State of Tennessee v. Zachary Carlisle ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
March 5, 2013 Session
STATE OF TENNESSEE v. ZACHARY CARLISLE
Appeal from the Criminal Court for Shelby County
No. 11-03600 James M. Lammey, Jr., Judge
No. W2012-00291-CCA-MR3-CD - Filed October 7, 2013
The Defendant, Zachary Carlisle, was convicted by a Shelby County Criminal Court jury of
voluntary manslaughter and employing a firearm during the commission of a dangerous
felony, Class C felonies. See T.C.A. §§ 39-13-211, 39-17-1324 (2010). The trial court
sentenced him as a Range III, persistent offender to fifteen years’ confinement for the
voluntary manslaughter conviction and to a consecutive fifteen years’ confinement as a
violent offender for the firearm conviction. On appeal, the Defendant contends that (1) the
indictment for the firearm conviction failed to charge an offense, (2) the evidence is
insufficient to support his convictions, (3) the trial court erred in failing to instruct the jury
on self-defense, and (4) the trial court committed plain error by instructing the jury that the
Defendant’s statements could qualify as a confession. We affirm the judgments of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J ERRY L. S MITH and
R OGER A. P AGE, JJ., joined.
Lance Randall Chism (on appeal) and Jacob Edward Erwin (at trial), Memphis, Tennessee,
for the appellant, Zachary Carlisle.
Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Amy P. Weirich, District Attorney General; Michael R. McCusker and Jose
Francisco Leon, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
This case involves the 2009 shooting death of Michael Neal Krauss. At the trial,
Doris Jean Krauss, the victim’s mother, testified that she last saw the victim on April 4, 2009,
about 8:30 p.m. after she had dinner with him, her mother, and her brother. The victim told
her he was going to visit friends and would return around 1:00 a.m. She said an officer
knocked on the door around 4:00 a.m. and told her husband and her that their son had been
killed two or three blocks from their house.
Ms. Krauss identified the victim’s cell phone and its number. She said the phone had
been locked in a safe in their house since her husband collected the victim’s personal
belongings. She identified a list of the calls that had been made and received from the
victim’s phone, which she said she downloaded from AT&T because she wanted to know
what happened before the victim died. She said she saw incoming calls moments before the
shooting occurred and sent the list to Sergeant Connie Justice.
Ms. Krauss testified that she knew the victim experimented with drugs around the
time of the murder and knew he drank alcohol. She said the victim lived with her husband
and her and was employed as a stagehand for Crew Line. She said the victim played the
guitar and mixed recordings, had recently finished producing a CD for a friend, and had an
electronic studio in Memphis.
Ms. Krauss testified that the victim had mentioned a person named Ben, for whom
the victim had done work, but that she did not know Ben’s last name. She said Ben came to
her house with Max, a friend of the victim’s who was living with them. She said Max told
her later that Ben was the Defendant’s brother. She said Ben, Max, and the victim worked
together and sometimes rode to work together.
Mark D. Cooke testified that he was about fifty feet away when the victim was shot.
He said the shooting happened on Cox Street where they went to meet someone. He said that
before they went to Cox Street, they were at a house on Landis Street where he was staying
all evening. He said that Ed Hampton and Chris Branson lived at the house and that he
stayed there occasionally. He said they were all playing poker and drinking beer. He said
that Mr. Branson was dying of cancer and in pain and that Mr. Branson and the victim were
trying to find something to ease his pain.
Mr. Cooke testified that he arrived at Landis Street around 6:00 or 7:00 p.m. and
started drinking. He said he left with the victim around 1:00 or 1:30 in the morning for what
he thought was a trip to buy more beer but later realized was for the victim to meet a man to
buy drugs for Mr. Branson. He said that they walked to the Mapco at the corner of Cooper
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and Central Streets to meet the man but that he was not there. He said the victim picked up
a green flyer at the Mapco, tore it into strips, and wrapped a dollar bill around it. The victim
told him he did not have any money but was going to make an exchange with the man he was
meeting. They walked to Cox Street to meet the man closer to the victim’s house.
Mr. Cooke testified that the victim called the man he was meeting two or three times
when they were walking and asked why he did not meet them at Mapco. He said that when
they were crossing the railroad tracks, the victim called the man again and said, “Zak, where
you at,” and that about that time, they saw a man walking toward them. The victim told
“Zak” that he could see him and that they were crossing the tracks. He said that it was dark
but that he saw a figure walking down the street about four or five blocks away. He said they
walked three or four blocks on Cox Street almost to Vinton Street and stopped about ten or
twenty feet from the corner. He said the victim told him to “hang back,” met the man at the
corner, and made the exchange. He said that when the victim returned, he walked a little
faster and said, “Come on, let’s go.” He said that the man stopped them and that although
he could not remember the exact words, the man stated, “Wait a minute,” and, “What the h---
you trying to pull? – what’s going on?”
Mr. Cooke testified that he stopped when the man came behind them but that the
victim kept walking. The man pulled a pistol and walked past him. He said that the victim
did not run but walked faster and that the man tried to hit the victim with the pistol. The
victim ran around a parked car on the street because the man was trying to “pistol whip” him
to retrieve the drugs. The victim and the man ran around the car twice and ran into a yard.
Mr. Cooke stated that they were wrestling and that the victim was bent over. He said he was
about fifty feet away and did not know if the two were wrestling over the gun or if the man
caught the victim. He said he heard a “click, click, and pop.” He said that the man went
back to the middle of the street, put his pistol away, glanced at him, and walked back down
the street from the same direction he came.
Mr. Cooke testified that after he heard the “click, click, pop,” he went to the victim,
who was standing in the middle of the street. The victim asked him if he was shot, and he
told the victim he did not see any blood. He said that they walked about another block, that
a man was on a front porch with a cell phone, and that he asked the man to call 9-1-1. He
said the victim died before the ambulance arrived.
Mr. Cooke testified that he did not have a clear view of the shooter because he was
wearing a “hoodie” and only part of his face could be seen. He said, though, the shooter was
white and in his late twenties or early thirties. He said that when he returned to Landis Street
and told Mr. Branson the victim was shot, Mr. Branson told him who Zak was. He said he
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did not have a weapon that night. He said that he had only known the victim for about one
month but that everyone said the victim was non-violent and passive.
Mr. Cooke testified that after the shooting, the ambulance and police arrived in less
than two minutes. He said the police placed him in the back of a patrol car and asked him
questions. He said he did not know the victim’s last name and called the Landis Street house
to ask someone. He stated that the police took him to the homicide division, that Sergeant
Justice asked him questions, and that he answered all of them.
