State v. Cole-Pugh

• Decision Date: 25 October 2019
• Docket Number: No. W2017-00469-SC-R11-CD,W2017-00469-SC-R11-CD
• Parties: STATE of Tennessee v. Brandon COLE-PUGH
• Court: Tennessee Supreme Court

588 S.W.3d 254

STATE of Tennessee
v.
Brandon COLE-PUGH

No. W2017-00469-SC-R11-CD

Supreme Court of Tennessee, AT JACKSON.

May 30, 2019 Session¹
FILED October 25, 2019

Daniel Taylor, Jackson, Tennessee (at trial); and Lance R. Chism, Memphis, Tennessee (on appeal), for the appellant, Brandon Cole-Pugh.

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor General; Jonathan David Shaub, Assistant Solicitor General; Jody S. Pickens, District Attorney General; and Aaron Chaplin, Assistant District Attorney General, for the appellee, State of Tennessee.

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

OPINION

Roger A. Page, J.

The defendant, Brandon Cole-Pugh, was convicted of being a felon in possession of a handgun, in violation of Tennessee Code Annotated section 39-17-1307(b)(1). The evidence presented at trial suggested that the defendant obtained a handgun during a physical altercation, during which the handgun became loose, fell from another individual’s possession, and dropped to the floor. Prior to the trial court’s instructions to the jury, defense counsel orally requested an instruction on the defense of necessity. The trial court denied the request. Based upon the evidence presented at trial, the briefs of the parties, the arguments

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of counsel, and the applicable law, we hold that the defense of necessity was fairly raised by the evidence and that the trial court erred in refusing to instruct the jury accordingly. We further hold that Tennessee law does not preclude plenary review of a claim of error based on a trial court’s failure to instruct the jury on a general defense when the request was not made in writing. We, therefore, reverse the judgment of the Court of Criminal Appeals and remand this case to the trial court for further proceedings consistent with this opinion.

I. FACTS

Zaid Alshaif was the owner/manager of The Gold Line Market and convenience store in Jackson, Tennessee. In the early morning hours of November 22, 2015, Mr. Alshaif was summoned to the store by one of his employees, Hassan Hamd, who reported that a fight had erupted and had ended in a shooting. When Mr. Alshaif arrived at the store, he witnessed the destruction that had occurred as a result of the struggle. Law enforcement officers responded to the scene and asked to view the video camera recordings. Mr. Alshaif maintained sixteen cameras in and around the store, and he provided officers with copies of the recordings from all of them.

Jackson Police Officer Paul Bozza responded to a "shots fired" call at the store. Upon arrival, he was advised that a female, Antalisha Jeter, had been shot, and he rendered aid until an ambulance arrived. After assisting the injured woman, Officer Bozza asked the defendant to remain at the scene while Officer Bozza watched the video recordings from the store cameras. In the video, the defendant could be seen holding a firearm. Based upon his prior knowledge, Officer Bozza knew that the defendant was a convicted felon, but he verified the defendant’s status on the crime portal.

After watching the video, Officer Bozza questioned the defendant and asked where he had placed the gun because the defendant no longer had possession of it. The defendant said that "he didn't have a gun." The defendant was ultimately arrested, but the officers did not find the weapon on his person or in the vehicle in which Ms. Jeter had been sitting.

At trial, Officer Bozza narrated the video as it was played for the jury. The video showed the defendant walking toward the store, holding what was presumably a cellular telephone in one hand. He did not appear to be carrying a weapon at that point. There was a large crowd gathered in the store. The defendant put his telephone away as several people began backing up and "crowding" in front of the store. The defendant nonetheless entered the store where a physical altercation ensued.

