IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
November 4, 2009 Session Heard at Memphis
STATE OF TENNESSEE v. SHAWN HATCHER
Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Shelby County
No. 01-09093-95 W. Otis Higgs, Judge
No. W2006-01853-SC-R11-CD - Filed May 4, 2010
We granted permission to appeal in this case in order to consider whether Tennessee Rule
of Criminal Procedure 33 permits a defendant to amend his motion for new trial after the
hearing on the initial motion has been conducted and an order denying the motion has been
entered. In this case, newly-appointed defense counsel filed several pleadings seeking to add
grounds in support of a new trial after the hearing on the original motion for new trial had
been held and an order denying a new trial had been entered. The trial court considered the
new grounds and subsequently entered a second order denying a new trial. The defendant
appealed. The Court of Criminal Appeals refused to consider any issues raised after the trial
court denied the original motion for new trial. As to the issues that were raised in that
motion, the Court of Criminal Appeals determined that the defendant is not entitled to relief.
We have concluded that trial courts should not permit the defense to amend its motion for
new trial after the new trial hearing has been held and an order denying a new trial has been
entered. Further, we have reviewed an issue the defendant properly preserved and have
reviewed for plain error the issues the defendant failed to preserve but argues to this Court.
We hold that the defendant is not entitled to relief on any of these issues and therefore affirm
the judgment of the Court of Criminal Appeals.
Tenn. R. App. P. 11; Judgment of the
Court of Criminal Appeals Affirmed
C ORNELIA A. C LARK, J., delivered the opinion of the Court, in which J ANICE M. H OLDER,
C.J., G ARY R. W ADE, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.
Lance R. Chism (on appeal) and Brett Stein (at trial), Memphis, Tennessee, for the appellant,
Shawn Hatcher.
Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General;
J. Ross Dyer, Senior Counsel; William L. Gibbons, District Attorney General; and P. Thomas
Hoover and Michelle Parks, Assistant District Attorneys General; for the appellee, the State
of Tennessee.
OPINION
Factual Background
This case arises from Shawn Hatcher’s participation in the shooting death of Marcel
Mackey and the gunshot injuries to Anitra Flowers and Randall White/Moore (“Red”)1 on
April 3, 2001, in Memphis, Shelby County, Tennessee. Shawn Hatcher (“Defendant”) was
charged with alternative counts of first degree premeditated murder and first degree felony
murder, and two counts of attempted first degree premeditated murder.2 Also charged were
Defendant’s older brother, Christopher Hatcher (“Chris”), and Defendant’s friend, Cornelius
Jefferson (“Cornelius”).3 Defendant was tried individually before a jury in January 2005.
The proof at trial established that Defendant, seventeen years old at the time, was
released from juvenile custody on the afternoon of April 3, 2001. That evening, Defendant,
Cornelius, and a man named Dan Smith accompanied Chris to an apartment at 756 East
Raines. There, the men opened fire with multiple guns, killing Mackey and injuring Flowers
and Red. Defendant was arrested, and he subsequently gave a statement in December 2001
wherein he admitted to knowing “of” Red but not Mackey or Flowers. He also admitted to
being present at the shooting, along with Chris, Cornelius, and Chris’s “associate” Dan
Smith. When asked why he was there, Defendant responded as follows:
A: With my brother, he said he wanted me and Cornelius to come with him
and said we fixing to go take care of some business.
Q: What did your brother mean when he said we’re fixing to go take [care of]
some business?
A: I’m assuming he was talking about killing him or doing something to him.
Q: Why was your brother Chris wanting to kill Red?
1
Although the indictment refers to Randall “White,” the persons involved in this case referred to him
as Randall “Moore.” The parties stipulated that “the person alleged as Randall White in this indictment is
the same person as Randall Moore, also known as Red.” For convenience, we refer to him by his nickname,
“Red.”
2
The felony murder charge was predicated on the attempted first degree murders.
3
Although this Court generally refers to parties and witnesses by their last names, we have chosen
to use a limited number of first names in this opinion because several persons share a last name and because
Defendant refers repeatedly in his statement to Cornelius Jefferson as “Cornelius.”
-2-
A: Because Chris said that Red tried to kill him. Chris said that someone
called him on his cell phone and alerted him that Red was going to try and kill
him.
When asked about weapons, Defendant stated that he “and Cornelius had the shotgun
and my brother Chris had a SK assault rifle. Dan had the other two which was a .38 and .25
or .22 automatic.” When asked about the source of these weapons, Defendant said that he
did not know, but that when he arrived home from juvenile court, “Chris had the .38 on him
and he had the SK outside of my mother’s house in the back yard.” When asked to describe
the events surrounding the shooting, Defendant responded as follows:
I came home that day and came in the house and that’s when my brother
told me that he got into it with Red. He said that Red tried to kill him, then he
pulled out the .38 and said “I got this for him, if he decides to come to the
house looking for me.[”] I went to sleep, woke up, helped my mom bring
groceries in the house. Cornelius came over, we drunk and they smoked,
whatever, sit in the backyard. I stepped in the house for a minute talking to my
mom and my brother came in the house and told me to come here.
So I went back to the backyard, I seen SK laying [sic] on the ground.
I asked him what was it for and he said protection. So I told him I was going
back in the house for a minute to talk to my mom. Then after I got through
talking to her, I left. I went to the backyard, my brother was gone. I asked
Cornelius where he was, he said he was gone to the Raintree to meet Dan.
After that me and Cornelius walked to the store, on the way we seen my
brother and Dan in the shortcut with the guns. I asked him “what’s up”; he
asked me “what’s up”. He said he was about to take care of some business.
I said I was going to the store, so as we walked to the store he talked to some
females, they said they were walking up to Black Store so we walked to the
Black Store.
We departed from them. Went back to my house, finished drinking,
smoking or whatever. We wanted some more weed so we went and got my
brother to get some weed from him. But instead of getting some weed from
him, he didn’t give us no weed. He was like he was fixing to go take some
[sic] of some business. At that time he wanted us to go with him so we walked
towards Randle’s [sic] house. On the way we ran across three kids, I guess he
thought one of the kids was Randle. So he walked up to him and asked who
he was and the boy replied that he knew my brother then my brother pulled the
S[K] up on him.
-3-
Then the boy ran behind me and I told my brother no. I don’t know if
he intended to shoot the boy or not but after I told him no, the boy ran. Chris
continued to walk towards Randle’s house. He and Dan walked to the door,
knocked on the door and began to open fire. Chris ran and I assumed Dan ran
in the house because I could hear a change in the shots fired. So I guess Dan
realized he was by himself, so he ran.
Cornelius shot in the air as other shots were being fired. After that all
of us ran together through the shortcut. Dan caught up with us and ran through
the shortcut and then we went our separate ways. Me and Cornelius paid
someone $10.00 to take us to a hotel on Third. We stayed there a couple of
night and he left and went home. I stayed in the motel.
Defendant told the police that he and Cornelius were in the “alley” between the apartment
buildings when the shooting began. He said that Chris and Dan began shooting when the
apartment door was opened, and that Cornelius went into the court yard area and shot the
shotgun. Defendant admitted that he shot the shotgun, as well, but stated that he shot it into
the air. Dan took the shotgun as they were running away afterwards. He did not know where
any of the guns were at the time he gave his statement.
When asked if Chris had threatened either Defendant or Cornelius in order to make
them accompany him, Defendant responded, “He was aggressive with his words, he was like
usually when he drunk and things don’t go his way, and he gets upset.” Defendant described
the shooting as “just a split second thing. It was a heat of the moment type th[i]ng.” He did
not learn that anyone had been killed until later, when he spoke with Cornelius and learned
that Chris was “locked up.”
Codefendant Cornelius, also seventeen years old in April 2001, testified at trial. He
explained that he and Defendant had been at Defendant’s house before the shootings,
“smoking [weed] and drinking . . . a little liquor.” Chris came over with some “long rifles”
and had Cornelius and Defendant “go with him” to some nearby apartments. Cornelius
stated that Chris “made” him go along by pointing a rifle. A fourth man Cornelius did not
know accompanied them. Once the four men reached the apartment, Chris told Cornelius
to knock on the door. According to Cornelius, he and Chris were standing side by side at the
door while Defendant and Smith were behind them. After Cornelius knocked, a black male
answered the door. Cornelius saw two women inside the apartment. Chris knocked
Cornelius out of the way and began shooting with his rifle. Cornelius ran away and heard
the shooting continue as he ran.
-4-
Cornelius testified that he did not see Defendant with a gun but that Defendant told
him a couple of days later that he had had a pistol at the scene. Cornelius also testified that
Defendant told him that Defendant had entered the apartment and shot at a woman.
According to Cornelius’s testimony and Defendant’s statement, the four men
encountered several youngsters on their way to the apartment where they expected to find
Red. One of these young people, Timothy Jackson, testified at trial. He stated that Chris
asked him twice where Red was and when Jackson twice replied that he did not know, Chris
“held up a 12-gauge pump and put it to [Jackson’s] side.” According to Jackson, Defendant
said to Chris, “Come on, man, let’s go take care of this business.” Jackson then ran away and
hid under a car. A few minutes later, he heard several gunshots and explained that they were
from more than one gun. He also testified that, during their encounter, he saw Defendant
holding a handgun at his side.
Ashanti Pinkins, another member of the group encountered by Defendant and his
cohorts, testified that Chris was holding a “rifle with a banana clip.” According to Pinkins,
Chris asked them if they knew where Red was because they wanted to buy some “weed.”
