State of Tennessee v. Jessie Jones

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 10, 2002

STATE OF TENNESSEE v. JESSIE JONES

Appeal from the Criminal Court for Shelby County

No. 00-08290 W. Fred Alxey, Judge

No. W2001-02774-CCA-R3-CD - Filed February 4, 2003

The defendant, Jessie Jones, appeals as of right his conviction by a Shelby County jury of attempted

second degree murder, a Class B felony. The trial court sentenced him as a Range II, multiple

offender to twenty years in the Department of Correction. The defendant contends (1) that the trial

court should have instructed the jury on self-defense and (2) that attempted second degree murder

is not an offense in Tennessee. Although we hold that attempted second degree murder is an offense,

we reverse the conviction because the failure to instruct on self-defense is plain error. We remand

the case to the trial court for a new trial.

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

Case Remanded

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID G. HAYES and JOE G.

RILEY, JJ., joined.

A C Wharton, Jr., District Public Defender; W. Mark Ward, Assistant Public Defender (on appeal);

and Timothy J. Albers, Assistant Public Defender (at trial), for the appellant, Jessie Jones.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;

William L. Gibbons, District Attorney General; and William D. Bond, III, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

This case arises out of the May 11, 2000 shooting of Johnny Graham in his car outside of

Brother’s Barbeque in Memphis, Tennessee. The victim testified that the defendant and the

defendant’s friends would “hang out” in front of the house of his friend Ricky Caldwell at 803

Merton Street. He said that he and the defendant were not friends and that the defendant would

make derogatory comments to him whenever he came to visit Mr. Caldwell. He said that although

he believed that the defendant was jealous of him, he did not initially suspect that the defendant

wanted to harm him.

The victim testified that about one month before May 11, 2000, he bought an Omni that was

parked on the street in front of Mr. Caldwell’s house. He said he had been repairing the car and was

returning Mr. Caldwell’s tools when he encountered the defendant on the sidewalk. He said the

defendant, who looked enraged, hurled a child’s bicycle at his face as hard as he could. He said both

of his hands were full, and he ducked to avoid the bicycle. He said he went into Mr. Caldwell’s

house and began calling his mother to come get him. He said that two to three minutes later, the

defendant came into the house holding a revolver and said, “I’m fixing to blow your ass off.” He

said the defendant clicked the pistol twice, but it did not fire. He said he was afraid. He said the

defendant ran out the door, shot out both of the Omni’s driver’s side windows, and disappeared.

The victim testified that he called the police, told them the defendant’s name, gave a

description, and pointed out the defendant’s friends. He said that the police could not locate the

defendant despite questioning the defendant’s friends and that they told him they could not do

anything until the defendant shot him. He said that he thought the police took a report and that he

told the police he wanted something done because he did not feel safe anymore. The victim said that

at that point, he decided to stay away from Mr. Caldwell’s house. He said he had no contact with

the defendant until May 11. He said that he bought a black 1987 Nissan Maxima within a week of

May 11 and that around 10:00 a.m. on May 11, he was taking his fiancé Sharron Perkins to apply

for some jobs. He said he decided to stop by Brother’s Barbeque on Jackson Avenue to show the

Maxima to Mr. Caldwell because the restaurant was one of Mr. Caldwell’s favorite gambling spots.

He said he drove down Merton on the way to Brother’s Barbeque but did not see anyone outside.

The victim testified that he left Ms. Perkins in the car while he checked whether Mr.

Caldwell was inside Brother’s Barbeque. He said he went inside, waved to Mr. Caldwell, then went

to get Ms. Perkins. He said that on the way out, he met an acquaintance and talked with him about

the Maxima. He said the sunroof was open on the Maxima, and all of the windows were down. He

said he got into the car, began raising the windows, and told Ms. Perkins to go inside. He said that

the driver’s side door was open and that the defendant stepped inside the door next to him. He said

that the defendant said, “Get your mother f***ing ass out of that car” and that when he turned toward

the defendant, he was looking into the barrel of a smaller caliber version of a Tech-9, which was less

than two inches from him. He said that he told Ms. Perkins to get help and that he did not have a

gun. He said that the defendant ordered him out of the car again but that he did not get out because

he was afraid and did not want to get shot in the back. He said the defendant shot him in the lower

extremities. He said that Ms. Perkins had left the passenger’s side door opened and that he could

hear her telling the defendant not to shoot him. He said he believed he tried to escape the defendant

by going across to the passenger’s side. He remembered nothing else of the attack.