Mr. Cooke testified that he told Sergeant Justice the same thing he told the jury but
omitted that the meeting was a drug transaction. He said he lied because he had heard the
victim’s parents had lost one son tragically and wanted them to think the victim died in a
robbery rather than a drug transaction. He said he was also worried because the shooter was
still free. He stated that his boss told him to call Sergeant Justice and tell her the entire story.
He said that a few days after he gave his first statement, he contacted Sergeant Justice and
told her the entire story. He said that when he was at the homicide division, he was “pretty
shattered” because he had never seen anyone killed and was shocked. He said he called
Sergeant Justice because his conscience bothered him after he did not tell her the first time
and because he wanted to avoid legal problems for himself for not telling the entire truth.
On cross-examination, Mr. Cooke testified that he talked about the shooting at the
scene with the officers, Sergeant Justice, and later with his and the victim’s friends. He
agreed the information he heard after the shooting “filled in some blanks” for him. He did
not know the Defendant or Ben Carlisle but received more information after talking to
everyone. He said he spoke with one of the prosecutors but not the other or the investigators
from the district attorney’s office. He said it had probably been a year since he spoke to
Sergeant Justice. He said that he and one prosecutor had discussed his testimony, visited the
scene a couple of days before the trial, and walked through what happened that night.
Mr. Cooke testified that he first told Sergeant Justice that a robbery occurred. He said
two weeks may have passed before he made his second statement to Sergeant Justice. He
agreed he had been drinking from about 6:00 or 7:00 p.m. until about 12:00 or 1:00 a.m. on
the night of the shooting but denied he was drunk. He said the three or four people at the
house may have split a twelve-pack of beer. He denied smoking marijuana or using cocaine
that night and denied seeing the victim use drugs. He said the drugs they bought were for
Mr. Branson, not for him or the victim. He said the victim went to buy drugs because he felt
sorry for Mr. Branson and wanted to ease his pain. He said that although he knew trouble
was possible when he saw the victim create a fake wad of money, he went along with the
plan.
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Mr. Cooke testified that his first and second statements to Sergeant Justice were not
completely different but that he added facts in the second statement. He denied that Sergeant
Justice told him he could be charged with involvement in the murder but said his boss told
him he could and advised him to call Sergeant Justice. He said he did not change his
statement because Sergeant Justice told him he might be charged but because of his
conscience and his boss’s advice. He agreed that in his second statement to the police, he
told Sergeant Justice that the meeting was a drug deal and that he heard the victim identify
the caller as Zak, which he did not tell the police during his first statement. He said he did
not think the information was important and was in shock after seeing the victim shot. He
said he did not initially tell the police the name because he was afraid.
Mr. Cooke testified that he talked to his friends in the two weeks following his initial
statement, that they talked about telephone numbers, and that he learned Zak’s last name.
He denied that Sergeant Justice talked to him about the telephone records and gave him the
Defendant’s name. He said he did not perform his own investigation but learned the
Defendant’s name by talking to other people. He said he provided a DNA sample to the
police to exclude himself as a suspect.
Mr. Cooke testified that he remembered a short interview with Tony Geiser, a private
investigator, but did not remember what was said. He did not tell Mr. Geiser that he first
heard the name Zak when the police showed him the victim’s phone records. He said he
heard the victim say Zak’s name during his telephone call the night of the shooting.
Mr. Cooke testified that he was about twenty or thirty feet from the victim and the
shooter. He said that it was about 2:00 a.m. and dark and that he had been drinking but was
not “high.” He said that he saw the victim and the shooter exchange something hand-to-hand
and that the victim returned to where he was standing. He said the shooter came toward them
and pulled out a dark-colored handgun, which he thought was an automatic because it did not
have a barrel like a revolver. He said he did not see much after he saw the victim and the
shooter lean over struggling with each other and did not see the shot. He said that after he
heard the shot, neither the victim nor the shooter ran but stood up and walked in different
directions.
Brian Nelson testified that he was incarcerated for robbery at the time of the trial. He
said he knew the Defendant from their drug transactions in January and February 2009. He
said that on April 3, 2009, he was at his friend Ronnie’s house and that Ronnie was a drug
dealer. He said that Ronnie received a telephone call from the Defendant’s brother’s
telephone number, that Ronnie thought he was talking to the Defendant’s brother, Ben, but
that Ronnie talked to the Defendant. He said the Defendant called Ronnie late that night to
buy an “eight ball” of cocaine. He said that Ronnie and the Defendant were supposed to
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meet at Mapco but that Ronnie picked up the Defendant and drove down Cox Street. He said
that the Defendant did not have all the money Ronnie wanted for the drugs because the drug
deal was with another person and that Ronnie was mad because it was 12:30 or 1:00 a.m. and
he wanted to go home. He said the Defendant called the other person named Mike and told
him where to meet. He said that Ronnie parked on the street and that they saw Mike and
another man walking up the street. He said he, Ronnie, and the Defendant were in the car,
that Ronnie and the Defendant had guns, and that the Defendant was wearing a “hoodie.”
Mr. Nelson testified that the Defendant walked across the street and four or five
houses down. He said the drug transaction was between Mike and the Defendant, although
another person was with Mike. He stated that Mike and the Defendant approached each
other and stopped and that Mike handed something to the Defendant and turned to leave. He
said that as Mike was leaving, the Defendant ran to grab him. He said that the Defendant
chased Mike around a car and that a “tussle” occurred. He heard a gunshot and saw Mike
grab his neck or his face and run up a cobblestone or brick walkway or driveway leading to
a house. The Defendant ran to the car where Mr. Nelson and Ronnie were sitting and said,
“This mother f----- tried to get me.” Mr. Nelson said that he and Ronnie were “trying to get
out of there” because it was late at night, the Defendant had drugs, and a shot had been fired.
He said that the Defendant gave Ronnie money and that Ronnie broke off a piece of cocaine
for the Defendant and told him to get out of the car.
Mr. Nelson testified that he was sitting in the car “caddy corner” from the street when
he saw the shooting. He said that the Defendant had a black, nine-millimeter gun in his
hoodie that night. He said he did not see the victim draw a weapon.
Mr. Nelson testified that he spoke with Sergeant Justice in February 2010, around four
or five months after he was arrested. He said that he contacted Sergeant Justice because he
was losing sleep after he learned the victim was killed and that he did not want anything from
talking to her. He said he talked to Sergeant Justice once for a couple of hours and thought
he may have spoken with her again before the trial. He said he did not talk to Sergeant
Justice sooner because he did not want to get involved and did not know someone died until
later. He said that he contacted Sergeant Justice after he was arrested because he wanted to
come forward, that Sergeant Justice did not make any promises to him, and that he did not
ask for anything. He said his signature was on the photograph lineup from which he had
identified the Defendant for Sergeant Justice.
