2015 #23 self defense weekly law report

Law of Self Defense: Weekly Law Report 2015 #23 (May 25-29, 2015)__________________________________________________________________________________________

__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 1 of 30

Frequently Asked Questions

Q: What is the Law of Self Defense: Law Report Weekly?

A: Each week Law of Self Defense staff review self-defense court decisions from around the country. Those we find most interesting are summarized in each weeks Law of Self Defense: Weekly Law Report. The cases are organized by state, in alphabetical order, first listed in summary fashion in the Table of Contents

and then by individual case.

Q: The Law of Self Defense is well-known for translating the legalese of self-defense law into plain English easily understood by non-lawyers, as you do in your books, seminars, online training, and blog posts. Is the same effort made to translate the cases in these Weekly Reports into plain English?

A: Im afraid not. Translating legalese into plain English takes a lot of effort, and simply isnt tenable for weekly reports of this type. Therefore we consider these reports a graduate-level product, for people who already have a solid understanding of the legal principles of self-defense law. To get up to speed we

encourage you to start with our best-selling book, The Law of Self-Defense, 2nd Edition, (also available from Amazon in print and Kindle, the NRA Store, and Gun Digest) which covers all 50 states at a high level.

You may also consider one of our state-specific live Law of Self Defense Seminars held all over the country or state-specific online training classes. And, of course, theres always the Law of Self Defense Blog.

Q: Do you recount each of the cases in their entirety?

A: No. Many cases that involve issues of self-defense also involve other issues unrelated to self-defense; we only summarize the portions of the cases that directly involve issues of self-defense law. What we do include are the case citation, a list of the key self-defense law issues covered in that case, the date of the

decision, and the text of the decision that discusses the specific self-defense laws of interest.

The goal is to provide the reader with an efficient way of deciding if they want to read the entire case.

Q: What if I want to read the entire case?

A: Every case summarized here is hyperlinked back to the full-length version of that case. We do, in fact, strongly encourage you to read the entire text of any cases of particular interest to you, as that is the best

way to understand the fullest context of the courts decisions.



Table of Contents

CALIFORNIA

In re Brian, 2015 Cal. App. Unpub. LEXIS 3730 (CA Ct. App. 2015)Key issues: Tear gas is a dangerous weapon and its use (except in self-defense) is a

crime and may allow enhancement of a charge or sentence; Threatening to use a weapon is use of that weapon; Objects whose ordinary intended use is as a weapon designed to cause death or grave bodily harm are dangerous or deadly weapons as a matter of law; Objects not designed as weapons but which are used in a manner intended to cause death or grave bodily harm are also dangerous or deadly weapons based on the circumstances of their use; Pepper spray is a dangerous weapon as a matter of law, because it is intended use causes death or grave bodily harm, to wit, disablement through difficulty of breathing, burning of eyes, nausea, and temporary incapacitation.

Date: May 28, 2015

People v. King, 2015 Cal. App. Unpub. LEXIS 3720 (CA Ct. App. 2015)Key issues: Burden of production, claim of self-defense not raised until trial; Defense of

Accident with a firearm; Consciousness of guilt evidence: hiding weapon, lying to 911/police/media; Innocence, provocation, pre-textual self-defense;

Date: May 28, 2015

TENNESSEE

State v. Montgomery, 2015 Tenn. Crim. App. LEXIS 415 (TN Ct. App. 2015)Key issues: Stand-Your-Ground, 39-11-611(b); Statutory prohibition of conviction for

illegal gun possession of gun used in self-defense, 39-17-1322; Being engaged in an unlawful activity of any sort (including illegal possession of a gun) strips defendant of Stand-Your-Ground and re-imposes the legal duty to retreat, but it does not strip the defendant of right to claim self-defense.

Date: May 28, 2015

UTAH

State v. Alzaga, 2015 UT App 133 (UT Ct. App. 2015)Key issues: Impermissible to claim of self-defense by person attempting/committing/

fleeing a felony [Utah Code 76-2-402(2)(a)(ii)]; Burden of persuasion on self-defense is on the State; "Forcible felony" includes "arson, robbery, and burglary as defined in Title 76, Chapter 6 [of the Utah Code], Offenses Against Property," as well as "[a]ny other felony offense which involves the use of force or violence against a person so as to create a substantial danger of death or serious bodily injury." [Utah Code Ann. 76-2-402(4)(a), (b)]

Date: May 29, 2015

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CALIFORNIA

In re Brian, 2015 Cal. App. Unpub. LEXIS 3730 (CA Ct. App. 2015)

Key issues: Tear gas is a dangerous weapon and its use (except in self-defense) is a crime and may allow enhancement of a charge or sentence; Threatening to use a weapon is use of that weapon; Objects whose ordinary intended use is as a weapon designed to cause death or grave bodily

harm are dangerous or deadly weapons as a matter of law; Objects not designed as weapons but which are used in a manner intended to cause death or grave bodily harm are also dangerous or

deadly weapons based on the circumstances of their use; Pepper spray is a dangerous weapon as a matter of law, because it is intended use causes death or grave bodily harm, to wit,

disablement through difficulty of breathing, burning of eyes, nausea, and temporary incapacitation.

Date: May 28, 2015

Decision:

When confronted by store loss prevention personnel

after having stolen store merchandise, defendant Brian P. brandished but did not discharge a canister

labeled "pepper spray." The trial court sustained allegations that defendant committed robbery and

burglary, used tear gas in commission of the offenses, and personally used a dangerous weapon, namely

tear gas. On appeal, defendant contends that brandishing a tear gas canister does not without more

constitute "use" of tear gas, and no evidence supported the finding that defendant used a

dangerous weapon. We disagree with both contentions. Brandishing a weapon constitutes "use"

whether or not the weapon is discharged. And whether the pepper spray in defendant's canister, if

any, was actually dangerous is irrelevant for purposes of the enhancement statute, as the weapon was

designed to be dangerous and appeared to be

capable of carrying out its design, which suffices.

Accordingly, we affirm the judgment.

BACKGROUND

On February 20, 2013, defendant and a companion took seven portable Bluetooth speakers from a Wal-

Mart without paying for them. When they were confronted in the parking lot by Kyle McDaniel, a loss

prevention officer employed by the store, defendant produced a canister labeled "pepper spray" and said

he would spray McDaniel if he did not get back. After defendant was subdued, he admitted he threatened

McDaniel with the pepper spray to prevent him from finding the speakers and said he carried the spray for

protection.



At trial, the only evidence concerning the contents of

the pepper spray canister was a photograph of the canister bearing a label that said, "18% Pepper

Spray" and "Warning: Strong Irritant."

After a contested hearing, the trial court found defendant violated Penal Code sections 211

(robbery), 459 (burglary), and 22810, subdivision (g)(1) (use of tear gas), and found true the allegation

that defendant personally used a dangerous weapon within the meaning of Penal Code section 12022,

subdivision (b)(1). The trial court declared defendant a ward of the court, placed him on home probation,

and terminated wardship as of the same date.

He timely appealed.

DISCUSSION

A. "Use" of Tear Gas

Defendant contends brandishing a pepper spray canister without discharging any spray does not

constitute "use" of the weapon. We disagree.

"[A]ny person who uses tear gas or any tear gas weapon except in self-defense is guilty of a public

offense." (Pen. Code, 22810, subd. (g)(1).) A tear gas weapon is "[a]ny shell, cartridge, or bomb

capable of being discharged or exploded, when the discharge or explosion will cause or permit the

release or emission of tear gas." (Pen. Code, 17250, subd. (a).) Tear gas is "any liquid, gaseous or

solid substance intended to produce temporary physical discomfort or permanent injury through being

vaporized or otherwise dispersed in the air." (Pen. Code, 17240, subd. (a).)

"Threatening another with any weapon, including a tear gas weapon," constitutes "use" of the weapon.

(People v. Hamilton (1998) 61 Cal.App.4th 149, 154 [defendant pointed an unloaded tear gas gun at the

victim and clicked the trigger]; People v. Wims (1995) 10 Cal.4th 293, 302 ["use" includes intentionally

displaying a weapon in a menacing manner].) The weapon need not be discharged or even be capable

of discharge, so long as there is evidence it was designed to discharge tear gas and gave the

appearance of the capability to do so. (See People v. Nelums (1982) 31 Cal.3d 355, 359-360 [defendant

used an inoperable firearm].)