The victim testified that he was taken to the Regional Medical Center where he underwent

twelve surgeries within thirty days. He said that he was dead upon arrival at the hospital and that

after he was taken off life support, the surgeon told him that he had been shot seventeen times. At

the time of trial, the victim had a colostomy bag and an open stomach wound covered by a skin graft.

He said that one of his testicles had been shot off and that he had baseball-sized tumors in his genital

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area. His femur had been shattered, and he had a two-and-one-half-foot steel rod in his leg. Another

rod extended down through his buttock. He was partially paralyzed and required a custom-made leg-

piece. He had limited use of his legs and could not walk unassisted. He had limited use of one arm

and poor circulation resulting from being shot in the elbow. He continued to require pain

medication.

The victim admitted that he pled guilty to felonious possession of a controlled substance and

said that he had acquired this charge before he was shot. He said he also had a May 14, 1998

conviction for possession of a controlled substance with intent to manufacture, deliver, or sell. He

said he was charged with possession of a prohibited weapon on June 6, 1996, and admitted being

involved with drugs. He denied having a dispute with the defendant over drugs and said he did not

know why the defendant did not want him in the neighborhood. He said the defendant’s girlfriend

liked the victim’s younger brother, he had once given her his brother’s telephone number, and she

had called his brother. He wondered if the defendant suspected that his girlfriend liked the victim.

Sharron Perkins testified that the victim was her ex-boyfriend and that she was in his black

Nissan Maxima with him when he was attacked on May 11, 2000. They stopped at Brother’s

Barbeque, but she did not go inside with the victim. The victim was gone about three minutes, and

when he returned, they sat in the car discussing a clicking noise the car was making. She said that

she glanced to the side and saw the defendant standing over the sunroof pointing a short machine gun

down. She said the victim had not noticed the defendant, and she told the victim to look. She said

the victim turned, looked up, and asked the defendant what he was doing. She said that the

defendant ordered the victim out of the car but that the victim remained in the car. She said the

defendant started shooting down toward the floor of the car.

Ms. Perkins testified that fearing for her life, she ran to the restaurant’s door and asked to be

let inside. She said she was hysterical and covered her ears to block out the shooting. She said that

the door was opened after a couple of minutes and that she asked for help but that no one would go

outside. She said she ran outside to find the defendant shooting the victim through the opened

passenger’s side door. She said the victim was on the floor of the car with his feet hanging outside.

She said that she asked the defendant not to shoot the victim anymore, that the defendant shot the

victim three more times, and that the defendant turned and looked at her before walking away. She

said that she was not injured but that the next day, she discovered a hole in her purse, which had been

in the Maxima’s floorboard under the victim’s head. She said that a bottle of nail polish had burst

inside the purse and that papers inside the purse contained holes.

Although Ms. Perkins identified the defendant from a photograph array following the

shooting, she testified at trial that she was not sure she saw the shooter in the courtroom but that the

defendant looked similar to the shooter. On cross-examination, she said that a couple of minutes

elapsed between her telling the victim to look at the defendant and the shots being fired. She said

the victim told her that in March or April 2000, a man in a wheelchair urinated by a car under which

the victim was working while at his friend’s house. She said he told her that he told the man that

he was under the car and not to urinate there. She said the victim also said the defendant chased him

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into a house, clicked a gun at him twice, and then shot out the victim’s car window. She said that

she did not know whether the defendant’s actions were connected to the incident with the man in the

wheelchair. She said that the victim did not have a gun on May 11, 2000, and that she had never

known him to carry a gun. She admitted that she did not know about the victim’s conviction for

carrying a weapon.

Ricky Caldwell testified that he and the defendant had been neighbors growing up and that

he had been friends with the victim ten to fifteen years. He said the defendant and the victim met

at one of his houses and did not get along from the time they met. He said the defendant did not

want the victim in the neighborhood and thought that the victim was interested in the neighborhood

girls. He said that about three weeks before the shooting, the victim was working under a car on the

street in front of Mr. Caldwell’s house. He said one of the defendant’s friends urinated on the car

in front of the spot where the victim was working. He said the victim told the man not to urinate

there but did not threaten the man. He said he saw the man talking with the defendant. He said he

had heard that the defendant pulled a gun on the victim who ran into the house. He said he saw the

defendant shoot out all of victim’s car windows with a pistol. He said that about two weeks before

the May 11 shooting, the victim came to his house and the defendant told the victim he was going

to kill him. He said the defendant told him to keep the victim away from his house because the

defendant was going to kill the victim.

