear evidence

an abuse of discretion on the part of the trial court, and he is therefore not entitled to relief on this

issue.

F. Jury Instructions

Next, the Defendant alleges error on the part of the trial court claiming the trial court failed

to properly instruct the jury. The Defendant requested that the jury be instructed on the affirmative

defense for extortion found in Tennessee Code Annotated section 39-14-112(b). It states, “It is an

affirmative defense to prosecution for extortion that the person reasonably claimed: (1) Appropriate

restitution or appropriate indemnification for harm done; or (2) Appropriate compensation for

property or lawful services.” Id. When the Defendant asked the trial court to instruct the jury on the

affirmative defense, the court stated, “I’m going to note your objection but I don’t think the evidence

in this case preponderates in favor of finding that they met either one of those burdens of why he was

claiming restitution or what ever it was on a legitimate basis. Note your objection.”

“The general principle in criminal cases is that the trial judge has a duty to give a complete

charge of the law applicable to the facts of the case, and the 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 judge.” State v. Frank Peake, III, No. M2005-01674-CCA-R3-CD, 2006 WL

929296, at *8 (Tenn. Crim. App., at Nashville, Apr. 11, 2006) (citing Poe v. State, 370 S.W.2d 488,

489 (1963)), perm. app. denied (Tenn. Aug. 21, 2006). It is reversible error for a trial court to fail

to instruct the jury on all the applicable issues, including the theory of the defense. See Poe, 370

S.W.2d at 489-90 (holding that failure to give instruction on an alibi defense was reversible error);

Davis v. State, 64 Tenn. 612, 612 (1875) (same). For a trial court to instruct a jury on an affirmative

defense the Defendant need only “fairly raise” the issue and provide notice of the affirmative

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defense. T.C.A. § 39-11-204(d) (2006).9

It appears that the trial court misapplied the burden of proof by stating that the Defendant

needed to prove his affirmative defense by a preponderance of the evidence for an instruction on the

defense to be submitted to the jury. There are two burdens at issue. First, the Defendant needed to

“fairly raise” the issue. Once “fairly raised,” the jury should be instructed on the affirmative defense.

Then, the jury could acquit the Defendant if the jury determined that the affirmative defense was

proven by a preponderance of the evidence. Id. at (e); State v. Hood, 868 S.W.2d 744, 748 (Tenn.

Crim. App. 1993).

The facts in this case lead us to conclude the affirmative defense was “fairly raised,” and the

jury should have been instructed on the issue. Here, the applicable question is, did the Defendant

present evidence that fairly raises the question of whether he had a reasonable claim of appropriate

restitution for harm done. The record shows that this dispute arose out of a divorce that turned out

unfavorably for the Defendant. The Defendant felt he was wronged by both the divorce court judge

and his ex-wife’s lawyer, Tami Ross. The Defendant inquired into the possibility of a more

favorable settlement, to which Tami Ross responded that there was no incentive for her client to

settle. She told the Defendant his only option was to appeal the divorce. Then, the Defendant

delivered the package with his “incentives.” We conclude this evidence “fairly raises” the

proposition that the Defendant reasonably believed that there was “harm done” to him, and his

demands were “appropriate restitution.” This issue should have been submitted to the jury for them

to determine if the Defendant proved by a preponderance of the evidence that his actions were a

result of a reasonable claim for appropriate restitution for harm done. It was reversible error not to

instruct the jury on the affirmative defense. Notwithstanding the determination that this case should

be reversed and remanded because of the forgoing error, we will address the remainder of the

Defendant’s claims so as not to pretermit any issue.

G. Sentencing

The Defendant next contends that his sentence of 210 days in the county jail violates the

Tennessee Code Annotated section 40-35-501(a)(3) proscription against serving more than thirty

percent of his effective one-year sentence. The State concedes this error. We agree this is error

based on the statute requiring the Defendant’s sentence to be suspended upon him reaching his

release eligibility date prior to him serving 210 days. T.C.A. § 40-35-501(a)(3) (2006). Because of

this error, we conclude the case would have to be remanded for the re-sentencing of the Defendant,

even if a new trial was not required.

9

The statute also requires the Defendant to give notice of the affirmative defense no later than ten days before trial. §

39-11-204(c). The record shows the Defendant gave this notice on April 22, 2005, and the trial began on October 7,

2005.

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III. Conclusion

In accordance with the foregoing reasoning and authorities, we reverse the judgments of the

trial court and remand the case for a new trial.

___________________________________

ROBERT W. WEDEMEYER, JUDGE

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