adopting the test articulated by the Court of Criminal Appeals in Adkisson, 899 S.W.2d at 641-42
How later courts described this case
- adopting the test articulated by the Court of Criminal Appeals in Adkisson, 899 S.W.2d at 641-42
Written by the judges who cited it.
The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
December 8, 2015 Session
STATE OF TENNESSEE v. RICKY DUVIL LUNSFORD
Appeal from the Circuit Court for Madison County
No. 12604 Nathan B. Pride, Judge
No. W2014-01926-CCA-R3-CD - Filed April 29, 2016
_____________________________
A Madison County jury convicted the Defendant, Ricky Duvil Lunsford, of attempted
voluntary manslaughter and employing a deadly weapon during the commission of a
dangerous felony. On appeal, the Defendant contends that the trial court erred when it:
(1) failed to properly instruct the jury; (2) excluded an email from the Defendant to the
victim about the decline of their marriage; (3) prevented the Defendant from testifying
about the victim‟s prior aggressive tendencies; and (4) excluded evidence of the victim‟s
prior domestic assault charge. After a thorough review of the record and the applicable
law, we conclude that the trial court erred when it failed to instruct the jury as to self-
defense. We reverse the judgments of conviction and remand for a new trial.
Tenn. R. App. 3 Appeal as of Right; Judgments of the Circuit Court Reversed and
Remanded
ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J. and ALAN E. GLENN, J., joined.
C. Mark Donahoe, Jackson, Tennessee, for the appellant, Ricky Duvil Lunsford.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Jerry Woodall, District Attorney General; and Robert Radford,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
This case arises from an altercation on April 29, 2012, which occurred between
the Defendant and his wife at the time of these events, Mary Lou Jean Lunsford (“the
victim”). A Madison County grand jury indicted the Defendant for attempted first degree
premeditated murder, employing a deadly weapon during the commission of a dangerous
felony, aggravated kidnapping, and aggravated assault.
At trial, the parties presented the following evidence: Matthew Dotty, a Madison
County Sheriff‟s Department deputy, testified that on April 29, 2012, at a little after
midnight, he was conducting a traffic stop at a Golden Gallon gas station when he heard
gun fire. He said that he “took cover” and then looked in the direction of the gun fire
where he saw a male firing a weapon in the parking lot of a bar, The Tap Bar & Grille,
located across the street from the gas station. He recalled that he also saw a female,
wearing a green shirt, ducking and running eastbound. He stated that the shooter was
firing to the east and then patrons began running out of the bar.
Deputy Dotty testified that he drove to the Tap parking lot where it appeared that
the shooter had surrendered to Deputy Mark Taylor and a Jackson Police Department
officer. Deputy Dotty estimated that the shooter fired ten shots.
Mark Taylor, a Madison County Sheriff‟s Department deputy, testified that on
April 29, 2012, he was engaged in a traffic stop at a Golden Gallon when he heard
gunshots coming from across the street. Deputy Taylor said that in the parking lot of The
Tap, a local bar, he observed a cloud of smoke, several people, and “chaos.” Deputy
Taylor ran across the street and a woman told him that “somebody had been shooting.”
She then pointed out the shooter who stepped out from behind a vehicle with his hands in
the air. Deputy Taylor said that, with his gun drawn, he ordered the suspect to the ground
and then handcuffed him. He stated that the suspect, whom he recognized, did not have a
gun on his person at the time he was taken into custody.
On cross-examination, Deputy Taylor testified that he knew the Defendant
because they had worked together. Deputy Taylor stated that, in his work with the
Defendant, he had never known the Defendant to use “excessive force” or be “overly
aggressive.”
Lanonda Jernigan, the director of central dispatch for the police and fire
department in Jackson, testified that she had maintained 911 recorded calls for at least
four years. She identified a copy of a 911 recorded call from April 29, 2012, at 12:21
a.m., which was played for the jury. On the recording, a man identified himself as the
owner of The Tap Bar & Grill. He stated that a man he identified as the former Sheriff of
Henderson County had entered the bar with a gun, pointed it at his ex-wife and pushed
her out of the front door. He described the Defendant as wearing a green shirt and a hat.
As he spoke with the dispatcher, gunshots could be heard in the background. He stayed
on the line with the dispatcher until authorities arrived and took the Defendant into
custody.
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Shane Roberson testified that in April 2012, he worked as a security officer at The
Tap Bar and Grill. Mr. Roberson recalled that on the night of April 29 the victim was
seated at the first table to the left inside the front door of the bar with Jeremy and Kim
Crocker, the bar owners. Mr. Roberson said that he was positioned at the front door and
saw the Defendant enter. Mr. Roberson estimated that the Defendant entered the bar
thirty to forty-five minutes before the shooting occurred. The victim was standing near
Mr. Roberson while texting the Defendant. He said that she was laughing and said, “He
acts like he don‟t see me.” The victim asked Mr. Roberson if her husband, the
Defendant, could have his chair, and he agreed.
Mr. Roberson testified that the Defendant walked over to the table, and Mr.
Roberson offered the Defendant his chair. He said that the Defendant gave him “a blank
stare” and then grabbed the victim by her arm. The Defendant said to the victim, “let‟s
go,” and the victim responded, “I‟m not going anywhere.” Mr. Roberson recalled that, in
response, the Defendant said, “yeah, you are,” put a gun against the victim‟s chest, and
pushed her out of the door. Mr. Roberson recognized the gun that the Defendant held as
a semi-automatic pistol.
Mr. Roberson testified that he followed the Defendant and the victim out the door
and watched as they walked to the end of the building. The Defendant “holstered” his
weapon, and the victim “jerked free” from the Defendant‟s grip and ran. Mr. Roberson
said that the Defendant took two or three steps, pulled out his gun, and fired his weapon
approximately ten times at the victim. Mr. Roberson recalled that the Defendant‟s
gunshots came “rather close” to the victim but did not hit her.
Mr. Roberson testified that Madison County Sheriff‟s deputies, who had been
conducting a traffic stop across the street, came to the bar parking lot with their weapons
drawn. The Defendant dropped his gun, put his hands up, and lay down on his chest.