Mr. Caldwell testified that on May 11, 2000, he had breakfast at Brother’s Barbeque around

9:00 a.m. and that he saw the defendant there ordering breakfast. He said he later saw the defendant

outside with his gang. He said the victim came to the back of the restaurant and talked with him for

ten or fifteen minutes. He said the victim went outside and had been gone about ten minutes when

he heard a knocking sound like someone was throwing rocks at a window. He said he and the other

customers went to the door where he saw the defendant walking across Jackson Avenue. He said

that a hysterical woman came into the restaurant and that he and the restaurant owner immediately

followed her out. He said he went to the victim’s car and laid him on the ground. He said a nurse

arrived, instructed everyone to move away, and aided the victim. On cross-examination, he said that

before May 11, he had not seen the victim in almost thirty days and that the victim showed up at

Brother’s Barbeque unexpectedly. He admitted that he had been incarcerated for a drug offense.

Willie D. Fields, Jr. testified that he worked for the City of Memphis Sign Department and

that on May 11, 2000, he was replacing a sign when he witnessed a shooting about five hundred feet

away on Jackson Avenue. He said he heard a noise and then saw a man shooting into a Nissan

Maxima through the top. He said he descended the ladder, called his coworkers, and told them to

call the police. He said he hid behind his truck until the shooting stopped. He said he went to the

Maxima and saw the victim lying between the door and the car as if he were trying to get out. He

described the shooter as dark complected with a jheri curl or wearing a hood.

Ivy Harrison testified that she was driving away from the beauty shop on Jackson Avenue

on the morning of May 11, 2000, when she heard a noise like a car backfiring. She said that the

noise grew louder as she drove west and that she saw a man shooting into the open passenger’s side

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door of a Maxima. She said she saw a man’s foot under the door as if the man were stepping from

the car. She said she was so nervous that she veered into the opposite lane and stopped for a minute

before turning in a lot and driving east on Jackson. She said the shooter held his gun down, passed

in front of her truck at a light jog, and went between some houses. On cross-examination, she said

that she probably had the radio playing and that she was afraid.

Detective Russell of the Memphis Police Department (MPD) testified that on May 11, 2000,

he was working as a patrol officer and responded to a call of shots fired and one person down at 2500

Jackson Avenue. He and his partner Officer Browning were the first officers on the scene and

arrived five minutes after receiving the call. He saw a small crowd around a Nissan Maxima. The

victim was partially on the passenger’s side armrest with his head and shoulders between the seats

and appeared to have been coming from the driver’s seat into the passenger’s seat. He had multiple

gunshot wounds to his lower extremities, and a nurse was administering first aid. Detective Russell

said that he saw over twenty bullet casings on the ground and that he believed the shooter had fired

through the sunroof. He said based upon his training with automatic weapons in the military and on

the police force, he believed if a person shot with an automatic weapon through a sunroof, the shells

would be ejected out and down on the side of the car on which the shooter was shooting. He said

the police found no weapons at the scene.

Sergeant Donald Wright of the MPD testified that on May 11, 2000, he was a crime scene

officer and arrived at the scene at 2500 Jackson Avenue about thirty minutes to one hour after the

responding officers called him. He said that he found twenty-seven spent shell casings around the

victim’s car, seven of which were on the driver’s side. He said he found a pool of blood on the

ground near the passenger’s side door. He said no weapons were found on the scene. On cross-

examination, he said the wind was blowing the shell casings around a bit. He said that the sunroof

and the driver’s side window were open but that the other windows were closed.

Amy Griffith, the custodian of medical records at the Regional Medical Center of Memphis,

testified about the victim’s medical records. When the victim arrived at the hospital, the emergency

room’s trauma staff classified him as a possible impending death and rated his condition at transfer

as critical. He had multiple gunshot wounds to his extremities and pelvis. He was in the hospital

for thirty-three days, went to the operating room seven times, and underwent thirty-two surgical

procedures. He received 103 units of blood or blood components over four days.