Here, defendant brandished a pepper spray canister and told McDaniel he would use it. That constituted

use of a tear gas weapon for purposes of Penal Code section 22810.

B. Use of a "Dangerous" Weapon

"A person who personally uses a deadly or dangerous

weapon in the commission of a felony or attempted felony shall be" subject to a sentence enhancement.

(Pen. Code, 12022, subd. (b)(1).) Defendant contends insufficient evidence supported the finding

that he used a deadly or dangerous weapon because there was no evidence his pepper spray canister was

loaded, no evidence that any spray it may have contained was of sufficient strength to be dangerous,

and no evidence that pepper spray is itself dangerous.

"'In order to find "true" a section 12022(b) allegation, a

fact finder must conclude that, during the crime or attempted crime, the defendant himself or herself

intentionally displayed in a menacing manner . . . an instrument capable of inflicting great bodily injury or

death. . . .' . . . In determining whether an object which



is not inherently deadly or dangerous has been used as a dangerous or deadly weapon, 'the trier of fact

may consider the nature of the object, the manner in which it is used, and all other facts relevant to the

issue.'" (People v. Blake (2004) 117 Cal.App.4th 543, 555, fns. omitted.)

"'[A] distinction should be made between two classes

of "dangerous or deadly weapons." There are, first, those instrumentalities which are weapons in the strict

sense of the word, and, second, those instrumentalities which are not weapons in the strict

sense of the word, but which may be used as such. The instrumentalities falling in the first class, such as

guns, dirks and blackjacks, which are weapons in the strict sense of the word and are "dangerous or

deadly" to others in the ordinary use for which they are designed, may be said as a matter of law to be

"dangerous or deadly weapons." This is true as the ordinary use for which they are designed establishes

their character as such. The instrumentalities falling into the second class, such as ordinary razors,

pocket-knives, hatpins, canes, hammers, hatchets and other sharp or heavy objects, which are not

weapons in the strict sense of the word and are not "dangerous or deadly" to others in the ordinary use

for which they are designed, may not be said as a matter of law to be "dangerous or deadly weapons."

When it appears, however, that an instrumentality other than one falling within the first class is capable

of being used in a "dangerous or deadly" manner, and it may be fairly inferred from the evidence that its

possessor intended on a particular occasion to use it as a weapon should the circumstances require, we

believe that its character as a "dangerous or deadly weapon" may be thus established, at least for the

purposes of that occasion.'" (People v. Graham (1969) 71 Cal.2d 303, 327-328, disapproved on other

grounds in People v. Ray (1975) 14 Cal.3d 20, 32.)

Pepper spray is a dangerous weapon as a matter of

law, as the ordinary use for which it is designed establishes its character as such. (See Pen. Code,

17250, subd. (a) [tear gas "weapon" is any cartridge capable of being discharged and releasing tear gas];

see, e.g., United States v. Neill (9th Cir. 1999) 166 F.3d 943, 949-950.) Although the effects of pepper

spray are normally temporary, there is no question that it may disable by causing difficulty breathing,

burning eyes, nausea, and temporary incapacitation. (People v. Blake (2004) 117 Cal.App.4th 543, 558.)

Even if pepper spray were not inherently dangerous, it may be fairly inferred from the evidence here that

defendant intended to use his canister as a dangerous weapon, in that he brandished it at

McDaniel to dissuade him from carrying out his duty, a goal that could have been accomplished only if the

perceived danger was great enough to overwhelm the duty.

It is true the only evidence of the degree of danger

posed by defendant's pepper spray canister was that it appeared to be such a canister, it was labeled

"pepper spray," and the label stated the spray was "18% strength" and constituted a "strong irritant." This

evidence does not establish the canister was loaded or that any pepper spray it contained was of sufficient

strength to injure McDaniel. But the canister was designed to injure and reasonably appeared to be

capable of doing so, and defendant depended at least on that appearance to dissuade McDaniel from

apprehending him. It does not matter whether the spray itself would have been capable of injuring

McDaniel had it been discharged. The legislative purpose underlying weapons penalty enhancement

statutes is to deter those engaged in felonies from creating a risk of death or injury by having a weapon

at the scene of the crime. (People v. Bland (1995) 10



Cal.4th 991, 1001.) The risk arises not only from potential use of the weapon to protect the defendant

or ward off police, but also from potential police reaction to the weapon itself. The deterrence

objective is best fulfilled by imposing an enhanced penalty whether or not the weapon is functional, so

long as it was designed to function and gave the

reasonable appearance of being able to do so. (People v. Nelums, supra, 31 Cal.3d at pp. 359-360.)

DISPOSITION

The judgment is affirmed.

__________________________________________________________________________________________



CALIFORNIA

People v. King, 2015 Cal. App. Unpub. LEXIS 3720 (CA Ct. App. 2015)

Key issues: Burden of production, claim of self-defense not raised until trial; Defense of Accident with a firearm; Consciousness of guilt evidence: hiding weapon, lying to 911/police/media; Innocence, provocation, pre-textual self-defense;

Date: May 28, 2015

Decision:

A jury found defendant Jerry Lee King guilty of first

degree murder and found he personally used and intentionally discharged a firearm, causing death.

(Pen. Code, 187, 12022.53, subds. (b), (c), (d).) The trial court sentenced defendant to prison for 50

years to life and he timely appealed.

On appeal, defendant contends the trial court prejudicially misinstructed the jury regarding self-

defense, provocation, and lying in wait. Disagreeing, we shall affirm.

BACKGROUND

On December 9, 2012, defendant fatally shot his

uncle, Willis Griffin, with a rifle.

The People's theory was that defendant, who lived with his mother in a rural area, had been asked to

leave, and his mother enlisted Griffin to help evict him. He had threatened to shoot Griffin the day

before, and about a week before the killing threatened to beat Griffin because he thought Griffin was seeing

defendant's ex-girlfriend. When Griffin arrived at the residence on the day of the murder, defendant walked

75 feet from the residence towards him and shot him through the heart from 10 feet away. After the killing

he had gunshot residue on his hand, hid the gun, and

consistently denied shooting Griffin until his trial testimony.

The defense theory was that Griffin--larger than

defendant, and a drug-user with a violent past--arrived, asked if defendant was going to shoot him,

then charged at defendant, who did not know whether the rifle he held was loaded. Defendant brought the

rifle up and fired it accidentally. Defendant lied about the shooting because he was afraid. The People

argued defendant's claims of accident or self-defense should be rejected, because they were not raised until

trial and also in part argued that defendant lacked credibility because of his three prior felony

convictions.

At trial, defendant testified Griffin outweighed him by at least 50 pounds. The day before the killing he

overheard his mother talking to Griffin, who said he would get defendant out of the house the next day,

which made him feel bad and "tore [him] up inside." The next day defendant argued with his mother as

she prepared to leave, and threatened to stab the tires he had bought for her car. He fell asleep, woke

up, and heard Griffin's motorcycle. He believed he was going to be kicked out. He armed himself



because he was afraid of Griffin, having seen him beat his mother's ex-husband with a baseball bat and

"do some pretty mean things" to others. He added about Griffin that "[w]hen he snaps, he snaps."

Defendant did not check to see if the rifle was loaded.

Defendant testified that when Griffin stopped his motorcycle, he looked at defendant--who was about

10 feet away, holding the rifle with one arm--and said "what are you going to do, fucking shoot me[?]" As

Griffin tried to put the kickstand down, he hit his leg, swore, dismounted from the bike, and started toward

defendant. Defendant described Griffin's advance "Like a football tackle. Like he was going to tackle me.

Like he started to run at me." Defendant then "pulled the gun up and it just went off." It was an accident.

Defendant admitted hiding the gun, and lying to the 911 operator, the police, and the media. He loved his

uncle, who had practically raised him. Despite this affection, he brought the rifle "because I thought if I

had the gun in my hands that he wouldn't come after me physically. . . . That we could actually just argue

this out and then I wouldn't have to leave."

