State of Tennessee v. Lafaris Brown

04/27/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
February 17, 2021 Session
STATE OF TENNESSEE v. LAFARIS BROWN
Appeal from the Criminal Court for Knox County
Nos. 115023, 114910 Bobby R. McGee, Judge
___________________________________
No. E2019-02222-CCA-R3-CD
___________________________________
Defendant, Lafaris Brown, was charged in two separate indictments with one count each
of unlawful possession of a firearm and criminal gang offense enhancement. Case No.
114910, offense date January 6, 2019, was tried by jury on September 16, 2019, and Case
No. 115023, offense date October 24, 2018, was tried in a bench trial on October 17, 2019.
In both cases, which are consolidated on appeal, Defendant was convicted of one count of
unlawful possession of a firearm. He was acquitted of the criminal gang offense
enhancement count in Case No. 114910, and the trial court dismissed the criminal gang
offense enhancement count in Case No. 115023. On appeal, Defendant argues (1) in Case
No. 115023, that the trial court erred in denying his Motion to Suppress; (2) in Case No.
114910, (a) that the trial court erred by denying a jury instruction on a necessity defense,
and (b) improper prosecutorial argument; and (3) in both cases, that the trial court erred by
imposing consecutive sentences. Following a thorough review, we affirm the judgment of
the trial court in Case No. 11490; however, we determine that, in Case No. 115023, law
enforcement lacked reasonable suspicion to stop Defendant and that the trial court erred in
denying the motion to suppress. Thus, we reverse the judgment of conviction in Case No.
115023.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court in Case No.
11490 Affirmed, and Judgment of the Criminal Court in Case No. 115023 Reversed,
Vacated, and Dismissed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Eric Lutton, District Public Defender, and Jonathan Harwell, Assistant District Public
Defender, Knoxville, Tennessee, (on appeal), and Mark E. Stephens, District Public
Defender, and David Skidmore, Assistant District Public Defenders, Knoxville, Tennessee,
(at trial), for the appellant, Lafaris Brown.
Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney
General; Charme Allen, District Attorney General; and TaKisha Fitzgerald, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual and Procedural History
A. Procedural Summary
The following chart details a summary of the dates and actions in each of the two
cases on appellate review:
Date Case No. Action
October 24, 2018 115023 Offense date
November 20, 2018 115023 The general sessions court released Defendant
on pretrial supervision.
January 6, 2019 114910 Offense date
February 19, 2019 114910 Defendant was indicted on one count of
unlawful possession of a firearm and one count
of criminal gang offense enhancement.
February 27, 2019 115023 Defendant was indicted on one count of
unlawful possession of a firearm and one count
of criminal gang offense enhancement.
April 18, 2019 115023 Defendant filed a pretrial Motion to Suppress
evidence of the firearm he possessed on
October 24, 2018.
April 18, 2019 114910 Defendant filed a Motion for Bond reduction.
April 19, 2019 115023 The Knox County Sherriff’s Office filed a
noncompliance report due to pending charges in
Case No. 114910 and requested that
Defendant’s pretrial supervision be revoked.
April 22, 2019 115023 The State filed a Motion to Revoke Pre[t]rial
Release
April 25, 2019 115023 Following a hearing, the trial court revoked
Defendant’s pretrial supervision, set bond in the
amount of $25,000, and denied Defendant’s
Motion to Suppress.
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April 25, 2019 114910 Following a hearing, the trial court reduced
Defendant’s bond from $50,000 to $25,000.
May 1, 2019 115023 Defendant filed a supplemental Motion to
Suppress, arguing that the seizure of
Defendant’s firearm on October 24, 2018,
violated his constitutional rights under Miranda
v. Arizona, 384 U.S. 436 (1966).
August 14, 2019 114910; Defendant filed a Notice of Defense, stating
115023 that he would rely on the defense of necessity
in both cases.
August 30, 2019 114910 Defendant filed a Motion in Limine requesting
that the trial court “not [] announce” to the jury
that Defendant was arrested for vandalism and
stipulated that there was an “active warrant for
[Defendant] that gave the police an opportunity
to arrest him” on January 6, 2019. Defendant
also filed a Motion to Dismiss Gang
Enhancement Allegations.
September 16, 2019 114910 The trial court granted Defendant’s Motion in
Limine and denied Defendant’s Motion to
Dismiss Gang Enhancement Allegations.
September 16, 2019 114910 In a bifurcated trial, the jury heard evidence on
count one and convicted Defendant of unlawful
possession of a firearm.
September 17, 2019 114910 In a bifurcated trial, the jury heard evidence on
count two and acquitted Defendant of the
criminal gang offense enhancement.
October 2, 2019 115023 The trial court filed a written order denying
Defendant’s Supplemental Motion to Suppress.
October 7, 2019 114910 The State filed a Notice of Enhancement
Factors for sentencing, listing factors (1) and
(8).
October 10, 2019 115023 Defendant waived his right to a jury trial.
October 17, 2019 115023 Following a bench trial, the trial court found
Defendant guilty of one count of unlawful
possession of a firearm and dismissed the
criminal gang offense enhancement in count
two.
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October 18, 2019 114910; The trial court sentenced Defendant to thirteen
115023 years in the Tennessee Department of
Correction (“TDOC”) in each case and ran the
sentences consecutively.
November 12, 2019 114910; Defendant filed a timely Motion for New Trial.
115023
December 9, 2019 114910; The trial court denied Defendant’s Motion for
115023 New Trial.
B. Testimony
1. April 25, 2019: Pretrial Hearing on Motions
Carla Kidwell testified that she worked for the Knox County Sheriff’s Department
pretrial supervision office. She testified that Defendant was placed on “pretrial release” on
November 20, 2018, in Case No. 115023.1 Ms. Kidwell stated that she filed a request to
revoke Defendant’s pretrial supervision because Defendant was subsequently arrested for
unlawful possession of a firearm in Case No. 114910, which violated Defendant’s pretrial
conditions in Case No. 115023.
Knoxville Police Department (“KPD”) Lieutenant Kenneth Brian Bush testified that
he was a patrol supervisor and that he had contact with Graham Apartment property owners
on his patrol. He said that his patrol performed a “security detail” for several apartments
on Magnolia Avenue, including Graham Apartments. Lieutenant Bush testified that the
property owner reported “a lot of loitering in the back parking lot,” “a lot of drug
transactions,” and “several shootings[.]” When handed a photograph of the back parking
lot at Graham Apartments, Lieutenant Bush explained that the lot was “fenced off” with
“No Trespassing” and “Tenants Only” signs. Lieutenant Bush said that, based upon his
understanding from the property owner, if someone was present in the lot who was not a
resident and was not in the company of a resident, that person did not have the owner’s
permission to be on the property. Lieutenant Bush stated that he knew who the six property
residents were, so when he saw Defendant on the property, he knew that Defendant was
not a resident.