Officer Jeffrey Antonio Burns, Sr., a patrolman with the MPD, testified that around 6:00 p.m.

on April 13, 2000, he responded to a call at 803 Merton Street. He said the victim reported that a

black male had entered the house, attempted to fire a pistol at him, and then shot the windows out

of his car. The victim said the perpetrator’s name was Jed or Jessie and described his clothing and

ball cap. Officer Burns said that he did not find the perpetrator and that no one was arrested in

connection with the complaint.

Melachi Thompson testified that he was confined to a wheelchair after being hit by a car and

paralyzed in 1988. He said that he grew up with the defendant who was like a brother to him. He

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said that in April 2000, he was on the corner of Lyndale and Merton Streets beginning to empty the

liter bag, which collects his urine, into a bottle. He said the victim, who was repairing his car, called

Mr. Thompson derogatory names and told Mr. Thompson to get away from him. He said that the

victim also threatened to kill someone and that he took this threat seriously although it was not

directed to anyone in particular. He said he told the defendant the victim was telling him where he

could and could not urinate. He said that the defendant and victim did not respect each other and

began arguing, calling each other derogatory names, and threatening to beat or kill each other. He

said that neither the defendant nor the victim had a weapon and that he left after the argument began.

On cross-examination, he acknowledged pleading guilty to possession of a controlled substance with

intent to manufacture, deliver, or sell on March 24, 1998. He admitted that he knew the victim was

under the car but said that if he did not empty his liter bag, it would have burst. He said he was not

at Brother’s Barbeque on May 11, 2000.

Mary Catherine Stafford, the defendant’s mother, testified that on May 10, 2000, the

defendant spent the night at her house. She said that around 9:45 a.m. the next day, she dropped him

off on Jackson Avenue near Merton Street. She said that she did not know if the defendant had a

weapon that day but that she had never seen him with a gun and did not know of him owning one.

The defendant testified that he was acquainted with the victim who came to the neighborhood

of Merton Street and Jackson Avenue to sell drugs. He said that Ricky Caldwell rented a crack

house at 803 Merton where everyone hung out and that the victim began coming to Mr. Caldwell’s

house regularly to sell drugs to Mr. Caldwell. The defendant said that he and his friends sold drugs

in front of 803 Merton and that he started selling drugs there in 1997 or 1998. He said that the

victim saw that 803 Merton was a profitable location but that the victim and Ricky Caldwell were

not able to sell their drugs because the defendant was selling drugs right outside the house. He said

he and the victim had an ongoing dispute because the victim had told him he could not sell drugs on

Merton. He said the victim and Mr. Caldwell would often call the police about him. He said he felt

threatened and disrespected by an outsider like the victim telling him that he could not sell drugs in

the neighborhood where he grew up.

The defendant testified that in early January 2000, he sold drugs to a customer that the victim

was trying to wave over. He said that he told the victim not to sell drugs in his neighborhood and

that the victim called him a derogatory name. He said that in February 2000, he and the victim found

themselves in jail on the same night. He said that the victim believed he had been set up by Melachi

Thompson throwing drugs under a car and that the victim threatened to get him and to run over Mr.

Thompson. He said that in late March or early April 2000, he and the victim exchanged threats. He

said that the victim ran into Mr. Caldwell’s house and that he assumed the victim was going to call

the police. He said he followed the victim, opened the door, and saw the victim on the telephone.

He said he walked to the victim’s car and broke the window with a small .38 caliber revolver

because he was upset about the victim constantly threatening to beat or kill him. He said the gun

went off and shot into the car’s floorboard.

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The defendant testified that also in April 2000, Mr. Thompson told him the victim had called

Mr. Thompson derogatory names and threatened to kill Mr. Thompson. He said that he told the

victim that the victim was not going to do anything to Mr. Thompson and that the victim should pick

on someone his own size who was not handicapped. He said he and the victim began arguing, the

victim called him derogatory names and threatened to kill him, and he then threatened to “kick [the

victim’s] ass.” He said the victim ran into a house.