Mr. Roberson said that he went to the area where the victim had fled and found her
crouched down holding onto the tire of a vehicle. He said that she was crying
“hysterically” and that it took him three or four minutes to convince the victim to let go
of the tire.
On cross-examination, Mr. Roberson testified that, prior to the shooting, the
victim frequented the bar weekly and “most of the time” was without her husband, the
Defendant. Mr. Roberson agreed that he did not pat the victim down when she entered
the bar on April 29 nor did he ever see the police search her person.
Jeremy Crocker, owner of the the Tap Bar and Grill, testified that he arrived at the
bar at around 10:00 p.m. and the victim arrived later. Mr. Crocker said that he saw the
3
Defendant standing at the bar approximately ten minutes before the interaction between
the Defendant and the victim occurred. He then turned his attention to the band that was
playing. A few minutes later, he turned around and saw the Defendant and the victim
“exiting the building in a hurry.” Mr. Crocker looked out the window and watched the
Defendant escorting the victim down the sidewalk. He did not see a gun but saw that if
the victim slowed her pace, the Defendant would shove her.
Mr. Crocker testified that he called 911 because “somebody” had said there was a
gun and there was “a crowd of people” at the bar that night. Mr. Crocker recalled that, as
soon as “somebody said gun,” he retrieved his gun and his cell phone from his office. He
said that, after retrieving these items from his office, he stepped outside and observed the
Defendant fire his weapon. He said that the victim was approximately a car “width”
away from the Defendant at the time and that she began screaming and running and then
“ducked” behind a car. Mr. Crocker recalled that the Defendant fired his weapon twelve
to fourteen times. He said that sheriff‟s deputies, who were close by, responded very
quickly and diffused the situation.
Mr. Crocker testified that he had never seen the victim with a gun. After the
shooting, he found the victim was behind a car on the passenger side holding the back
tire. He described the victim as “in shock” and “hysterical.” Mr. Crocker testified that,
during the shooting, he feared that either he or his wife would be injured.
Kim Crocker testified that she had been friends with the victim for ten years. Ms.
Crocker recalled that on the night of April 29 the victim entered the bar at around 11:00
p.m. and joined Ms. Crocker at a table by the front door. Ms. Crocker said that she was
sitting with her back to the door and did not see the Defendant enter, but a friend came by
the table and told them that the Defendant was at the bar. Ms. Crocker said that the
victim texted the Defendant telling him to join them at the table for a drink. The
Defendant approached the table, and Mr. Roberson stood up and offered his seat to the
Defendant. The Defendant stood behind the victim and pulled her up from the stool she
was sitting on, almost turning the stool over. Ms. Crocker turned to see what the
Defendant was doing and saw that he was holding a gun against the victim‟s back and
pushing her out the front door. She said that the look on the Defendant‟s face
“frightened” her “a little bit.”
Ms. Crocker testified that she could not hear if the Defendant spoke to the victim,
but that she did hear the victim asking, “What‟s wrong? What are you doing?” Ms.
Crocker said that she told her husband to call 911 and then went outside to “make sure”
the Defendant did not hurt the victim. She said that her concern at the time was that the
Defendant would hit the victim, not that he would shoot her. Ms. Crocker said that she
exited the bar and stood by the car bumpers in the parking lot just outside the front door
4
of the bar and looked down the aisle to where the victim and the Defendant stood. In
what seemed like “just seconds” she heard gunfire and observed the victim running
toward her, ducking, with her hands behind her head before disappearing between two of
the parked cars. Ms. Crocker said that Mr. Crocker shoved her behind a car tire and told
her to “stay down.” She remained behind the car tire until the gunfire had ceased and she
heard the deputies pulling into the parking lot.
Ms. Crocker said that, after the deputies arrived, she went to check on the victim
and found her “tearful” and “completely in shock.” Ms. Crocker said that, to her
knowledge, the victim did not have a gun or a knife with her that night.
On cross-examination, Ms. Crocker testified that she was “positive” that Mr.
Crocker did not have a gun when they stepped outside to keep an eye on the victim. Ms.
Crocker confirmed that patrons are not searched before entering the bar.
Barbara Raines testified that she and a friend had gone to The Tap Bar and Grill
on the night of April 29, 2012, to dance. She did not, however, get to dance because
when she pulled in to the parking lot of the bar and parked the car, she observed a woman
running and screaming and then she heard gunfire. She identified the Defendant as the
shooter. She said that she saw the Defendant aiming at the victim and firing his gun. She
and her friend ducked inside the car until the gunfire ceased and she heard sirens. When
she sat up, she saw the Defendant on his knees with his hands up in the air.
On cross-examination, Ms. Raines testified that, although the Defendant aimed at
the victim, based upon where she parked her car, she was “in the line of fire.”
The victim testified that she and the Defendant were married on June 26, 2010,
and the marriage lasted approximately two years. The victim stated that the Defendant
filed for the divorce and that the divorce was final in August 2012. During their short
marriage, the Defendant spent much of the time in Afghanistan working as a private
contractor. The victim described the marriage as “troubled.” One of the issues in the
marriage was the care-taking of the Defendant‟s eight-year-old daughter. The victim
explained that the Defendant‟s child engaged in tantrums, making it difficult to care for
her. Due to these tantrums, the victim contacted the Defendant in Afghanistan and told
him he needed to return to the States to care for his daughter. The Defendant arrived
back in Tennessee two or three weeks later on February 14, 2012.
The victim testified that, upon the Defendant‟s return, “it worked” for a few days
but then she “just couldn‟t take it.” She stated that she was, “just ready to get a divorce
and [she] did not want to raise this child.” The victim asked the Defendant to leave the
residence, and he rented an apartment and moved out of the marital residence. She said
5
that she and the Defendant stayed in communication during this time and reconciled
“somewhat.” She said that she would meet with him during her lunch break and that she
stayed at his apartment a few times but, ultimately, concluded that “it was just not going
to work out.”
The victim testified about the events of April 29, 2012. She said that the
Defendant came to her house to have dinner with her, her daughter, and grandchild. She
confirmed that both she and the Defendant drank alcohol at this time. She said that she
knew the Defendant to take Xanax but was uncertain if he had taken Xanax that day. She
estimated that the Defendant left her residence at around 10:00 or 10:30 p.m. After the
Defendant left, the victim went to the Office Lounge, a bar, and consumed one beer.