She said that Jackson responded, “No, Chris we didn’t know where he was at.” Chris then
said, “What? How do you know my name?” and “put the gun to [Jackson’s] side.” Jackson
pushed the gun away and ran off. Defendant started leaving and told Chris, “They’re
straight, come on Chris they straight.” Chris followed, telling the group, “I know how y’all
look so don’t – if y’all snitch, I’m going to kill y’all.”
After this encounter, the men continued on their way to the targeted apartment. Anitra
Flowers, whose apartment it was, testified that Mackey (the murder victim) and Red, her
boyfriend, were there along with Mackey’s girlfriend and Flowers’ children. When there was
a knock on the door, Mackey and Red answered the door together. Flowers heard gunshots,
so she got on the floor and headed toward the back of the apartment to check on her children.
Flowers testified that the gunshots were coming from the back (kitchen) door and the front
patio window. Flowers stated that she sustained three gunshot wounds to her right leg; Red
sustained six gunshot wounds. Flowers called 911 when she reached the bedroom in which
she found her children.
Aja Brown, fourteen years old at the time of the shootings, testified that she was then
living in the same apartment complex as Flowers. At approximately 6:00 that evening, she
saw Defendant and Chris at a store. She stated that, based on “the way they was acting and
how they was dressed,” the two men were “drunk.” Later in the evening, she saw Chris and
Defendant walking in the direction of Flowers’ apartment. She later saw gunshots being
fired in the living room of Flowers’ apartment, and about twenty-five seconds after the
shooting stopped, she saw three people running away.
-5-
Police responded to the scene at approximately 9:20 p.m. They found the murder
victim lying on the floor. Officers recovered nineteen 7.62 x .39 shell casings at the scene;
testimony established that such shells are “[p]rimarily used in something like an assault rifle,
AK-47 and SkS-machine gun type of weapon.” Officers also recovered four shotgun shells,
two .22 shells, and bullet fragments at the scene.
The physician who conducted the autopsy of the murder victim testified that the cause
of death was “multiple gunshot wounds.” She identified fifteen gunshot entrance wounds
and stated that “a lot” of the wounds were caused by high velocity bullets, but that at least
one wound was caused by a small caliber bullet.
Defendant’s sister, Sabrina Hatcher (“Sabrina”), who was eighteen years old at the
time of trial, also testified. She stated that she spoke with Defendant over the phone on the
night of the shooting. He called her, she said, because she “had asked him for some money
that day and he told [her] after he got through taking care of some business he was going to
give it to [her].” When the prosecution asked her about the kind of business he was going
to take care of, she stated that she did not know.
The prosecution then referred her to the statement she had given to the police several
hours after the shootings. She acknowledged the statement, that she was fifteen years old at
the time she gave it, and stated that she told the truth when she gave the statement. She also
acknowledged that her memory of the events was better at the time she spoke with the police
than it was at trial. The prosecutor gave her the statement to read, directing her to a
particular segment in which she reported that Defendant had told her over the phone that he
and Chris were going to kill Red. She read to herself the portion to which she was directed
and then stated, “I don’t remember saying this.” She added, “I didn’t tell them this” and “this
statement right here is not right.” The trial court subsequently allowed the prosecution to
admit Sabrina’s statement as an exhibit to her testimony.
Sabrina also testified that Defendant was afraid of Chris and had started carrying a
“small silver gun” for protection from his brother. She indicated that Chris was four years
older than Defendant. She was also afraid of Chris and testified that he had attacked her in
2001, hitting her in the face with his fist. Defendant stopped the attack by pulling a gun on
Chris.
According to Sabrina, Chris had attacked Defendant at their house in June 2000. She
testified, “[Defendant] ran to [her] room and Chris threw him on the ground and started
choking him and he had already had him on the ground just hitting him in the head.” She
stated that “[Chris] was hitting [Defendant] in the face with his fist” and that Chris bit “half
of [Defendant’s] thumb off.” An ambulance was called and Defendant went to the hospital
for treatment. Charges were filed with the police.
-6-
The defense called Defendant’s mother, Brenda Brown, to testify. She explained that
Chris was two years older than Defendant. Chris constantly bullied Defendant, and Brown
stated that there were “many times” when she saw Chris “beating” Defendant. According
to Brown, Defendant was afraid of Chris. When Defendant was about twelve, Chris was
carrying a gun and threatening to kill Defendant. Brown testified that this made her “scared.”
At one point, Chris attacked Defendant in their family home. Chris “took something and hit
[Defendant] and he bit [Defendant’s] finger, almost bit his finger off.” Brown was “scared”
during this incident because she believed that Chris “had a gun in his pocket.” When the
police arrived, Chris ran off. An ambulance took Defendant to the hospital.
Brown also testified that, before the shootings took place, she “called the police to
have [Defendant] go to Juvenile and have Juvenile hold him until [she] could get [Chris]”
out of town. Chris did not leave, however, and, according to Brown, Juvenile could not hold
Defendant any longer. On cross-examination, Brown admitted that Chris went with her to
pick Defendant up from Juvenile Court on the day of the shootings.
Procedural History
The jury convicted Defendant of the first degree premeditated murder of Marcel
Mackey, the alternative count of first degree felony murder, and the attempted first degree
premeditated murders of Anitra Flowers and Randall White/Moore. The trial court’s minute
entry for January 28, 2005, reflects that, after the jury’s verdicts were reached and
announced, “the defendant, through his counsel of record, move[d] the court for a new trial,
which [was] set to Thursday, March 17, 2005, for HEARING AND SENTENCING.” On
February 22, 2005, Defendant filed a pleading captioned “Motion for New Trial and Leave
of Court to File Additional and Supplemental Grounds upon Completion of the Record.”
Four grounds for a new trial were asserted in this pleading: (1) insufficient evidence; (2)
erroneously admitted photographs of the murder victim; (3) the refusal to admit certain
medical records; and (4) error “in denying [Defendant’s] request for special instructions
regarding [his] state of mind at the time of his alleged participation in the crime.”
The sentencing hearing began on May 18, 2005, and counsel argued primarily about
(1) whether the presumptive minimum sentence for attempted first degree murder was fifteen
or twenty years; (2) whether Defendant should receive more than the minimum sentence; and
(3) whether the sentences should run consecutively or concurrently to one another. At the
conclusion of argument, the trial court continued the proceedings for two weeks to allow for
the preparation of a sentencing findings of fact and order. The court declined to impose
sentence on any of the counts and held all matters until June 2.
-7-
The Court filed its “Sentencing Findings of Fact” on August 5, 2005; however, that
same document is also signed by the judge after the declaration “IT IS SO ORDERED this
4 day of Oct., 2005.”
The next hearing was conducted in October 2005, and the parties picked up their
sentencing arguments where they had left off in May. At the beginning of the October
hearing, the judge stated that he understood they were there to determine whether the
sentences should be consecutive or concurrent. Counsel for Defendant then advised that he
had filed a motion to withdraw based on communications from Defendant that Defendant
was not satisfied with his representation. Defense counsel also noted that he had filed a
motion for new trial and that he was ready to argue it. The judge then announced that he
sentenced Defendant to serve his two attempted murder convictions concurrent to each other
but consecutive to the first degree murder conviction. He did not announce the number of
years that were to be served on each attempted first degree murder conviction. Defense
counsel noted an exception to this sentencing ruling, and the judge said, “We can make that
part of the motion for new trial.” The judge then instructed defense counsel to argue the
motion for new trial before he decided whether counsel should be replaced on appeal.
Defendant objected to having counsel present the motion for new trial, but the court
directed counsel to proceed. The court noted at that time, however, that if a new lawyer were
to be appointed, that lawyer could file an amended motion for new trial. The court further
noted that he was allowing counsel to incorporate the sentencing issue into the motion for
new trial. The judge also announced for the record his reasons for ordering consecutive
sentencing. The court then allowed counsel to argue the four grounds asserted in the
February 2005 motion for new trial.
After arguments were complete, the trial court reiterated that Defendant was to receive
a life sentence on the murder charge, to be served consecutively to the two attempted first
degree murder sentences. In response to a question, the court confirmed that no judgment
sheets had yet been entered. The court then denied the motion for new trial on all four
grounds, allowed defense counsel to withdraw, and appointed attorney Lance Chism to
represent Defendant on appeal and “to file whatever other additional amendments to the
motion for new trial that he would like to file.” The judge then announced that he needed
the judgment orders, and the Assistant District Attorney advised that he would provide them.
The transcript then contains the notation “(Later this same day).” After that notation,
the court formally appointed Mr. Chism, who was apparently then present, to represent
Defendant. The judge stated in part, “They filed a motion for new trial, I denied that and
allowed them to amend it, if necessary. So you can determine then whether or not you want
to file an amended motion for new trial. You’re also appointed for the appeal.” The judge
then said, “[a]nd we’re going to bring him back tomorrow for sentencing.”
-8-
The transcript next contains a portion dated “Tuesday, October 4, 2005.” During this
proceeding, the court asked to see the sentencing order and then stated that it had made an
error and that the defendant needed to be sentenced. The court observed, “We made the two
criminal attempts, murder in the first degree will run consecutive, but I didn’t really actually
give you the time on those. So it will be your two fifteen year sentences running concurrent
with each other, but consecutive to a life sentence.” The court then formally repeated the
correct sentence for each of the three convictions.
