State v. Parsons

• Decision Date: 15 December 2011
• Docket Number: No. W2010–02073–CCA–R3CD.,W2010–02073–CCA–R3CD.
• Citation: 437 S.W.3d 457
• Parties: STATE of Tennessee v. Michael W. PARSONS.
• Court: Tennessee Court of Criminal Appeals

437 S.W.3d 457

STATE of Tennessee

v.Michael W. PARSONS.

No. W2010–02073–CCA–R3CD.

Court of Criminal Appeals of Tennessee,

at Jackson.

Assigned on Briefs Sept. 7, 2011.

Dec. 15, 2011.

Application for Permission to Appeal

Denied by Supreme Court

May 23, 2012.

Richard B. Fields (on appeal), Memphis, Tennessee, for the appellant, Michael W. Parsons.

Robert E. Cooper, Jr., Attorney General & Reporter; Jeffrey D. Zentner, Assistant Attorney General; D. Michael Dunavent, District Attorney General; James Walter Freeland Jr. and Billy Burk, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

JEFFREY S. BIVINS, J., delivered the opinion of the Court, in which THOMAS T. W OODALL and ALAN E. GLENN, JJ., joined.

JEFFREY S. BIVINS, J.

A jury convicted the defendant of two counts of aggravated assault, one count of burglary of a vehicle, and two counts of theft under $500. The trial court subsequently sentenced the defendant as a Range I standard offender to three years on each of the aggravated assault convictions; one year on the burglary conviction; and eleven months, twenty-nine days on each of the misdemeanor theft convictions. The trial court ordered the sentences on the felony convictions to run consecutively, for an effective sentence of seven years. On appeal, the defendant claims five errors: (1) the trial court wrongfully deprived him of his right to counsel; (2) the trial court erred in sustaining the State's objections to the defendant's case; (3) the trial court erred in its handling of one of the jurors; (4) the jury failed to follow its instructions; and (5) the trial court erred in denying judicial diversion and in failing to apply mitigating factors when imposing sentence. We hold that the defendant is entitled to no relief and affirm the trial court's judgments.

Factual and Procedural Background

This case arises out of an encounter between Michael W. Parsons (“the Defendant”) and Barry Laxton and Nick King after Laxton shot and killed one of the Defendant's wolfhybrids. The proof at trial established that, on September 24, 2007, several of the Defendant's wolf-hybrids escaped the Defendant's property. Laxton was mowing the yard of the property next door. After seeing the group of loose wolf-hybrids, Laxton got a .22 rifle and fired numerous shots into the air in an attempt to scare the animals away. After the first group left the area, a single wolf-hybrid appeared. Laxton shot several more times in an attempt to scare it away. According to Laxton, the animal charged him and he shot and killed it.

The Defendant and the Defendant's wife were looking for the escaped animals when they heard the gunshots. The Defendant began walking toward the man he saw with a gun, yelling “Stop shooting my dogs!” The Defendant pulled his own sidearm and fired a warning shot into the ground, but the shooting he heard continued. According to the Defendant, the shots were fired in the direction where his wife was looking for the animals, and shots also flew past his head. According to Laxton, he fired no shots in the direction of either the Defendant or the Defendant's wife. The wolf-hybrid that Laxton shot ran to the Defendant and died at his feet.

After shooting the wolf-hybrid, Laxton joined King, who was working nearby on an adjacent property, and placed his rifle in the cab of King's pickup truck. As the two men watched the Defendant approach them, King took a pistol out of the cab of his truck and placed it in his pocket.

The Defendant accosted Laxton and King, pointed his handgun at them, and told them he was making a citizen's arrest. At this point, the Defendant was no longer on his own property. The Defendant wore an audio-recording device that recorded the encounter. The recording was played for the jury and transcribed. The encounter lasted about four minutes. At the beginning, the Defendant demands, “Where's my other dogs?” King responds, “Put the gun down.” The Defendant asks, “Where's your gun at? Drop your gun.” King replies, “It's a gun in—” and the Defendant states, “Drop your gun. Turn around. Turn around. On the ground. On the ground.” King again says, “Put your gun down.” The Defendant then says, “You're under arrest. On the ground. I'll shoot you.” King says again, “Put your gun down.” The Defendant says, “On the ground. You, too, on the ground now, or you will be shot. Five, four, three.” Laxton says something indiscernible, and the conversation continues in the same vein with the Defendant insisting that the men are under arrest and King repeatedly telling the Defendant to put his gun down. At one point, the Defendant says, “If you grab that gun, I'm going to shoot.” The Defendant also tells the men to get away from the truck, to “[t]urn around,” to “[f]ace down,” and to “[l]ay down.” King dials 911 and tells the dispatcher that he needs assistance because he is “being held at gunpoint.” The Defendant orders King to “[t]ell them Mike Parsons has a citizen's arrest on these two.” The Defendant then starts asking over and over, “Where's your gun at?” King eventually tells the Defendant, “It's in my pocket. That's where it's at, right here.” The Defendant demands that King “[p]ull it out,” but King refuses and keeps telling the Defendant to put his gun down. The Defendant again asserts that they are under arrest.