While at this bar, the Defendant called her and invited her to his apartment. She agreed
she would come over to his apartment a little later.
The victim testified that she then went to The Tap Bar and Grill to see her friends,
Mr. and Ms. Crocker. While at this bar, the Defendant texted to tell her he was “fixing to
be over there.” Later he texted, “[W]here you at?” The victim said that she responded
that she was at The Tap Bar and Grill. A few minutes later a friend told the victim that
the Defendant was at the bar. The victim had not noticed the Defendant enter the bar but,
after her friend told her, she saw the Defendant standing by the bar. The victim texted
the Defendant, “I‟m here” and “[Y]ou know where I‟m at.” She said that she sent a text
telling the Defendant to “look up at the front door.”
The victim testified that, at this point in the evening, she was not angry with the
Defendant nor did she have any knowledge of him being angry with her. She asked Mr.
Roberson, who was seated next to her, if the Defendant could have his seat, and he
agreed. The Defendant walked over to the table where the victim was sitting, Mr.
Roberson stood up to give the Defendant his chair, and the Defendant grabbed the victim
and put a gun to her “side.” The victim said that, as the Defendant did this, he told her,
“[Y]eah. Come on. Get up. We‟re going.” The victim asked the Defendant “what‟s
going on” as they walked out of the bar. At the end of the sidewalk, the victim asked,
“[W]hat‟s wrong” and the Defendant responded, “I think I‟m f**king going to kill you,
b**ch.” Upon hearing this, the victim “took off.”
The victim testified that she believed the Defendant would kill her. The victim
screamed as she ran from the Defendant and ducked between two cars before hearing
gunshots. The victim stated that as far as her memory of the events, “from the sidewalk
down I am blank.” The next day she had bruising on her lower back, for which she
sought medical treatment. The victim said that she owned a knife but did not have it with
her on the night of the shooting. The victim also agreed that she owned a .38 revolver
and an ankle holster; however, she stated that she did not have either with her that night.
6
She explained that she had only worn the ankle holster twice because she did not “like the
way it feels.” The victim denied threatening the Defendant that night.
On cross-examination, the victim first denied telling the Defendant that she would
come over to his apartment but, upon further questioning, agreed that she did tell him she
would come over to his apartment and then did not. The victim agreed that she owned
“several” guns and had a valid handgun carry permit. The victim agreed that “no less
th[a]n two weeks prior to this incident . . . the police had been call[ed] by [the Defendant]
to [her] residence because of an issue that was going on then.” She further agreed that
the Defendant did not try to harm her during that incident.
The victim testified that she had not been drinking “most of the day” on April 29,
2012. When provided with prior testimony from a hearing, the victim agreed that she had
been drinking most of the day. The victim confirmed that she texted the Defendant
inviting him to sit with her and directed him to the table by the door. When provided
with a copy of the text messages, the victim read the following text message exchange
from the bar that night aloud:
The victim: [Y]ou got to be kidding me.
The Defendant: No.
The victim: [Y]ou better look to the door.
The victim agreed that the Defendant had his back to her at the time of the text exchange
and that the bar was very crowded that night. She agreed that she did not attempt to go
over to the Defendant at any time.
The victim testified that she and the Defendant exited the bar and walked to the
right approximately 130 feet down the sidewalk to where the Defendant was parked. The
victim agreed that the Defendant never tried to force her into his truck and that he
remained on or near the sidewalk during the entire incident. The victim agreed that the
Defendant never chased her or attempted to find her hidden between the cars.
The victim testified that, two days after the shooting incident, she went to the
Defendant‟s apartment and knocked on the door. She agreed that she had her gun with
her but stated that the gun was in her vehicle. When the Defendant did not answer the
door, the victim left and was shortly thereafter stopped by the police who found her gun
in the vehicle. The victim agreed that she was not searched on the night of the shooting.
The victim could not recall calling the Defendant “numerous times” following the
shooting incident and the Defendant not answering her telephone calls. The victim
7
agreed that she called Jeff Lewis and told him that she felt “awful about what happened,”
and that she did not want “to get [the Defendant] into any trouble.” She agreed that she
also told Mr. Lewis that she had known the Defendant a long time and knew he would
“never intentionally try to hurt [her].” The victim agreed that on the night of the shooting
she told the police that the Defendant had “never threatened [her] in no shape, form or
anything.”
The victim testified that the Defendant was a private contractor assisting and
training special forces in close combat weapon use. She agreed that the Defendant had
“fired countless numbers of rounds” and was an “excellent shot.” The victim agreed that
she told the police that if the Defendant had “wanted to shoot her, he would have.” The
victim agreed that she never told the police about the bruising that she testified about on
direct examination and that there were no pictures of the bruising. The victim stated that
she was remarried and agreed that this was her second marriage to her current husband.
She explained that she had been married to him before her marriage to the Defendant and
remarried him after she divorced the Defendant. The victim denied being convicted of
domestic assault during her first marriage to her current husband for trying to run over
him with a truck.
The victim agreed that the Defendant only fired his gun after she was between cars
where she could not see him.
Cerbinia Braswell, a Tennessee Bureau of Investigation forensic scientist, testified
as an expert witness in the field of ballistics. Special Agent Braswell testified that she
had examined twelve cartridge cases recovered in this case and determined that all twelve
were fired from the Defendant‟s Glock .40 caliber semiautomatic pistol, which was also
recovered the night of the shooting. Special Agent Braswell also examined a bullet
jacket recovered in this case. She stated that the bullet jacket had the same class
characteristics as the Glock pistol but, because it was not “marked as well,” she could not
conclusively say that the bullet jacket was fired from the Defendant‟s pistol. Finally,
Agent Braswell examined a fired .40 caliber bullet but due to “the type of rifling” was
unable to conclusively say that the Defendant‟s gun fired the bullet.