DISCUSSION

I

Pretextual Self-Defense

Defendant contends the trial court should not have instructed the jury on the concept of pretextual self-

defense. He concedes he did not object to this instruction in the trial court, but contends we should

review his claim for various reasons. We elect to address the claim on the merits, and reject the claim

of error.

A. Background

The trial court gave the pattern CALCRIM instructions on self-defense and imperfect self-defense. These

instructions required the jury, before returning a murder verdict, to find that the People had proven

beyond a reasonable doubt that defendant had not acted to defend himself, whether defendant's belief in

the need to do so was objectively reasonable or not. As to each defense, the jury was instructed to

consider defendant's knowledge of Griffin's prior threatening or harmful acts in evaluating defendant's

belief. As to regular self-defense, the jury was instructed defendant could stand his ground.

The trial court also gave CALCRIM No. 3472, as

follows: "A person does not have the right to self-defense if he or she provokes a fight or quarrel with

the intent to create an excuse to use force."

Defense counsel argued in part that because of Griffin's size, violent past, and his sudden lunge

towards defendant, defendant actually believed in the need to employ deadly force to defend himself.

During rebuttal, the prosecutor argued, "A person doesn't have the right to self-defense if he provokes

the fight or [acts] with an intent to create an excuse to use force. Well, I'm going to go out there with this

rifle, when Willis sees it [and] says, what are you going to do, shoot me, then it's going to be okay that I

do. That's not the way the law works."

B. Analysis

To illustrate the concept of pretextual self-defense, counsel cites an unforgettable scene from Shane,

where Jack Palance's character--a highly experienced gunfighter--goads Elisha Cook, Jr.'s character--an

ordinary "sodbuster"--into reaching for his revolver,



whereupon Palance's character shoots him down, having planned the entire scenario to absolve himself

of liability, because he did not draw first. But, Hollywood notwithstanding--and regardless of

whether the film correctly conveyed the extant law in 19th Century Wyoming--our Supreme Court has held

that "[s]elf-defense is not available as a plea to a defendant who has sought a quarrel with the design

to force a deadly issue and thus, through his fraud, contrivance, or fault, to create a real or apparent

necessity for killing." (People v. Hecker (1895) 109 Cal. 451, 462.)

Defendant contends "nothing remotely similar"

happened in this case. We disagree. The jury could plausibly find that defendant carried the rifle with him

to goad Griffin into making a threatening move. Defendant's own testimony shows that after Griffin

saw the gun, he in effect scoffed at it, taunting defendant by asking if he was going to "fucking shoot"

Griffin. Then, when Griffin got off the motorcycle, according to defendant, Griffin indeed rushed towards

defendant, whereupon, in defendant's version, the rifle discharged as he brought it up defensively. The

very fact he greeted his uncle with a rifle in hand could be viewed by the jury as provocation by

defendant, because the jury was free to disbelieve defendant's testimony that he held the rifle in order to

ensure a peaceful dialogue with Griffin.

Accordingly, contrary to defendant's view, substantial evidence supported the instruction, and therefore the

trial court did not err in giving it to the jury.

Moreover, the trial court instructed the jury that not all of the instructions were applicable, depending on its

findings about the facts of the case. The prosecutor emphasized the trial court's instruction that not all

instructions would necessarily apply. We presume the jury would follow the instructions and disregard the

pretextual self-defense instruction if it did not find the facts supported it. (See People v. Sanchez (2001) 26

Cal.4th 834, 852.) It did not, as defendant contends, impair the other self-defense instructions, which

required the People to disprove both the perfect and imperfect self-defense theories. (See People v. Olguin

(1994) 31 Cal.App.4th 1355, 1381 [construing similar instruction, but rejecting claim that it "might have kept

the jury from evaluating [the] self-defense claim"].) This instruction did not negate or weaken those

instructions, nor did the prosecutor's argument.

II

[ . . . ]

DISPOSITION

The judgment is affirmed.

__________________________________________________________________________________________



TENNESSEE

State v. Montgomery, 2015 Tenn. Crim. App. LEXIS 415 (TN Ct. App. 2015)

Key issues: Stand-Your-Ground, 39-11-611(b); Statutory prohibition of conviction for illegal gun possession of gun used in self-defense, 39-17-1322; Being engaged in an unlawful activity of any sort (including illegal possession of a gun) strips defendant of Stand-Your-Ground and re-imposes the

legal duty to retreat, but it does not strip the defendant of right to claim self-defense.

Date: May 28, 2015

Decision:

The Defendant, Deanty Montgomery, appeals as of

right from his jury convictions for aggravated assault, unlawful possession of a weapon, and misdemeanor

reckless endangerment, which resulted in an effective five-year sentence. On appeal, the Defendant raises

the following issues for our review: (1) whether the trial court properly permitted the State's argument that

the Defendant was engaged in unlawful activity and was, therefore, not excused from the duty to retreat

under a theory of self-defense; (2) whether the trial court committed error during jury deliberations in its

response to a question from the jury about a person's duty to retreat when engaged in an unlawful activity;

and (3) whether the evidence is sufficient to support his convictions. Following our review, we affirm the

trial court's judgments. [ . . . ]

OPINION

FACTUAL BACKGROUND

This case arises out of a June 9, 2012 confrontation between the Defendant and Maurice Davis ("the

victim") in front of the Walter P. Taylor Homes' market in Knoxville, which resulted in the Defendant's

shooting the victim multiple times. Thereafter, on

November 27, 2012, a Knox County grand jury

charged the Defendant in a five-count indictment with the following: Count 1 -- attempted first degree

murder; Count 2 -- employment of a firearm during the commission of a dangerous felony; Count 3 --

employment of a firearm during the commission of a dangerous felony by one having a prior conviction for

a dangerous felony; Count 4 -- unlawful possession of firearm by one having been convicted of a felony drug

offense; and Count 5 -- aggravated assault. See Tenn. Code Ann. 39-12-101, -13-102, -13-202,

-17-1307, & -17-1324.

Officer Lee Shaw of the Knoxville Police Department ("KPD") testified that he patrolled the Walter P. Taylor

Homes area in June 2012 and responded to a call concerning a shooting in front of the market on June

9, 2012. Upon his arrival, he saw the victim lying behind a van, which was parked approximately fifteen

to twenty feet from the front entrance of the market. Officer Shaw observed that the victim was suffering

from multiple gunshot wounds, so he called for an ambulance and secured the scene.

Several shell casings were found on the scene

leading "from the back of the van towards the



northeast," and "bullet impacts" were seen on the van and a nearby newspaper stand, in addition to the

victim's wounds. A total of five shell casings were recovered and sent to the crime lab for testing.

KPD Investigator Lance Halseth was able to speak

with one eyewitness at the scene and later with the victim after his arrival at the University of Tennessee

("UT") Medical Center where he received treatment for his injuries. From his investigation, Inv. Halseth

developed the Defendant as a suspect and prepared a photographic array for the victim to view. The victim

identified the Defendant as the shooter,1 according to Inv. Halseth, and a warrant was issued for the

Defendant's arrest. Inv. Halseth also asked the market's clerk for security footage of the shooting, but

he was told that the camera was not working at that time.

Registered Nurse Dennis Downhour testified that he

treated the victim when he arrived at UT Medical Center on June 9, 2012, and that he observed

multiple gunshot wounds to the victim's shoulder, hand, and legs. The victim was immediately taken to

surgery due to the femoral fracture in his leg, which "can be very dangerous" due to the amount of blood

loss, according to Nurse Downhour. After reviewing his notes, Nurse Downhour could not definitely say

whether the Defendant was shot in the back of the shoulder or if it was merely an exit wound.

The Defendant was arrested in the weeks that

followed, and following waiver of his Miranda2 rights, he spoke with Inv. Halseth on July 18, 2012. The

Defendant's statement was played for the jury.

In the statement, the Defendant described the events as a "drug deal gone bad" and provided the following

details to Inv. Halseth. The Defendant stated that a

cousin had called him and advised that he had a large quantity of crack cocaine for sale if the Defendant

knew of any interested buyers. Thereafter, the Defendant was contacted by the victim, also a familial

relation, who coincidently was seeking to make just such a purchase. Because it was family, the

Defendant agreed to facilitate the exchange, referring to himself as the "middleman" in the transaction. The

Defendant then brokered a deal between the victim and his cousin for $1,125-worth of crack cocaine,

which took place on June 7, 2012. A few hours later, the victim contacted the Defendant, advising him that

his customers did not like the taste of the crack cocaine. The Defendant offered to return with the

victim to the seller's residence, but the victim did not show up.