On October 24, 2018, at 9:48 p.m., Lieutenant Bush observed Defendant “standing
in the back parking lot. He was not moving. He was not walking towards an apartment.”
He stated, “[Defendant] was just standing there loitering in the back parking lot, which is
exactly the activity that we have noticed to be suspicious.” Lieutenant Bush continued:
1
Case No. 115023 has the earlier offense date of October 24, 2018. Defendant was indicted in
Case No. 115023 after he was indicted in Case No. 114910, with the later offense date of January 6, 2019.
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As I turned westbound down the alleyway and turned into the parking lot,
[D]efendant began walking away quickly towards the back of the apartments.
Several other officers -- Officer [Chris] Brooks and Officer Claybough2 and
Officer [Gordon] Johnson were walking through the apartment complex from
the front and they encountered [Defendant] on a handicap ramp access. . . .
The officers briefly spoke to him. It was a consensual encounter to start with.
I believe they asked for his identification, at which time, he -- he gave them
his identification. And they asked if he had any weapons. He lifted his shirt
up. I don’t believe the officers ever even put their hands on him. He lifted
his shirt up and displayed a firearm in his waistband, at which point he was
detained.
Lieutenant Bush explained that the property where Defendant was standing was
“private property, fenced in, with visible signage.”
On cross-examination, Lieutenant Bush stated, “We work for [the property owners]
for private security, as a[n] overtime position.” He said that, initially, his was the only
squad car in the back parking lot. Lieutenant Bush recalled that, when Defendant began
walking up the ramp, three officers approached Defendant and stood on the ramp in front
of him. He said that the ramp had a handrail on it but that Defendant could have exited by
Lieutenant Bush’s car “if he’d wanted to.” Lieutenant Bush did not know whether
Defendant could have walked forward once the three officers confronted him. He did not
hear Defendant’s entire conversation with the other three officers because Lieutenant Bush
was “10 feet, 15 feet” away from the ramp.
He agreed that residents often had guests in their apartments. Lieutenant Bush
agreed that, other than loitering, he did not see Defendant engage in any criminal activity
before he and his officers confronted Defendant. He explained that he believed Defendant
was “trespassing.” Lieutenant Bush said that, typically, he and his officers would approach
people who were not residents and ask if they had “legitimate business” at the property. If
a person was found not to be on the property with legitimate business, he or she were placed
on a “trespass list,” and then the officers would ask the person to leave. Lieutenant Bush
stated that Defendant was not on the “trespass list.”
Trial counsel requested to call Officer Brooks to testify as to his interaction with
Defendant because Officer Brooks “seized” Defendant and took his identification card.
The State agreed that Defendant was “seized” but stated that the officers had probable
cause to seize Defendant because he was loitering. The trial court denied the request to
2
Officer Claybough’s first name does not appear in the record. No offense is intended.
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call Officer Brooks, stating, “There’s no [c]onstitutional [r]ight to be free of interference
on private property[.]” It continued,
[T]he evidence is that when [Lieutenant] Bush saw [D]efendant on the
property doing nothing but just standing there, which he calls loitering, he
had personal information. He knew who the tenants were. And he knew that
[Defendant] was not one of them. So he had at least reasonable suspicion
that [D]efendant was then and there committing the act of criminal trespass.
Defendant testified that he was present at Graham Apartments on October 24, 2018,
to visit a friend whose girlfriend was a resident there. He explained that his friend called
him to come visit, so he walked to the apartment complex from his home. He said that the
path to the apartment from his home was through the back parking lot. Defendant saw
Lieutenant Bush pull in, and Defendant walked up the access ramp. He said that, when he
was “halfway up the ramp,” three officers and Lieutenant Bush “came out.” Defendant
recalled that Lieutenant Bush asked him if he was a resident. Defendant told Lieutenant
Bush that he was not a resident but said that he was visiting his friend and his friend’s
girlfriend. Defendant stated that he asked Lieutenant Bush if he could “go,” but Lieutenant
Bush asked for his identification. Defendant explained,
At the same time, they running my name and stuff, he asked me did I have
anything on me that will poke or stick them. At that point in time, I mean, if
an officer asks you if you -- if you have anything on you that will poke or
stick [him], you getting arrested. I told him I had a firearm on me.
....
[B]efore they even found out that I had the gun, I couldn’t leave. He already
had my ID. He asked -- I asked him twice could I leave. He said, no. He
asked for my ID. I gave him my ID. If there’s no way I can leave -- if you
have me -- if I have . . . my ID and I walk off, that’s resisting arrest to them.
Defendant said that Lieutenant Bush asked Defendant if he was a felon, and
Defendant said he was.
On cross-examination, Defendant stated that his residence was “right up the street”
from Graham Apartments. He agreed that he had the “right to control who comes in and
out” of his residence. Defendant stated that Lieutenant Bush was driving up while
Defendant was “coming from off the street.” He said that he was “never loitering” and
“never stood there at one point in time.”
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The trial court denied Defendant’s Motion to Suppress, stating that the officers had
reasonable suspicion that Defendant “was engaging in the criminal activity of criminal
trespass.” Thus, the trial court found that the officers had the right to “inquire further.”
The trial court stated that, if Defendant had been invited by one of the residents, he would
have been a social guest and not a criminal trespasser.
The trial court revoked Defendant’s pretrial supervision and set the bond in each
case at $25,000.
2. September 16-17, 2019 Bifurcated Jury Trial Testimony in Case No. 114910
The two counts in Case No. 114910 were tried separately; Defendant was first tried
on unlawful possession of a firearm and later on the criminal gang offense enhancement.
In the first part of the bifurcated trial, KPD Officer Gordon Johnson testified that, in
January 2019, he was familiar with Defendant by name and appearance and knew that
Defendant had a prior felony conviction3 and an outstanding warrant for his arrest. Officer
Johnson said that, on January 6, 2019, he was on patrol when he saw Defendant walking
eastbound on Magnolia Avenue. Officer Johnson pulled over, got out of his vehicle, and
approached Defendant. Officer Johnson asked Defendant “if he had anything on him[,]”
and Defendant volunteered that there was a .9 millimeter firearm in his waistband. Officer
Johnson stated that he confiscated the firearm, unloaded seven bullets from the gun, and
took Defendant into custody. Officer Johnson turned the firearm over to the KPD
confiscations unit.
On cross-examination, Officer Johnson said that, when he approached Defendant,
Defendant did not run or resist in any way and that Defendant did not threaten him.