James Mullins, a Jackson Police Department officer, testified that he assisted in
the April 29, 2012 investigation at The Tap Bar and Grill. Officer Mullins recalled that,
at the scene, a loaded revolver wrapped in a handkerchief was removed from the
Defendant‟s left, rear pocket. Officer Mullins stated that officers also recovered twelve
spent shell casings and a Glock, Model 22, .40 caliber semiautomatic pistol at the scene.
John Chew, a Jackson Police Department officer, testified that on April 29, 2012,
he responded to a shooting incident at The Tap Bar and Grill. He confirmed that his
8
report stated that two guns were recovered: a Glock, Model 22, and a Smith and Wesson
.38 that the Defendant had placed on the ground. Officer Chew stated that, once the
Defendant had been transported to the jail, officers found two magazines on his person.
Officer Chew confirmed that bullets from the shooting damaged three vehicles: a 2004
Ford Crown Victoria, a 2002 Ford Explorer, and a 2001 Nissan Maxima.
For the Defendant, Edmond Cepparulo, a Bethel University criminal justice
adjunct professor, testified as an expert witness in the field of firearms and tactics.
Defense counsel provided Mr. Cepparulo with a hypothetical which involved the
Defendant in a crowded bar when he received a text message from the victim, and then
saw her across a crowded room and he perceived a threat. Based upon this scenario, Mr.
Cepparulo stated that the Defendant would have been at a “tactical disadvantage” due to
his distance from the exit, and therefore, it “could have put him at a higher level of
alertness to a threat.” Mr. Cepparulo further opined that an individual anticipating danger
would likely have a round chambered in a weapon. The Defendant‟s act of putting his
weapon away after exiting the bar was an indication that he no longer perceived a threat.
Defense counsel posed another scenario where the victim pulled a knife out and asked
Mr. Cepparulo what the “correct response” to this hypothetical would be. Mr. Cepparulo
responded that if the Defendant believed there was an imminent threat of serious bodily
injury or death, the appropriate response would be to draw a weapon and eliminate the
threat.
Mr. Cepparulo testified that he had previously worked with the Defendant through
law enforcement in Tennessee and military work overseas. He recalled that in 2006-
2007, the Defendant was working in Baghdad training police officers while he was at a
base southeast of Baghdad. The Defendant later transferred to the same base as Mr.
Cepparulo for two or three months before returning to the States. Based upon their work
experience together, Mr. Cepparulo knew the Defendant to be “excellent with a handgun
and also with a long gun.” He stated that he had “high confidence” that the Defendant
would successfully eliminate any threat within five or ten feet, stationary or moving.
On cross-examination, Mr. Cepparulo agreed that there is nothing “threatening”
about a hypothetical where the victim sends a text to the Defendant telling him to look
toward the door and he sees the victim sitting with another woman. He stated that he,
likewise, did not see a threat in a situation where the Defendant approached the table
where the victim was seated and someone stood to offer him a seat. He then explained
that a perceived threat may not actually be a threat but only a product of an individual‟s
mind. Mr. Cepparulo stated that there had been many times during his thirty-three years
of service as a police officer that he perceived a threat, pulled his weapon, but did not
shoot someone.
9
On redirect-examination, Mr. Cepparulo testified that during the time he and the
Defendant had worked together he had never seen the Defendant act “overly aggressive.”
Jeff Lewis testified that he and the Defendant had been friends since childhood.
He confirmed that he was aware of the incident that occurred at The Tap Bar and Grill
and that the victim called him several days after the incident. During the conversation,
the victim expressed “sincere” concern that the Defendant would “be okay” and not “get
in trouble.” Mr. Lewis said that the victim appeared to be “very upset that it happened.”
Mr. Lewis said that, from the course of the conversation, he had the impression that the
victim knew the Defendant would never do anything to intentionally harm her. Mr.
Lewis described the Defendant as a “gentle giant” and stated that he had never seen the
Defendant instigate “trouble.”
Richard Green testified that in 2003, he and the Defendant were in Afghanistan
training the Afghan Border Police. Mr. Green described the Defendant‟s abilities as
“[excellent]” and described him as “[l]evel headed.” He further stated that the Defendant
was “[p]robably the best pistol shot” at the compound. Due to their location near the
Pakistani border, Mr. Green said that “[t]here was always a threat” and the men were
“always on alert.”
Mark Lovell, a Newton County Sheriff‟s Department deputy sheriff, testified that
he had previously worked as a SWAT and anti-terrorism instructor in the Middle East.
He stated that he was a certified master instructor for firearms through the Department of
Justice. Mr. Lovell said that he worked with the Defendant training border patrol officers
in Afghanistan. He said that he had also worked with the Defendant previously in Iraq
when the Defendant was the firearms instructor for the Baghdad Police College. Mr.
Lovell recalled that he and the Defendant won a shooting competition, emphasizing
safety, against “the Seals and the Rangers and the Special Forces.”
The Defendant testified that he was fifty-four years old at the time of trial and had
been a certified police officer for the past thirty years. He was elected to three terms as
the Henderson County Sheriff but, before starting his third term, he accepted a position
overseas with a specialized unit designed to advise, assist, mentor, and train members of
the Iraq and Afghan forces. The Defendant recounted his extensive military work and
experience. He said that during his last service, he learned that his ex-wife had “beaten”
his daughter, who was now in state custody. He immediately began making
arrangements to return to the States, but he asked the victim to care for his eight-year-old
daughter until he could arrive, and she agreed.
The Defendant testified that he returned to their marital residence in February
2012, but that he had sent an email to the victim in October 2010, telling the victim he
10
wanted a divorce. The Defendant stayed with the victim at her residence for eight days
before she told him “she would not raise [his] kid and for [him] to take her and get the - -
- - out of her house.” The Defendant‟s daughter was asleep at the time, and so he asked if
he could take his daughter the next day, and the victim agreed. The next day when the
Defendant arrived at the victim‟s house, he found his daughter outside in the rain and the
victim “throwing [his daughter‟s] stuff in the yard.” He and his daughter moved into an
apartment and, ultimately, a court returned custody of his daughter to his ex-wife after
she had completed treatment. At this point, the Defendant planned to return to
Afghanistan and told the victim this during the day leading up to the shooting at the bar.
The Defendant testified that he was to fly out of Memphis on the Thursday
following the shooting incident. He recalled that in the hours leading up to the shooting
he had dinner at the victim‟s house with the victim, her daughter, and her granddaughter.