The technical record reflects that the trial court merged the two murder convictions
and entered on October 4, 2005, a judgment reflecting the first degree murder conviction
with a sentence of life imprisonment. On the same date, the trial court entered judgments of
conviction on each of the two attempted first degree murder convictions, each carrying a
sentence of fifteen years imprisonment, to be served concurrently with each other but
consecutively to the murder sentence.
The technical record also contains an Order Overruling Motion for New Trial entered
and filed October 3, 2005. On November 2, 2005, the defense filed a pleading titled “Motion
Requesting Trial Court to Enter Order Permitting Counsel to File an Amended Motion for
New Trial.” The trial court granted the defense motion by written order filed November 2,
2005. No time frame for filing any amended motion was established. An “Amended Motion
for New Trial” was subsequently filed, and although the stamped file date is too faint to
discern, the certificate of service is dated May 2, 2006. A “Supplement to Amended Motion
for New Trial” was filed on May 10, 2006. On July 31, 2006, a hearing was held on
Defendant’s amended motion for new trial, during which counsel argued five grounds,
including (1) error in the jury charge on criminal responsibility; (2) error in admitting a
recorded past recollection as an exhibit; (3) error in failing to instruct the jury on the defense
of duress; (4) error in failing to charge the jury on voluntary intoxication; and (5) error in
admitting proof of a prior bad act.4 The trial court denied Defendant’s amended motion from
the bench, and an Amended Order Overruling Motion for New Trial was entered and filed
July 31, 2006. A Notice of Appeal was filed August 30, 2006.
In its brief to the Court of Criminal Appeals, the defense raised six issues: (1) the trial
court erred in its instructions to the jury on criminal responsibility; (2) the trial court erred
by failing to charge duress; (3) the trial court erred when it allowed a prior recorded
recollection to be admitted as an exhibit; (4) the trial court erred by failing to instruct the jury
about voluntary intoxication; (5) the trial court erred by refusing to admit certain of
Defendant’s medical records; and (6) the trial court erred by admitting certain photographs
4
Over defense objection, the trial court allowed Aja Brown to testify that she observed Defendant
and Chris rob Red approximately two weeks before the shootings. This issue has not been raised in this
Court.
-9-
of the deceased. The Court of Criminal Appeals refused, however, to consider issues raised
after the original motion for new trial had been denied, and addressed only those issues raised
in the original motion for new trial, holding that the subsequent attempts to amend the motion
for new trial were untimely. The Court of Criminal Appeals affirmed Defendant’s
convictions and sentences. We granted Defendant’s application for permission to appeal.
ANALYSIS
I. Defendant’s Motion for New Trial
and Attempted Amendments
The first issue we must address is the efficacy of Defendant’s original motion for new
trial and his subsequent attempts to amend that motion. Our resolution of this issue rests
upon our interpretation of Tennessee Rule of Criminal Procedure 33. We review de novo
issues involving the interpretation of our rules of criminal procedure. State v. Ferrante, 269
S.W.3d 908, 911 (Tenn. 2008).
Rule 33 provides in pertinent part that
[a] motion for a new trial shall be in writing or, if made orally in open court,
be reduced to writing, within thirty days of the date the order of sentence is
entered. The court shall liberally grant motions to amend the motion for new
trial until the day of the hearing on the motion for a new trial.
Tenn. R. Crim. P. 33(b) (emphases added). Rule 33 clearly contemplates that the trial court
will conduct the sentencing hearing and enter the uniform judgment order before any motion
for new trial is filed. The defense then has thirty days from entry of the judgment order in
which to file its motion for new trial. As this Court and the Court of Criminal Appeals have
often repeated, this thirty-day period is jurisdictional and cannot be expanded. State v.
Bough, 152 S.W.3d 453, 460 (Tenn. 2004); State v. Martin, 940 S.W.2d 567, 569 (Tenn.
1997); State v. Stephens, 264 S.W.3d 719, 728 (Tenn. Crim. App. 2007); see also Tenn. R.
Crim. P. 45(b)(3) (“The court may not extend the time for taking any action under Rules of
Criminal Procedure 29, 33 and 34, except to the extent and under the conditions stated in
those rules.”). Once a motion for new trial is timely filed, leave to amend should be liberally
granted, and the trial court should not hold the hearing on the motion for new trial until the
defense has had an adequate opportunity in which to file its amendments.
The procedural history of this case is rather more convoluted than is anticipated by
Rule 33. We first note that the judgments of conviction and sentence were not entered until
October 4, 2005. The thirty-day period for filing a motion for new trial did not actually
commence to run until that date. In this case, however, defense counsel filed its original
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written motion for new trial on February 22, 2005: prior to the date on which the thirty-day
period even began to run. Moreover, the trial court heard and ruled upon the motion for new
trial and entered its order overruling the motion for new trial on October 3, 2005, before
sentencing was complete and before the judgments of conviction and sentence were entered.
However, the prosecution lodged no objection to the timing of the hearing on the motion for
new trial.
Our Court of Criminal Appeals has considered cases in which the defense filed
prematurely its motion for new trial. For instance, in State v. Siliski, 238 S.W.3d 338 (Tenn.
Crim. App. 2007), the defendant filed her motion for new trial on October 26, 2004, although
judgment was not entered until December 21, 2004. Noting that the motion for new trial was
therefore premature, the intermediate appellate court nevertheless considered the issues
raised therein, emphasizing that (1) the State had not raised the issue on appeal, and (2) no
prejudice accrued to the State from the court’s consideration of the issues raised in the
premature motion. Id. at 374 (citing State v. Lee, No. 01C01-9806-CC-00266, 1999 WL
346196, at *5 (Tenn. Crim. App. June 2, 1999)). Similarly, the State has not raised an issue
about the premature filing of the defense’s original motion for new trial in this case. Nor is
any prejudice to the State apparent from consideration of the issues raised therein. For the
purposes of this case, we hold that the original motion for new trial was filed timely.
The primary issue addressed by both parties before this Court, and decided adversely
to Defendant by the Court of Criminal Appeals, is the efficacy of the “Motion Requesting
Trial Court to Enter Order Permitting Counsel to File an Amended Motion for New Trial”
(“Motion Requesting Permission”) that the defense filed on November 2, 2005, and the
subsequent “Amended Motion for New Trial” and “Supplement to Amended Motion for New
Trial” that the defense filed in May 2006. To address this issue, we must review our
decisions in Bough, 152 S.W.3d at 462, and State v. Butler, 626 S.W.2d 6, 12 (Tenn. 1981).
In Bough, we addressed a situation similar to that before us in this case. The
defendant had been convicted of first degree (felony) murder and especially aggravated
robbery. The verdict was announced on June 12, 2001, and, immediately thereafter, the trial
court “imposed the mandatory life sentence and entered judgment on the felony murder
conviction accordingly.” Id. at 459. The trial court entered judgment on the robbery
conviction on August 3, 2001, after a sentencing hearing. The defendant filed a motion for
new trial as to both convictions on August 3, 2001. Id.
The trial court heard the motion for new trial on September 27, 2001, and orally
denied the motion. Defense counsel then requested permission to withdraw. The trial court
granted defense counsel’s request and appointed new counsel. New counsel filed an
amended motion for new trial on October 11, 2001, “which asked the trial court to direct that
a transcript be prepared ‘so that the newly appointed counsel . . . [could] properly preserve
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all objections and errors for the appellate courts.’” Id. The trial court ordered transcripts
prepared and a second amended motion for new trial was filed on March 6, 2002. After a
hearing, the trial court denied the motion. The defense thereupon filed timely a notice of
appeal. Id.
This Court first held that the thirty-day period for filing a motion for new trial as to
both convictions began to run on August 3, 2001, the date on which the judgment was
entered on the robbery conviction. Id. at 460-61. We held that, “where there is a single trial
for felony murder and the underlying felony, and where the sentences are entered on different
days, we interpret Rule 33(b) as to require a motion for new trial to be filed within thirty days
of the day the last sentence is entered.” Id. Applying this rule to the instant case, it appears
that the deadline for Defendant to file his motion for new trial was thirty days after October
4, 2005. As set forth above, we have determined that, by filing his motion for new trial on
February 22, 2005, Defendant met this deadline.
In Bough and Butler, we also addressed the timeliness of amendments to motions for
new trial. Although Rule 33 states unequivocally that amendments to motions for new trial
shall be allowed “liberally . . . until the day of the hearing on the motion for a new trial,”
Tenn. R. Crim. P. 33(b) (emphasis added), we held in Bough that “this rule does not prevent
a judge from allowing, at his or her discretion, an amendment to a motion for new trial at any
time during which the trial judge has jurisdiction of the case,” 152 S.W.3d at 461 (citing
Butler, 626 S.W.2d at 12) (emphasis added). Because the defendant in Bough filed his
amended motion for new trial fourteen days after the initial motion for new trial was denied,
and before a notice of appeal was filed, we held that the trial court retained jurisdiction of
the case and had the discretion to hear and determine the amended motion for new trial. Id.
at 462.5
In Butler, decided almost thirty years ago, the defendant filed his motion for new trial,
and the trial court conducted the hearing. Before the trial court entered its order denying a
new trial, the defendant filed a motion to amend his motion for new trial, “setting forth what
purported to be newly discovered evidence.” 626 S.W.2d at 12. The trial court afforded the
defendant a hearing on his motion to amend, but refused to consider the motion on its merits.