Following a Momon colloquy, Defendant elected to testify. He said that he grew up
in Memphis in a “[m]ajority [] black” area of town with “a lot of gang members and drug
dealers[.]” Defendant recalled that, when he was twelve years old, he joined a gang called
“Nine Deuce East Side Bishop Bloods” (“Bloods”) and that ninety-five percent of the
males in his neighborhood were in a gang. Defendant stated that he learned “how to steal
cars and boost clothes” while in the gang.
Defendant recalled that a Bloods’ member with “rank” over him told him to rob
someone and gave Defendant a gun to do it. Defendant explained that he pled guilty to
aggravated robbery in 2010 because of this offense and that, due to being incarcerated, he
3
The State read into the record a certified copy of Defendant’s prior felony conviction for
aggravated robbery.
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had an “epiphany” about what he wanted his life to be like. Defendant testified that he
tried to leave the Bloods and was “beat up” twice while in prison for trying to leave.
Defendant recalled an incident while in prison for aggravated robbery where a
Bloods’ member told him to stab a “Crips” member. He stated that he stabbed the Bloods’
member instead because he did not want to assault the Crips member. The Bloods’ member
then issued a “kill on sight” order for Defendant.
Defendant recalled another incident in prison when he was in a cell with another
Bloods’ member and the Bloods’ member “stuck something in the door.” Defendant
explained that both he and the Bloods’ member were “written up” for “tampering with
security devices” due to this incident. Three different times, Defendant refused to live with
a member of the Bloods due to threats he received, so he was written up for “refusing cell
assignments.”
Defendant testified that he was released from custody in November 2017 and that
he moved to Knoxville. He said that he worked for a “temp service” for five or six months
and then obtained permanent employment with a construction crew. Defendant recalled
that his employment abruptly ended because he was hospitalized with leukemia and that
he was on disability after his discharge from the hospital.
Defendant recalled a confrontation at a gas station where an acquaintance called
him a “Blood.” Defendant responded that he was no longer in the gang, and he and the
acquaintance “had words” over it. Defendant said that, two weeks later while he was
walking on Magnolia Avenue, someone “shot at” him. Defendant stated that he did not
call the police because he did not want to “aggravate the situation.” He explained, “[A]
bullet don’t have no name on it. So they shooting at me, they could hit my girl, hit her son,
hit my niece, my nephew, anybody else. So I chose not to irritate the situation. Just let it
die down.” Defendant said that, after he was “shot at,” he bought a gun the following day
for protection, even though he knew he was not allowed to possess one as a convicted felon.
He stated that he never shot the gun and never pointed it at anyone. He said he felt his life
was threatened and that the threat “was more imminent than anything[.]”
On cross-examination, Defendant recalled that he stabbed his cell mate, who was a
Bloods’ member, three times in his back and chest. He recalled that he was questioned
regarding the stabbing and that he told investigators in prison that the stabbing was not
gang-related but said that he was a gang member. Defendant stated that, when he was
released from prison, he did not return to Memphis because he could not stay with his
family due to his “gang lifestyle.”
-8-
Defendant agreed that Clinton Ector was a “prince” in the Bloods who told him to
commit the aggravated robbery in 2008. He said that Mr. Ector renounced the gang
lifestyle as well and that they remained in touch. Defendant explained his tattoos to the
jury, that one stated “Young Banger,” another read “ESB,” and another read “Big Nine.”
Defendant agreed that those were all gang tattoos.
Defendant stated that he knew one of the people who shot at him while he was
walking on Magnolia Avenue and that he recognized the vehicle as belonging to a Bloods’
member. He agreed that innocent people lived near the shooting but that he chose not to
report it to police.
Defendant testified that he was walking home from Kentucky Fried Chicken
(“KFC”) when he was arrested for unlawful possession of a firearm on January 6, 2019.
He said that he knew the officers who arrested him on January 6 because they were the
same officers who arrested him in the same location in October 2018, also for unlawful
possession of a firearm. Defendant agreed that he could have explained to the officers in
October 2018 that the reason he purchased a firearm was for protection but that he did not.
He said, “That would have been me snitching. That would have [gotten] my girl [] shot
at.” He said that, after he was released on pretrial supervision for the first unlawful
possession offense in October 2018, he went back to the same neighborhood and purchased
another gun. He restated that he purchased a gun because he felt like his life was in danger.
Then the following exchange occurred:
Q. It didn’t stop you from going to KFC?
A. It didn’t stop me from going to KFC.
Q. So when you’re at KFC, you’re worried about the gang members shooting
at you, right?
A. I’m worried about those gang members shooting me every time I walk out
of my house.
Q. And all of the other people who are in KFC who are not a part of the gang,
their lives [are] also in danger because you’re there, right?
A. They life -- you’re right.
....
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Q. You thought somebody was going to shoot at you. That’s why you’re
carrying a gun, right?
A. That was protection.
....
Q. And so if somebody is shooting -- if you’re at the KFC and somebody
shoots at you at the KFC, what are you going to do?
A. I will return fire.
....
Q. And my only point is that the folks at the KFC, they didn’t -- they didn’t
sign on for this. They’re just there trying to get a dinner. And so while you
are walking up and down Magnolia with your gun, ready to return fire, you’re
endangering all the folks in the neighborhood. That’s my point. It’s not their
fault.
A. If somebody pulled up to you and you have your gun on your waist --
Q. See, that’s the thing about it. I don’t [] carry my gun. I keep my guns at
my home.
A. If somebody pulled up on you and they start shooting and you have a gun
on you, would you not return fire?
Q. I don’t have a gun on me. If I did, I would have [gone] and got[ten] a
[h]andgun [c]arry [p]ermit. If I was a convicted felon, I wouldn’t have a gun
on me. That’s the point. It’s the violence that you and your buddies are
creating in the neighborhood. . . . That’s what’s so frustrating.
Defendant agreed that, when he was arrested for unlawful possession of a firearm
in October 2018, no one was shooting at him. He agreed that, when he was arrested for
unlawful possession of a firearm in January 2019, no one was shooting at him. He
explained that his life was in danger “at [any] given time one of those gang members decide
they want to shoot” him. Defendant stated, “From KFC to where I was arrested, my life
was always in immediate danger.” Defendant agreed that he was wearing red the day he
was arrested and that red was “a Blood[s’] color.”