While there, the Defendant drank four, two-ounce Crown Royal with Coke drinks and
three beers. As the sun was setting, the Defendant told the victim about his plans to
return to Afghanistan and the victim became “irate.” The Defendant said that he went
into the bedroom, laid down, and fell asleep. Later the victim entered the room
intoxicated and was “falling on stuff,” yelling and screaming. The Defendant said that he
got up and went home. As he exited the house, the victim apologized, telling him that
she would follow him home where they could stay together.
The Defendant testified that, when the victim did not arrive at his apartment, he
called her, and she told him she would be there in thirty minutes. He grew concerned that
she had been in a car accident or arrested due to her intoxication, and so he called her
again. The victim told the Defendant she was at The Tap Bar and Grill and told him to
come get her. When the Defendant arrived, he did not see her so he sent her a text
message stating that he was in the bar. The Defendant agreed that he had two weapons
on his person at that time because he “always” carried his weapons. The Defendant
denied going to the bar with any intent to harm the victim.
The Defendant testified that he ordered a beer and then received a text message
from the victim indicating for him to look at the door. His back was to the door at the
time, but he turned to see Mr. Crocker and Mr. Roberson, both armed, and Mr. Roberson
in “a fighting stance.” He recalled that the victim was sitting between the two standing
men with a “Cheshire cat” grin. The Defendant walked through the crowded bar,
perceiving some threat from the two men. He approached the victim and told her to step
out of the bar. Based on his eye contact with the men, he believed “something was fixing
to happen.” He recalled that someone grabbed him from the left side, knocking him off
balance. He could see Mr. Crocker approaching from the left side, so he chambered a
round in his gun, and the victim asked why he had the gun. He said that he told her, “Just
let me get out of here. Let‟s get out the door.”
11
The Defendant testified that he and the victim exited through the front door, took
two steps, and he put his gun away. He told the victim that he was going home and
began walking down the sidewalk. The victim tried to get in front of the Defendant and
he told her to leave him alone. He said the victim was intoxicated and mumbling when
she pulled out a “little clip knife” and tried to open it. The Defendant stepped around the
victim and laughed at her, causing her to become angry.
The Defendant testified that during his relationship with the victim, he knew her to
carry a gun in an ankle holster. The Defendant continued down the sidewalk toward his
truck when he saw the victim “squat” down between two cars and reach for her leg. The
Defendant believed the victim was reaching for the pistol she kept in the ankle holster
and saw the gun as she attempted to retrieve it. The Defendant turned to his right and
fired four “warning” rounds and then turned back to see the victim was gone. At this
point he saw Mr. Crocker walking toward him, the Defendant surveyed the area, stepped
out and fired the remaining shots and everyone ran back inside the bar. The Defendant
said that when he arrived at the bar he saw the deputies across the street and knew that
they would respond to the gunfire.
The Defendant testified that, when he saw the victim‟s gun, he chose not to shoot
her, believing the “warning shots” would alleviate any conflict. He stated that no one
was in the line of fire and that he knew there was no one in the vehicles he shot because
he had noticed the empty cars on his walk out of the bar. The Defendant denied that he
ever shot “at” Mr. Crocker or the victim. He said that, if he had, they would be dead.
When the Defendant saw the sheriff‟s deputy coming across the road, he removed the
magazine from his weapon and placed the weapon and the magazine on the back of his
truck. He also placed the .38 pistol he carried in his back pocket onto the back of his
truck. He then got down on his knees and placed his hands in the air. He stated that he
provided full cooperation with the officers at the scene.
The Defendant testified that, following the shooting, his attorney told him not to
have any contact with the victim, and he understood he was under a “no contact order.”
The victim, however, repeatedly attempted to make contact with him. The victim also
went to his apartment after midnight a couple days after the shooting. The Defendant,
through the kitchen window, observed the victim knocking on his door with her left hand.
Knowing that she is right-handed, he tried to see what she was holding in her right hand.
He stated that, because he could not see what she was holding in her right hand, he did
not open the door. The victim then proceeded to throw wood chips at the bedroom
window. The Defendant called the Sheriff‟s Department, and deputies stopped the victim
in her vehicle a short distance from the Defendant‟s apartment. Deputies recovered a gun
from her vehicle.
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The Defendant testified that two weeks before “the incident” he had called the
police in reference to threats the victim had made to the Defendant in his residence. He
said he asked the victim to leave because she “started to get drunk.” In response, the
victim told him, “I‟m going to get you F-ed,” and then began walking toward the front
door before turning around, walking back toward him and stating, “[N]o, I‟m going to
f**king kill you. I‟m going to get you. You watch.” The Defendant denied having ever
“fired a shot in anger.” He stated that he had only fired his weapon in defense of himself
or in defense of someone else. The Defendant reiterated that he had not gone to the bar
with any intent to harm the victim. He stated that, if the victim had not reached for her
weapon, he would have never fired his gun.
Dr. Lynn Zagger, a licensed psychologist, testified as an expert witness in the field
of clinical psychology. She explained that, in her work, she conducted mental
competency evaluations for people facing criminal charges and that she had evaluated the
Defendant. Dr. Zagger stated that she made clear to the Defendant when she met with
him that he was not meeting with her for treatment purposes but rather for evaluation.
She stated that she interviewed the Defendant on February 20, 2013, June 25, 2013, July
16, 2013, and November 14, 2013. She stated that, in evaluating the Defendant‟s
competency, she not only interviewed the Defendant and administered a personality
inventory, but she also reviewed documents related to the criminal investigation.
Dr. Zagger testified that her recommendation to the trial court was that the
Defendant was competent. In determining the Defendant‟s mental condition at the time
of the offense she diagnosed the Defendant with Post Traumatic Stress Disorder
(“PTSD”). She stated that, in her opinion, the PTSD compromised the Defendant‟s
ability to function at the time of the offense and interfered with his cognition. Dr. Zagger
explained that someone with PTSD had undergone a “very significant trauma” causing
the individual to experience “intense fear, helplessness, [and] hopelessness.” Dr. Zagger
said that persons suffering from PTSD may experience hyper-vigilance. This causes the
person to be concerned that something is there that is going to seriously affect or harm
them. She had not recommended hospitalization because she did not consider the
Defendant “at significant risk of hurting himself or anybody else.”