The Defendant told Inv. Halseth that, during the early

morning hours of June 9, 2012, the victim, along with the victim's father, Maurice Johnson, confronted the

Defendant about the money that they believed was owed to the victim. According to the Defendant, the

victim pulled a TEC-9 semi-automatic pistol on him. The Defendant claimed that they forced him into the

car and that they drove to the seller's house to demand a refund. However, when they arrived at the

house, no one answered the door. They later let the Defendant go.

The Defendant maintained that, later that day, he called the victim and offered to reimburse him for half

of the money he paid for the drugs. While en route to Walter P. Taylor Homes, the Defendant heard from

several people that the victim was with his father at the Walter P. Taylor Homes complex looking for the

Defendant, was armed, and was threatening to kill him.

Once the Defendant arrived at Walter P. Taylor

Homes, he stopped to speak with L'Amour Sly and



Tomichael Bennett. While talking, the Defendant saw the victim and his father walk past him headed

towards the nearby market. Although they did not stop to speak to him, the Defendant said he could see the

outline of the TEC-9 inside the victim's backpack at that time. According to the Defendant, he wanted to

speak with the victim, so he followed the victim inside the market. He stated that he did so in order to

appease the victim and negotiate an agreeable outcome.

Because the victim was with several friends while

inside the store, the Defendant went outside and waited for the victim to exit. Once outside, the

Defendant again told the victim that he would give him half of the cocaine purchase price, but the victim

was not satisfied with that offer, stating that the Defendant was trying to "play" him. The Defendant

responded that he was only trying the resolve the matter. He then saw the victim walk behind the van,

heard him cursing, and he could see that the victim was attempting to retrieve something from inside his

backpack. The Defendant then pulled out his weapon and warned the victim not to get the gun out of the

bag. However, according to the Defendant, the victim began to run away while trying to get inside the bag,

and he fired at the victim "six or seven" times in self-defense.

Although the Defendant said L'Amour Sly and

Tomichael Bennett witnessed these events, Inv. Halseth confirmed that he never spoke with these

individuals following the Defendant's interview to confirm the Defendant's story. That concluded the

State's proof.

The Defendant presented several witnesses in his defense. First, L'Amour Sly testified that, on June 9,

2012, he was at Walter P. Taylor Homes and stopped

to talk with Tomichael Bennett and the Defendant. As they were conversing, Mr. Sly saw the victim and the

victim's father walk past them. According to Mr. Sly, the victim had a TEC-9 in his backpack, and the

victim's father had black gloves and a handgun in his pockets. Mr. Sly, along with Mr. Bennett and the

Defendant, proceeded to the neighborhood market, where they went inside and made some purchases.

When Mr. Sly exited, he saw the victim and his father "standing on the other side of the van" that was

parked in front of the store and the Defendant "standing with his back against the door." Mr. Sly

heard the victim and the Defendant talking, and the conversation began "getting heated."

Mr. Sly saw the victim turn towards the van and walk

to the opposite side while taking off his backpack. The victim's father, who was standing behind a metal

newspaper receptacle at this point, started putting his black gloves on, so Mr. Sly thought "[sjomething fixing

to go down." According to Mr. Sly, the Defendant walked around to the front of the van, and then the

victim "pull[ed] the gun up [and] squeeze[d] off two shots"; the Defendant went for his pistol and returned

fire. When the victim fell to the ground, his father fired "four or five" shots at the Defendant, using the

newspaper stand "for cover[.]" Mr. Sly saw the Defendant leave going one way, and the victim's

father leave going another, but only doing so after he "picked up the gun from the [victim] and picked up the

backpack[.]" Before the victim's father was able to "cut [the Defendant] off[,]" the Defendant got in a car

and rode away, according to Mr. Sly.

Mr. Sly was asked if the Defendant had "an opportunity to safely withdraw from the situation[.]" He

replied, "I mean, he could have walked away, but they was in a-- they was pretty much following him to

make sure that he didn't go nowhere." Mr. Sly agreed



that there were many people present in the Walter P. Taylor Homes area that day, including kids playing.

He further agreed that there was a large open area next to the store that the Defendant "could have

retreated to[,]" although he would have been turning his back on two armed men. Mr. Sly confirmed that he

had a felony conviction for possession of marijuana with intent to sell.

James Johnson, an inmate in the county jail, testified

that he worked at the Walter P. Taylor Homes' market in June of 2012 but was off on the day of the

shooting. According to Mr. Johnson, the security surveillance system was operational during that time;

when the disk covering that day was full, the owner asked him to clear the disk; and before he deleted it,

he watched the footage of the shooting. On that disk, Mr. Johnson saw a man dressed in black standing in

front of the van, and he saw the Defendant and the victim talking while standing toward the back of the

van. Mr. Johnson believed that the man in black was carrying a pistol. According to Mr. Johnson, he saw

the man in black "running behind the car," and it appeared that they were "trying to ambush" the

Defendant. Mr. Johnson also saw the victim take his backpack off and attempt to get something from

inside. He never actually saw the victim with a weapon. Mr. Johnson believed "all the guns were in

play" before the victim fell to the ground. According to Mr. Johnson, the man in black tried to retrieve

something from under the van, and he then grabbed the victim's backpack and ran from the scene, never

to return.

Tomichael Bennett, previously convicted of selling a counterfeit controlled substance and of felony

possession of a Schedule III controlled substance, testified for the Defendant and gave his recollection of

the events. Prior to the events at the market, Mr.

Bennett saw the victim and his father walking around Walter P. Taylor Homes looking for the Defendant.

The victim was wearing a red backpack that appeared heavy, and the bag "hung[, s]o it had to be a gun or

something in it," according to Mr. Bennett. Mr. Bennett saw a "reflection" of a gun inside the victim's father's

pants pocket.

Later at the market, the Defendant was "on a wall by the store" when the victim and his father exited. Mr.

Bennett saw the victim walk towards the Defendant, and they had a conversation; he saw the victim's

father go the other way towards the newspaper stand. The victim then moved towards the front of the van

and started "fumbling with this red little backpack" and pulled out what appeared to be a TEC-9. This was the

first time Mr. Bennett had seen the weapon. The Defendant then shot the victim. Mr. Bennett also

observed the victim's father pick up the red backpack and the victim's handgun after the victim had been

shot. According to Mr. Bennett, other than himself, the victim, the victim's father, the Defendant, and Mr. Sly,

no one else was outside of the market at this time.

A private investigator hired by the Defendant, Thomas Ham, testified that he interviewed the victim on June

22, 2013. According to Mr. Ham, he asked the victim about the shooting, and the victim advised,

'Cause I tried walking up on him and tried to hit

him, and he started reaching . . . . I got myself shot. I wasn't even mad at Fat Cat,3 'cause

anybody knows you see somebody reaching for a gun, why would you even reach for a gun, and he

telling you, 'Don't do it. Don't do it.' Fat Cat telling you, 'Don't do it.' It's . . . like I said, I'm new to the

game. That's why I was going . . . .



Mr. Ham then asked the victim why he pulled the gun, to which the victim replied, "Heat of the moment. I

knew he wasn't going to pay me my money anyway." The victim also told Mr. Ham that his father was not

with him that day and that he did not see him until after he got shot. According to the victim, his father

came to him while he was lying on the ground and asked, "You got a gun?" The victim replied, "It's right

there," to which his father responded, "I got you now." Mr. Ham confirmed that the victim meant "new to the

game" of selling drugs in his statement.

The State called Rebecca Byers, an evidence technician with the KPD, in rebuttal. She stated that

five spent shell casings were recovered from one general area at the scene and that they were all .40

caliber Smith and Wesson casings. She also identified a photograph of the victim at the hospital

and, based upon that photograph, testified that the victim had a bullet wound to his back in the upper

shoulder area.