The Defendant begins searching the pickup, where he found Laxton's .22 rifle and a holster. When the Defendant takes Laxton's rifle out of King's pickup, Laxton says, “You leave my rifle alone,” to which the Defendant responds, “Go to hell, son of a bitch. Follow me, you son of a bitch. You're going to jail.” The Defendant is then recorded speaking to someone named James, apparently over the phone, and he tells James, “James, they shot and killed my dog. I stopped a guy from shooting. I fired a warning shot, and he took off running. I got his gun. And I pointed my gun at him, told him I was going to make a citizen's arrest, to put his gun down.” The Defendant subsequently calls someone else and tells that person, “I went up there.... Told him citizen's arrest. Had him—I had the gun drawn on him, said this is a citizen's arrest. I mean business. Lay on the ground. Turn around, make sure you don't have any more guns.” He also asked this person, “Where's a good place to hide this gun? I'm going to go hide this gun some place.” The Defendant told this person that he had “confiscated” the gun and did not “trust the police to do ballistics on it.” Law enforcement reported to the scene shortly thereafter, and the Defendant ultimately did give them the .22 rifle and handgun holster he had taken from the pickup.

The Defendant subsequently was indicted on July 7, 2008, with two counts of aggravated kidnapping, two counts of aggravated assault committed knowingly, one count of burglary of a vehicle, and two counts of theft under $500. After long and tedious pretrial proceedings, the Defendant finally was tried before a jury and represented himself, initally at his request, with the assistance of “elbow” counsel. The Defendant testified in conjunction with establishing his defenses of self-defense and citizen's arrest, asserting that Laxton had been shooting in the direction of the Defendant's wife while she was looking for the escaped wolf-hybrids, and that some of Laxton's shots flew by his head as he was also looking for the animals.

The trial court instructed the jury on self-defense and citizen's arrest. The jury nevertheless convicted the Defendant of two counts of aggravated assault as charged; one count of burglary of a vehicle;and two counts of theft under $500. The jury acquitted the Defendant of the aggravated kidnapping, kidnapping, and false imprisonment of Nick King, but was unable to reach a verdict as to the lesser-included offenses of attempt to commit (1) aggravated kidnapping, (2) kidnapping, or (3) false imprisonment of Nick King. The jury also acquitted the Defendant of the aggravated kidnapping and kidnapping of Barry Laxton, but was unable to reach a verdict as to the lesser-included offenses of false imprisonment and the attempt to commit (1) aggravated kidnapping, (2) kidnapping, or (3) false imprisonment of Barry Laxton. The trial court declared a mistrial as to the offenses on which the jury was unable to reach a verdict.

The trial court subsequently conducted a sentencing hearing, at which the Defendant was represented by counsel. Prior to the hearing, defense counsel filed a motion for judicial diversion. At the conclusion of the hearing, the trial court denied judicial diversion. The trial court then sentenced the Defendant as a Range I standard offender to three years on each of the aggravated assault convictions; one year on the burglary of a vehicle conviction; and eleven months, twenty-nine days on each of the misdemeanor theft convictions. After finding the Defendant to be a dangerous offender, the trial court ordered the felony sentences to run consecutively to each other, for an effective sentence of seven years.¹ The trial court denied the Defendant's subsequent motion for new trial and this appeal followed.

Analysis

Although we will address each issue raised by the Defendant, the primary issue in this case is whether the trial court committed reversible error in granting the Defendant's request that he proceed to trial pro se with elbow counsel rather than with his appointed lawyer representing him, and then refusing to grant the Defendant's subsequent request on the eve of trial that he be appointed counsel. After a number of pretrial squabbles involving different counsel appointed to represent the Defendant, the ruling allowing the Defendant to proceed pro se with elbow counsel was made, at the Defendant's request, approximately two weeks prior to trial. On the day before trial and on the day of trial, the Defendant reversed course and demanded representation by counsel, claiming that he had not waived his right to counsel,...