Dr. Zagger testified that the “triggering event” for the Defendant‟s PTSD was
likely on June 8, 2007, when he was in hostile territory overseas. The Defendant relayed
to her an incident when he was sitting next to his friend eating lunch and “all of a sudden
somebody came up” and shot his friend in the head. Dr. Zagger testified that, while in
the bar on April 29, 2012, the Defendant believed he was being ambushed and felt
“significantly threatened.” She said his responses were trained responses focused on
getting himself to safety.
13
On cross-examination, Dr. Zagger testified that she not only listened to what the
Defendant said during the interviews but also observed the manner in which he spoke and
his consistency. She said that the Defendant was “extremely consistent” in terms of what
he told her about the incident.
On redirect examination, Dr. Zagger confirmed that she concluded her evaluation
in this case in November 2013, the month before the trial. She acknowledged that the
Defendant had not sought treatment for PTSD, explaining that “something” would occur
soon but “[u]nder the circumstances the timing was not optimal.”
In rebuttal, the State called Tommy Ferguson, a Jackson Police Department
officer. When Officer Ferguson arrived at The Tap Bar and Grill in response to the
shooting, he found the victim seated in a chair by the front door. Due to the level of
noise in the bar, Officer Ferguson escorted the victim to his patrol car and later
transported her to the Criminal Justice Center to speak with an investigator. Before
transporting the victim, the officer frisked her for weapons and found none. Officer
Ferguson said that the victim was not wearing an ankle holster at the time.
On cross-examination, Officer Ferguson testified that he did not file a report in
this case. He stated that he did not know how many people had had contact with the
victim before he arrived. He agreed that the bar was still full of people when he arrived.
Officer Ferguson could not recall what the victim wore that night or if she had any
identifying tattoos. He agreed that, had he made a report of his role in the investigation,
he likely would have included this information.
Following this evidence, the jury convicted the Defendant of attempted voluntary
manslaughter, and employing a firearm during the commission of a dangerous felony.
The jury acquitted the Defendant of the remaining charges. At a subsequent sentencing
hearing, the trial court sentenced the Defendant as a Range I offender to three years
supervised probation for the attempted voluntary manslaughter conviction and six years
of incarceration for the employment of a deadly weapon conviction.
II. Analysis
On appeal, the Defendant contends that the trial court erred when it: (1) failed to
properly instruct the jury; (2) excluded an email from the Defendant to the victim about
the decline of their marriage; (3) prevented the Defendant from testifying about the
victim‟s prior aggressive tendencies; and (4) excluded evidence of the victim‟s prior
domestic assault charge.
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A. Jury Instruction
The Defendant asserts that the jury instruction regarding the charge of employing
a firearm during the commission of a dangerous felony was erroneous, and the trial court
committed plain error when it did not provide an instruction on self-defense.
A trial court has the duty, in criminal cases, to fully instruct the jury on the general
principles of law relevant to the issues raised by the evidence. See State v. Burns, 6
S.W.3d 453, 464 (Tenn. 1999); State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986);
State v. Elder, 982 S.W.2d 871, 876 (Tenn. Crim. App. 1998). “Nothing short of a „clear
and distinct exposition of the law‟ satisfies a defendant‟s constitutional right to trial by
jury.” State v. Phipps, 883 S.W.2d 138, 150 (Tenn. Crim. App. 1994) (quoting State v.
McAfee, 737 S.W.2d 304, 308 (Tenn. Crim. App. 1987) (quoting Strady v. State, 45
Tenn. 300, 307 (1868))). In other words, the court must instruct the jury on those
principles closely and openly connected with the facts before the court, which are
necessary for the jury‟s understanding of the case. Elder, 982 S.W.2d at 876. Because
questions of the propriety of jury instructions are mixed questions of law and fact, our
standard of review here is de novo, with no presumption of correctness. State v. Rush,
50 S.W.3d 424, 427 (Tenn. 2001); State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001).
When reviewing jury instructions on appeal to determine whether they are
erroneous, this Court should “review the charge in its entirety and read it as a whole.”
State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997) (citing State v. Stephenson, 878
S.W.2d 530, 555 (Tenn. 1994)). The Tennessee Supreme Court, relying on the words of
the United States Supreme Court, has noted that:
[J]urors do not sit in solitary isolation booths parsing instructions for subtle
shades of meaning in the same way that lawyers might. Differences among
them in interpretation of instructions may be thrashed out in the
deliberative process, with commonsense understanding of the instructions
in the light of all that has taken place at the trial likely to prevail over
technical hairsplitting.
Id. (quoting Boyde v. California, 494 U.S. 370, 380-81 (1990)). A jury instruction is
considered “prejudicially erroneous,” only “if it fails to fairly submit the legal issues or if
it misleads the jury as to the applicable law.” Id. (citing State v. Forbes, 918 S.W.2d 431,
447 (Tenn. Crim. App. 1995); Graham v. State, 547 S.W.2d 531, 544 (Tenn. 1977)).
Even if a trial court errs when instructing the jury, such instructional error may be found
harmless. State v. Williams, 977 S.W.2d 101, 104-05 (Tenn. 1998).
1. Jury Instruction on Employing a Firearm
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The Defendant argues that the trial court‟s improper instruction to the jury caused
confusion and that “Counsel was not afforded an opportunity to review the jury charge or
verdict form prior to the Court instructing the jury.” The State responds that the
Defendant has waived this issue because the Defendant participated in the creation of the
jury charge and, therefore, had the opportunity to raise any challenges to the jury
instruction and did not do so. Alternatively, the State argues that any error in the jury
charge was harmless.
At trial the following jury instruction as to employing a firearm during the
commission of a dangerous felony was given to the jury:
Any person who [employs] a firearm during the commission of a
dangerous felony is guilty of a crime.