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During a jury-out hearing, defense counsel requested a jury instruction on the
necessity defense. He argued that Defendant’s life was in danger because he left the Bloods
gang and that Defendant was “approached, threatened” and “shot at by some members of
this gang.” Defense counsel asserted that unlawful possession of a firearm was “a lesser
offense than being murdered,” so the harm Defendant was trying to avoid was greater than
the harm caused by the offending act. The prosecutor responded that the necessity defense
was not fairly raised by the proof, stating that Defendant was “carrying a gun around so he
can shoot back.” The prosecutor argued that Defendant’s unlawful possession of a firearm
would not have “prevent[ed] somebody from shooting at him” and that he carried the
weapon for retaliation. The trial court concluded:
It is very dangerous for a [c]ourt to prevent a defendant from presenting a
theory of defense. . . . I think the evidence is simply that he -- whenever he
goes out, he just -- he packs a gun now, just in case something goes wrong.
So that’s not imminent. It’s potential, but not imminent. . . . I think where
this [c]ourt’s going to come down, knowing full well that this -- this could
be reversible error, I just think it would be irresponsible to give this
instruction based on these facts.
During the State’s rebuttal closing argument, the prosecutor said:
If you really are worried about fellow gang members shooting at you
and you don’t want to tell the police, stay at home. Don’t go to KFC -- why
[are] you going to KFC? Is it just that important, you going to put the entire
community’s life at risk because you want a two-piece chicken meal?
Because you’re a gang member? You’re a[] convicted felon. You’re not
supposed to have a gun. . . . . We can’t rebut that somebody shot at
[Defendant]. You know why? Because it was never reported to the police.
We found out about it when you did today. But if you really do want to
change your conduct, if you really do want to be a productive citizen, a
productive member of the community, report this criminal activity to the
police. That’s going to demonstrate to the police, that’s going to demonstrate
to your fellow citizens that you are truly out of the gang; that you want to
live a fair and right-up just life; that you don’t want to live a criminal lifestyle.
No. But instead, you want to play these gang games. That’s crazy. Walking
up and down the street, going here -- to and from Walmart, KFC, wherever,
in possession of a gun. What is so important that you got to go to these
different places? Either your life is more important or entertainment’s more
important to you. And if entertainment’s more important to you, then you
are endangering everybody else that’s around you when you do that, when
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you leave the safety of your home, to be entertained. And you choose, Mr.
Gang Member, to carry a gun.
The jury convicted Defendant of one count of unlawful possession of a firearm.
Following testimony on count two for the criminal gang offense enhancement, the jury
found that Defendant was a gang member based on two criteria but determined that the
offense of unlawful possession of a firearm was not committed for the benefit of his gang.
Thus, Defendant was acquitted of the criminal gang offense enhancement in count two.
3. October 17, 2019 Bench Trial Testimony in Case No. 115023
Prior to trial, the State moved to dismiss the criminal gang offense enhancement and
elected to proceed only on the charge of unlawful possession of a firearm. Lieutenant Bush
identified photographs of the property on Magnolia Avenue where the offense took place
and stated that signs were posted on the property which read, “No Trespassing” and
“Tenants Only.” He said that the property was open to the public but that it was private
property. Lieutenant Bush stated that he worked as private security for the property owners
due to drug sales and “loitering” on the property. He said that, on October 24, 2018, there
were only a few tenants who lived in the building and that he was familiar with all of them.
Lieutenant Bush recalled that, on October 24, 2018, he was on patrol with the KPD
and that he saw Defendant “loitering” in the rear parking lot and that he knew Defendant
was not a resident of the building. He said that other officers were on foot patrolling the
building and making their way from the front to Lieutenant Bush. Lieutenant Bush
explained that, when he pulled in to the parking lot, Defendant began walking away from
him and towards the apartment building and up a handicap access ramp. Lieutenant Bush
approached Defendant from the rear, and the other officers approached Defendant from the
front and asked for his identification. One officer asked if he had any weapons, and
Defendant raised his shirt to reveal a firearm in his waistband. Lieutenant Bush said that
the officers ran a background check and discovered that Defendant had a felony criminal
history.
On cross-examination, Lieutenant Bush agreed that the property residents were
permitted to have guests. He explained that Defendant “was just standing there” in the
parking lot for “[m]aybe a few seconds” and that, because he was not moving towards the
building, he “drew [the officers’] suspicion.” Lieutenant Bush did not see Defendant
vandalize anything or otherwise engage in criminal activity other than trespassing. He said
that usually when they encounter someone loitering in the parking lot, they question the
person to see if they “have any legitimate business there” and, if not, that they put the
loitering person on a “trespass list.” He said that Defendant was not on that “trespass list.”
Lieutenant Bush did not recall if Defendant told the officers that he was there to visit a
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friend. Lieutenant Bush agreed that, when the officers approached Defendant, Defendant
was unable to walk forward past them. He agreed that Defendant gave his ID to the officers
and was cooperative.
Defendant testified that he grew up in Memphis and joined the Bloods gang at the
age of twelve. He said that he was convicted of theft and aggravated robbery as an adult.
Defendant explained that, when he was in prison for aggravated robbery, he left the Bloods
gang in 2012 and “got beat up twice” for trying to leave. Once he was released from prison
in 2017, he was confronted and threatened by some gang members. A few weeks later,
someone “shot at” him while he was walking on MLK Avenue. Defendant said that, after
someone shot at him, he illegally purchased a gun for protection. He stated that he never
used the gun or pointed it at anyone.
Defendant said that, on October 24, 2018, he was walking to the apartments on
Magnolia Avenue to visit his friend “Rick” and play chess. He denied that he ever stood
still in the parking lot. He said that officers approached him from the building while he
was on the access ramp and asked for his identification. Defendant testified that he gave
the officers his identification and told them whom he was there to visit.
On cross-examination, Defendant said that, when someone shot at him, he did not
report it to police, nor did he tell the officers who confiscated the gun on October 24, 2018.
Defendant agreed that, when he was stopped by police on October 24, no one was
threatening him at that moment.
Defense counsel argued that Defendant was carrying the firearm on October 24 out
of necessity because he needed to protect his life from threats from gang members.
Following argument, the trial court rejected the necessity defense and found Defendant
guilty of unlawful possession of a firearm. It explained:
The [c]ourt understands what’s going on here and has a certain
amount of sympathy for [Defendant]. He had no drugs on him; he had no
large amount of money to indicate drug dealing. So I’m inclined to believe
him when he says he was going away from a life of crime. He was not going
to commit further crimes, he didn’t want anything to do with that life any
more, he didn’t want anything to do with gangs anymore.
But unfortunately the gangs weren’t through with him, apparently.
And the [c]ourt has no reason to doubt that he was -- somebody did shoot at
him or near him. And he had a legitimate concern that -- that he might be
attacked again. So he knowingly and deliberately purchased a firearm,
carried it with him loaded.