The defendant testified that in late April or early May, he came out of 803 Merton and was

about to get into the backseat of a friend’s car when the victim and two other men pulled up in a

Suzuki Sidekick. He said that the victim pointed a revolver at his face and that another man in the

Suzuki had a sawed-off shotgun. He said the victim said that he ought to kill the defendant but that

he would wait until later. He said the occupants of the Suzuki drove away laughing. He said he

feared for his life but did not call the police because that was not how one handled business on the

street. He said he next saw the victim on May 10, 2000. He said he went to a pay telephone on the

corner of Merton and Jackson to answer his beeper when the victim pulled up in a black Maxima.

He said the victim lowered the car window, pointed a gun, said he ought to kill the defendant, and

then drove off.

The defendant testified that on the morning of May 11, 2000, his mother dropped him off on

the corner of Jackson and Merton on her way to work. He said he went to a garage behind 803

Merton and retrieved his Tech-22, which he had hidden in a tire. He said he got this gun through

a drug deal in early May because the victim had been threatening him with a gun. He said it was a

fully automatic weapon that would fire continuously as long as the trigger was depressed. He said

he made sure the gun was loaded, put a bullet in the chamber, cocked the gun, and concealed it under

his shirt. He said he went to Brother’s Barbeque, ordered, and took his breakfast outside to eat. He

said he saw Mr. Caldwell in the back of the restaurant playing the gambling machine. He said he

went to the end of the block between a beauty shop and the junkyard and smoked “blunts” with some

friends. He said he saw the victim drive down Jackson and back his car into the restaurant parking

lot. He said that he did not expect to see the victim that morning and that he said, “I can’t believe

this mother f***er just pulled a gun on me and he’s still coming around like–like I’m a bitch.”

The defendant testified that after the victim went inside the restaurant, he noticed a female

passenger in the victim’s car. He said that the victim got back into the car, that the driver’s side

window and the sunroof were open, and that the victim was talking to the woman. He said he

approached the car from the rear of the driver’s side and stood by the sunroof. He said that the

woman noticed him and was startled and that the victim noticed him after the woman jumped. He

said he told the victim “you need to get out of the mother f***ing car” and that they needed to come

to an understanding before the situation escalated. He said he did not have his gun out at this time.

He said the victim reached between the seats, and the woman began saying, “No, no, no.” He said

that he opened the driver’s side door and that the victim’s hand was on a gun. He said that the

woman jumped out of the car and that he shot the victim in the legs around fourteen times through

the driver’s side door. He said the victim jumped out the open passenger’s side door and then

crawled back in like he was reaching under the seat to get his pistol. The defendant said he ran

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around the back of the car and shot the victim five or six times in the buttocks because he believed

the victim was still trying to shoot him. The defendant explained that although he did not want to

kill the victim, he felt he had to cripple him in order to prevent the victim from sneaking up on him

and shooting him in the future. He said he stopped shooting and jogged lightly across Jackson. He

said he dumped his gun in a garbage can and caught a ride from a friend.

The defendant acknowledged pleading guilty to making a false offense report on October 13,

1994; sale of a controlled substance on July 14, 1997; and attempted possession of a controlled

substance with intent to sell or deliver on December 9, 1997. He said he had recently pled guilty to

driving while a habitual motor vehicle offender. On cross-examination, he admitted that he was not

allowed to own a gun of any type. He said that he wore a cap on May 11 although he did not usually

wear one. He said that after he ordered the victim out of the car, the victim said that he was not

getting out and for the defendant to “do what you got to do.” He said that when he opened the

victim’s door, the victim had his hand on a gun but did not have a chance to shoot the defendant with

it. He said that he did not know what happened to that gun. He denied shooting the victim through

the sunroof. He acknowledged that the driver’s side seat was leaned back in the photographs of the

crime scene but said the victim was not leaning back. He estimated that the episode lasted two or

three minutes.

Based upon this evidence, the jury convicted the defendant of the lesser included offense of

attempted second degree murder.

I. INSTRUCTION ON SELF-DEFENSE

The defendant contends that the trial court committed plain error by refusing to instruct the

jury on self-defense. He argues that viewing the evidence in the light most favorable to him, at the

time of the shooting, he was trying to resolve his conflict with the victim peacefully when the victim

reached for a gun. He asserts that the error is of constitutional magnitude because it infringed upon

his right to present a defense. The state contends that the defendant has waived this issue by failing

to include it in his motion for a new trial. It also argues that the defendant was not entitled to a self-

defense instruction because he was the first aggressor and created the situation in which he felt the

need to defend himself. We agree with the defendant that the failure to instruct on self-defense

constitutes plain error.