Instead, the trial court ruled that Rule 33 did not permit amendments to be made after the
hearing on the motion for new trial had been held. This Court held that the trial court thereby
erred because
5
Had the defendant in Bough filed his amended motion for new trial more than thirty days after the
trial court entered an order denying his original motion for new trial, the pleading would have been a nullity
because the judgment would have become final. See Tenn. R. App. P. 4(c), (e); State v. Pendergrass, 937
S.W.2d 834, 837 (Tenn. 1996). Upon a judgment becoming final (or upon the timely filing of a notice of
appeal), the trial court loses its jurisdiction of the case. State v. Green, 106 S.W.3d 646, 648-49 (Tenn.
2003).
-12-
the rule does not prevent a judge, in his discretion, allowing an amendment to
a motion for a new trial at any time the trial judge has jurisdiction of the case.
As pointed out in Rule 2 of the Tennessee Rules of Criminal Procedure, “the
rules are intended to provide for the just determination of every criminal
proceeding. They shall be construed to secure simplicity in procedure, fairness
in administration and the elimination of unjustifiable expense and delay.” The
ground of the amendment to the motion for new trial was basic to the guilt or
innocence of [the defendant], and its validity should have been considered by
the trial judge at the earliest possible time.
Butler, 626 S.W.2d at 12.
In the instant case, the defense filed its Motion Requesting Permission on
November 2, 2005, within thirty days of the trial court’s written order overruling the
defense’s original motion for new trial. Under Bough and Butler, the trial court believed it
still had jurisdiction to consider this pleading, and the trial court did, indeed, grant the
Motion Requesting Permission. Moreover, the trial court later considered the subsequent
Amended Motion for New Trial and Supplement to Amended Motion for New Trial, both
of which were filed many months after the trial court entered its order denying the original
motion for new trial.
On appeal, the Court of Criminal Appeals held that the Motion Requesting Permission
did not fit within the parameters of Bough because it was not actually an amended motion
for new trial. We agree.
In State v. Blunkall, 731 S.W.2d 72 (Tenn. Crim. App. 1987), judgment was entered
on the defendant’s armed robbery conviction on May 16, 1985. On May 29, 1985, the
defendant filed a motion requesting “an Order directing that his counsel of record be given
an extended period to file a Motion for a New Trial in this cause of thirty (30) days from the
preparation and filing of the transcript.” Id. at 73. The trial court granted the motion and the
defense filed its motion for new trial on December 2, 1985. On appeal from the trial court’s
eventual denial of the motion for new trial, the Court of Criminal Appeals held that the
motion for new trial was not timely because it was not filed within thirty days of judgment
having been entered. Id. The intermediate appellate court determined that, contrary to the
defendant’s argument, the motion filed on May 29, 1985, did not serve as a motion for new
trial. Id. at 74. Accordingly, the thirty-day period for filing a motion for new trial ran, and
the judgment became final before a motion for new trial was filed. The intermediate
appellate court noted that “[t]he motion for an extension of time shows on its face that it is
not a motion for a new trial. No grounds of error are assigned in the motion for an extension
of time nor is any relief prayed from the judgment of conviction.” Id. The Court of Criminal
Appeals stressed that “[i]t is not sufficient that the defendant file ‘some document’ as he
-13-
insists; he must file a motion for a new trial specifying grounds for relief.” Id.; see also
Fahey v. Eldridge, 46 S.W.3d 138, 143 (Tenn. 2001) (stating that a motion for new trial
should set forth (1) “a concise statement of the factual grounds” on which error is being
alleged, (2) “the legal ground upon which the trial court based its actions,” and (3) “a concise
statement asserting the legal reasons why the court’s decision was improper”). Cf. Carter v.
Bell, 279 S.W.3d 560, 563 (Tenn. 2009) (recognizing that pleadings are construed according
to the relief sought). We adopt this reasoning.
In this case, the Motion Requesting Permission does not contain any factual or legal
grounds in support of a new trial nor does it contain a prayer for relief from the judgments
of conviction. Rather, similar to the pleading in Blunkall, it simply seeks permission to file
at some later date an amended motion seeking a new trial. It is unclear why the defense filed
this pleading, because the trial court had orally granted permission to file during the October
3rd proceedings. In any event, the Motion Requesting Permission did not serve as an
amended motion for new trial. Thus, the actual amended motion for new trial – which was
not filed until May 2006 – was a nullity.
Although we can decide this issue on this alternate ground, this case also provides us
with an opportunity to reevaluate our decisions in Bough and Butler. Construed to their
logical extreme, our decisions in Bough and Butler give trial courts the discretion to allow
the defense to file multiple amendments to a motion for new trial after the trial court hears
and denies an original motion for new trial. As long as the first of such motions to amend
is made within thirty days of the date on which the order denying the motion for new trial
was entered, the trial court would retain jurisdiction. It is conceivable under Bough and
Butler that a defendant could continue this maneuver repeatedly and obtain even more than
two orders denying a new trial because, until the defendant allows thirty days to pass after
entry of the judgment order or the most recent order denying a new trial, the trial court retains
jurisdiction. Tennessee Rule of Criminal Procedure 33 does not contemplate sequential
hearings on motions for new trial after the original hearing has been held and an order
denying the motion entered.
The circumstances of the instant case, in which a second order denying a new trial was
not entered until approximately eighteen months after the jury pronounced its verdict,
illustrate the potential problems with delay that can occur when a trial court allows
amendments to be made long after the initial motion for new trial hearing is held and an order
denying the motion entered. Rather than eliminating unjustifiable delay, one of the bases for
our decision in Butler, the instant case created it. As noted by the Court of Criminal Appeals
in Blunkall,
The time fixed by law for the filing of a motion for a new trial has a
valid purpose. If the rule were not a rigid one, appeals could be delayed . . .
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for many months or for years. Justice requires that appeals in criminal cases
not be unduly delayed. Guilty defendants on appeal bonds should be taken off
the streets and innocent defendants not on bond should be released.
731 S.W.2d at 74. Upon further reflection, we are constrained to hold that a stricter
interpretation of Rule 33 is necessary to prevent parties from taking, albeit with judicial
permission, undue advantage of our decisions in Bough and Butler and thereby creating, as
in this case, unjustifiable delay in the judicial process. Accordingly, we hold that
amendments to timely filed motions for new trial may be had “until the day of the hearing
on the motion for a new trial,” Tenn. R. Crim. P. 33(b) (emphasis added), but not after the
trial court has entered an order denying a new trial.
This stricter interpretation aligns with the Advisory Commission Comments to Rule
33(b), which provide as follows:
[s]ome attorneys seek to “reserve the right to amend” a motion for a
new trial, and subsequently file such amendments without a court order
permitting it. Clearly the philosophy of the rule is to permit timely
amendments, and for that reason the rule does not close that time frame until
the motion is heard. However, the fact that the trial judge “shall allow
amendments liberally” does not mean that the judge shall allow all such
amendments, and counsel must not make a regular practice of filing only a
skeletal motion with the intention of bringing all of their substantive grounds
in an amendment carried to the hearing. The trial judge retains the power the
deny amendments, and strong consideration should be given to whether the
new ground being raised was promptly brought to the court’s attention.
Tenn. R. Crim. P. 33 advisory comm’n cmts. (emphases added). The Comments interpret
Rule 33(b) as providing a time frame for filing amendments “until the motion is heard,” and
interpret the mandate that trial judges grant motions to amend “liberally” as applying to
amendments “carried to the hearing.”
Accordingly, trial courts should not hold any hearing on a motion for new trial until
a reasonable time after the sentencing hearing has been held, sentence has been imposed, and
the judgment order entered. If the defense files a timely motion for new trial, the trial court
should provide the defense with ample opportunity to amend the motion prior to holding the
new trial hearing. If new counsel is sought and obtained, additional time for amendments
to the motion for new trial may be granted as necessary. Once the hearing on the motion for
-15-
new trial is heard and an order denying a new trial has been entered, however, motions to
make additional amendments must be denied.6
In sum, we hold that, on alternative bases, the Court of Criminal Appeals was correct
in refusing to consider the grounds raised in the “Amended Motion for New Trial” and the
“Supplement to Amended Motion for New Trial,” both of which were filed after the hearing
and decision on the original motion for new trial.
As a result of our holding, it becomes clear that the defense had thirty days after the
trial court entered its original order denying the motion for new trial in which to file its notice
of appeal. See Tenn. R. App. P. 4(c) (providing that the thirty-day period for filing a notice
of appeal in criminal actions “shall run from entry of the order denying a new trial”). The
notice of appeal in this case was not filed until August 30, 2006, clearly outside the thirty-day
time frame.
The Court of Criminal Appeals nevertheless heard Defendant’s appeal. The
intermediate appellate court did not thereby err, as “in all criminal cases the ‘notice of
appeal’ document is not jurisdictional and the filing of such document may be waived in the
interest of justice.” Tenn. R. App. P. 4(a). We agree that, given the trial court’s rulings in
this case and our holdings in Bough and Butler, the interest of justice is served by waiver of
the untimely filing of Defendant’s notice of appeal. Accordingly, we turn to Defendant’s
remaining issues.
II. Issues Preserved by February 2005 Motion for New Trial
As recognized by the Court of Criminal Appeals, the only issues properly preserved
are those raised in the motion for new trial filed on February 22, 2005. As set forth above,
those issues are (1) the sufficiency of the evidence; (2) whether the trial court erred in
admitting certain photographs of the murder victim; (3) whether the trial court erred in
refusing to admit medical records reflecting injuries that Chris inflicted on Defendant during
a confrontation; and (4) whether the trial court erred in denying Defendant’s special request
for a jury instruction regarding his capacity to form the mental state required by the charged
offenses. The Court of Criminal Appeals held that Defendant is not entitled to relief on any
of these issues.