Mr. Nelson testified that after the shooting, he returned to Ronnie’s house and that
Ronnie took him home. He said that the shooting happened on Friday and that he talked to
the Defendant the following Tuesday about a drug transaction. He said the Defendant told
him that the police found a nine-millimeter automatic handgun but that it was not his gun and
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that the Defendant’s brother was going to dispose of the gun because they had more guns.
Mr. Nelson told the jury his and Ronnie’s cell phone numbers.
On cross-examination, Mr. Nelson testified that he spoke to the Defendant by phone
on the Tuesday following the shooting and that the Defendant called about drugs. He said
he asked the Defendant, “What the hell was that all about?” The Defendant told him that the
police found a gun but that it was not his. He said he had not talked to the Defendant since
that Tuesday. He said he and the Defendant did not talk about the entire incident but did
mention it briefly. He said he pleaded guilty to two counts of aggravated robbery and was
serving his sentence at the time of the trial. He said that his sentence had not changed after
he gave information to the police and that he did not think about the consideration the State
would give him on his sentences if he gave information about the shooting. He denied being
housed with the Defendant in jail, holding himself out as a paralegal while incarcerated, and
reviewing the Defendant’s case file, case notes, or possible motions in exchange for coffee.
He said he did not meet the Defendant in jail, was not housed with him in jail, and was not
removed from J Pod.
Mr. Nelson testified that the prosecutor asked him if he would testify for the State and
told him what the case involved. He said that he asked for a copy of his statement but that
the prosecutor did not go over his testimony with him. He stated that he told the prosecutor
he was reluctant to testify and wrote a letter telling the prosecutor he did not want to testify
but that he came to the trial anyway. He said he agreed to testify when the prosecutor asked
him on the day of the trial.
Mr. Nelson testified that he did not know Ronnie’s last name, that he had not known
him long, and that their interactions were drug related. He said the telephone number he
gave for Ronnie was the number he called to reach Ronnie but was unsure if the phone was
Ronnie’s. He said he smoked marijuana and drank beer on the night of the shooting. He said
that Ronnie talked to the Defendant and that they met the Defendant at the Defendant’s house
after midnight. He said that when they arrived around 12:30 or 1:00 a.m., the Defendant was
eating what he thought was food from a Krystal Restaurant. He said that Mapco was the
initial meeting place for the drug transaction but that Ronnie would not stop because too
many people were around. He said he heard the name Mike during the Defendant’s phone
conversation and before they parked for the Defendant to exchange the drugs. He said he did
not talk to the man the Defendant met on the street. He said that he was one-half block or
less from the Defendant and Mike and that the car was parked across the street diagonally
from where the transaction took place. He stated that the Defendant and Mike stopped in the
street, that he saw the Defendant’s back and saw hand movements, that Mike turned to walk
away, and that the Defendant grabbed Mike. He said they started “tussling” and chased each
other around a car. He said he saw the Defendant grab something black from his hoodie,
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which he assumed was a gun because the Defendant had a gun in the car and because he
heard a pop. He stated that Mike grabbed his neck and walked away quickly, that the man
with Mike went the opposite direction, and that the Defendant returned to the car, took the
cocaine for which he had paid, and left the car. Mr. Nelson said that he was at the Annex
with the Defendant but not housed with him and that he had seen the Defendant in the county
jail but had not spoken to him.
On redirect examination, Mr. Nelson testified that he was convicted of aggravated
robbery and that his sentence was within the appropriate range. On recross-examination, Mr.
Nelson said that he was sentenced as a mitigated offender but that he had a felony conviction
in Nevada.
Jonathan Miles Henderson testified that a man was shot outside his house on South
Cox Street on April 3, 2009. He said that when he heard gunshots, he went outside, saw two
men run past, and asked if everything was “okay.” He said that one man stated they had been
robbed and that the other man stated he had been shot and fell in the walkway. He said that
when the man fell, he called 9-1-1, rolled the man over to check on him, and talked to him.
He did not recall how long it took the police and ambulance to arrive. He identified
photographs of the house and of the victim lying on the walkway. He said that after the
police arrived, he told them what he saw. He said he spoke to the victim and attempted to
have the victim respond. He said that the victim muttered something but that he could not
understand him.
On cross-examination, Mr. Henderson testified that he was not outside when he heard
the gunshots and that he did not see what happened. He described the victim’s companion
as white, middle-aged, and wearing a baseball cap and flannel shirt. He said he did not speak
to the man other than to ask if everything was okay and the man’s responding that they had
been robbed.
William Hamilton Smythe, IV, the president of Yellow Cab Company, testified that
he provided business records from 2009 to the police department. He identified a “printout”
about an April 3, 2009 trip. He said that the company received a call at 9:35 p.m. from a
passenger named Zak requesting to be picked up at the Krystal Restaurant on Union Street
and taken to South Cox Street. He said that the order was dispatched by an automated
dispatcher one minute after it was received and that the driver in cab number seventeen
accepted the order four minutes after the call. He said the cab’s meter was turned on at 9:41
p.m. and off at 9:44 p.m.
Kevin Grills testified that in April 2009, he worked for Yellow Cab. He said he
remembered being dispatched to the Krystal Restaurant on Union Street but did not
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remember the date. He said he picked up a young, Caucasian man, who was informally
dressed and not talkative. He said he took the passenger one-half to one mile to Cox or
Edgewood Street.
On cross-examination, Mr. Grills testified that he did not remember the trip because
the police talked to him about it but that he remembered trips that stood out. He said that he
drove a taxi for seven years and developed a “sense” about situations and that he had a bad
feeling about the trip. He said he did not remember the passenger’s having a bag or eating
during the drive.
Memphis Police Officer Kevin Barrett testified that in April 2009, he worked the
midnight patrol shift and was assigned to the Midtown ward. He said he responded in two
or three minutes to a call from the dispatcher as “shots fired/man down.” He said that he was
the first officer at the scene and that he saw a man on one side of the road, the victim down
on the other side of the road, and a man holding a towel over the victim’s chest and neck.
He said the victim was a white male with dark hair wearing shorts and a dark jacket and was
bleeding from the neck. He said the man holding the towel stated that he was the homeowner
and that the man across the street was a witness. He said that after he determined the victim
was deceased, he secured the scene, placed the homeowner and the other witness in separate
patrol cars, and hung crime scene tape around the area. He said a dark-colored Acura parked
on the opposite side of the street was towed to the city lot to be processed.
On cross-examination, Officer Barrett testified that the Acura was about forty-five feet
north of the house where the victim was found. He described the witness across the street
as white with gray or blond hair and in his late thirties to early forties. He said that the
witness was upset or shocked but that he did not remember if the man seemed intoxicated.
While in the patrol car, the witness said the suspect wore a dark hoodie. He said the witness
did not use the word “robbery” and said the shooter appeared to be someone the victim knew.