For you to find the defendant guilty of this offense, the state must
have proven beyond a reasonable doubt the existence of the following
essential elements:
[Part A:
(1) that the defendant possessed a firearm;
and
(2) that the possession was with the intent to go armed during the
commission of or attempt to commit (ATTEMPTED FIRST
DEGREE MURDER or ANY LESSER INCLUDED FELONY.]
[Part B:
(1) that the defendant employed a firearm;
and
(2) that the employment was during the commission of or attempt to
commit] (ATTEMPTED FIRST DEGREE MURDER or ANY
LESSER INCLUDED FELONY
and
16
(3) that the defendant acted either intentionally, knowingly or
recklessly.]
At the motion for new trial hearing, the Defendant argued that the jury was
improperly charged because the trial court did not define “dangerous felony.” Instead of
listing each of the applicable offenses the trial court inserted “ANY LESSER
INCLUDED FELONY” even though some of the lesser included offenses, such as
attempted criminally negligent homicide or attempted reckless homicide, are not a
“dangerous felony” pursuant to Tennessee Code Annotated, section, 39-17-1324(i)(1).
Both the State and the trial court referenced a meeting wherein the defense, the State, and
the trial court reviewed the charge “in detail,” and the Defendant‟s silence as to this issue
during the review. Specifically, the trial court stated, “I gave every opportunity for both
sides to look at the jury instructions, and I believe everybody looked at it and made
suggestions. In fact, we made some changes that day.”
As the State correctly notes, errors in the jury instructions may be waived. See
Tenn. R. Crim. P. 30(b); see also, State v. Robinson, 146 S.W.3d 469, 509 (Tenn. 2004).
In this case, the trial court should have instructed the jury as to the specific lesser
included offenses to be considered. The Defendant, however, failed to object to the trial
court‟s instruction and thus waived the issue. Furthermore, even considering the merits
of the issue, the error is harmless because the jury convicted the Defendant of attempted
voluntary manslaughter, an offense that is statutorily defined as a “dangerous felony”
pursuant to Tennessee Code Annotated, section, 39-17-1324(i)(1)(C), (M). This issue is
without merit.
2. Self-Defense Instruction
The Defendant argues that the trial court erred when it failed to instruct the jury on
self-defense. The State responds that the Defendant never requested a self-defense jury
instruction and the trial court did not commit plain error by omitting the instruction.
Self-defense is defined in the Tennessee Code as follows:
(2)[A] person who is not engaged in unlawful activity and is in a place
where the person has a right to be has no duty to retreat before threatening
or using force intended or likely to cause death or serious bodily injury, if:
(A) The person has a reasonable belief that there is an
imminent danger of death or serious bodily injury;
17
(B) The danger creating the belief of imminent death or
serious bodily injury is real, or honestly believed to be real at
the time; and
(C) The belief of danger is founded upon reasonable grounds.
T.C.A. § 39-11-611(b) (2014).
As the State correctly notes, and the Defendant concedes, the Defendant did not
request a self-defense instruction nor did the Defendant challenge the omission in his
motion for new trial. We agree with the parties that the Defendant‟s failure to object to
the omission of the instruction and his failure to raise the issue in his motion for a new
trial precludes our review of this issue, subject to our noticing “plain error.” See Tenn. R.
App. P. 3(e) (providing that “no issue presented for review shall be predicated upon error
in the admission or exclusion of evidence, jury instructions granted or refused,
misconduct of jurors, parties or counsel, or other action committed or occurring during
the trial of the case, or other ground upon which a new trial is sought, unless the same
was specifically stated in the motion for new trial. . . .”); Tenn. R. App. P. 36(a)
(providing that relief is not required for a party who failed to take reasonably available
action to prevent or nullify an error).
Pursuant to Rule 52(b) of the Tennessee Rules of Criminal Procedure, we have
discretion to notice an error that has affected the substantial rights of an accused when
necessary to do substantial justice. State v. Adkisson, 899 S.W.2d 626, 642 (Tenn. Crim.
App. 1994). When considering whether “plain error” exists, we consider the following
factors:
(a) the record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached;
(c) a substantial right of the accused must have been adversely affected;
(d) the accused did not waive the issue for tactical reasons; and
(e) consideration of the error is “necessary to do substantial justice.”
State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000) (adopting the test articulated by the
Court of Criminal Appeals in Adkisson, 899 S.W.2d at 641-42). All five factors must be
established by the record before an appellate court will recognize the existence of “plain
error,” and complete consideration of all the factors is not necessary when it is clear from
18
the record that at least one of the factors cannot be established. Id. In addition, the
“„plain error‟ must [have been] of such a great magnitude that it probably changed the
outcome of the trial.” Adkisson, 899 S.W.2d at 642.
In the case herein we are persuaded that the Defendant has successfully carried his
burden of persuasion in establishing a plain error claim. First, the record is clear as to
what happened in the trial court. The jury charge is included in the record and confirms
that the trial court did not instruct the jury on self-defense. Further, there is no indication
in the record that the defense waived the issue for tactical reasons. During a bench
conference, defense counsel argued for introduction of police reports made regarding the
victim‟s prior threats to the Defendant as support for the defense theory that the
Defendant acted in self-defense. In our view, consideration of the issue is necessary to
do substantial justice. Looking at the evidence, we are convinced that the evidence
“fairly raises the defense” such that the trial court would have been obligated to submit
the issue to the jury. For a statutory defense to be fairly raised by the proof, “a court
must, in effect, consider the evidence in the light most favorable to the defendant,
including drawing all reasonable inferences flowing from that evidence,” because the trial
courts and appellate courts must avoid judging the credibility of the witnesses when
making this determination. State v. Shropshire, 874 S.W.2d 634 (Tenn. Crim.
App.1994).
After reviewing the record, we are persuaded that self-defense was “fairly raised”
in this case. The evidence, viewed in a light most favorable to the Defendant, established
that the victim, who had been drinking throughout the day, summoned the Defendant to a
bar to give her a ride home. When he arrived, she was unresponsive to his requests about
her specific location. When she directed him to her location, she was seated between two
men who were in an aggressive stance, one of which the Defendant believed to be armed.