Before this Court, Defendant does not complain about the judgment of the Court of
Criminal Appeals with respect to any of these issues. Our review of the intermediate
6
We take this opportunity to emphasize that trial courts should enter promptly into the record a
written order reflecting the denial (or grant) of a defendant’s motion for new trial. See State v. Byington,
284 S.W.3d 220, 225 (Tenn. 2005).
-16-
appellate court’s analysis of the fourth issue concerning the trial court’s jury instructions
reveals some confusion, however. Accordingly, we have chosen to address that issue on its
merits. See State v. Davidson, 121 S.W.3d 600, 618 n.11 (Tenn. 2003) (electing to address
issue that was waived); State v. McKinney, 74 S.W.3d 291, 303 n.5 (Tenn. 2002) (same).
Jury Instruction on “Diminished Capacity”
During closing argument, defense counsel argued that Defendant participated in the
shooting out of fear of his brother Chris and, as a result, did not have the intent or state of
mind to commit premeditated murder.7 In conjunction with this defense theory, defense
counsel requested in writing the following special jury instruction:
In this case you have heard that the defendant acted because of fear of
his brother, Christopher Hatcher, which could have affected his capacity to
form the culpable mental state required to commit a particular offense.
If you find from the evidence that the defendant’s capacity to form a
culpable mental state may have been affected, then you must determine beyond
a reasonable doubt what the mental state of the defendant was at the time of
the commission of the offense to determine of which, if any, offense he is
guilty. (T.P.I. CRIM. 42.22; Evidence of Mental State); State v. Hall, 958
S.W.2d 679 ([Tenn.] 1997); State v. Perry, 13 S.W.3d 724 ([Tenn. Crim. App.]
1999); State v. Phipps, 883 S.W.2d 138 ([Tenn. Crim. App.] 1994). Moreover,
if you find that the defendant’s mental state did not rise to a justification for
his participation of [sic] the crime, you may find the defendant guilty of a
lesser-included offense because the defendant was incapable of forming the
requisite intent of the crime charge[d]. (State v. Hall, 958 S.W.2d 679
([Tenn.] 1997)).
In other words, no person may be convicted of an offense unless the
culpable mental state is proven beyond a reasonable doubt. (State v. Hall, 958
S.W.2d 679 ([Tenn.] 1997)).
During trial, defense counsel argued to the court that this instruction was necessary to inform
the jury that it could convict Defendant of a lesser degree of murder on its finding that
Defendant’s fear of his brother was such that he could not form the culpable mental state
required for first degree murder. Defense counsel relied on the legal concept of “diminished
capacity” in making this argument to the trial court. The trial court refused to deliver the
7
Premeditated murder is the “premeditated and intentional killing of another.” Tenn. Code Ann. §
39-13-202(a)(1).
-17-
requested instruction, and the defense alleged in its original motion for new trial that the trial
court thereby erred. The defense also alleged in its original motion for new trial that the trial
court’s jury instruction
in regards to the necessary intent to constitute Murder in the First Degree was
inadequate in that it did not balance such instruction with language to the
effect that facts and circumstances could allow the jury to consider such proof
to reducing the charge to Murder in the Second Degree.
The Court of Criminal Appeals analyzed this issue as though the defense had requested, and
been refused, an instruction on the defense of duress, which is a distinct issue.8
Defendant’s special request for jury instruction and his contention that the trial court
committed reversible error in refusing to give it arise from the principle that “a defendant’s
capacity to form the requisite mental state to commit an offense is an issue in criminal
prosecutions because the general criminal law in Tennessee provides that ‘[n]o person may
be convicted of an offense unless . . . [t]he culpable mental state required[’ ‘]is proven
beyond a reasonable doubt.’” State v. Hall, 958 S.W.2d 679, 689 (Tenn. 1997) (quoting
Tenn. Code Ann. § 39-11-201(a)(2) (1991)). Moreover, “the negation of an element of a
criminal offense is recognized as a defense in Tennessee.” Id.
In Hall, one of the cases the defense relied upon in making its special request, we
considered whether expert testimony was admissible to demonstrate that the accused
“lack[ed] the capacity, because of mental disease or defect, to form the requisite culpable
mental state to commit the offense charged.” Id. (emphasis added). We held that, so long as
general relevancy standards and evidentiary rules were satisfied, such expert testimony was
admissible. Id. Significantly to this case, however, we emphasized in Hall that the proof
must demonstrate that the defendant’s inability to form the requisite culpable
mental state was the product of a mental disease or defect, not just a particular
emotional state or mental condition. It is the showing of lack of capacity to
form the requisite culpable mental intent that is central to evaluating the
admissibility of expert psychiatric testimony on the issue.
Id. at 690 (initial emphasis added) (citing State v. Shelton, 854 S.W.2d 116, 122 (Tenn. Crim.
App. 1992)). See also State v. Ferrell, 277 S.W.3d 372, 377-80 (Tenn. 2009); State v.
Faulkner, 154 S.W.3d 48, 56-57 (Tenn. 2005).
8
As is discussed more thoroughly later in this opinion, defense counsel did not ask for a duress
instruction during the trial, or raise the lack of a duress instruction in the original motion for new trial.
-18-
In light of this issue, a pattern jury instruction was developed which addresses a
defendant’s capacity to have formed the culpable mental state required for conviction of the
offense(s) charged. This pattern instruction provides, in pertinent part, as follows:
The state must prove beyond a reasonable doubt the culpable mental
state of the accused. Culpable mental state means the state of mind of the
accused at the time of the offense. This means that you must consider all of
the evidence to determine the state of mind of the accused at the time of the
commission of the offense. The state of mind which the state must prove is
contained in the elements of the offense(s) as outlined in these instructions
[above] [below].
In this case, you have heard evidence that the defendant might have
suffered from a mental [disease] [defect] which could have affected [his]
[her] capacity to form the culpable mental state required to commit a
particular offense. . . .
If you find from the evidence that the defendant’s capacity to form a
culpable mental state may have been affected, then you must determine beyond
a reasonable doubt what the mental state of the defendant was at the time of
the commission of the offense to determine of which, if any, offense [he]
[she] is guilty.
T.P.I.– Crim. 42.22 (2009) (footnotes omitted).9 This pattern instruction makes clear that its
use is contemplated when there has been proof that, at the time the defendant allegedly
committed the crime, he or she was suffering from some mental disease or defect which
affected his or her capacity to form the requisite mental state. Defendant has cited us to no
authority, however, for the proposition that simple fear is a sufficient mental disease or
defect to require this jury instruction. Nor have we found any such authority. Cf.
Commonwealth v. Singley, 868 A.2d 403, 412 n.10 (Pa. 2005) (recognizing that theory of
diminished capacity contemplates introduction of expert testimony addressing defendant’s
mental disorder affecting the cognitive functions necessary to formulate a specific intent such
as deliberation and premeditation); State v. Trombley, 807 A.2d 400, 406 (Vt. 2002) (holding
that the trial court was correct in refusing to instruct jury to consider defendant’s state of
mind in light of his “fear and emotions”).
9
As we have previously observed, “pattern jury instructions are only suggestions for a trial court
because they are ‘not officially approved by this Court or by the General Assembly and should be used only
after careful analysis.’” State v. Rimmer, 250 S.W.3d 12, 30 (Tenn. 2008) (quoting State v. Hodges, 944
S.W.2d 346, 354 (Tenn. 1997)).
-19-
The defense theory in Defendant’s case was that he was so frightened of his brother
Chris that he participated in the shootings with less than the culpable mental state required
for premeditated murder or attempted premeditated murder. That is, the defense argued that
Defendant’s fear of Chris prevented him from acting intentionally and with premeditation
while he participated in the shooting. The defense elicited no expert proof in support of this
proposition. Moreover, this theory rests on “a particular emotional state or mental condition”
rather than on Defendant’s “lack of capacity to form the requisite culpable mental intent.”
Hall, 958 S.W.2d at 690. We hold that a defendant’s fear of another person, such that he or
she fears reprisal for refusing to commit a crime at the direction of the person feared, is not
the type of mental disease or defect contemplated by a theory of defense that relies on
negating the mens rea of the offense charged, sometimes referred to as the “diminished
capacity” theory of defense.10 Accordingly, the trial court did not err in refusing to give the
special “diminished capacity” instruction requested by the defense in this case. Defendant
is not entitled to relief on this issue.
III. Issues Reviewed for Plain Error
A. Standard of Review
Our rules of appellate procedure provide that
in all cases tried by a jury, no issue presented for review shall be predicated
upon error in the admission or exclusion of evidence, jury instructions granted
or refused, misconduct of jurors, parties or counsel, or other action committed
or occurring during the trial of the case, or other ground upon which a new
trial is sought, unless the same was specifically stated in a motion for a new
trial; otherwise such issues will be treated as waived.
Tenn. R. App. P. 3(e). Accordingly, the effect of our holding today is that the defense has
waived those issues raised in this Court that were not included in the original motion for new
trial. See State v. Banks, 271 S.W.3d 90, 119 (Tenn. 2008).
Nevertheless, when “necessary to do substantial justice,” this Court has the authority
to “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.”
10
As we explained in Hall, “such evidence should not be proffered as proof of ‘diminished capacity.’
Instead, such evidence should be presented to the trial court as relevant to negate the existence of the
culpable mental state required to establish the criminal offense for which the defendant is being tried.” 958
S.W.2d at 690.