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The [c]ourt would have to find that the justification defense is
designed for a situation of instant, immediate emergency. . . . [I]f he had a
handgun and he was under immediate attack by other people trying to shoot
him, this [c]ourt would have to seriously consider applying the justification
defense, if he just used the weapon on his own space to protect himself and
defend himself. But that’s not what was going on on this occasion. He was
simply arming himself and traveling about with the armament just in case
something went wrong.
4. Sentencing Hearing and Motion for New Trial
The trial court found that, due to Defendant’s criminal history, he was a Range II
multiple offender and that the statutory range for a Class B felony was twelve to twenty
years. It stated that, because Defendant was out on pretrial supervision when the second
offense occurred, it was statutorily required to sentence the Defendant to consecutive
sentences. The trial court found that Defendant was trying to “get out of the gang” and that
Defendant was in danger, so it determined that “minimal enhancement” for Defendant’s
criminal history was appropriate. The trial court sentenced Defendant to two consecutive
thirteen-year sentences with a release eligibility of thirty-five percent.
Defendant filed a timely Motion for New Trial, arguing that the trial court erred in
denying his pretrial Motion to Suppress and Amended Motion to Suppress in Case No.
115023 because the officers violated Defendant’s Fourth and Sixth Amendment rights on
October 24, 2018. He also argued that the trial court erred in denying Defendant’s
requested necessity instruction in his jury trial and denying the necessity defense in the
bench trial because whether the danger to Defendant was “imminent” was a question for
the jury. Following a hearing, the trial court denied Defendant’s Motion for New Trial.
Defendant now timely appeals.
II. Analysis
Defendant argues that the trial court erred in denying his Motion to Suppress and in
rejecting the necessity defense. He contends that he is entitled to relief based on plain error
because the prosecutor improperly questioned Defendant and made improper closing
arguments. Finally, Defendant contends that the trial court erred by imposing consecutive
sentences.
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A. Motion to Suppress
Defendant argues that the trial court improperly denied his Motion to Suppress
evidence of his firearm in Case No. 115023 because officers improperly seized him in
violation of the Fourth Amendment. He asserts that the mere presence of a non-tenant in
a parking lot adjacent to an apartment building is not enough to establish reasonable
suspicion. He argues that “there is an implied license for someone to approach a residence
in order to knock on the door” and that this implied license is not revoked by a “No
Trespassing” sign. Defendant contends that the Class C misdemeanor of criminal trespass
was not sufficient to warrant an investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968).
Defendant asserts that the trial court erred at the suppression hearing by refusing to allow
Officer Brooks to testify (1) as to what Defendant told Officer Brooks regarding the reason
for his presence at the apartment building and (2) whether Defendant was “standing still”
or “walking through” the parking lot.
The State responds that the officers had reasonable suspicion that Defendant was
involved in criminal activity when they stopped him in the parking lot. The State agrees
that a “No Trespassing” sign does not revoke a license to approach a residence and knock
on a door; however, it argues that Defendant was not approaching the residence but was
simply loitering in the parking lot. The State contends that the officers appropriately
questioned Defendant as to whether he was carrying a weapon to protect their own safety.
It argues that Defendant waived the issue of the trial court’s refusal to allow Officer Brooks
to testify and contends that Defendant has not established plain error because Defendant
made no offer of proof as to what Officer Brooks’s testimony would be.
1. Standard of Review
The applicable standard of review for suppression issues is well-established. A trial
court’s findings of fact are binding on this court unless the evidence in the record
preponderates against them. State v. Echols, 382 S.W.3d 266, 277 (Tenn. 2012) (citing
State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). “Questions of credibility of the
witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence
are matters entrusted to the trial judge as the trier of fact.” Id. The prevailing party is
entitled to the strongest legitimate view of the evidence adduced at the suppression hearing
and all reasonable and legitimate inferences that may be drawn therefrom. Id. The trial
court’s application of law to the facts is reviewed under a de novo standard with no
presumption of correctness. Id. (citing State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)).
When reviewing a trial court’s ruling on a motion to suppress, this court may consider the
entire record, including the proof presented at the suppression hearing as well as at trial.
State v. Thacker, 164 S.W.3d 208, 248 (Tenn. 2005); Walton, 41 S.W.3d at 81; State v.
Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998).
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2. Testimony of Officer Brooks
Initially we note that the trial court did not permit Defendant to call Officer Brooks
to testify at the suppression hearing because Lieutenant Bush had already testified as to his
observations on the night of the offense. It stated that “there’s no right to be free of
interference on private property[,]”4 and it did not believe that Officer Brooks would
contradict this fact. The trial court found that Lieutenant Bush “saw [D]efendant on the
property doing nothing but just standing there, which he calls loitering. . . . So he had at
least reasonable suspicion that [D]efendant was then and there committing the act of
criminal trespass.” Defendant did not raise this issue in his Motion for New Trial; thus, it
is waived. Tenn. R. App. P. 3(e). However, “when necessary to do substantial justice,”
this court may “consider an error that has affected the substantial rights of a party” even if
the issue was waived. Tenn. R. App. P. 36(b). Under “the standard contained in Tennessee
Rule of Criminal Procedure 52, “‘error that affects substantial rights’ has been construed
as ‘error with a prejudicial effect on the outcome of a judicial proceeding.’” State v. Carlos
Radale Cornwell, No. E2011-00248-CCA-R3-CD, 2012 WL 5304149, at *26 (Tenn. Crim.
App. Oct. 25, 2012) (quoting State v. Gann, 251 S.W.3d 446, 462 (Tenn. Crim. App.
2007)), perm. app. denied (Tenn. Oct. 25, 2012). Such issues are reviewed under plain
error analysis. State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010).
Plain error relief is “limited to errors that had an unfair prejudicial impact which
undermined the fundamental fairness of the trial.” State v. Adkisson, 899 S.W.2d 626, 642
(Tenn. Crim. App. 1994). In order to be granted relief under plain error relief, five criteria
must be met: (1) the record must clearly establish what occurred in the trial court; (2) a
clear and unequivocal rule of law must have been breached; (3) a substantial right of the
accused must have been adversely affected; (4) the accused did not waive the issue for
tactical reasons; and (5) consideration of the error is “necessary to do substantial justice.”
Adkisson, 899 S.W.2d at 640-41; see also State v. Smith, 24 S.W.3d 274, 282-83 (Tenn.
2000) (Tennessee Supreme Court formally adopting the Adkisson standard for plain error
relief). When it is clear from the record that at least one of the factors cannot be established,
this court need not consider the remaining factors. Smith, 24 S.W.3d at 283. The defendant
bears the burden of persuasion to show that he is entitled to plain error relief. State v.
Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007).