At the hearing on the jury charge, the defendant asked the court to instruct the jury on self-

defense, and the court declined finding that the proof did not support a self-defense instruction:

[Defense Counsel]: What about Self Defense, Judge?

THE COURT: Well, who’s the aggressor?

[Defense Counsel]: Based on his testimony that he had been

threatened.

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THE COURT: I know what you’re saying. You have to look at who

the aggressor is. What did Mr. Graham do after Mr. Jones places

himself on that parking lot and is approaching the car? What did Mr.

Graham do to create a fear in Mr. Jones’ mind that he had to take

some action to save his own life other than his self-serving testimony,

which I must consider?

[Defense Counsel]: Yes, sir.

THE COURT: That he saw him reach for a gun. The door wasn’t

open at that time. The door wasn’t open so if you’re reaching for a

gun–have you ever heard of people riding slick? Do you know what

that means?

[Defense Counsel]: No, Sir.

THE COURT: That’s when they lay the seat back to where you just

can’t hardly see over the steering wheel and that’s the way you drive.

And if he was riding slick and it was shot–and the shots were as the

witness with the City of Memphis says, nothing but his lower

extremities were exposed.

I cannot bring myself to charge Self Defense. The elements

are just simply not there. And right now the law is, as I understand

it, . . . [i]f the proof is not there, don’t charge it.

The defendant did not raise this issue in his motion for new trial nor did he include a copy of his

proposed self-defense instruction in the record on appeal.

Initially, we note that an issue predicated on a trial court’s refusal to give a requested

instruction is waived unless the issue was first specifically raised in a motion for new trial. T.R.A.P.

3(e). The defendant contends that the lack of a self-defense instruction constitutes plain error on the

record. Our supreme court has held that “a trial court judge’s failure to give a jury charge on matters

characterized as ‘fundamental’ may be found to be error requiring reversal” even if the defendant

did not request the omitted instructions. State v. Stephenson, 878 S.W.2d 530, 554 (Tenn. 1994).

In Tennessee, the law of self-defense is fundamental to a case when the evidence fairly raises it as

an issue. See Myers v. State, 185 Tenn. 264, 268, 206 S.W.2d 30, 32 (1947). Because we believe

that a jury instruction which failed to charge self-defense fairly raised by the evidence would

substantially affect the defendant’s rights, we will address the merits of this issue in order to do

substantial justice. See Tenn. R. Crim. P. 52(b).

To determine whether self-defense is fairly raised by the proof and must be instructed to the

jury, “a court must, in effect, consider the evidence in the light most favorable to the defendant,

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including drawing all reasonable inferences flowing from that evidence.” State v. Shropshire, 874

S.W.2d 634, 639 (Tenn. Crim. App. 1993). A person is justified in using force against another

person when he or she reasonably believes (1) that death or serious bodily injury is imminent and

(2) that the force used is immediately necessary to protect against the other person’s use or attempted

use of unlawful force. Tenn. Code Ann. § 39-11-611(a). On the other hand, a person is not justified

in using or threatening force against another if he or she provoked the other person’s use or

attempted use of unlawful force unless (1) he or she “abandons the encounter or clearly

communicates to the other the intent to do so,” and (2) the other person still persists in using

unlawful force. Tenn. Code Ann. § 39-11-611(d)(1)-(2).

Taken in the light most favorable to the defendant, the evidence in the present case reflects

that the defendant, with his weapon concealed, approached the unsuspecting victim and ordered him

out of his car in order to resolve the situation between them. The defendant testified that he saw the

victim reaching for a weapon and that he opened the driver’s side door. He said that he saw the

victim’s hand on a gun and began shooting. The trial court apparently based its rejection of the

instruction upon its belief that the defendant could not have seen the victim reach for a gun with the

car door shut and the victim leaned back in his seat. With all due respect to the experienced trial

court, this analysis fails to consider the evidence in the light most favorable to the defendant, who

testified that he saw the victim reach for a gun. Additionally, the defendant testified that the victim

was not leaning back in his seat even if the seat was reclined.