-20-
Tenn. R. App. P. 36(b). We refer to this discretionary consideration of waived issues as
“plain error” review. See Grindstaff v. State, 297 S.W.3d 208, 219 n.12 (Tenn. 2009).
This Court will not grant relief under plain error review unless five criteria are met:
(1) the record clearly establishes what occurred in the trial court; (2) the error breached a
clear and unequivocal rule of law; (3) the error adversely affected a substantial right of the
complaining party; (4) the error was not waived for tactical purposes; and (5) substantial
justice is at stake; that is, the error was so significant that it “‘probably changed the outcome
of the trial.’” State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000) (quoting State v.
Adkisson, 899 S.W.2d 626, 642 (Tenn. Crim. App. 1994)). If any of these five criteria are
not met, we will not grant relief, and complete consideration of all five factors is not
necessary when it is clear from the record that at least one of the factors cannot be
established. Id. at 283. The party claiming plain error has the burden of persuading the
appellate court. Banks, 271 S.W.3d at 119.
We turn now to those issues raised by Defendant that were not included in his original
motion for new trial and were thereby waived.
B. Admission of Sabrina Hatcher’s Statement
During its direct examination of Sabrina, and after she denied making a particular
declaration, the prosecution questioned her about the statement she had given to the police
during their investigation and which had been reduced to writing. The prosecution proffered
the written statement to Sabrina so that she could refresh her recollection of it. Although she
reviewed the statement and authenticated it, she resisted the prosecution’s attempt to have
her testify consistently with portions of her statement. The following exchange between the
prosecution and Sabrina occurred:
Q: And you told the police[,] “I was at Chris’s girlfriend’s house and I called
[Defendant] at my house and he told me that [he] had heard that Red was
going to kill him and Chris.” Did you tell them that?
A: Yeah, but – you know, I really don’t remember[.]
Q: But, that’s what you told the police; right?
A: (No audible reply).
Q: I know it’s hard, Ms. Hatcher, but you have to tell the truth[.]
A: Y’all might have got that down wrong, because I couldn’t have called him,
because I didn’t know he was out of Juvenile that day. He had just got out and
my big brother was waiting on him to get out.
Q: But, this is the statement that you gave and this is the statement that you
signed; didn’t you?
A: Right, but it’s not true, though.
-21-
Q: You’re saying it’s not true when you say that [Defendant] told you that he
had heard that Red was going to kill him and Chris. You’re saying that’s not
true?
A: Well I heard that.
...
Q: Okay. So you knew that Chris and [Defendant] were upset with Red,
because there were threats out that Red was going to kill him; right?
A: Right.
Q: And you told the police, so that’s when you said, “We funna [sic] go kill him” –
maybe “We fixin’ to go kill him[.”] Didn’t you tell the police that?
A: I don’t think so.
...
Q: You’re telling the Court that you did tell the police that [Defendant] had
said he was going to take care of some business?
A: Right.
Q: But the statement says, the statement that you gave the police that night
says that, “We fixin[’] to go kill him.” You don’t remember that; right?
A: No.
Eventually, over the defense’s objection, the trial court permitted the State to admit a copy
of the statement as an exhibit, i.e., as substantive evidence. Significantly, the statement
contains the following exchange:
Q: When was the last time you saw or spoke to Chris or [Defendant] before
you found out a shooting had occurred?
A: I talked to [Defendant] on the telephone. I was at Chris’ girlfriend[’]s
house and I called [Defendant] at my house and he told me that he heard that
“Red” was going to kill him and Chris. So that’s when he said “We funna
[sic] go kill him.”
Defendant contends that the trial court’s admission of this statement as substantive evidence
constitutes reversible error. The State concedes in its brief to this Court that the prosecution
“should not have been allowed to introduce the actual statement as an exhibit.”
We agree with the State. The prosecution wanted the jury to have access to Sabrina’s
statement to the police because it was unable to elicit testimony from her that was consistent
with a significant segment of it. This Court has made clear, however, that prior inconsistent
statements are not admissible as substantive evidence. Smith, 24 S.W.3d at 279. That the
prosecution argued the statement’s admissibility as a prior recorded recollection does not
ameliorate the trial court’s error. Tennessee Rule of Evidence 803(5) provides as follows:
-22-
Recorded Recollection. A memorandum or record concerning a matter
about which a witness once had knowledge but now has insufficient
recollection to enable the witness to testify fully and accurately, shown to have
been made or adopted by the witness when the matter was fresh in the
witness’s memory and to reflect that knowledge correctly. If admitted, the
memorandum or record may be read into evidence but may not itself be
received as an exhibit unless offered by an adverse party.
Tenn. R. Evid. 803(5) (emphasis added). Thus, even if Sabrina’s statement qualified as a
recorded recollection, the trial court erred when it allowed Sabrina’s statement to the police
to be admitted as an exhibit to her testimony and reviewed by the jury during its
deliberations. The prosecution compounded the trial court’s error by referring repeatedly to
the admitted statement during its closing arguments.
We hold, however, that Defendant is not entitled to plain error relief on the basis of
this erroneous admission of evidence because it does not appear to have affected the outcome
of the trial. First, Sabrina repeatedly denied having told the police that Defendant told her
about the group’s intention to commit a killing. The jury therefore had proof before it that
the transcriber of Sabrina’s statement may have made a mistake about what she said.
Second, the remaining proof against Defendant is overwhelming. He admitted to the police
that he knew Chris was intending to kill Red. He also admitted to the police that he was at
the scene of the crime, that he was armed, and that he shot one of the guns the group
possessed. Jackson testified that he had seen Defendant holding a handgun shortly before
the shootings and that Defendant had kept Chris focused on the task of “taking care of
business.” Cornelius testified that Defendant told him after the shooting that Defendant had
entered the apartment and shot at one of the women inside. One of the gunshot wounds to
the murder victim was from a small caliber bullet.
Given the substantial amount of proof that reflected Defendant’s intentional and
premeditated actions in participating in the shooting, the erroneous admission of Sabrina’s
statement was merely cumulative. Accordingly, we hold that substantial justice does not
require us to set aside Defendant’s convictions on the basis of the trial court’s erroneous
admission of Sabrina’s statement. Defendant is not entitled to relief on this issue.
C. Jury Instruction on Criminal Responsibility
Defendant also complains about the trial court’s jury instructions on criminal
responsibility, arguing that the trial court erroneously charged the jury that it could find
-23-
Defendant guilty on two bases not supported by the proof.11 The State concedes that the
evidence did not support the challenged instructions on criminal responsibility, but argues
that Defendant is nevertheless not entitled to relief.
Our criminal code provides that an accused may be found guilty of an offense
committed by another person under the following circumstances:
(1) Acting with the culpability required for the offense, the [accused]
causes or aids an innocent or irresponsible person to engage in conduct
prohibited by the definition of the offense;
(2) Acting with intent to promote or assist the commission of the
offense, or to benefit in the proceeds or results of the offense, the [accused]
solicits, directs, aids, or attempts to aid another person to commit the offense;
or
(3) Having a duty imposed by law or voluntarily undertaken to prevent
commission of the offense and acting with intent to benefit in the proceeds or
results of the offense, or to promote or assist its commission, the [accused]
fails to make a reasonable effort to prevent commission of the offense.
Tenn. Code Ann. § 39-11-402 (1997). As this Court has previously observed, “[t]he
justification for this theory of criminal liability is that, in addition to the primary criminal
actor, aiders and abettors should be held accountable for the criminal harms they intentionally
facilitated or helped set in motion.” State v. Sherman, 266 S.W.3d 395, 408 (Tenn. 2008).
The prosecution may seek criminal liability under a theory of criminal responsibility by
proving that the defendant “‘knowingly, voluntarily and with common intent unite[d] with
the principal offender[] in the commission of the crime.’” Id. (quoting State v. Maxey, 898
S.W.2d 756, 757 (Tenn. Crim. App. 1994)). Moreover, “defendants convicted under a theory
of criminal responsibility are considered to be principal offenders, just as if they had
11
The defense requested in writing that the jury be instructed as follows:
In order for a defendant to be criminally responsible for the acts of another, a
defendant must in some way associate himself with the venture, act with knowledge, that
an offense is to be committed and share in the intent of the principle in the first degree.
In other words, the defendant must knowingly, voluntarily and with common intent
unite with principal in the commission of the crime.
The trial court denied this special request. The defense has not claimed in its brief to this Court that the trial
court thereby erred.
-24-
committed the crime themselves.” Id. (citing State v. Carson, 950 S.W.2d 951, 954 (Tenn.
1997)).
The defense points out that, while only the second set of circumstances described in
the criminal responsibility statute was arguably applicable to Defendant, the trial court
instructed the jury on all three, thereby confusing and misleading the jury and causing him
undue prejudice. The trial court orally instructed the jury as follows:
The defendant, ladies and gentlemen, is criminally responsible as a party to the
offenses charged and included in these indictments, if the offenses were
committed by the defendant’s own conduct, by the conduct of another, for
which the defendant is criminally responsible, or by both.
Each party to the offense may be charged with the commission of the
offense. The defendant is criminally responsible for an offense committed by
the conduct of another if acting with the culpability required for the offense,
the defendant causes, or aids an innocent, or irresponsible person to engage
in conduct prohibited by the definition of the offense.
The defendant is criminally responsible for an offense committed by the
conduct of another if acting with the intent to promote or assist in the
commission of the offense, or to benefit of [sic] the proceeds or results of the
offense[,] the defendant solicits, directs, aids, or attempts to aid another person
to commit the offense.