Here, the trial court erred by not allowing Defendant to call Officer Brooks to testify.
State v. Philpott, 882 S.W.2d 394, 401 (Tenn. Crim. App. 1994) (“Denying a motion to
4
Defense counsel stated that Officer Brooks testified at the preliminary hearing and that he would
testify at the suppression hearing that Defendant was not loitering but was walking through the parking lot.
The preliminary hearing transcript does not appear in the record on appeal.
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suppress where the defendant is not given full opportunity to present relevant evidence is
error.”), superseded by statute on other grounds as stated in State v. Michael Stewart, No.
W2008-02680-CCA-R3-CD, 2010 WL 681370, at *4 (Tenn. Crim. App. Feb. 26, 2010).
However, the record does not clearly establish that Officer Brooks’s testimony would have
conflicted with Lieutenant Bush’s testimony at the suppression hearing. Because
Defendant made no offer of proof, and because the preliminary hearing transcript including
Officer Brooks’s testimony is not included in the record on appeal, Defendant has not
shown plain error. Adkisson, 899 S.W.2d at 640-41; Smith, 24 S.W.3d at 283.
3. Reasonable Suspicion
The United States and Tennessee constitutions protect citizens from unreasonable
searches and seizures. U.S. Const. amend. IV; Tenn. Const. art. I, § 7; State v. Binette, 33
S.W.3d 215, 218 (Tenn. 2000). It is well-settled that courts have divided police-citizen
encounters into three different categories: “(1) a full scale arrest which must be supported
by probable cause . . . ; (2) a brief investigatory detention which must be supported by
reasonable suspicion . . . ; and (3) brief police-citizen encounters which require no objective
justification . . . .” State v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000) (citing Brown v.
Illinois, 422 U.S. 590 (1975); Terry, 392 U.S. at 20-22; Florida v. Bostick, 501 U.S. 429,
434 (1991)). Full scale arrests and brief investigatory detentions or stops are seizures and
therefore implicate an individual’s rights under the Fourth Amendment of the U.S.
Constitution and under Article I, Section 7 of the Tennessee Constitution, but a consensual
police-citizen encounter does not. See id.Generally, “under both the federal and state constitutions, a warrantless search or
seizure is presumed unreasonable, and evidence discovered as a result thereof is subject to
suppression unless the State demonstrates that the search or seizure was conducted
pursuant to one of the narrowly defined exceptions to the warrant requirement.” State v.
Yeargan, 958 S.W.2d 525, 629 (Tenn. 1997). A warrant is not required for an investigatory
stop “when the officer has a reasonable suspicion, supported by specific and articulable
facts, that a criminal offense has been or is about to be committed.” State v. Bridges, 963
S.W.2d 487, 492 (Tenn. 1997); see also Terry, 392 U.S. at 21; Binette, 33 S.W.3d at 218;
Yeargan, 958 S.W.2d at 630; State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992).
Reasonable suspicion is “a particularized and objective basis for suspecting the subject of
a stop of criminal activity . . . , and it is determined by considering the totality of the
circumstances surrounding the stop[.]” Binette, 33 S.W.3d at 218 (citing Ornelas v. United
States, 517 U.S. 690, 696 (1996); Alabama v. White, 496 U.S. 325, 330 (1990)).
The State conceded at trial that a Fourth Amendment seizure occurred in the present
case. Thus, the question regarding suppression of the firearm is whether Lieutenant Bush
had reasonable suspicion to detain Defendant. While patrolling, Lieutenant Bush observed
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Defendant standing still for “[m]aybe a few seconds” in the parking lot of an apartment
building containing six rental units. The portion of the parking lot fronting Magnolia
Avenue was fenced. Attached to the fence was a sign that stated: “Cameras in Use[,] Video
Recordings Will Be Used To Prosecute Criminal Activity.” The entire width of one side
of the parking lot was not fenced making the parking lot accessible to the tenants, their
guests, and individuals having a legitimate reason to be on the premises. Two signs were
affixed to the side of the building adjacent to the parking lot. One sign was identical to the
sign on the fence. The second sign stated: “No Trespassing, Tenants Only, Enforced by
Knoxville Police.”
Lieutenant Bush said that “when we observe somebody just standing around,
appearing not to have a reason to be there, that’s what draws our attention to the area that,
you know, he clearly was not supposed to be there.” Other than stating that he knew
Defendant was a not a resident of the apartment building, Lieutenant Bush did not elaborate
on why Defendant appeared not to have a reason to be there. Defendant held an implied
license to approach a front door of a residence and knock, and his standing still for
“[m]aybe a few seconds” did not convert that implied license into criminal trespass. See
State v. Christensen, 517 S.W.3d 69-70, (Tenn. 2017) (quoting Florida v. Jardines, 569
U.S. 1, 8 (2013)) (An “implicit license typically permits the visitor to approach the home
by the front path, knock promptly, wait briefly to be received, and then (absent invitation
to linger longer) leave.”); see id. at 60 (quoting State v. Rigoulot, 846 P.2d 918, 923 (Id.
Ct. App. 1992)) (“[P]osting “No Trespassing” signs may indicate a desire to restrict
unwanted visitors and announce one’s expectations of privacy[, but] such signs cannot
reasonably be interpreted to exclude normal, legitimate inquiries or visits by mail carriers,
newspaper deliverers, census takers, neighbors, friends, utility workers and others who
restrict their movements to the areas of one’s property normally used to approach the
home.”). Such a conclusion would render illegal any person’s approach of a residence
displaying a “No Trespassing” sign, including a law enforcement officer’s approach for a
“knock and talk,” if that person stands still on the sidewalk for “a few seconds” before
reaching the front door. See id; United States v. Carloss, 818 F.3d 988, 995 (10th Cir.
2016). Taken in the light most favorable to the prevailing party, we conclude that, under
the totality of the circumstances, Lieutenant Bush did not have reasonable suspicion to
conduct an investigatory stop of Defendant simply because he was standing in a private
parking lot for “[m]aybe a few seconds” before approaching the apartment complex. See
State v. Moats, 403 S.W.3d 170, 180 (Tenn. 2013) (citing United States v. See, 574 F.3d
309, 315 (6th Cir. 2009)) (stating “that the early hour of the morning, the high crime area,
and the request that the officer be on the lookout for loiterers, among the other factors
present, did not qualify as reasonable suspicion,” and “explaining that the officer was not
responding to a complaint, did not suspect the men of a specific crime, did not observe the
men acting suspiciously, and did not cause them to flee upon seeing his police car”),
overruled on other grounds by State v. McCormick, 494 S.W.3d 673 (Tenn. 2016); State v.