The witness told him that he did not know the shooter, that the victim and the shooter “had
words,” that the shooter chased the victim around the car, and that a shot was fired. He said
the car was towed because of the chase around it.
Memphis Police Officer Charles Cathey testified that he checked a blue Acura for
fingerprints on April 4, 2009. He said that he found no ridge details or fingerprints but that
the results were not unusual because the person may not have touched the car or may have
worn gloves.
Memphis Police Sergeant David Beckham testified that he worked in the crime scene
unit in April 2009 and that he was called to Cox Street to process a homicide in the early
morning hours of April 4, 2009. He identified a sketch he made of the crime scene and a
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picture of a blue Acura parked across the street from the scene. He said the car was not
included on the crime scene sketch because no evidence was found on the car. He said he
did not find any firearms or casings at the scene.
On cross-examination, Sergeant Beckham testified that when he arrived, he made sure
the scene was secure and began gathering information. He said he learned the car may have
been part of the altercation and looked around the car for evidence. He said that if there was
a shooting with a handgun, it would have involved a revolver or an automatic.
Sergeant Beckham testified that he processed the area around the victim first and did
not find a firearm, casings, or footprints. He said he did not perform a gunshot residue test
on the victim and was unaware if anyone else did. He said the medical examiner always
placed a paper bag on each hand to secure evidence.
Sylvia Gallaher, the Defendant’s aunt, testified that she placed the Defendant’s mother
and brother on her family cell phone plan. She identified Benjamin Carlisle’s cell phone
number and said she provided the phone for him. She said he was in the Med in early April
2009 at the time the shooting occurred but did not know whether his family was with him
during that time.
Dr. Marco Ross, deputy chief medical examiner and forensic pathologist at Shelby
County Medical Examiner’s Office, performed the victim’s autopsy. He said the victim had
a gunshot entrance wound on the left side of the base of his neck and died from a gunshot
wound to the torso. He classified the death as a homicide. He said a gray mark leading to
the gunshot wound on the victim’s torso indicated the direction of travel was above and to
the left of the victim’s head. He said that no stippling or soot was found on the body, which
indicated the distance between the muzzle of the gun and the victim’s skin was at least three
feet. He said the wounds on the victim’s arms were consistent with a “defensive posture.”
He said toxicology testing showed the presence of alcohol, marijuana, and cocaine. He
identified a bullet found in the left back of the victim.
On cross-examination, Dr. Ross testified that the victim had a needle or puncture mark
on his arm. He said the toxicology report showed that the victim was a recreational
marijuana and cocaine user, that he probably smoked marijuana within twenty-four hours of
his death, and that he probably used cocaine within twelve hours. He said the victim had a
blood alcohol content of twenty-seven milligrams per deciliter.
Memphis Police Sergeant Connie Justice testified that she was assigned to investigate
the victim’s homicide. She said she arrived at the scene around 3:55 a.m. on April 4, 2009,
and found the victim shot to death. She said that a witness, Mark Cooke, who was with the
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victim, was present and that a vehicle was in the pathway of the incident. She said she stayed
at the scene thirty to forty minutes before going to the station to interview Mr. Cooke. She
said she interviewed Mr. Cooke and took a typewritten statement from him that he reviewed
and signed. She said Mr. Cooke was pleasant and polite but seemed nervous and was upset
he was involved. She said that after her initial meeting with Mr. Cooke, she concluded the
shooting was part of an attempted robbery.
Sergeant Justice testified that after she took Mr. Cooke’s statement, she took him
home and received the victim’s cell phone records from the victim’s mother, who had
obtained them from an online account. She said she found nine calls between a number
beginning with 487 and the victim’s phone. She said the calls were made around the time
of the victim’s death. She determined that the 487 number belonged to Benjamin Carlisle,
whose address was on South Cox Street two houses from where the shooting occurred. She
learned Mr. Carlisle had been in the hospital since April 1, 2009.
Sergeant Justice testified that she went to the hospital to speak with Mr. Carlisle on
April 7 and confirmed he had been there since April 1. She said that Mr. Carlisle was
surprised to see the police, that he was cordial at first but nervous and sweating, and that he
did not want to provide a lot of information. She said he told her his phone had been with
him at the time of the shooting. She said that when she asked him about the nine phone calls
between his phone and the victim’s phone, he became visibly agitated, upset, and shaken and
did not want to talk anymore.
Sergeant Justice testified that the Defendant’s name was mentioned during the
investigation and that she determined he lived on Cox Street. She said she subpoenaed
records for the 487 number because she wanted an official copy and because the records
showed the handset’s location when calls were made or received. She identified the cell
phone records and the maps showing locations identified by the phone records. She said that
at 11:22 p.m. on April 3, 2009, the 487 number was used to call the hospital where Benjamin
Carlisle was and that she concluded the phone was not with him at the hospital because he
would not have needed to call the hospital if he was already there. She said that between
11:00 p.m. and 2:00 a.m., seven calls were made between the 487 number and a 281 number.
She said that the victim’s last phone call was received from the 487 number, that the call was
at 1:52 a.m., and that in the ten minutes before the last call, nine calls were made between
the victim and the 487 number. She said that she interviewed Ben Carlisle again, that he told
her he had his phone with him at the hospital, and that the information about his phone being
used to make and receive calls elsewhere must have been a computer glitch.
Sergeant Justice testified that she spoke to Mr. Cooke again about two weeks after she
first interviewed him. She said that after she spoke with him again, she realized the incident
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was a disagreement over a drug transaction, not a robbery, and that the Defendant was a
potential suspect as the drug provider. She based her opinion on information from Mr.
Cooke and other witnesses who overheard phone calls about the drug transaction.
Sergeant Justice testified that on June 12, 2009, she and Sergeant Merritt met with
the Defendant when he was incarcerated, that he signed an “advice of rights” form, that she
served him with a DNA search warrant for saliva, and that she interviewed him for about
thirty to forty-five minutes. She said that she recorded what the Defendant said on a
supplement form but that a formal statement was not taken because the Defendant ended the
conversation. She said that the Defendant told her he moved to South Cox Street on May 31,
2009, but that utility records reflected that service began on March 2. He told her he ran
from the house when the police came to take Benjamin Carlisle to the police station for his
second interview about the cell phone records. She said the Defendant’s DNA did not match
any found on the victim. She said the gunshot residue kit collected from the victim was not
submitted for testing because in her experience, the gunshot residue kit never showed
anything other than inconclusive results.
Sergeant Justice testified that about eight months after the shooting, James Lee
contacted her with information about the case and that he did not receive any benefit or
promises for his help. She said that the information Mr. Lee gave was consistent with the
theories she developed. She said that Brian Nelson contacted her around February 12, 2010,
about the shooting and that he was not offered promises or benefits in exchange for his help.