Following the conclusion of the proof, the jury found the Defendant guilty of misdemeanor reckless

endangerment as a lesser-included offense of attempted first degree murder; not guilty of

employment of a firearm during the commission of dangerous felony; guilty as charged of unlawful

possession of a weapon; and guilty as charged of aggravated assault. Thereafter, the trial court imposed

concurrent terms of eleven-months and twenty-nine days for the misdemeanor reckless endangerment

conviction; two years for the unlawful possession of a weapon conviction4; and five years for the

aggravated assault conviction. This timely appeal followed.

ANALYSIS

On appeal, the Defendant contends (1) that the trial court erred by allowing the State to argue that the

Defendant was engaged in unlawful activity and was, therefore, not excused from the duty to retreat under

a theory of self-defense; (2) that the trial court's response to a question from the jury during

deliberations about a person's duty to retreat when engaged in an unlawful activity was in error; and (3)

that the evidence is insufficient to support his convictions. We will address each in turn.

I. Duty to Retreat

First, the Defendant argues that the trial court erred

"in permitting the State to offer proof and argue that the Defendant had a duty to retreat before resorting to

deadly force in self-defense because at the time, [the] Defendant was engaged in . . . unlawful acts."

Essentially, the Defendant contends that his actions were lawful. According to the Defendant, Tennessee

Code Annotated section 39-17-1322 bars his prosecution for unlawful possession of a weapon

because he employed a handgun in justifiable self- defense, and moreover, the drug sale should have

been viewed as completed two days prior to the shooting and should not have been considered as

"ongoing" in nature. Therefore, the Defendant surmises that the State should not have been

permitted to argue that he was engaged in any "unlawful activity," thus, requiring a duty to retreat

under the self-defense statute, Tennessee Code Annotated section 39-11-611(b). The State responds

that the trial court properly declined to limit its argument in this regard, appropriately allowing

evidence to be presented that the Defendant was engaged in unlawful activity, in the form of either a

drug sale or unlawful possession of a weapon, and that the Defendant, therefore, had a duty to retreat

before acting in self-defense.



Resolving these arguments involves principles of

statutory construction. "The most basic principle of statutory construction is to ascertain and give effect to

the legislative intent without unduly restricting or expanding a statute's coverage beyond its intended

scope." Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995) (citing State v. Sliger, 846 S.W.2d 262, 263

(Tenn. 1993)). Where the statute's language is clear and unambiguous, we derive the legislative intent

from its plain and ordinary meaning. State v. Collins, 166 S.W.3d 721, 726 (Tenn. 2005) (citing State v.

Wilson, 132 S.W.3d 340, 341 (Tenn. 2004)). If, however, "the parties derive different interpretations

from the statutory language, an ambiguity exists, and we must look to the entire statutory scheme in

seeking to ascertain legislative intent." Owens, 908 S.W.2d at 926 (citing Lyons v. Rasar, 872 S.W.2d

895, 897 (Tenn. 1994)). In ascertaining the intent of the legislature, courts "'may look to the language of

the statute, its subject matter, the object and reach of the statute, the wrong or evil which it seeks to remedy

or prevent, and the purpose sought to be accomplished in its enactment.'" Collins, 166 S.W.3d

at 726 (quoting State v. Gilliland, 22 S.W.3d 266, 275 (Tenn. 2000)). "Statutes 'in pari materia'--those

relating to the same subject or having a common purpose--are to be construed together." Owens, 908

S.W.2d at 926 (citing Lyons, 872 S.W.2d at 897). Furthermore, the rules of statutory construction direct

courts not to "apply a particular interpretation to a statute if that interpretation would yield an absurd

result." State v. Sims, 45 S.W.3d 1, 11 (Tenn. 2001).

Tennessee's statute on self-defense provides, in pertinent part, as follows:

(b)

(1) Notwithstanding 39-17-1322, 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 against another person when and to the degree the person reasonably believes

the force is immediately necessary to protect against the other's use or attempted use of

unlawful force.

(2) Notwithstanding 39-17-1322, 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;

(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.

Tenn. Code Ann. 39-11-611(b). The section referenced therein, 39-17-1322, provides as a

defense to prosecution,

A person shall not be charged with or convicted of a violation under this part if the person possessed,

displayed or employed a handgun in justifiable self-defense or in justifiable defense of another during the



commission of a crime in which that person or the other person defended was a victim.

The words "this part" include all of the criminal violations in part 13 of Tennessee Code Annotated

chapter 39, title 17, or more specifically, Tennessee Code Annotated sections 39-17-1001 through

39-17-1364. "The criminal violations set forth in part 13 of title 39, chapter 17, comprise a diverse group of

offenses involving a wide variety of weapons." State v. Tracey C. Clark, No. M2007-00496-CCA-R3-CD,

2008 Tenn. Crim. App. LEXIS 355, 2008 WL 1699425, at *6 (Tenn. Crim. App. Apr. 10, 2008) (Woodall,

concurring).

In State v. Tracey Clark, the defendant made a similar argument as presented herein, and the trial court

granted the defendant's motion to dismiss the indictment for possession of a weapon on school

grounds, concluding that the defendant had established to the court that he was acting in

justifiable self-defense and that, therefore, section 39-17-1322 barred his prosecution. 2008 Tenn. Crim.

App. LEXIS 355, 2008 WL 1699425, at *1-2. This court reversed on appeal, rejecting the defendant's

assertion that section 39-17-1322 "operates as a complete bar to indictment and prosecution for

actions that are performed in 'self- defense.'" 2008 Tenn. Crim. App. LEXIS 355, [WL] at *3. In so holding,

the court reasoned that the "justifiable self-defense" language of section 39-17-1322 served "as a directive

to law enforcement and district attorneys that should they determine, based upon their investigation and

using their discretion, that a person acted in justifiable self-defense, they shall not seek to indict that

individual." Id. This section,

along with others that grant legislative immunity for actions that ordinarily amount to criminal activity,

"evidence the unambiguous legislative intent to pronounce the Tennessee public policy of

encouraging citizens to rescue a person reasonably believed to be in imminent danger of death or serious

bodily harm, and to protect a citizen who undertakes such heroic action from negative repercussions."

Id. (quoting Little v. Eastgate of Jackson, LLC, No. W2006-01846-COA-R9-CV, 2007 Tenn. App. LEXIS

242, 2007 WL 1202431, at *9 (Tenn. Ct. App. Apr. 24, 2007)). The court continued,

If the legislature had intended actions

performed in "self-defense" to operate as an absolute bar to prosecution, then it would have

been unnecessary to include the language that prohibits conviction in the statute. In other words,

if the statute barred indictment, there would be no reason to address a conviction under Tennessee

Code Annotated section 39-17-1322, as there can be no prosecution without a valid indictment.

Id. (citing Dykes v. Compton, 978 S.W.2d 528, 529-30

(Tenn. 1998)).

The court in Clark then determined that the trial court improperly took the role of fact-finder and usurped the

role of the jury when it dismissed the indictment for possession of a weapon on school grounds,

concluding from the facts that the defendant acted in justifiable self-defense. 2008 Tenn. Crim. App. LEXIS

355, 2008 WL 1699425, at *5. In reaching its conclusion, this court explained,

[B]y dismissing the indictment, the trial court

found that the facts of the case would not support



a conviction for possession of a weapon on school grounds because [the defendant] was the

victim of an assault and displayed his handgun in self-defense. This amounts, in our view, to a

determination of facts that were "intertwined with the factual evidence of the defendant's conduct at

the time of the alleged offense." [State v.] Goodman, 90 S.W.3d [557,] 562 [(Tenn. 2002)].

The trial court's actions amounted to a grant of summary judgment for [the defendant], which

does not exist in criminal cases. See [State v.] Burrow, 769 S.W.2d [510,] 514 [(Tenn. Crim. App.

1989)]. In our view, the facts asserted in the motion and at the evidentiary hearing could only

rationally bear upon the issue of guilt or innocence; therefore, they were improper for

consideration on the motion to dismiss. Furthermore, the issue of self-defense is a matter

for the jury to decide. State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993).

Id.

The Defendant argues that "[i]f conduct cannot, by

direct prohibition, be the basis for a charge or conviction, how can it logically be considered the

basis of a determination that the felon who has armed himself in self-defense is engaged in 'unlawful

activity?'" In accordance with the rationale espoused by this court in Clark, we agree that section

39-17-1322 does not bar a charge or conviction for the Defendant's conduct in this case, and any issue in

that regard, i.e., whether he was acting in justifiable self-defense, was a proper question for the jury.