Officer Bozza described the fight that occurred inside the store, which involved the defendant and another individual who was unknown to the officer. The defendant was on the ground at one point but thereafter exited the store holding a silver pistol, pointed down, in his right hand. Other people could then be seen running from the store, but the defendant attempted to walk back inside with the gun.² Before the defendant could enter the store, he engaged in "some kind of little standoff" with another man, who was also armed. The video recording also showed Ms. Jeter, the defendant’s girlfriend, attempting to pull the defendant toward the car. It is unclear whether the defendant still had possession

588 S.W.3d 257

of the weapon at that time. A man³ wearing a gray jacket and a "skull cap" approached them, pointed a weapon in their direction, and fired two rounds, striking Ms. Jeter in the leg. At no point during these events did the defendant point the weapon toward any person. There was no testimony or evidence that the defendant had ever fired the weapon.

The parties stipulated that the defendant previously had been convicted of a felony involving the attempted use of force, violence, or a deadly weapon. The State then rested its case-in-chief.

Michael Douglas had also been present at the Gold Line Market and witnessed the events in question. He had driven his own vehicle to the market and saw the defendant and Ms. Jeter when he arrived. Mr. Douglas recalled that when they arrived, a "commotion" was occurring inside the store. The defendant asked a female witness, Ms. Thomas, what was going on. Ms. Thomas and two men were having a disagreement and had begun to argue. After the defendant asked Ms. Thomas what was happening, one of the men approached the defendant and "took a swing at him." The man and the defendant began "tussling," and a gun fell out of the other man’s jacket. Although Mr. Douglas did not know the identity of the other man, he recognized the man from the video as the one wearing a gray jacket. According to Mr. Douglas, a fight ensued, but the defendant was merely trying to defend himself.

Mr. Douglas tried to get to the middle of the fight to break it up, but other people surrounded the fight. The man who had originally possessed the gun and a friend of his both attempted to reach the gun, but the defendant grabbed it first. After the defendant obtained the weapon, the man with whom he had been fighting stood up and ran out of the store. The defendant also arose and walked outside carrying the downward-pointed gun; he never pointed it at anyone. Mr. Douglas said that when the defendant walked back inside the store and exited again, he did not appear to have possession of the gun anymore.

In the meantime, Mr. Douglas approached the other man, with whom he was familiar, and said that they should all go. They shook hands and Mr. Douglas began to walk toward the defendant’s vehicle. He did not see a gun in the defendant’s hand at that point. Soon thereafter he heard gunshots and discovered that Ms. Jeter had been shot in the thigh. Mr. Douglas attempted to help her into the vehicle when he was shot in the back. Mr. Douglas was unaware of whether the defendant attempted to further assist Ms. Jeter because Mr. Douglas "got right back up[,] hopped in the car[,] and sped off trying to go to the hospital." He drove away from the scene, parked in an adjacent parking lot, and awaited medical assistance.

Thereafter, the defense rested its case. The State did not present any rebuttal. The jury was excused, and the trial court conferred with the attorneys about the jury instructions. Defense counsel requested an instruction on the defense of necessity. As grounds therefor, counsel argued:

I would say that this has been raised by the proof of Mr. Douglas. It’s a defense to the offense charged, if the Defendant acts -- reasonably believed that the conduct was imminently necessary to avoid immediate harm and the desirability or

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urgency avoiding the harm clearly outweighed according to ordinary established standards of reasonableness, the harm sought to be prevented by the law pr[o]scribing the conduct.

Clearly what we have is a situation where there is a fight. What we heard from the proof is the issue that, you know, my client didn't start the fight[ ]....

....

You have proof that a fight occurred, and my client obviously, according to the officer’s testimony, Mr. Douglas' testimony involved he’s being hit, he’s being fought, other -- the people are attacking him, he’s -- he’s defending himself, but at -- at some point, the gentleman that my client’s fighting with, a pistol falls out on the ground. You've heard proof that the other individual in the fight with my client is reaching towards the gun, and this other individual’s reaching for the gun, and which my client, it’s -- it came from the gentleman in the black coat or black pants, not my client, and to prevent the others from grabbing the gun and doing any harm or potential harm, that’s when my client reaches and grabs the gun.

And I will submit that the proof shows that it raises the issue, the gun’s

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