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Herbert Lee Massey, No. 01C01-9406-CR-00218, 1995 WL 518872, at *4 (Tenn. Crim.
App. Sept. 5, 1995) (“That the defendant might be guilty of criminal trespass for standing
on a public street corner does not qualify as an articulable, reasonable suspicion.”).
Because the officers did not have reasonable suspicion to conduct the investigatory stop,
we conclude that the trial court erred in denying Defendant’s Motion to Suppress the
firearm Defendant was carrying.
When evidence is obtained in violation of Fourth Amendment search and seizure
protections, such evidence must be excluded at trial. Herring v. U.S., 555 U.S. 135, 139
(2009); U.S. v. Leon, 468 U.S. 897, 906 (1984); Tenn. R. Crim. P. 41(g); see also State v.
Reynolds, 504 S.W.3d 283, 309-10 (Tenn. 2016). Because we conclude that the officers
did not have reasonable suspicion to conduct an investigatory stop, the firearm obtained
during that stop should have been excluded at trial. Without the firearm, there is no
evidence that Defendant committed unlawful possession of a firearm on October 28, 2018.
Thus, we reverse the judgment of the trial court in Case No. 115023, vacate Defendant’s
conviction, and dismiss the charge of unlawful possession of a firearm.
B. Necessity Instruction
Defendant argues that, because he received threats after trying to leave the Bloods
gang, he purchased a gun out of necessity. Defendant believed that “this threat was
continuing and imminent.” He contends that, taken in the light most favorable to him, the
evidence supported the conclusion that necessity was fairly raised by the proof, and he
argues that the issue of imminence was a jury question.
The State responds that Defendant experienced no imminent threat of harm; thus,
the evidence did not fairly raise the necessity defense.
“It is well-established in Tennessee that the trial court has the duty of giving a
correct and complete charge of the law applicable to the facts of the case and that the
defendant has the right to have every issue of fact raised by the evidence and material to
the defense submitted to the jury upon proper instructions by the trial court.” State v.
Green, 995 S.W.2d 591, 604-05 (Tenn. Crim. App. 1998) (citations omitted). “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.” State v. Sims, 45 S.W.3d
1, 9 (Tenn. 2001). “Once a general defense is fairly raised, it is incumbent upon the State
to negate, beyond a reasonable doubt, the application of a general defense.” State v. Cole-
Pugh, 588 S.W.3d 254, 264 (Tenn. 2019). Whether jury instructions are sufficient is a
question of law, which we review de novo with no presumption of correctness. State v.
Clark, 452 S.W.3d 268, 295 (Tenn. 2014).
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The common law defense of necessity, like self-defense, is grouped with the
defenses that provide a justification excluding criminal responsibility and are codified in
Part 6 of Chapter 11, Title 39 of our Code. Tennessee Code Annotated section 39-11-609
provides:
Except as provided in §§ 39-11-611—39-11-616, 39-11-620 and 39-11-621,
conduct is justified, if:
(1) [t]he person reasonably believes the conduct is immediately
necessary to avoid imminent harm; and
(2) [t]he desirability and urgency of avoiding the harm clearly
outweigh the harm sought to be prevented by the law proscribing the conduct,
according to ordinary standards of reasonableness.
Tenn. Code Ann. § 39-11-609 (2019) (emphasis added). The Comments of the Tennessee
Sentencing Commission concerning section 39-11-609 state, in part:
This section codifies the common law defense of necessity. It excuses
criminal liability in those exceedingly rare situations where criminal activity
is an objectively reasonable response to an extreme situation. For example,
the necessity defense would bar a trespass conviction for a hiker, stranded in
a snowstorm, who spends the night in a vacant cabin rather than risking death
sleeping in the open.
The defense is limited to situations: (1) where the defendant acts upon
a reasonable belief that the action is necessary to avoid harm; and (2) where
the harm sought to be avoided is clearly greater than the harm caused by the
criminal act. The defense is further limited in application to those offenses
where it is not expressly excluded by statute.
Tenn. Code Ann. § 39-11-609, Sent’g Comm’n Comments.
“The defense of necessity is predicated on the theory that it is better to allow a crime
to go unpunished where the crime was committed to avoid a greater and more serious
harm[.]” Marquis D. Hendricks v. State, No. E2016-02123-CCA-R3-PC, 2017 WL
3174074, at *7 (Tenn. Crim. App. July 26, 2017) (citing 11 David Louis Raybin,
TENNESSEE PRACTICE, CRIMINAL PRACTICE & PROCEDURE § 28:59 (2016)), perm. app.
denied (Tenn. Nov. 16, 2017). “Necessity has traditionally been used appropriately when
the extreme situation is brought on by something other than a human act.” State v.
Davenport, 973 S.W.2d 283, 287 (Tenn. Crim. App. 1998) (citing Neil P. Cohen, et al.,
- 20 -
Prevalence and Use of Criminal Defenses; A Preliminary Study, 60 Tenn. L. Rev. 957, 966
(1993)). Necessity is not an affirmative defense that must be proven by a defendant. State
v. Culp, 900 S.W.2d 707, 710 (Tenn. Crim. App. 1994). Necessity provides a general
defense which must only be fairly raised by the proof before being considered by the trier
of fact, and any reasonable doubt on the issue requires an acquittal. Tenn. Code Ann. §
39-11-203(c), (d) (2019).
Here, Defendant testified to prior threats from gang members and a prior instance
where someone fired a gun in his direction. He stated that this caused him to fear for his
life and the lives of his girlfriend and her child. Defendant then illegally purchased a gun
“for protection,” and the trial court accredited his testimony. However, when Defendant
was arrested, no one was in the vicinity threatening Defendant or anyone else. Thus,
Defendant “failed to demonstrate that the threat was imminent, requiring immediate action
on his part.” Davenport, 973 S.W.2d at 288; see also United States v. Ridner, 512 F.3d
846, 849 (6th Cir. 2008) (quoting United States v. Perez, 86 F.3d 735, 737 (7th Cir. 1996))
(“The defense of necessity will rarely lie in a felon-in-possession case unless the ex-felon,
not being engaged in criminal activity, does nothing more than grab a gun with which he
or another is being threatened[.]”). Because the necessity defense was not fairly raised by
the proof, the trial court did not err in declining to instruct the jury on necessity.
C. Improper Prosecutorial Argument
Defendant argues that he is entitled to relief based on plain error because the
prosecutor improperly interjected issues unrelated to guilt or innocence into the jury trial
in Case No. 114910. He contends that, during the State’s cross-examination of Defendant,
the prosecutor “began to lecture him on her views and opinions” rather than ask questions.
He asserts that this “cross-examination was not even questioning, but rather a speech on
behalf of the prosecutor.”