However, the issue of whether one was engaged in justifiable self-defense while unlawfully possessing a

weapon does not equate to the issue of whether one was engaged in "unlawful activity" for the purposes of

the self-defense statute requiring a duty to retreat. If

we were to permit the State to argue that a felon in possession of a weapon asserting self-defense,

without more, could satisfy the definition of "unlawful activity," such an interpretation would nullify the

defense set forth in section 39-17-1322, leading to an absurd result. Accordingly, the State should not have

been permitted to argue that the Defendant's conduct, a convicted felon for a drug offense arming himself

with a weapon prior to the shooting, standing alone, could have formed the basis for the jury to conclude

that the Defendant was engaged in "unlawful activity" for the purposes of the self-defense statute requiring

a duty to retreat.

The Defendant also submits that he was not engaged in the "unlawful activity" of selling drugs at the time of

the shooting. He reasons that the sale had been "completed two days prior when the contraband

became the property of the buyer." Accordingly, the State should not have been allowed to present such

an argument to the jury, in his opinion. We decline to adopt the assertion put forward by the Defendant

because, here, we are dealing with the exchange of illegal narcotics, not a transfer of commercial goods.

We agree with the trial court that this issue of whether the Defendant was still engaged in a drug deal was

factually driven. The Defendant by his own admission was the middleman between the victim and a third

party seller. When the victim became displeased with the product shortly after the sale, he and his father

returned to the seller's house to retrieve the victim's money--whether the Defendant was forced by the

victim to return to the seller's house with them was a factual issue to be considered by the jury. They were

unsuccessful at the seller's house, and when the Defendant heard the victim was looking for him, he

sought out the victim while armed. According to the Defendant, he did so to negotiate a satisfactory

outcome; however, when negotiations broke down,



shots were fired. The Defendant was asking the trial court to make factual determinations reserved for the

jury.

The term "unlawful activity" as used in section 39-11-611(b) is not defined. Regardless, "[w]here

words and terms are in common use and are such as can be understood by persons of ordinary

intelligence, it is not necessary, in the absence of anything in the charge to obscure their meaning, for

the court to define or explain them." See State v. Summers, 692 S.W.2d 439, 445 (Tenn. Crim. App.

1985). We note that the parties seemingly argue both of these theories, unlawful possession of a weapon

and selling drugs, in a vacuum as to whether they qualify as "unlawful activity" for purposes of the self-

defense statue. However, we feel constrained to note that the jury was entitled to consider all of the facts

and circumstances leading up to the Defendant's conduct in determining whether the Defendant's use

of force in defending himself was reasonable, including whether he was engaged in "unlawful

activity" at the time. See T.P.I. Crim. -- 40.06(b)(2).

Although we conclude that the trial court erred in allowing the State's argument regarding unlawful

possession of a weapon alone satisfied the definition of "unlawful activity," the jury in this case was charged

that justifiable self-defense was a defense to the possession charge. Moreover, the jury was properly

allowed to consider all of the Defendant's conduct leading up to the shooting in determining whether he

was engaged in "unlawful activity" and, therefore, had a duty to retreat under section 39-11-611(b). Indeed,

the question of whether the Defendant's actions were unlawful at the time of the shooting was a question for

the jury in their role as fact-finders. Given the overwhelming evidence that the Defendant was

engaged in "unlawful activity" at the time of the

offenses, i.e., dealing drugs and all of his attendant conduct surrounding that transaction, and in light of

the jury's decision to find the Defendant guilty of unlawful possession of a weapon with proper

instructions, any error in permitting the State's argument was certainly harmless. The Defendant is

not entitled to relief.

II. Jury Instructions

The Defendant next contends that the trial court erred by failing to answer a question posed by the jury

during its deliberations and instead simply referring them again to the pattern jury instruction on self-

defense. The State responds that the trial court's response was proper.

At trial, the court instructed the jury on self-defense as

follows:

Included in the defendant's plea of not guilty is his plea of self-defense.

If a defendant was not engaged in unlawful

activity and was in a place where he or she had a right to be, he or she would have no duty to

retreat before threatening or using force against the alleged victim when and to the degree the

defendant reasonably believed the force was immediately necessary to protect against the

alleged victim's use of unlawful force.

If a defendant was not engaged in unlawful activity and was in a place where he or she had a

right to be, he or she would also have no duty to retreat before threatening or using force intended

or likely to cause death or serious bodily injury if the defendant had a reasonable belief that there

was an imminent danger of death or serious



bodily injury, the danger creating the belief of imminent death or serious bodily injury was real,

or honestly believed to be real at the time, and the belief of danger was founded upon

reasonable grounds.

In determining whether the defendant's use of force in defending himself was reasonable, you

may consider not only his use of force but also all the facts and circumstances surrounding and

leading up to it. Factors to consider in deciding whether there were reasonable grounds for the

defendant to fear death or serious bodily injury from the alleged victim include but are not limited

to any previous threats of the alleged victim made known to the defendant; the character of the

alleged victim for violence, when known to the defendant; the animosity of the alleged victim for

the defendant, as revealed to the defendant by previous acts and words of the alleged victim; and

the manner in which the parties were armed and their relative strengths and sizes.

"Force" means compulsion by the use of physical

power or violence.

"Violence" means evidence of physical force unlawfully exercised so as to damage, injure or

abuse. Physical contact is not required to prove violence. Unlawfully pointing a deadly weapon at

an alleged victim is physical force directed toward the body of the victim. "Imminent" means near at

hand; on the point of happening.

If evidence is introduced supporting self-defense, the burden is on the state to prove beyond a

reasonable doubt that the defendant did not act in self-defense.

If from all the facts and circumstances you find the defendant acted in self-defense, or if you

have a reasonable doubt as to whether the defendant acted in self-defense, you must find

him not guilty.

See T.P.I. Crim. -- 40.06(b)(2).

During deliberations, the jury presented a question to the trial court regarding the instructions on self-

defense. The question reads: "Does unlawful act preclude act of self-defense as a defense plea?" The

trial court then discussed with the parties the proper response. Defense counsel asked the court to provide

a supplemental instruction stating that "unlawful act" only goes to the question of whether the Defendant

had a duty to retreat and additionally instruct that the Defendant has no duty to retreat if he cannot do so

safely. The State requested that the trial court just "reread" the instruction on self-defense. The trial court

then responded to the jury's inquiry as follows: "Dear Jurors, I will refer you back to the instructions,

specifically page 16, which explains the law of self-defense." This was the "safest and most accurate

response" in the trial court's opinion because to do otherwise may have "run the danger of improperly

influencing their verdict."

Under Tennessee law, a trial court has a duty to provide "a complete charge of the law applicable to

the facts of the case." State v. James, 315 S.W.3d 440, 446 (Tenn. 2010) (quoting State v. Harbison, 704

S.W.2d 314, 319 (Tenn. 1986)); see also Tenn. R. Crim. P. 30(d)(2). A charge "should not contain

inaccurate or inapplicable statements of legal principles that might tend to confuse the jury." State v.

Hatcher, 310 S.W.3d 788, 812 (Tenn. 2010) (citations omitted). Tennessee law, however, does not mandate

that any particular jury instructions be given so long



as the trial court gives a complete charge on the applicable law. See State v. West, 844 S.W.2d 144,

151 (Tenn. 1992). A charge is prejudicial error "if it fails to fairly submit the legal issues or if it misleads

the jury as to the applicable law." State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997) (citing State v.

Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995); Graham v. State, 547 S.W.2d 531 (Tenn.

1977)). As a mixed question of law and fact, our standard of review for questions concerning the

propriety of jury instructions is de novo with no presumption of correctness. State v. Smiley, 38 S.W.

3d 521, 524 (Tenn. 2001).

Trial courts have "the authority to respond to jury questions with a supplemental instruction." Forbes,

918 S.W.2d at 451. However, the Defendant has not cited to any authority which states that a trial court is

obligated to answer the jury's questions during deliberations or give a supplemental instruction in

light of the jury's question. See, e.g., State v. Jim Gerhardt, No. W2006-02589-CCA-R3-CD, 2009 Tenn.