She said that Dennis Sullivan knew the Defendant and that he was not offered promises or
benefits in exchange for his help.
On cross-examination, Sergeant Justice testified that she discovered the 487 number
was registered to Benjamin Carlisle by searching the Memphis Light, Gas, and Water
database, not the AT&T records. She said that the latitude and longitude coordinates given
in the subpoenaed telephone records showed the location of the cell tower used when the call
was made or received. She said that she and Lieutenant Martin Ellis entered the coordinates
into Google to find the location of the tower. She said the “X” that marked the coordinates
was handwritten by her or Lieutenant Ellis because the printout from Google did not include
the pinpoint at the location shown on the computer screen. She said that during her
investigation, she learned that the 281 number belonged to Indea Ann Michaels but that she
did not subpoena the phone records to verify the owner.
Sergeant Justice said that the DNA analysis report from the Tennessee Bureau of
Investigation (TBI) showed a mixture of genetic material and DNA from an unidentified
individual on the victim’s clothing. She said the Defendant told her he went out the back
door when the police came to take his brother to the police station, that the police brought
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him back inside the house, and that he gave them the information they requested. She agreed
that Mr. Cooke lied to her in his first statement and that Mr. Nelson lied to her about his prior
record.
On redirect examination, Sergeant Justice testified that the 281 number was associated
with Indea Ann Michaels and a man named Ronnie, whom she described as a “dope
provider.” She said Ronnie was an associate of Brian Nelson.
Philji Johns, an AT&T radio access network engineer, identified the locations of two
cell phone towers on a map and said that tower 78 was at the corner of Waldron Road and
Union Avenue and that tower 69, which was the Midtown south tower, was at the corner of
South Cox Street and Central Avenue. He said that when a cell phone was powered on, it
“locked” onto the tower with the strongest signal, which was typically the closest tower. He
said that when a call was made, the cell phone sent a signal to the tower with the strongest
signal and that the signal was “handed off from tower to tower.” He said AT&T’s records
showed where calls originated. He said that each tower had three antennas and that each
antenna served a different sector. He said that when a call was placed, the cell phone
registered with the tower and sector with the strongest signal.
Mr. Johns testified that the cell phone records for Benjamin Carlisle’s telephone
number showed the date, time, type, originating telephone number, receiving telephone
number, duration, region of Memphis from which the calls were made, and the tower and
sector the cell phone registered, which was tower 69, sector 1. He said that on April 3, 2009,
Benjamin Carlisle’s telephone number originated a call at 11:37:21 p.m. to Ronnie’s
telephone number and was used to call its voicemail at 1:47:05 a.m. He said these calls
registered on tower 69 and either sector 1 or sector 3. He said that the victim’s telephone
number originated a call to Mr. Carlisle’s number at 1:47:14 a.m. on April 4, 2009, and that
the call registered on tower 32, sector 3, the tower located at Union Avenue Extended south
of Poplar Avenue, which was in the same area as tower 69. He said that the next call from
the victim’s number to Mr. Carlisle’s number returned to tower 69, which was at the corner
of South Cox Street and Central Avenue, and that the number remained on the Cox Street
tower until 9:06:31 a.m. He said that between 11:22 p.m. on April 3, 2009, and 9:00 the next
morning, thirty calls were placed and that all the calls registered to the Cox Street tower
except the call on the Union Avenue Extended tower, which could have been an anomaly or
because someone with the cell phone moved. He concluded that the person with the
telephone was close to the Cox tower because all the calls registered there.
On cross-examination, Mr. Johns acknowledged he did not know who had the cell
phone at the time of the calls. He agreed he could not give a pinpoint location of the person
who made the calls. He said that the towers in Memphis were one to two miles apart and that
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a tower could reach about one-half to one mile before the next tower registered the phone.
He said the change in towers could have been an anomaly or because the cell phone was
close to the edge of the next tower’s reception area, where the call would have been
transferred and sent back.
On redirect examination, Mr. Johns testified that two towers were located between the
Cox Street tower and tower 32. He said that the Regional Medical Center tower was
downtown about eight to ten miles from the Midtown tower.
Jessica McGill testified that she knew the Defendant and saw him at a friend’s house
in December 2009. She said that she knew the Defendant’s voice and that when she was in
a different room, she overheard the Defendant make a comment about a firearm. She said
the Defendant stated, “[T]he charge [would] never stick; they don’t have the gun[.]” She
said she contacted Sergeant Justice about the Defendant’s comment. She believed the
Defendant also said he had “gotten rid of a gun.”
On cross-examination, Ms. McGill testified that she was unsure how many people
were at her friend’s house when she heard the Defendant, that it was not a party, and that a
couple of people were there. She did not recall the date or if it was daylight or dark. She
said that it was 2009 and that drugs and alcohol were not present. She said that she and Ben
Thompson were in one room and that the Defendant was in an adjoining room. She said she
did not remember the Defendant’s exact words. She agreed she heard statements about a gun
but said she could not go further and still be honest.
Dennis Ray Sullivan testified that he was incarcerated at the time of the trial for a
methamphetamine conviction, that he had been incarcerated since 2008, and that he had
several previous felony convictions for drug offenses, theft, and coercion of a witness. He
said he knew the Defendant because they were incarcerated together. He said the Defendant
told him about a murder that happened in 2009. He said the Defendant stated that two men
were together, that one was robbed, and that the shooter wore a hoodie and could not be
identified. He said the Defendant told him that he was being blamed for the shooting but that
the DNA found on the body did not match his. He said the Defendant told him that the
Defendant’s brother was in the hospital and that there was no proof the cell phone was with
the Defendant. He said the Defendant spoke in third person and did not say, “I.” He said the
Defendant told him all the facts and explained that the police could not prove he was the
shooter.
Mr. Sullivan testified that he met Ben Carlisle at the penal farm. He said that Mr.
Carlisle received probation from the trial judge and that the Defendant was paranoid about
why his brother received probation. He said the Defendant told him that he was accused of
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shooting “Mark – Mike – something of that nature” close to the Defendant’s mother’s house
and that the victim was in a band or a musician. He said the Defendant told him that a
weapon was found under a garbage can but that the weapon did not match ballistics from the
scene. He said the Defendant explained that anyone could buy a file and use it on the inside
of the barrel of a gun to prevent it from matching ballistics. He stated that the Defendant told
him someone was robbed for money but did not mention drugs. Mr. Sullivan said later,
though, it was a drug deal. He said the Defendant read from a piece of paper he kept in his
back pocket, then folded and returned it to his back pocket. He said the Defendant told him
his brother was at the Med when the shooting occurred. He said that around Christmas, the
Defendant referred to this case and stated, “I know somebody who is not having a good
Christmas this year, and I don’t care if their family is either. . . . And the police can’t prove
anything.” He said he did not know anything about the shooting until the Defendant told
him.