The Defendant pulled out his gun in preparation for any conflict and then exited the
building with the victim. Once outside, he put his weapon away, told the victim he was
leaving, and walked toward his truck. The victim argued with him and then reached
down to her ankle holster where the Defendant saw a gun. The Defendant, a trained and,
by all accounts, excellent marksman, fired his gun to prevent the victim from using her
gun. In doing so, he caused property damage but no physical damage to anyone.
Moreover, the Defendant remained at the scene and cooperated fully when approached by
authorities. His recount of the events to various persons involved with the case has
remained consistent since the incident. Further, the jury‟s verdict of attempted voluntary
manslaughter indicates the jury‟s belief that the Defendant acted under “adequate
provocation.” T.C.A. § 39-13-211(a). Thus, we conclude that, in order to do substantial
justice, a jury must be properly instructed as to self-defense prior to determining whether
the Defendant is guilty or not guilty. Self-defense was fairly raised by the testimony;
therefore, we conclude that it should have been charged to the jury. When the proof
19
“tends to show” self-defense, it is error to fail to give the instruction. Souey v. State, 81
Tenn. 472 (1884). Because the jury was not given the benefit of the instruction and
denied the opportunity to evaluate the merit of the claim, we must reverse the convictions
and order a new trial.
In case of further appellate review, we now consider the Defendant‟s remaining
issues.
B. Exclusion of Evidence
The Defendant asserts that the trial court erred when it excluded evidence of the
nature of the Defendant and the victim‟s relationship. Specifically, the Defendant attacks
the exclusion of: (1) a 2010 email from the Defendant to the victim expressing his desire
for a divorce; (2) cross-examination about the victim‟s prior domestic assault charge; and
(3) the Defendant‟s testimony about the victim‟s violent tendencies during their marriage.
Generally, the admissibility of evidence is entrusted to the sound discretion of the
trial court, and a trial court‟s ruling with regard to the admissibility of evidence will not
be reversed on appeal absent an abuse of discretion. State v. James, 81 S.W.3d 751, 760
(Tenn. 2002); State v. Carroll, 36 S.W.3d 854, 867 (Tenn. Crim. App. 1999). “An abuse
of discretion exists when the reviewing court is firmly convinced that the lower court has
made a mistake in that it affirmatively appears that the lower court‟s decision has no
basis in law or in fact and is therefore arbitrary, illogical, or unconscionable.” State v.
Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 191 (Tenn. 2000).
1. 2010 Email
At trial, the Defendant sought to introduce an email sent by the Defendant in
October 2010 to the victim indicating he was not happy in the marriage and wanted a
divorce. The trial court found the October 2010 email was not relevant and denied its
admission.
The Tennessee Rules of Evidence provide that all “relevant evidence is
admissible,” unless excluded by other evidentiary rules or applicable authority. Tenn. R.
Evid. 402. Of course, “[e]vidence which is not relevant is not admissible.” Id. Relevant
evidence is defined as evidence “having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Tenn. R. Evid 401. Even relevant evidence,
however, “may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
20
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Tenn. R. Evid. 403.
We find no error in the trial court‟s ruling. The shooting occurred in April 2012,
and the proffered email was sent eighteen months prior. Defense counsel argued that he
wanted to introduce the email to show the parties marriage was troubled. The victim,
however, had already testified to the troubled marriage at the time of these events;
therefore, this testimony would have been cumulative. We find no error in the trial
court‟s exclusion of this evidence. The Defendant is not entitled to relief as to this issue.
2. Victim’s Prior Domestic Assault Charge
At trial, the defense attempted to cross-examine the victim about previous charges
of domestic assault, and the trial court sustained the State‟s objection to the line of
questioning.
The admissibility of evidence to establish a victim‟s “pertinent character trait” is
governed by Rule 404(a)(2), Tennessee Rule of Evidence. This rule provides:
(a) Character Evidence Generally. Evidence of a person‟s character or a
trait of character is not admissible for the purpose of proving action in
conformity with the character or trait on a particular occasion, except:
....
(2) Character of Victim. Evidence of a pertinent character trait of the
victim of crime offered by an accused or by the prosecution to rebut the
same, or evidence of a character trait of peacefulness of the victim offered
by the prosecution in a homicide case to rebut evidence that the victim was
the first aggressor.
The Advisory Commission Comment to this rule states that “[p]art (a) [of Rule 404] has
always been the law in Tennessee for criminal prosecutions.”
We note initially that, following the trial court‟s ruling, the Defendant did not
proffer the arrest records that he wished to introduce into evidence. Thus, in addition to
lacking the testimony of the victim about the charges, we do not have the arrest records
themselves to review. The transcript contains some vague discussions between the State,
defense counsel, and the trial court regarding the charges; however, these discussions are
unclear and, of course, are not evidence. On appeal, we are simply unable to ascertain
the underlying factual basis supporting the charges. Thus, we are left only to speculate as
21
to the precise nature of the excluded evidence. An offer of proof is necessary to “ensure
effective and meaningful appellate review.” State v. Hall, 958 S.W.2d 679, 691 n. 10
(Tenn. 1997); Tenn. R. Evid. 103(a)(2). By failing to include the excluded charges in the
appellate record, the Defendant has waived review of this issue. Tenn. R. App. P. 13(c);
Tenn. R. App. P. 36(a).
2. Defendant’s Testimony about the Victim’s Prior Violent Conduct
At trial, defense counsel asked the Defendant “had you had problems before where
you had to call the police to come to your residence because [the victim] was out of
control?” The State objected. After hearing from both parties, the trial court found the
testimony was not “germane” and limited any questioning about prior incidents to two
weeks before the shooting.
The Defendant argues that the trial court erred when it prevented him from
testifying about the victim‟s “prior aggressive tendencies” and “altercations which
required the [D]efendant to call the police in order to protect himself.” The Defendant,
however, made no offer of proof as to what the Defendant‟s testimony would have been,
thereby preventing our ability to effectively review this issue. Therefore, the Defendant
has waived our review of this issue. Tenn. R. App. P. 13 (c); Tenn. R. App. P. 36(a).
III. Conclusion
In accordance with the foregoing reasoning and authorities, we conclude that the
trial court committed reversible error when it failed to instruct the jury on self-defense,
which was fairly raised by the proof. Therefore, we reverse the trial court‟s judgment
and remand the case for a new trial.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
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