The defendant is criminally responsible for an offense committed by the
conduct of another, if having a duty imposed by law, or voluntarily undertaken
to prevent commission of the offense and actual intent to benefit in the
proceeds, or results of the offense, or to promote or assist its commission the
defendant fails to make a reasonable effort to prevent commission of the
offense.
...
Before you find the defendant guilty of being criminally responsible for
said offenses committed by the conduct of another, you must find that all of
the essential elements of said offenses have been proven by the state beyond
a reasonable doubt.
(Emphases added). The defense argues that, since there was no proof that Defendant caused
or aided an innocent or irresponsible person to commit the crimes of which he stands
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convicted, this portion of the instruction did not assist the jury in determining any relevant
issue but rather served only to confuse the jury. Defendant also argues that “[t]he proof in
the present case did not support a finding that Defendant had a legal duty to prevent any of
the other criminal actors from committing [these] offense[s]” and that this portion of the
instruction “would have misled the jury into believing that it could convict Defendant for his
failure to prevent this crime from occurring.” Defendant argues that this instruction “greatly
prejudiced” his case and requires reversal.12
The State responds that the trial court’s instructions on subsections (1) and (3) of the
criminal responsibility statute “amounted to nothing more than surplusage and did not
prejudice” Defendant. The State also argues that plain error review is not warranted because,
“[b]ased on the overwhelming proof of the defendant’s guilt, any error on the part of the trial
court in instructing the jury on the inapplicable subsections of the criminal responsibility
statute was not ‘so significant that it probably changed the outcome of the trial.’” We agree
that Defendant is not entitled to relief on the basis of the trial court’s jury charge on criminal
responsibility.
This Court long ago made clear that “[o]ne of the most important functions of the
Trial Judge is to select the rules of law which apply to the evidence given in the case on
trial.” Adcock v. State, 236 S.W.2d 88, 89 (Tenn. 1949). And we have admonished that a
trial court’s jury charge “‘should not contain inaccurate or inapplicable statements of legal
principles that might tend to confuse the jury.’” Troup v. Fischer Steel Corp., 236 S.W.3d
143, 149 (Tenn. 2007) (quoting Ingram v. Earthman, 993 S.W.2d 611, 636 (Tenn. Ct. App.
1998)).
Subsection (1) of the criminal responsibility statute is called into play when the
conduct prohibited by the offense is actually committed by “an innocent or irresponsible
person.” Tenn. Code Ann. § 39-11-402(1). The proof in this case did not implicate any such
person. Accordingly, the trial court should not have instructed the jury on this theory of
criminal responsibility. See Griffin v. United States, 502 U.S. 46, 60 (1991) (recognizing
that, “if the evidence is insufficient to support an alternative legal theory of liability, it would
generally be preferable for the court to give an instruction removing that theory from the
jury’s consideration”); State v. Smith, 656 S.W.2d 882, 888-89 (Tenn. Crim. App. 1983)
(holding that the trial court did not err by refusing to give an instruction not supported by the
proof because such an instruction “would have done nothing more than confuse the jury”).
12
Although the defense submitted in writing and argued for an instruction on criminal responsibility
based on subsection (2) of the criminal responsibility statute, the record reflects no specific objection to the
instructions on subsections (1) and (3) of the criminal responsibility statute that were actually delivered.
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Similarly, subsection (3) of the criminal responsibility statute is, by its own terms,
implicated only when the accused is under a legal duty to prevent the offense, or voluntarily
undertakes to prevent it. See State v. Rathbone, No. E2007-00602-CCA-R3-CD, 2008 WL
1744581, at *8 (Tenn. Crim. App. Apr. 16, 2008), perm. appeal denied (Tenn. Oct. 27, 2008)
(recognizing that a defendant may be held criminally responsible under subsection (3) “where
a person who has a legal duty to prevent the crime fails to do so with the specific intent to
further the crime”); see also State v. Winders, No. 88-142-III, 1989 WL 105710, at *2 (Tenn.
Crim. App. Sept. 14, 1989) (recognizing that, “for criminal liability to attach, it must be
found that there was a legal duty to act and not simply a moral duty”). For instance, a child’s
parent or legal guardian may be under a legal duty to prevent an offense from being
committed against the child. See, e.g., State v. Hodges, 7 S.W.3d 609, 623 (Tenn. Crim.
App. 1998); State v. Gordon, No. 01C01-9605-CR-00213, 1997 WL 578961, at *6 (Tenn.
Crim. App. Sept. 8, 1989). Defendant was under no such legal duty to prevent the crimes in
this case,13 and there is no proof in the record that he voluntarily undertook to prevent the
shootings at the apartment. Accordingly, the trial court erred in giving the jury this
instruction. Gordon, 1997 WL 578961, at *6.
The prosecution compounded the trial court’s error when it referred to the third theory
of criminal responsibility during closing argument. The prosecution argued as follows:
Criminal responsibility is, the defendant is criminally responsible for
the offense committed by the conduct of another if having a duty imposed by
law, or voluntarily undertaken to prevent the commission of the offense and
acted with intent to benefit in the proceeds, or the result of the offense, or to
promote or assist in the commission, the defendant failed to make a reasonable
effort to prevent commission of the offense.
Did [Defendant] ever try to do anything to try to stop this from
happening? Did he go into the house that night and say, “Mom, Chris is
talking about killing this guy over in the Raintree Apartments, do
something”[?]
Did he ever go into the house and call the police himself? When he got
to the apartment complex did he tell those teenage boys, “We’re fixin to go kill
Red, go call the police”[?]
13
Indeed, the trial court issued no instruction as to what might constitute the “duty imposed by law”
to which its charge referred.
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When his brother went to the other side of the apartment and he was on
the back side, did he ever do anything to stop this from happening? No, he
didn’t.
Instead what did he do, he started firing into that apartment like
everybody else.
There are several more that goes along with criminal responsibility.
You’ll hear a long definition by the Court as to what criminal responsibility is.
(Emphases added). The prosecution should not have made this argument because it implied
that Defendant had a duty to prevent the shooting, although the record contains not a shred
of evidence reflecting such a duty. See State v. Thomas, 158 S.W.3d 361, 413 (Tenn. 2005)
(“[C]losing argument must be temperate, must be predicated on evidence introduced during
the trial of the case and must be pertinent to the issues being tried.”); see also State v. Goltz,
111 S.W.3d 1, 6 (Tenn. Crim. App. 2003) (recognizing that it is unprofessional conduct for
a prosecutor to intentionally misstate the evidence or mislead the jury about the inferences
it may draw) (quoting ABA Project on Standards for Criminal Justice, Standards Relating
To The Prosecution Function And The Defense Function §§ 5.8-5.9 cmt. (approved draft
1971)); State v. Houston, 688 S.W.2d 838, 841 (Tenn. Crim. App. 1984) (“It is the province
of the trial judge to state to the jury the law of the case, and it is not advisable for counsel to
attempt to do so in final argument because of the possibility of error in their summation.”);
State v. Benson, 645 S.W.2d 423, 425 (Tenn. Crim. App. 1983) (recognizing that “‘[i]t is as
much [the prosecutor’s] duty to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to bring about a just one’” (quoting
Berger v. United States, 295 U.S. 78, 88 (1935))). The defense did not object, however, and
our rules of appellate procedure provide that we need not grant relief “to a party responsible
for an error or who failed to take whatever action was reasonably available to prevent or
nullify the harmful effect of an error.” Tenn. R. App. P. 36(a). See also, e.g., Thomas, 158
S.W.3d at 413 (holding that, where the defense failed to object to the prosecution’s remarks
during closing argument, the defendant was entitled to relief only if the remarks constituted
plain error).
Moreover, we are unable to conclude that substantial justice requires us to grant plain
error relief on this issue. In this case, the proof demonstrated that Defendant accompanied
his brother and two other men to an apartment with the intention of confronting Red.
Defendant admitted his assumption that Chris intended to kill Red. The group of men was
carrying four guns between them, and Defendant admitted to having carried and shot a
shotgun. When the men were briefly diverted from their goal by a group of youngsters they
met en route, Defendant brought them back to task, telling Chris, “Come on, man, let’s go
take care of this business.” Jackson testified that he saw Defendant holding a handgun
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shortly before the shooting, and Cornelius testified that Defendant told him afterwards that
Defendant had entered the apartment and shot at a woman during the confrontation. The
autopsy of the murder victim revealed that he had been shot at least once with a small caliber
bullet. In short, the proof is overwhelming that Defendant was a willing and active
participant in the attack upon the apartment. The error in the jury instructions and the
prosecution’s error during closing argument were not so prejudicial that they probably
changed the outcome of the trial. Defendant has failed to establish that he is entitled to plain
error relief on this issue.
D. Jury Instruction on Voluntary Intoxication
Related to the issue of the trial court’s failure to instruct the jury on “diminished
capacity,” the defense complains about the trial court’s failure to instruct the jury about
voluntary intoxication.14 As provided by our criminal code, “[voluntary] intoxication itself
is not a defense to prosecution for an offense. However, intoxication, whether voluntary or
involuntary, is admissible in evidence if it is relevant to negate a culpable mental state.”
Tenn. Code Ann. § 39-11-503(a) (1997); see also Wiley v. State, 183 S.W.3d 317, 333
(Tenn. 2006). Proof of voluntary intoxication is therefore akin to proof of a mental disease
or defect that prevents a defendant from forming the culpable mental state required for the
offense under consideration. Tennessee’s pattern jury instruction on intoxication includes
the following:
Intoxication, whether voluntary or involuntary, is relevant to the issue
of the essential element of the defendant’s culpable mental state.