Mr. Sullivan testified that he knew James Lee. He said that the Defendant asked him
if he knew Mr. Lee, that he said he did, and that the Defendant stated, “That b---- snitched
on me.” He said that after he said he knew Mr. Lee, the Defendant told him about the
shooting. He said the Defendant made threats about Mr. Lee and his family. He said that
when he was in a holding area before testifying, the Defendant pointed at him and shook his
head.
Mr. Sullivan testified that he was serving a twelve-year sentence. He said the State
had not promised him anything for his testimony at the trial. He said he testified because he
had an addiction but had turned his life around and given it to God. He said he was
scheduled to be released the following July.
On cross-examination, Mr. Sullivan testified that he had several convictions. He said
he was incarcerated with the Defendant at “201” and at the penal farm. He said life in jail
was different than life “on the streets” but denied that other inmates had to make themselves
appear tougher in jail. He denied knowing Brian Nelson. He said that he and the Defendant
were friends when they were incarcerated together and that the Defendant “snapped” on him
a few times but that he still talked to the Defendant. He said being in jail was stressful.
Mr. Sullivan testified that he and the Defendant had cases pending when they were
in jail but that he did not talk with the Defendant about his case because his was “cut and
dried.” He said he talked to the Defendant about his case when he returned from court. He
said that when he wrote a letter to the homicide division about his conversations with the
Defendant, he was “looking at a lot of time” and that his motives were different at the time
he wrote the letter than they were at the time of the trial. He said that when he wrote the
letter, he was “looking after” himself. He said, though, that no one contacted him before he
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began serving his sentence. He said he wrote two letters, one in 2009 when he and the
Defendant were incarcerated together and one when he was transferred to serve his prison
sentence. He stated that the second letter said he “already signed for [his] time,” that the
Defendant had told him information, but that he did not want anything in return for the
information.
Mr. Sullivan testified that the police did not begin asking questions when they came
to see him, that he talked about the case first, that the police then asked specific questions,
and that his interview was recorded. He said that he told the police everything he could
remember and that if he remembered anything later, he would let them know. He said he
signed and dated a written statement. He agreed that his statement did not include the
Defendant’s threats about James Lee and his family. He said he did not tell the State about
the threats until the trial because it “just came” to him when he was testifying. He agreed his
testimony concerning the Defendant’s comments around Christmas about the victim and the
victim’s family were not in his statement but were in a letter.
Mr. Sullivan testified that he and the Defendant spoke daily when they were
incarcerated together. He said the Defendant approached him and stated, “We should have
life, but we got away with it, what are we gonna [sic] do when we get out?” He said that he
had no reason to receive a life sentence and that the Defendant must have been talking about
himself. He said that when they discussed his case, the Defendant said, “They can’t prove
that I did it; so that whoever did it – whoever was wearing the hoodie . . . that ran off after
the guy got shot and the other guy ran off.” He said the Defendant did not say “I” and did
not say that he was there that night, that he robbed someone, that he was involved in a drug
deal, or that he used a gun to shoot someone. He said the Defendant told him “the whole
case and the whole situation.” He stated that he did not know what the papers were that the
Defendant read, that he did not see a discovery packet, and that he could not say the
Defendant was reading the discovery. He said that the Defendant did not tell him he killed
the victim and that the closest the Defendant came were his statements at Christmas.
Mr. Sullivan testified that the police did not talk to him after he wrote the first letter
but that when he went to prison and began the drug program, he wrote another letter and
spoke with the police. He said that he was being released in June and that he was not
receiving anything for his testimony. On redirect examination, Mr. Sullivan said that he did
not talk to anyone else about an April 4 murder while he was incarcerated and that he did not
see or read the news about the murder.
James Lee testified that he had been convicted of burglary and theft several times and
that his record dated from 1986. He said he contacted Sergeant Justice in October 2009 to
give her information he had heard about a shooting. He stated that he was at the penal farm
-16-
with the Defendant and that in June 2009, the Defendant said he was concerned because
Sergeant Justice was coming to see him. The Defendant told him that the police had found
a cigarette butt at the scene and that he was afraid his DNA was found on it. He said the
Defendant told him that on April 3 and 4, he was “high” and robbed someone, that he thought
the other person reached for something, and that he “emptied the gun on the guy.” He said
the Defendant was not the victim but was the perpetrator because he had the gun. He said
the Defendant did not remember if someone else was present. He said the Defendant told
him that he pulled the gun, that he fell or stepped back, that the other person was shot, and
that he ran. The Defendant told him the victim was a musician who played in the “Cooper
and Young area.” He said the Defendant told him the shooting occurred around the
Defendant’s mother’s house. He said that he did not see any media coverage of this case
while he was in jail and that all his knowledge on the matter came from the Defendant. He
said that Sergeant Justice did not offer him anything for his testimony and that he had already
served his sentence before he spoke with the prosecutor.
On cross-examination, Mr. Lee testified that he knew the Defendant before they were
in jail together and that he knew Mr. Sullivan but that he and Mr. Sullivan had not discussed
the shooting because they were in jail together before it occurred. He said the Defendant told
him he was “going to get some money” but did not mention a drug deal. He denied the
Defendant told him that the buyer gave him paper wrapped in dollar bills or that there was
a struggle. He said the Defendant told him that there was a robbery and that when the victim
reached for something, the Defendant fired his gun. He denied the Defendant told him that
he fired one shot or the type of weapon used. He agreed that people in jail may brag about
things for their own protection and that the more credibility a prisoner had, the more likely
he would be left alone. He said that he took the Defendant’s statements as both a confession
and “boastful credibility.” He said that at the time of the trial, he thought the Defendant’s
statements were boasting and were lies.
Shelby County Sheriff’s Department Sergeant Michaele Byers testified for the defense
that she was the custodian of records for the jail. She said Brian Nelson and the Defendant
were “housed” together on the first floor of J Pod from January 15, 2010, until February 17,
2010.
On cross-examination, Sergeant Byers testified that J Pod was the program pod in the
jail and that up to sixty-four inmates could live in J Pod. She said she could find the names
of all the inmates in J Pod but did not know their relationships or how much time they spent
together.
-17-
On redirect examination, Sergeant Byers testified that the pod had cells where two
inmates would be housed together and that the pod had a day room area. She said that the
inmates were allowed access to the day room throughout the day to mingle.
Tony Geiser, a private investigator, testified that he reviewed the case file and that he
interviewed Mark Cooke on September 9, 2010. He said Mr. Cooke told him he first heard
the name “Zachary” sometime after the shooting during conversations with the police.