Crim. App. LEXIS 523, 2009 WL 160930, at *13 (Tenn. Crim. App. Jan. 23, 2009) (finding that no clear

or unequivocal rule of law had been breached when the trial court simply referred the jury back to the

initial charge in response to the jury's note: "Please define a criminal intent attempt of child abuse and

neglect. Does it matter if he (defendant) knew what he did would cause harm?"; and the word "intent" was

struck through). We are aware that this court has previously reversed a defendant's conviction for

failure to issue a supplemental instruction in light of an erroneous jury instruction. See. e.g., State v.

Robinson, 239 S.W.3d 211. 226-28 (Tenn. Crim. App. 2006) (trial court's failure to answer jury question and

issue supplemental instruction regarding inability of accomplices to corroborate each other where initial

jury instruction did not inform jury of this "well-settled

law" constituted reversible error). However. on appeal. the Defendant does not argue that the jury

instruction on self-defense was erroneous. Instead. the Defendant argues that "[a] certain way to assure

that the jury understood that 'unlawful activity' is only a consideration as to a duty to retreat is to tell them

so directly and answer the question directly." According to the Defendant. the trial court's response

did not address the jury's misunderstanding. The Defendant also requested that the trial court clarify for

the jury that there is no duty to retreat if such cannot be accomplished safely.

"Under the 'true man' doctrine, one need not retreat

from the threatened attack of another even though one may safely do so. Neither must one pause and

consider whether a reasonable person might think it possible to safely flee rather than to attack and

disable or kill the assailant." State v. Renner, 912 S.W.2d 701. 704 (Tenn. 1995). Tennessee's law of

self-defense in the use of deadly force. Tennessee Code Annotated section 39-11-611(b). adheres to the

true man doctrine. The statute also requires that one be in a place where he has a right to be and not be

engaged in any unlawful activity before there is no duty to retreat. See State v. Hawkins, 406 S.W.3d

121. 128 (Tenn. 2013) ("To prevail on a theory of self-defense, a defendant must show that he or she was

'not engaged in unlawful activity' and was 'in a place where the person has a right to be.'"); State v.

Zachary Carlisle, No. W2012-00291-CCA-MR3-CD. 2013 Tenn. Crim. App. LEXIS 878, 2013 WL 5561480

at *18-19 (Tenn. Crim. App. Oct. 7, 2013) (concluding that the defendant was not entitled to a self-defense

instruction because he was engaged in illegal activity. i.e., a drug deal with the victim at the time of the

murder, and because no evidence in the record suggested the victim threatened the defendant with a

deadly weapon or force). As discussed in the section



above. the State was properly allowed to argue, and the jury was correctly allowed to consider, that the

Defendant was engaged in unlawful activity and. therefore. had a duty to retreat pursuant to the self-

defense statute.

The trial court's instruction on self-defense was a proper statement of the law. The instruction tracks the

language of the relevant statute, see Tennessee Code Annotated section 39-11-611(b), and it follows

the pattern jury instruction, as provided in the Tennessee Pattern Jury Instructions. Additionally,

when a court chooses to repeat instructions or give supplemental instructions, the instructions must be:

(1) appropriately indicated by questions or

statements from jurors, or from the circumstances surrounding the deliberative and decisional

process, (2) comprehensively fair to all parties, and (3) not unduly emphatic upon certain portions

of the law to the exclusion of other parts equally applicable to the area of jury misunderstanding or

confusion.

Berry v. Conover, 673 S.W.2d 541, 545 (Tenn. Ct. App. 1984). The trial court's ruling indicates that it

choose not to issue a supplemental instruction for fear such instruction would be "unduly emphatic upon

certain portions of the law to the exclusion of other parts equally applicable to the area of jury

misunderstanding or confusion." The trial court also noted that the instruction on self-defense was an

accurate statement of the law and that the defense was permitted to argue to the jury "that someone

shouldn't have to retreat if they can't do so safely." We find no error in this regard.

We conclude that the trial court's jury instruction on

self-defense fairly submitted the legal issues, including that one only has a duty to retreat if

engaged in unlawful activity, and did not mislead the jury as to the applicable law. As such, the trial court's

referring the jury to its charge without giving an additional instruction was an appropriate response.

The Defendant is therefore denied relief on this issue.

[ . . . ]

CONCLUSION

Based upon the foregoing reasoning and authorities, we affirm the judgments of the trial court.

__________________________________________________________________________________________



UTAH

State v. Alzaga, 2015 UT App 133 (UT Ct. App. 2015)

Key issues: Impermissible to claim of self-defense by person attempting/committing/fleeing a felony [Utah Code 76-2-402(2)(a)(ii)]; Burden of persuasion on self-defense is on the State; "Forcible felony" includes "arson, robbery, and burglary as defined in Title 76, Chapter 6 [of the Utah Code],

Offenses Against Property," as well as "[a]ny other felony offense which involves the use of force or violence against a person so as to create a substantial danger of death or serious bodily

injury." [Utah Code Ann. 76-2-402(4)(a), (b)]

Date: May 29, 2015

Decision:

Cristian A. Alzaga was convicted of murder,

aggravated assault, and aggravated robbery. All the crimes occurred in connection with a drug deal under

a bridge on the Jordan Parkway. The State claimed that the victims were at the bridge to sell marijuana;

Alzaga claimed they were there to buy heroin. On appeal Alzaga challenges certain of the trial court's

evidentiary rulings, its instructions to the jury on self-defense, and its denial of his motion for a new trial.

He also contends that his trial counsel rendered constitutionally ineffective assistance. We affirm.

BACKGROUND1

The Drug Deal

Hannah and her boyfriend, Mark,2 lived together in a

tent near the Jordan River Parkway Trail in Midvale, Utah. The two scraped by; each sold marijuana, while

Mark received food stamps and donated his blood plasma.

In May 2010, one of the couple's regular customers

contacted Hannah to purchase an ounce of

marijuana. Hannah and Mark agreed to meet the customer for the sale at a spot where they had met

before, on a footbridge by the Jordan River near 3900 South (the Footbridge). When Mark and Hannah

arrived for the sale, they crossed the Footbridge and spotted the customer. With him was "a bigger guy"

who acted as a lookout. Mark also spotted a third man talking on a cell phone and pacing back and

forth on a larger bridge spanning the Jordan River nearby (the Jordan River Bridge). Mark described this

third man, the defendant, as having spiked black hair, "kind of crown shaped," and wearing a white shirt.

Mark did not immediately connect Alzaga with the customer and the lookout. However, Mark felt

concerned that the lookout had accompanied the customer to the drug deal; Mark and the customer

"had kind of an agreement that you didn't bring anybody with you when you came to buy marijuana,"

because "anything could happen when you meet new people." But Hannah felt comfortable because she

had known the customer for "[p]retty much her entire life."

Mark and Hannah decided to go ahead with the deal.

The customer asked Mark and Hannah to weigh the



marijuana, and Hannah climbed down onto a ledge under the Footbridge to do so. The customer stood

against a post above Hannah, and the lookout made "sure that nobody was coming while [Hannah]

weighed the marijuana." Alzaga approached, still talking on his cell phone. When he and the customer

argued briefly, Alzaga pulled what appeared to be a gun and pointed it at the customer. The customer

looked under the Footbridge at Hannah; Alzaga then pointed the gun at her and said, "You give me all your

shit."

The Stabbings

Hannah backed up under the Footbridge. Alzaga jumped down after her, and Mark followed. Mark saw

that Alzaga and Hannah "were kind of close together" and saw Hannah jump back from Alzaga "like she

was trying to get away from something." Mark then grabbed Alzaga by the shoulder from behind. Alzaga

wheeled around, pointed the gun at Mark, and said, "You can give me all your shit, too." Mark thought that

the gun looked fake and batted it away from Alzaga.3 But Alzaga also had a knife. Alzaga slashed at Mark,

who jumped back and yelled at Hannah to run. Hannah walked slowly up the hill and said that she

had been stabbed. Both Alzaga and Mark ran toward Hannah. Mark then heard the customer yell, "Forget

it. It's done. Let's go. Let's go. Let's go." The customer and the lookout fled the scene toward 3900 South.

