State v. Perrier

536 S.W.3d 388

STATE of Tennessee

v.Antoine PERRIER

No. W2015-01642-SC-R11-CD

Supreme Court of Tennessee, AT JACKSON.

April 6, 2017 Session

FILED November 21, 2017

Lance R. Chism, Memphis, Tennessee, for the appellant, Antoine Perrier.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Zachary T. Hinkle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Betsy Wiseman and Omar Malik, Assistant District Attorneys General, for the appellee, State of Tennessee.

Roger A. Page, J., delivered the opinion of the court, in which Jeffrey S. Bivins, C.J., Cornelia A. Clark, Sharon G. Lee, and Holly Kirby, JJ., joined.

Roger A. Page, J.

We granted the defendant's application for permission to appeal in this case with direction to the parties to particularly address the following issues: (1) the meaning of the phrase "not engaged in unlawful activity" in the self-defense statute, Tennessee Code Annotated section 39-11-611, and (2) whether the trial court or the jury decides whether the defendant was engaged in unlawful activity. We hold that the legislature intended the phrase "not engaged in unlawful activity" in the self-defense statute to be a condition of the statutory privilege not to retreat when confronted with unlawful force and that the trial court should make the threshold determination of whether the defendant was engaged in unlawful activity when he used force in an alleged self-defense situation. We further conclude that the defendant's conduct in this case constituted unlawful activity for the purposes of this statute. The defendant has also presented four other issues to this Court, arguing that the trial court erred by failing to properly instruct the jury on the lesser-included offenses of employing a firearm during the commission of a dangerous felony, that the second count of the indictment was deficient, that the trial court should have given the jury an instruction on the defense of necessity, and that the evidence was insufficient to support the defendant's conviction for assault. We affirm the judgments of the trial court and the Court of Criminal Appeals, albeit on separate grounds.

I. Facts

On February 13, 2010, the defendant fired a weapon at men standing in front of a convenience store, and he struck a young girl standing inside the store. The defendant was indicted in November 2010 for attempted second degree murder, employing a firearm during the commission of a dangerous felony, and six counts of aggravated assault. His trial was held in February 2011, and he was convicted of attempted voluntary manslaughter as a lesser-included offense of attempted second degree murder, employing a firearm during the commission of a dangerous felony, five counts of aggravated assault, and one count of assault as a lesser-included offense of aggravated assault. He was sentenced to an effective sentence of thirty years in the Tennessee Department of Correction.

At the defendant's trial, several of the victims named in the indictment testified, as well as the defendant and a female friend of the defendant who witnessed the shooting. The witnesses agreed that between 3:00 p.m. and 4:00 p.m. on February 13, 2010, the defendant and his female friend, Faith Taylor, visited the Miracles Mini Market in Memphis, Tennessee, to buy alcohol, that another customer at the store (Anthony Vasser) ogled Ms. Taylor, and that subsequently Anthony Vasser and his brother Teone Vasser exchanged words with the defendant outside. The witnesses disagreed as to the intensity of that exchange, but the result of the exchange was that the defendant, standing next to Ms. Taylor's vehicle, drew a loaded handgun from his jacket and shot toward the front door of the market, where Anthony Vasser, Teone Vasser, and Anthony Vasser's son were standing. Several bullets passed through Teone Vasser's clothing. The bullets struck an eight-year-old girl in her hand and grazed her stomach and leg. The defendant submitted that he acted in self-defense based on Teone Vasser's motions. The police did not find any weapons when they searched Teone Vasser. The defendant admitted that he had been previously convicted of a felony.

The defendant's original motion for new trial was filed late, as was the notice of appeal. The Court of Criminal Appeals waived the late-filed notice of appeal, but because of the late-filed motion for new trial, it only considered sufficiency of the evidence and sentencing, ultimately affirming his convictions. State v. Perrier , No. W2011-02327-CCA-MR3-CD, 2013 WL 1189475 (Tenn. Crim. App. Mar. 22, 2013). Upon filing a petition for post-conviction relief, the trial court granted the defendant a delayed appeal.

In his second appeal, the defendant claimed that the trial court's jury instruction on self-defense was erroneous, that the trial court committed plain error by failing to include a jury instruction on possession of a firearm during the commission of a dangerous felony as a lesser-included offense of employment of a firearm during the commission of dangerous felony, that the indictment for employment of a firearm was void for failing to name the predicate felony for the offense, that the trial court erred by declining his requested jury instruction on the defense of necessity, and that the evidence was insufficient to support his assault conviction. The Court of Criminal Appeals affirmed his convictions. State v. Perrier , No. W2015-01642-CCA-R3-CD, 2016 WL 4707934 (Tenn. Crim. App. Sept. 6, 2016), perm. app. granted (Tenn. Nov. 22, 2016).

The defendant filed an application for permission to appeal to this Court, and in granting review, this Court ordered that the following issues be addressed by the parties:

1. Should the trial court make a determination of whether the defendant was engaged in unlawful activity before charging the jury on self-defense or is the question of whether a defendant was engaged in unlawful activity a determination to be made by the jury?

2. What is the proper interpretation of the phrase "not engaged in unlawful activity" in Tennessee Code Annotated section 39-11-611(b) ?

State v. Perrier , No. W2015-01642-SC-R11-CD (Tenn. Nov. 22, 2016) (order granting Tennessee Rule of Appellate Procedure 11 application).

II. Analysis

A. Self-defense Jury Instructions

1. Background

The defendant asserted a claim of self-defense at trial. Tennessee Code Annotated section 39-11-611(b) (2014 & 2017 Supp.)¹ provides the statutory basis for the defense:

(1) Notwithstanding § 39-17-1322,² 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 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.

The trial judge provided a self-defense instruction to the jury, but he added to the pattern instruction by giving examples of what might constitute unlawful activity. The following is the self-defense instruction given by the trial judge in this case, with additions to the pattern instruction italicized:

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 or attempted 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: [ (]A) the defendant had a reasonable belief that there was an imminent danger of death or serious bodily injury[;] (B) the danger creating the belief of imminent death or serious bodily injury was real, or honestly believed to be real at the time[;] and (C) the believe 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 threat or 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.

The use of force against the alleged victim would not have been justified if the defendant provoked the alleged victim's use or attempted use of unlawful force, unless the defendant abandoned the encounter or clearly communicated to the alleged victim the intent to do so, and the alleged victim nevertheless continued or attempted to use unlawful force against the defendant.

This defense is not available to the defendant if the victim was an innocent third person who was recklessly injured or recklessly killed by the

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