Upon this evidence, the jury convicted the Defendant of voluntary manslaughter and
employing a firearm during the commission of a dangerous felony. The trial court sentenced
the Defendant as a Range III, persistent offender to consecutive terms of fifteen years for the
voluntary manslaughter conviction and fifteen years as a violent offender for the firearm
conviction. This appeal followed.
I
The Defendant contends that the indictment failed to charge him properly with
employing a firearm during the commission of a dangerous felony because it did not state the
dangerous felony the Defendant committed while employing a firearm. The State contends
that the issue is waived because defects in the indictment must be raised before the trial. In
the alternative, the State contends that the indictment was valid and that the Defendant had
notice because he was indicted and tried for two offenses, voluntary manslaughter and
employing a firearm during the commission of a dangerous felony.
The statutory and constitutional requirements for an indictment are satisfied when the
indictment fulfills the “overriding purpose of notice to the accused.” State v. Hammonds, 30
S.W.3d 294, 300 (Tenn. 2000). “So long as an indictment performs its essential
constitutional and statutory purposes, a defect or omission in the language of the indictment
will not render the judgment void.” Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000). Count
One of the indictment states that the Defendant “did unlawfully and knowingly, and while
in a state of passion produced by adequate provocation sufficient to lead a reasonable person
to act in an irrational manner, kill” the victim, states the date of the offense as April 4, 2009,
and cites Tennessee Code Annotated section 39-13-211, the voluntary manslaughter statute.
Count Two of the indictment states that the Defendant “did unlawfully and knowingly
employ a firearm during the commission of an offense as defined in T.C.A. 39-17-
1324(i)(1),” states the date of the offense as April 4, 2009, and cites code section 39-17-
1324(b).
Voluntary manslaughter is listed as a “dangerous felony” in the code section cited in
the indictment, section 39-17-1324(i)(1), and was the only other offense charged in the
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indictment. We conclude that the indictment provided the Defendant with adequate notice
of the dangerous felony he was charged with committing while employing a firearm. The
Defendant is not entitled to relief on the issue.
II
The Defendant contends that the evidence is insufficient to support his convictions.
He argues that the evidence did not show that he was the person who shot the victim. In the
alternative, he argues that the evidence did not show that he intentionally or knowingly killed
the victim. He argues that his voluntary manslaughter conviction was the underlying felony
for the firearm conviction and that because the evidence is insufficient to support the
voluntary manslaughter conviction, it must be insufficient to support the firearm conviction.
The State counters that the evidence is sufficient to support the convictions. We agree with
the State.
Our standard of review when the sufficiency of the evidence is questioned on appeal
is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We do not reweigh the evidence but
presume that the trier of fact has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the State. See State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Questions about witness credibility are resolved by the jury. See State v. Bland, 958 S .W.2d
651, 659 (Tenn. 1997).
“‘A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.’” State v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005) (quoting State
v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998)). The standard of proof is the same, whether the
evidence is direct or circumstantial. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).
Likewise, appellate review of the convicting evidence “‘is the same whether the conviction
is based upon direct or circumstantial evidence.’” Id. (quoting State v. Hanson, 279 S.W.3d
265, 275 (Tenn. 2009)).
Relevant to the Defendant’s voluntary manslaughter conviction, “Voluntary
manslaughter is the intentional or knowing killing of another in a state of passion produced
by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.”
T.C.A. § 39-13-211(a) (2010). “A person acts knowingly with respect to a result of the
person’s conduct when the person is aware that the conduct is reasonably certain to cause the
result.” Id. at § 39-11-302(b). “When acting knowingly suffices to establish an element, that
element is also established if a person acts intentionally.” Id. at § 39-11-301(a)(2). “[A]
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person . . . acts intentionally with respect to the nature of the conduct or to a result of conduct
when it is the person’s conscious objective or desire to engage in the conduct or cause the
result.” Id. at § 39-11-302(a).
In the light most favorable to the State, the Defendant arranged a drug deal with the
victim on South Cox Street. Mr. Cooke went with the victim and saw the victim wrap strips
of green paper with real money to exchange for the drugs. He saw the victim exchange the
paper and money for drugs with another man. He heard the victim call the man they met
“Zak” and later learned from friends that Zak was the Defendant. After the victim exchanged
the fake money for the drugs, the man pulled a gun and chased the victim around a car
attempting to hit him with the gun. After running into a neighboring yard, Mr. Cooke saw
the man and the victim wrestling and then heard a “click, click, pop.”
Mr. Nelson testified that on the night of the murder, he was with “Ronnie,” who
provided the drugs to the Defendant to sell to the victim. Although the Defendant’s brother
told Sergeant Justice his phone was with him at the hospital at the time of the murder, Mr.
Nelson said the Defendant used his brother’s cell phone to request drugs from Ronnie. He
said the Defendant had a gun that night, which he kept in the “hoodie” he was wearing. He
said that he and Ronnie picked up the Defendant, took him to South Cox Street for the drug
deal, and waited in the car across the street when the Defendant went to meet the buyer,
whom the Defendant had called “Mike” on the phone. Mr. Nelson saw the Defendant
exchange the drugs for the money, saw the Defendant chase Mike around a car and into a
yard, heard a gunshot, and saw Mike grab his neck and run.
Testimony from Mr. Smythe, the president of Yellow Cab, and Mr. Grills, the taxi cab
driver, showed that the Defendant was picked up at a Krystal Restaurant on Union Avenue
and taken to South Cox Street. The record shows that “Zack” used the Defendant’s brother’s
cell phone to call the taxi company at 9:35 on the night of the shooting. Mr. Johns, the
AT&T engineer, explained that the cell phone records showed that Benjamin Carlisle’s
phone made several calls to the victim shortly before the shooting and that the phone was in
the area of South Cox Street all night, not at the hospital.
Ms. McGill heard the Defendant state that his charges would not “stick” because the
police did not have the gun, and she believed he said he disposed of a gun. When the
Defendant was incarcerated with Mr. Sullivan, he gave details about the murder and said that
he knew “somebody who [was] not having a good Christmas . . . and [didn’t] care if their
family [was] either.” The Defendant told Mr. Lee that on April 3 and 4, he robbed someone
and that he “emptied the gun on the guy” when the victim reached for something.
-20-
Officer Barrett said the victim was bleeding from his neck. Mr. Nelson said that after
he heard the gunshot, “Mike” grabbed his neck. Dr. Ross classified the death as a homicide
and said the victim suffered a gunshot entrance wound on the left side of the base of his neck
and died from a gunshot wound to the torso. We conclude that a reasonable trier of fact
could have found beyond a reasonable doubt that the Defendant intentionally or knowingly
shot and killed the victim.