The state contends that the defendant is not entitled to a self-defense instruction even if the

victim did reach for a gun because the defendant provoked the victim’s threat of force by

approaching the victim’s car armed with a Tech-22 and ordering the victim out of the car. In the

light most favorable to the defendant, the Tech-22 was concealed beneath his clothing until after the

victim reached for a gun. We do not believe the defendant’s ordering the victim out of his car

warranted the victim responding with deadly force. The failure to instruct on self-defense constitutes

plain error as it violates the defendant’s substantial rights. Thus, we reverse the conviction and

remand the case for a new trial.

II. ATTEMPTED SECOND DEGREE MURDER

The defendant also contends that the offense of attempted second degree murder is a legal

impossibility because the intent requirements of the attempt statute cannot be combined with the

knowing mental state required for second degree murder. He argues that this case is analogous to

State v. Kimbrough, 924 S.W.2d 888 (Tenn. 1996), in which our supreme court held that attempted

felony murder is not an offense because one cannot intend to commit a reckless act. Although he

acknowledges that this court has rejected this argument on many occasions, he presents no new

argument for a different outcome but states that he is merely preserving the issue in the event of an

appeal to the supreme court. The state contends that attempted second degree murder is not

impossible. We agree with the state and continue to hold that attempted second degree murder is

an offense in Tennessee.

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The criminal attempt statute requires a specific intent. Tenn. Code Ann. § 39-12-1011;

Kimbrough, 924 S.W.2d at 980. Second degree murder, on the other hand, requires a knowing

mental state. Tenn. Code Ann. § 39-13-210. This court has held that the mental states required by

attempt and second degree murder are not inconsistent as both “‘involve a level of conscious

awareness and volitional, affirmative conduct.’” State v. Palmer, 10 S.W.3d 638, 644 (Tenn. Crim.

App. 1999) (quoting State v. Dale Nolan, No. 01C01-9511-CC-00387, Sequatchie County, slip op.

at 19 n.9 (Tenn. Crim. App. June 26, 1997), app. denied (Tenn. Mar. 2, 1998)). Thus, “the intent

to commit a knowing act is neither logically nor legally impossible,” and attempted second degree

murder is an offense. Id.

Our supreme court has recently held that the intent requirement of the criminal attempt statute

is not incompatible with lesser mental states because “no single mental state applies to all of the

elements of the attempted crime.” State v. Mateyko, 53 S.W.3d 666, 675 (Tenn. 2001) (holding that

attempted child neglect is an offense). Thus, the state must prove that the defendant acted with

specific intent with regard to the elements of the crime that relate to the defendant engaging in

certain conduct or causing a particular result. Id. With regard to the elements that do not involve

the nature or result of the defendant’s conduct, the state must show the defendant acted with the

mens rea required by the crime itself. Id. In dicta, the court examined the interaction of the intent

requirement of attempt and a lesser mental state required by a result-of-conduct offense, such as

second degree murder:

1

Tenn. Code Ann. § 3 9-12-10 1 defines criminal attempt as follows:

(a) A person commits crimina l attemp t 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 circum stances 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 comp lete a co urse of action o r 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 toward the

commission of the offense.

(b) Conduct does not constitute a substantial step under subdivision (a)(3) unless

the person's entire course of action is corroborative of the intent to comm it the

offense.

(c) It is no defense to prosecution for criminal attempt that the offense attempted

was actually committed.

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[R]esult-of-conduct offenses otherwise requiring a non-intentional

mental state may be attempted even if the defendant did not

consciously desire for the proscribed result to occur. Taking second

degree murder as one such example, it is clear that the defendant does

not have to “intend” that death occur, at least not in the sense that the

victim’s death is the defendant’s conscious objective or desire.

Instead, so long as the State shows that the defendant believed that

death would follow from his or her conduct, criminal attempt liability

may be imposed.

Id. at 676 n.6. Relying upon the quoted rationale, the court specifically approved the result reached

in Palmer. Mateyko, 53 S.W.3d at 676 n.6. The attempt to commit second degree murder is a valid

offense in Tennessee.

Based upon the foregoing and the record as a whole, we reverse the judgment of conviction

and remand the case to the trial court for a new trial on the offense of attempted second degree

murder.

___________________________________

JOSEPH M. TIPTON, JUDGE

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