State v. Perrier
Decision Date | 21 November 2017 |
Docket Number | No. W2015-01642-SC-R11-CD,W2015-01642-SC-R11-CD |
Citation | 536 S.W.3d 388 |
Parties | STATE of Tennessee v. Antoine PERRIER |
Court | Tennessee Supreme Court |
Lance R. Chism, Memphis, Tennessee, for the appellant, Antoine Perrier.
Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Zachary T. Hinkle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Betsy Wiseman and Omar Malik, Assistant District Attorneys General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which Jeffrey S. Bivins, C.J., Cornelia A. Clark, Sharon G. Lee, and Holly Kirby, JJ., joined.
We granted the defendant's application for permission to appeal in this case with direction to the parties to particularly address the following issues: (1) the meaning of the phrase "not engaged in unlawful activity" in the self-defense statute, Tennessee Code Annotated section 39-11-611, and (2) whether the trial court or the jury decides whether the defendant was engaged in unlawful activity. We hold that the legislature intended the phrase "not engaged in unlawful activity" in the self-defense statute to be a condition of the statutory privilege not to retreat when confronted with unlawful force and that the trial court should make the threshold determination of whether the defendant was engaged in unlawful activity when he used force in an alleged self-defense situation. We further conclude that the defendant's conduct in this case constituted unlawful activity for the purposes of this statute. The defendant has also presented four other issues to this Court, arguing that the trial court erred by failing to properly instruct the jury on the lesser-included offenses of employing a firearm during the commission of a dangerous felony, that the second count of the indictment was deficient, that the trial court should have given the jury an instruction on the defense of necessity, and that the evidence was insufficient to support the defendant's conviction for assault. We affirm the judgments of the trial court and the Court of Criminal Appeals, albeit on separate grounds.
On February 13, 2010, the defendant fired a weapon at men standing in front of a convenience store, and he struck a young girl standing inside the store. The defendant was indicted in November 2010 for attempted second degree murder, employing a firearm during the commission of a dangerous felony, and six counts of aggravated assault. His trial was held in February 2011, and he was convicted of attempted voluntary manslaughter as a lesser-included offense of attempted second degree murder, employing a firearm during the commission of a dangerous felony, five counts of aggravated assault, and one count of assault as a lesser-included offense of aggravated assault. He was sentenced to an effective sentence of thirty years in the Tennessee Department of Correction.
At the defendant's trial, several of the victims named in the indictment testified, as well as the defendant and a female friend of the defendant who witnessed the shooting. The witnesses agreed that between 3:00 p.m. and 4:00 p.m. on February 13, 2010, the defendant and his female friend, Faith Taylor, visited the Miracles Mini Market in Memphis, Tennessee, to buy alcohol, that another customer at the store (Anthony Vasser) ogled Ms. Taylor, and that subsequently Anthony Vasser and his brother Teone Vasser exchanged words with the defendant outside. The witnesses disagreed as to the intensity of that exchange, but the result of the exchange was that the defendant, standing next to Ms. Taylor's vehicle, drew a loaded handgun from his jacket and shot toward the front door of the market, where Anthony Vasser, Teone Vasser, and Anthony Vasser's son were standing. Several bullets passed through Teone Vasser's clothing. The bullets struck an eight-year-old girl in her hand and grazed her stomach and leg. The defendant submitted that he acted in self-defense based on Teone Vasser's motions. The police did not find any weapons when they searched Teone Vasser. The defendant admitted that he had been previously convicted of a felony.
The defendant's original motion for new trial was filed late, as was the notice of appeal. The Court of Criminal Appeals waived the late-filed notice of appeal, but because of the late-filed motion for new trial, it only considered sufficiency of the evidence and sentencing, ultimately affirming his convictions. State v. Perrier , No. W2011-02327-CCA-MR3-CD, 2013 WL 1189475 (Tenn. Crim. App. Mar. 22, 2013). Upon filing a petition for post-conviction relief, the trial court granted the defendant a delayed appeal.
In his second appeal, the defendant claimed that the trial court's jury instruction on self-defense was erroneous, that the trial court committed plain error by failing to include a jury instruction on possession of a firearm during the commission of a dangerous felony as a lesser-included offense of employment of a firearm during the commission of dangerous felony, that the indictment for employment of a firearm was void for failing to name the predicate felony for the offense, that the trial court erred by declining his requested jury instruction on the defense of necessity, and that the evidence was insufficient to support his assault conviction. The Court of Criminal Appeals affirmed his convictions. State v. Perrier , No. W2015-01642-CCA-R3-CD, 2016 WL 4707934 (Tenn. Crim. App. Sept. 6, 2016), perm. app. granted (Tenn. Nov. 22, 2016).
The defendant filed an application for permission to appeal to this Court, and in granting review, this Court ordered that the following issues be addressed by the parties:
State v. Perrier , No. W2015-01642-SC-R11-CD (Tenn. Nov. 22, 2016) (order granting Tennessee Rule of Appellate Procedure 11 application).
The defendant asserted a claim of self-defense at trial. Tennessee Code Annotated section 39-11-611(b) (2014 & 2017 Supp.)1 provides the statutory basis for the defense:
The trial judge provided a self-defense instruction to the jury, but he added to the pattern instruction by giving examples of what might constitute unlawful activity. The following is the self-defense instruction given by the trial judge in this case, with additions to the pattern instruction italicized:
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