In this case, the state must prove beyond a reasonable doubt the
required culpable mental state of the defendant which is [insert definition of
specific mental state required for charged and included offenses].
If you find that the defendant was intoxicated to the extent that [he]
[she] could not have possessed the required culpable mental state, then [he]
[she] cannot be guilty of the offense charged.
T.P.I.–Crim. 40.02 (2009) (footnotes omitted).
Of course,
14
Defense counsel did not request a jury instruction on voluntary intoxication and did not argue this
theory of defense to the jury.
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[t]he general principle in criminal cases is that there is a duty upon the
trial judge to give a complete charge of the law applicable to the facts of the
case and the defendant 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.
State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975) (citing Poe v. State, 370 S.W.2d 488
(Tenn. 1963)). See also State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000).15 However,
[p]roof of intoxication alone is not a defense to a charge of committing a
specific intent crime nor does it entitle an accused to jury instructions . . . ;
there must be evidence that the intoxication deprived the accused of the mental
capacity to form specific intent.16 . . . The determinative question is not
whether the accused was intoxicated, but what was his mental capacity.
Harrell v. State, 593 S.W.2d 664, 672 (Tenn. Crim. App. 1979) (footnote added) (citing
Lester v. State, 370 S.W.2d 405 (Tenn. 1963); Thomas v. State, 301 S.W.2d 358 (Tenn.
1957); Walden v. State, 156 S.W.2d 385 (Tenn. 1941); Simpson v. State, 437 S.W.2d 538
(Tenn. Crim. App. 1968)).
The only proof in the instant case concerning Defendant’s intoxication came from
Cornelius, Aja Brown, and Defendant’s statement to the police. Cornelius testified that, on
the afternoon of the crimes, he and Defendant smoked “weed” and drank “a little liquor.”
Aja Brown was of the opinion that Defendant appeared “drunk” when she saw him at the
store that evening several hours before the shootings. Defendant told the police that he and
Cornelius had consumed liquor that afternoon and also intimated that he had smoked some
“weed.”
None of this evidence demonstrated that Defendant’s alleged intoxication was such
that, hours later, it deprived him of the mental capacity to form the culpable mental state
15
Where a trial court gives an allegedly incomplete jury charge to which the defense does not object,
we consider the issue waived and will review the omitted instruction for plain error only. State v. Bledsoe,
226 S.W.3d 349, 353 (Tenn. 2007).
16
Since Harrell, this Court has recognized that our legislature has “abandoned the ‘confusing
distinction between general and specific intent.’” State v. Mann, 959 S.W.2d 503, 522 (Tenn. 1997) (quoting
Tenn. Code Ann. § 39-11-301 sentencing comm’n cmts. (1991)). Thus, the current statute regarding proof
of intoxication for defense purposes refers to “culpable mental state.” Tenn. Code Ann. § 39-11-503(a). The
point remains that a jury instruction about a defendant’s alleged voluntary intoxication at the time he or she
committed the offense under consideration is required only if the intoxication was such that it compromised
the defendant’s capacity for whatever culpable mental state the offense required.
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required for premeditated murder or attempted premeditated murder. See, e.g., State v.
Smith, No. M2001-01740-CCA-R3-CD, 2003 WL 22116629, at *18 (Tenn. Crim. App.
Sept. 11, 2003) (rejecting claim of plain error for trial court’s failure to instruct on voluntary
intoxication where defendant was charged with second degree murder because, while the
proof established that the defendant had an elevated blood alcohol content when tested after
the shooting, “no expert testified as to how this may have impaired the Defendant’s ability
to act knowingly” and no expert “testified that alcohol levels like those found in the
Defendant would affect his ability to act knowingly”); State v. Wallace, No. W2001-02894-
CCA-R3-CD, 2003 WL 169045, at *5 (Tenn. Crim. App. Jan. 22, 2003) (rejecting claim that
trial court committed plain error in failing to instruct the jury on voluntary intoxication in
trial for especially aggravated robbery and attempted premeditated murder in part because,
although the proof “arguably raised the issue of voluntary intoxication,” there was no proof
that the defendant “was incapable of forming the specific intent required for” the crimes
charged). Moreover, Defendant’s statement to the police reflects that Defendant had clear
memories about his actions both preceding and during the shootings, belying any claim that
he was so intoxicated as to be unable to form the culpable mens rea of intent and
premeditation. See, e.g., King v. State, No. 03C01-9601-CR-00024, 1997 WL 416389, at
*13 (Tenn. Crim. App. July 14, 1997), aff’d 989 S.W.2d 319 (Tenn. 1999). Accordingly, we
hold that Defendant has failed to demonstrate that the trial court breached a clear and
unequivocal rule of law when it failed to instruct the jury about Defendant’s alleged
voluntary intoxication. Defendant is not entitled to relief on this issue.
E. Jury Instruction on Duress 17
Similarly to complaining about the trial court’s failure to instruct the jury on voluntary
intoxication, Defendant argues that the trial court committed reversible error by failing to
instruct the jury about the general defense of duress.18 Our criminal code provides that
[d]uress is a defense to prosecution where the person or a third person
is threatened with harm which is present, imminent, impending and of such a
nature to induce a well-grounded apprehension of death or serious bodily
injury if the act is not done. The threatened harm must be continuous
17
The Court of Criminal Appeals construed defense counsel’s argument to the trial court at the
original motion for new trial hearing to include an allegation that the trial court erred by failing to charge the
jury on duress. The intermediate appellate court therefore addressed this issue. Our review of the motion
for new trial hearing leads us to disagree that defense counsel raised this issue during argument. Indeed, in
his brief to the Court of Criminal Appeals, Defendant acknowledged that he did not raise this issue until the
amended motion for new trial (filed in May 2006) and asked for review under plain error. We therefore
address this issue only under plain error review. See Bledsoe, 226 S.W.3d at 353.
18
Defense counsel did not request a jury instruction on duress.
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throughout the time the act is being committed, and must be one from which
the person cannot withdraw in safety. Further, the desirability and urgency of
avoiding the harm must clearly outweigh, according to ordinary standards of
reasonableness, the harm sought to be prevented by the law proscribing the
conduct.
Tenn. Code Ann. § 39-11-504(a) (1997). The Sentencing Commission Comments to this
provision add that “[t]his rare defense is present when a defendant commits an offense
because another person threatens death or serious injury if the offense is not committed” and
that “[t]he standard sufficient to excuse criminal conduct is that the compulsion must be
immediate and imminently present and of such nature to produce a well-grounded fear of
death or serious bodily harm. In addition, there must be no reasonable opportunity to escape
the compulsion without committing an offense.” Id. sentencing comm’n cmts.; see also State
v. Robinson, 622 S.W.2d 62, 73 (Tenn. Crim. App. 1981).
A criminal defendant is entitled to have the jury instructed on the defense of duress
only if it is “fairly raised by the proof.” Tenn. Code Ann. § 39-11-203(c) (1997). Because
duress is a general rather than an affirmative defense, a criminal defendant need not establish
the elements of duress by a preponderance of the evidence in order to merit a jury instruction.
Bledsoe, 226 S.W.3d at 355. “Rather, if admissible evidence fairly raises its applicability,
the trial court is required to submit the defense to the jury.” Id.
We have previously recognized that the defense of duress encompasses four elements.
Id. at 357 n.7. In the context of this case, these four elements are (1) that Chris threatened
to shoot Defendant if he did not assist in the attack upon the victims; (2) that Chris’s threat
to shoot Defendant continued throughout the time that the men gathered and walked over to
the targeted apartment and throughout the attack; (3) that Defendant was unable to withdraw
safely from the journey to the targeted apartment and the attack on the victims; and (4) that
Defendant’s urgent desire to avoid being shot by Chris clearly outweighed, by ordinary
standards of reasonableness, the harm Defendant inflicted by assisting in the shooting. See
id.; see also Tenn. Code Ann. § 39-11-504(a).
Defendant contends that the numerous violent altercations he had with Chris prior to
the instant crimes were sufficient to “fairly raise” the defense of duress. We disagree. There
is no proof in the record that Chris threatened Defendant in order to achieve his assistance
in the attack upon the victims. Also, although Cornelius was standing with Chris at the door
of the apartment immediately before the shooting began, he was able to run away from the
scene after knocking on the door. According to Cornelius, Defendant was behind him while
he knocked on the door and was therefore in an even better situation from which to withdraw
safely from Chris. At least two of the four elements necessary to fairly raise the defense of
duress were therefore not present in the proof at trial, and the trial court committed no breach
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of a clear and unequivocal rule of law when it did not instruct the jury on duress. Defendant
is not entitled to relief on this issue.
CONCLUSION
Defendant’s attempts to amend his motion for new trial after the trial court entered an
order denying a new trial were a nullity. Accordingly, the only issues that were not waived
for appellate purposes were those designated in Defendant’s motion for new trial filed on
February 22, 2005. Defendant is not entitled to relief on the basis of any of those issues.
Having also reviewed for plain error the remaining issues, we hold that Defendant is not
entitled to plain error relief on the basis of the trial court’s erroneous admission of Sabrina
Hatcher’s statement to the police, the trial court’s erroneous instruction on criminal
responsibility, or the trial court’s failure to instruct the jury on voluntary intoxication and
duress. Accordingly, we affirm the judgment of the Court of Criminal Appeals. It appearing
that Defendant is indigent, the costs of this cause are taxed to the State of Tennessee.
________________________________
CORNELIA A. CLARK, JUSTICE
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