Alzaga reached Hannah before Mark did and began

pulling at her purse. Mark caught up to Hannah and Alzaga and stepped between them to shield Hannah

from Alzaga. Mark told Hannah to let go of the purse. As Mark and Alzaga "struggled over the purse"

Alzaga slashed at Mark and struck him in the eye. Alzaga had wounded both Mark and Hannah; Mark's

eye was swollen shut, and Hannah told Mark that she

could not breathe. Mark then relinquished the purse to help Hannah, and Alzaga took off running. Hannah

threw away the marijuana she had in her pocket and lay down on the ground, struggling to breathe. Mark

grabbed Hannah's phone and dialed 911. Hannah, eighteen years old, died at the hospital of a stab

wound to the abdomen.

Alzaga's Version of Events

Alzaga described quite a different encounter. He maintained that he did not kill Hannah and that he

stabbed Mark in self-defense. Alzaga testified that he, the customer, and the lookout agreed to meet Mark

and Hannah at the Footbridge to sell them a large amount--fifty-two grams--of heroin. The three drove

together to the Jordan River Parkway Trail, walked to the Footbridge, and after meeting up with Mark and

Hannah, Alzaga weighed a plastic-wrapped package of heroin the size of a tennis ball and worth $6,000.

After Alzaga confirmed its weight, he claimed that Mark suddenly "just grab[bed] the ball of heroin" and

handed it to Hannah, who "start[ed] running."

Alzaga then testified that Mark began punching him on the left side of his face and neck. As Mark

assaulted him, Alzaga observed the customer running across the Footbridge and "noticed [the lookout]

chasing after [Hannah]." Alzaga told the jury that he was "high on [e]cstasy" and "just felt terrified" by

Mark's assault. Alzaga absorbed Mark's punches for a time but then started to fall over, and "that's when"

Alzaga "felt the knife" in his pocket. Alzaga then pulled the knife out of his pocket, and as Mark

punched him, he "countered back with a right hook" and slashed Mark in the eye. Mark backed away

while the lookout returned with Hannah's purse in hand. The lookout gave the purse to Alzaga, and both

fled the scene.



Alzaga was convicted of murder, a first-degree felony,

Utah Code Ann. 76-5-203(3) (LexisNexis Supp. 2010); aggravated robbery, a first-degree felony, id.

76-6-302 (LexisNexis 2008); and aggravated assault, a second-degree felony, id. 76-5-103. He appeals.

ISSUES [ . . . ]

Fifth, Alzaga contends that the trial court erroneously

instructed the jury on the standard for self-defense.

[ . . . ]

ANALYSIS

[ . . . ]

V. Self-Defense Jury Instructions

Alzaga contends that the trial court instructed the jury erroneously on self-defense relating to the

aggravated assault against Mark. The trial court instructed the jury that a person may use force

reasonably necessary to defend against another's imminent use of unlawful force. The court then

explained that a person may not lawfully use defensive force when "attempting to commit,

committing, or fleeing after the commission, or the attempted commission of a felony." The court also

instructed the jury that Alzaga did not have to prove self-defense but that if any evidence created a

reasonable doubt as to his guilt, the jury should acquit:

Defendant does not have to prove he acted in

self-defense but if any evidence shown on the

question of self-defense creates a reasonable doubt in your mind whether he is guilty of

Aggravated Assault . . . , you are to find him not guilty of that count. If the evidence of self-defense

creates a reasonable doubt in your mind about his guilt, he is entitled to an acquittal on [the

Aggravated Assault count].

Defense counsel approved this instruction.

The court orally supplemented the initial instruction by telling the jury that "distribution of a controlled

substance, heroin, is a felony." Defense counsel objected to the supplemental instruction at sidebar

but stated no legal basis for the objection on the record. After closing arguments, and after the jury

began deliberations, counsel stated on the record a rationale for her objection: the supplemental

instruction allowed the jury to find that Alzaga committed a felony offense--distribution of heroin--

without first finding the elements of that offense beyond a reasonable doubt. The prosecutor

countered that the instruction was a correct statement of the law and that Alzaga had testified to distributing

heroin. The trial court overruled the objection.

Alzaga challenges the jury instructions on four grounds. First, he argues that the oral instruction

violated his right to self-defense under Article I, section 1 of the Utah Constitution. "All men," that

provision declares, "have the inherent and inalienable right to enjoy and defend their lives and liberties . . . ."

Utah Const. art. 1, 1. Alzaga contends that the court's oral instruction abridged his right to defend his

life in two respects. First, it precluded self-defense even if the felony he was committing at the time of the

aggravated assault--distribution of heroin--was nonviolent. Second, the instruction drew no causal

connection between the distribution of heroin and the



victim's use of force. The State responds that Alzaga did not preserve his constitutional claim, and in that

any event, any error was harmless.

Under Utah's self-defense statute, a person is justified in using lethal force "only if the person reasonably

believes that force is necessary to prevent death or serious bodily injury to the person or a third person as

a result of another person's imminent use of unlawful force, or to prevent the commission of a forcible

felony." Utah Code Ann. 76-2-402(1)(b) (LexisNexis Supp. 2010). But a person "is not justified" in using

any defensive force "if the person is attempting to commit, committing, or fleeing after the commission

or attempted commission of a felony." Id. 76-2-402(2)(a)(ii).

Alzaga does not dispute that he was dealing heroin at

the time of the aggravated assault. Nor does he dispute that dealing heroin qualifies as a felony.

Rather, he argues that it is not a forcible felony and that only attempting to commit, committing, or fleeing

after committing forcible felonies should bar a defendant from invoking self-defense. He

acknowledges that the statutory text does not contain this limitation but argues that failure to read "felony"

as "forcible felony" produces absurd results. Cf. In re Z.C., 2007 UT 54, 11, 165 P.3d 1206 ("[A] court

should not follow the literal language of a statute if its plain meaning works an absurd result." (citation and

internal quotation marks omitted)). "If the statute were read literally," Alzaga reasons, "a man guilty of theft of

utility services could not defend himself in his own home."

We agree with the State that any possible error in the

oral jury instruction was harmless. See Utah R. Crim. P. 30(a). Any possible error here was harmless

because the jury found Alzaga guilty of a forcible

felony. A "forcible felony" includes "arson, robbery, and burglary as defined in Title 76, Chapter 6 [of the

Utah Code], Offenses Against Property," as well as "[a]ny other felony offense which involves the use of

force or violence against a person so as to create a substantial danger of death or serious bodily injury."

Utah Code Ann. 76-2-402(4)(a), (b). Title 76, Chapter 6 includes the crime of aggravated robbery.

The jury convicted Alzaga of aggravated robbery, and he does not argue on appeal that the facts presented

at trial were insufficient to support that conviction. We have previously held that a defendant who kills

another while committing an aggravated robbery cannot avail himself of the self-defense statute. State

v. Soules, 2012 UT App 238, 4, 286 P.3d 25.6 Thus, Alzaga's first self-defense claim fails under any

applicable standard of review.

Second, Alzaga argues that instructing the jury that distribution of heroin is a felony allowed the jury to

find him ineligible for self-defense without first requiring the jury to find all of the elements of heroin

distribution, an uncharged offense, beyond a reasonable doubt. The trial court orally instructed the

jury, "I'm instructing you further that distribution of a controlled substance, heroin, is a felony." The State

responds that Alzaga did not timely preserve this claim and that he fails to assert any exception to the

preservation rule on appeal. And even if Alzaga timely preserved his claim, the State argues, any error was

harmless.

This claim fails for the same reason that Alzaga's first challenge to the instruction failed: any possible error

was harmless. "Any error, defect, irregularity or variance which does not affect the substantial rights

of a party shall be disregarded." Utah R. Crim. P. 30(a). As explained above, because Alzaga

committed a forcible felony--aggravated robbery--he



was "not justified in using force" against Mark. See Utah Code Ann. 76-2-402(2)(a). Accordingly, any

error in instructing the jury that distribution of heroin is a felony was harmless.

Third, Alzaga argues that the court's written self-

defense instruction did not adequately convey the State's burden to disprove self-defense beyond a

reasonable doubt. He argues that counsel performed ineffectively for failing to correct this error. The State

responds that Alzaga has inadequately briefed this claim and that he has therefore not satisfied his

burden of persuasi

2015 #23 self defense weekly law report

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