Relevant to the Defendant’s firearm conviction, it is an offense to employ a firearm
during the commission of a dangerous felony. T.C.A. § 39-17-1324(b)(1). Voluntary
manslaughter is a dangerous felony. T.C.A. § 39-17-1324(i)(1)(C). We have concluded the
evidence is sufficient to sustain the Defendant’s voluntary manslaughter conviction. The
evidence established that the Defendant shot the victim and is sufficient to sustain the firearm
conviction.
III
The Defendant contends that the trial court committed plain error by failing to instruct
the jury on self-defense, acknowledging that he failed to file a motion for new trial. He
argues that self-defense was fairly raised during the trial, that defense counsel requested the
instruction, and that the court did not include it. The State responds that self-defense was not
fairly raised by the evidence. The State argues that the Defendant was engaged in a drug
deal, an unlawful activity, and that no evidence showed the victim was armed or threatened
the Defendant.
When an issue has not been properly preserved on appeal, this court may grant relief
if plain error exists. T.R.A.P. 36(b) (“When necessary to do substantial justice, an appellate
court may consider an error that has affected the substantial rights of a party at any time, even
though the error was not raised in the motion for a new trial or assigned as error on appeal.”).
Our supreme court has adopted the factors developed by this court to be considered:
when deciding whether an error constitutes “plain error” in the absence of an
objection at trial: “(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 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626,
641-42 (Tenn. Crim. App. 1994)). The record must establish all five factors before plain
error will be recognized and “complete consideration of all the factors is not necessary when
-21-
it is clear from the record that at least one of the factors cannot be established.” Smith, 24
S.W.3d at 283. In order for this court to reverse the judgment of a trial court, the error must
be “of such a great magnitude that it probably changed the outcome of the [proceedings],”
and “recognition should be limited to errors that had an unfair prejudicial impact which
undermined the fundamental fairness of the trial.” Adkisson, 899 S.W.2d at 642.
In criminal cases, the trial court has the duty to charge the jury on all the law that
applies to the facts of the case. See State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992) (citing
State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975)). The defendant also “has a right to
have every issue of fact raised by the evidence and material to his defense submitted to the
jury upon proper instructions by the judge.” Thompson, 519 S.W.2d at 792; see T.C.A. §
39-11-203(c) (2010) (entitling a defendant to have the issue of the existence of a defense
submitted to the jury when it is fairly raised by the proof). An erroneous jury instruction may
deprive the defendant of the constitutional right to a jury trial. See State v. Garrison, 40
S.W.3d 426, 433-34 (Tenn. 2000).
An instruction on a defense must be given if fairly raised by the proof regardless of
whether the defense relies on the theory or requests that an instruction be given as to that
theory. See State v. Sims, 45 S.W.3d 1, 9 (Tenn. 2001). “In determining whether a defense
instruction is raised by the evidence, the court must examine the evidence in the light most
favorable to the defendant to determine whether there is evidence that reasonable minds
could accept as to that defense.” Id.; see State v. Bult, 989 S.W.2d 730, 733 (Tenn. Crim.
App. 1998); State v. Shropshire, 874 S.W.2d 634, 639 (Tenn. Crim. App. 1993). If evidence
has been presented which reasonable minds could accept as a defense, the trial court has a
duty to charge that defense to the jury. See Thompson, 519 S.W.2d at 792; Sims, 45 S.W.3d
at 9. Tennessee Code Annotated section 39-11-611(b)(2)(A)-(C) (2010) states,
[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.
Even in the light most favorable to the Defendant, he was not engaged in a lawful
activity. Counsel asked the trial court for a jury instruction on self-defense based on the
testimony of two witnesses, Mr. Cooke and Mr. Lee. Mr. Cooke testified that he witnessed
a drug transaction between the Defendant and the victim, saw the two wrestling, and heard
a gunshot and that the victim died after being shot. Mr. Lee testified that the Defendant told
-22-
him that when he was robbing the victim or asking the victim for money, the victim reached
for something and that he shot the victim. Further, no evidence in the record suggests the
victim threatened the Defendant with a deadly weapon or force, and the evidence shows the
victim was walking away when the Defendant chased him to retrieve the drugs he had
exchanged for money and strips of paper. The instruction did not apply, and we conclude
that the trial court did not err by declining to instruct the jury on self-defense.
IV
The Defendant contends that the trial court committed plain error by instructing the
jury that his statements could qualify as confessions, acknowledging that the issue was not
preserved at the trial. He argues that none of his statements contained all the elements
necessary to constitute the crimes charged. The State contends that the court instructed the
jurors that the Defendant’s statements were confessions or admissions against interest. The
State argues that even if the Defendant’s statements were admissions and not confessions,
such error by the court did not adversely affect a substantial right of the Defendant. Because
the Defendant failed to file a timely motion for a new trial, the issue is waived. See T.R.A.P.
3(e), 36(b). We review the issue under plain error analysis.
“To qualify as a confession, a statement of an accused must admit all the elements
necessary to constitute the crime with which he is charged.” State v. Lee, 631 S.W.2d 453,
455 (Tenn. Crim. App. 1982). An admission is something less than a confession. An
admission is an acknowledgment by the defendant of certain facts that tend to establish guilt
when taken with other facts. See Helton v. State, 547 S.W.2d 564, 567 (Tenn. 1977),
overruled on other grounds as stated in State v. Davis, 613 S.W.2d 218, 221 (Tenn. 1978).
“‘An instruction should be considered prejudicially erroneous only if the jury charge, when
read as a whole, fails to fairly submit the legal issues or misleads the jury as to the applicable
law.’” State v. Majors, 318 S.W.3d 850, 864-65 (Tenn. 2010) (quoting State v. Faulkner,
154 S.W.3d 48, 58 (Tenn. 2005)).
It is undisputed that the Defendant made statements to several witnesses and that his
statements were introduced at the trial. The trial court’s instructions noted that evidence of
the Defendant’s statements was introduced at the trial “to show a confession or admission
against interest” and defined both for the jury. The court advised the jurors that it was their
duty to determine if the statements were actually made and the truth of the statements by
considering the surrounding circumstances and any contradictory evidence and that if they
determined a statement was made and was true, they must consider it as a whole and not
arbitrarily disregard any part. The jurors were advised that they were the sole judges of the
weight to be given to the statements and that all other evidence in the case should be
considered along with the statements in determining guilt or innocence. The court made no
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comments regarding its opinion of the statements and did not determine whether the
Defendant’s statements were confessions or admissions. Both confessions and admissions
were defined for the jurors to make their own determination. This issue is without merit.
In consideration of the foregoing and the record as a whole, the judgments of the trial
court are affirmed.
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JOSEPH M. TIPTON, PRESIDING JUDGE
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