Likewise, Defendant argues that the prosecutor improperly argued during her
closing argument that Defendant should have reported the alleged shooting to the police to
“demonstrate[] to the police [and] to [his] fellow citizens that [he was] truly out of the
gang.” He contends that she improperly argued that Defendant “endangered the
community for his own entertainment.” Finally, he asserts that the prosecutor’s claim that
Defendant and his “‘buddies’ were creating violence in the neighborhood” was irrelevant
and unsupported by the evidence.
The State responds that the prosecutor’s closing argument was in response to
Defendant’s theory of defense, that any improper argument did not affect the jury’s verdict,
and that Defendant has failed to show plain error. We agree with the State.
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Defendant did not object to the comments of which he now complains; thus the issue
is waived. State v. Gilley, 297 S.W.3d 739, 762 (Tenn. Crim. App. 2008). Therefore, we
are limited to plain error review of this issue. Tenn. R. App. P. 36(b); Hatcher, 310 S.W.3d
at 808.
“Trial courts have significant discretion to control closing arguments.” State v.
Banks, 271 S.W.3d 90, 132 (Tenn. 2008). Closing argument by a prosecutor “is a valuable
privilege that should not be unduly restricted.” State v. Bane, 57 S.W.3d 411, 425 (Tenn.
2001). It is improper for a prosecutor to engage in derogatory remarks, appeal to the
prejudice of the jury, misstate the evidence, or make arguments not reasonably based on
the evidence. Banks, 271 S.W.3d at 131. Moreover, “[s]ome arguments may be so
exceptionally flagrant that they constitute plain error and provide grounds for reversal even
if they were not objected to.” Id. at 132. “Defendant would have to show that the
prosecutor’s allegedly improper argument was ‘especially egregious in nature, striking at
the very heart of the fairness of the judicial proceeding, to rise to the level of plain error.’”
State v. Richard Gleason, No. W2018-01389-CCA-R3-CD, 2020 WL 633111, at *8 (Tenn.
Crim. App. Feb. 10, 2020) (quoting State v. Page, 184 S.W.3d 223, 231 (Tenn. 2006)).
We conclude that the prosecutor’s remarks during cross-examination and closing
argument were not so egregious as to “strik[e] at the very heart of the fairness of the judicial
proceeding[.]” Id. Because Defendant admitted to the elements of the offense, namely,
that he was a felon and that he possessed a firearm, even if the prosecutor’s comments were
improper, we conclude that they did not have a “prejudicial effect on the outcome of [the]
judicial proceeding.” Carlos Radale Cornwell, 2012 WL 5304149, at *26. Thus, no
substantial right of Defendant was adversely affected. Adkisson, 899 S.W.2d at 640-41.
Defendant has not established plain error and is not entitled to relief.
D. Consecutive Sentencing
Defendant argues that the trial court improperly sentenced Defendant to consecutive
sentences. He contends that the trial court misconstrued the facts because Defendant was
not “released on bail” at the time of the second offense but was on “pretrial release,” and
thus, the trial court misapprehended that consecutive sentences were statutorily required.
The State contends that this issue is waived because Defendant raises it for the first
time on appeal. It argues that Defendant has not established plain error because no
unequivocal rule of law has been breached.
Tennessee Code Annotated section 40-20-111(b) (2019) states:
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In any case in which a defendant commits a felony while the defendant was
released on bail in accordance with chapter 11, part 1 of this title, and the
defendant is convicted of both offenses, the trial judge shall not have
discretion as to whether the sentences shall run concurrently or cumulatively,
but shall order that the sentences be served cumulatively.
Tenn. Code Ann. § 40-20-111(b) (2019). Tennessee Rule of Criminal Procedure 32(c) is
a restatement of Tennessee Code Annotated section 40-20-111, State v. Beau C. Vaughan,
No. M2014-02530-CCA-R3-CD, 2015 WL 8974913, at *3 (Tenn. Crim. App. Dec. 15,
2015), and states, in pertinent part:
When a defendant is convicted of multiple offenses from one trial or when
the defendant has additional sentences not yet fully served as the result of
convictions in the same or other courts and the law requires consecutive
sentences, the sentence shall be consecutive whether the judgment explicitly
so orders or not. This rule shall apply . . . to a sentence for a felony committed
while the defendant was released on bail and the defendant is convicted of
both offenses[.]
Tenn. R. Crim. P. 32(c)(3)(C).
“Bail” is defined in the Black’s Law Dictionary, in part, as follows:
1. A security such as cash, a bond, or property; esp., security required by a
court for the release of a criminal defendant who must appear in court at a
future time[;]
2. The process by which a person is released from custody either on the
undertaking of a surety or on his or her own recognizance[;]
3. Release of a criminal defendant on security for a future court appearance;
esp., the delivery of a person in custody to a surety[;]
4. One or more sureties for a criminal defendant[.]
“As a noun, and in its strict sense, bail is the person in whose
custody the defendant is placed when released from jail, and
who acts as surety for defendant’s later appearance in court . .
. . The term is also used to refer to the undertaking by the
surety, into whose custody defendant is placed, that he will
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produce defendant in court at a stated time and place.” 8 C.J.S.
Bail § 2 (1988).
BAIL, Black’s Law Dictionary (11th ed. 2019).
This court has previously held that a pretrial release of a juvenile into his mother’s
custody had the same effect for mandatory consecutive sentencing as a release on bail.
Anthony Keshun Goods v. Tony Parker, Warden, No. W2006-00849-CCA-R3-CO, 2007
WL 2120178, at *6 (Tenn. Crim. App. July 24, 2007). This court reasoned that, “when the
Legislature passed [Tennessee Code Annotated section 40-20-111], it intended that
individuals who were out on their own recognizance, in addition to those who had to
present a cash surety, would be required to serve consecutive sentences should they commit
another crime while out of jail awaiting a disposition of their prior charge(s).” Id.“Whether one will be required to serve concurrent or consecutive sentences should not
hinge on a trial court’s initial impression of whether a defendant will likely return to court
to face charges.” Id. We agree. For purposes of Tennessee Code Annotated section 40-
20-111(b), a defendant who commits a felony while on pretrial supervision for another
crime, and is convicted of both crimes, is required to be sentenced to consecutive sentences.
Therefore, the trial court did not err in sentencing Defendant to consecutive sentences.
III. Conclusion
We affirm the judgment of the trial court in Case No. 114910. We conclude that
the trial court erred in denying Defendant’s Motion to Suppress in Case No. 115023.
Accordingly, in Case No. 115023, the judgment of the trial court is reversed, Defendant’s
conviction is vacated, and the charge of unlawful possession of a firearm is dismissed.
____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
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