IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
MAY SESSION, 1997 FILED
November 3, 1997
Cecil W. Crowson
STATE OF TENNESSEE, )
Appellate Court Clerk
) No. 01C01-9607-CC-00292
Appellee )
) OVERTON COUNTY
vs. )
) Hon. LEON BURNS, JR., Judge
MICHAEL BUELL, )
) (Voluntary Manslaughter)
Appellant )
For the Appellant: For the Appellee:
GREGORY D. SMITH CHARLES W. BURSON
Contract Appellate Defender Attorney General and Reporter
One Public Square, Ste. 321
Clarksville, TN 37040 GEORGIA BLYTHE FELNER
Assistant Attorney General
Criminal Justice Division
ART JOHNSON 450 James Robertson Parkway
Asst. Public Defender Nashville, TN 37243-0493
215 Reagan Street
Cookeville, TN 38501
WILLIAM EDWARD GIBSON
District Attorney General
BEN FANN
Asst. District Attorney General
145 South Jefferson Avenue
Cookeville, TN 38501
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Michael Buell, was convicted by a jury of voluntary
manslaughter. The trial court imposed a sentence of four years to be served in
the Department of Correction. On appeal, the appellant raises two issues for our
review. First, he contends that the trial court failed to instruct the jury on
accident, self-defense, and defense of a habitation. Second, the appellant
contends that the trial court erred in failing to grant an alternate sentence.
After a review of the record, we affirm.
I. Background
At trial, the proof developed that the appellant, and the victim, Billy
Hensley, lived approximately one quarter mile from each other in the Hilham
community of Overton County. They had been friends for approximately two
years. Additionally, both had minor daughters who were friends and who visited
in each other’s home. On the morning of May 15, 1994, Hensley went to the
appellant's home to pick up his daughter and the appellant's two daughters in
order that they might attend church. After church, the appellant's children visited
at Hensley's home. Around 6:15 p.m., the appellant and his wife drove to
Hensley's residence to collect their two daughters. Upon their arrival, their
daughters, appearing upset, came running to their car. The appellant went into
Hensley’s house where he and the victim talked for about five minutes. After
returning to his car, he then drove home. Within fifteen to twenty minutes after
the appellant arrived home, the victim appeared. They spoke for approximately
three or four minutes and Hensley left. Approximately ten minutes later, Hensley
returned. Again, the appellant spoke with Hensley for about five minutes and,
2
again, Hensley left.1 Hensley returned yet again, this time insisting that the
appellant accompany him to the Hensley residence to talk with Hensley’s
daughter. At the Hensley residence, Hensley questioned his daughter as to
whether their neighbor had attempted to “French kiss” her earlier that day. His
daughter refused to discuss the incident. According to the appellant, Hensley
became aggressive toward his eleven-year-old daughter, attempting to force her
to “French kiss” him.2 The daughter became upset and began to cry. In
response to this behavior, the appellant threatened that if Hensley did not stop,
he would report him to the Department of Human Services. Disgusted, the
appellant walked home, where he informed his wife and his two daughters that
his daughters were never to visit at Hensley's home.
Twenty minutes later, around 8:30 p.m., Hensley again traveled to the
appellant's home. Not wanting to talk further with Hensley, who was intoxicated,
the appellant sent his wife outside to ask Hensley to leave. Hensley insisted
upon talking to the appellant before he left and began cursing the appellant's
wife. While his wife and Hensley continued arguing, the appellant appeared
from a side door of the house and fired one shot into the air from a .30 caliber
lever action rifle.3 Hensley entered his vehicle. The appellant then instructed his
wife to back away, and within twenty seconds of his first shot, again fired the
rifle. The second shot entered Hensley's vehicle through the windshield, striking
Hensley in the chest. This wound was fatal. When paramedics arrived at the
scene, they discovered Hensley seated in his vehicle, slumped over the steering
wheel. A pistol was located under his right hip and a bottle of beer between his
1
Although various testifying witnesses were present when the ongoing conversations
between the appellant and Hensley occurred, the proof is totally void of any evidence which
reflects the nature of the conversations or whether they were amicable or heated exchanges.
2
At trial, Hensley's daughter denied that her father attempted to "French kiss" her.
3
The re cord indic ates that, a t the time the first sho t was fired , it was very da rk outs ide.
The only light in the yard was coming from two open light bulbs on the front porch. The appellant
was not vis ible to eithe r his w ife or H ens ley.
3
legs.4 In his statement to sheriff’s deputies, the appellant stated, “He just kept on
and on so I shot up in the air. That’s all I meant to do, just scare the man. He
wouldn’t leave. . . . When I cocked it again I took it - I just shot, going back, I
just shot straight up in the air and cocked it again and I just going to point it at
him and scare him.”
The appellant was indicted on one count of premeditated first degree
murder. At trial, the appellant denied that he meant to point the rifle at Hensley.
On direct examination, he testified that, after firing the first shot in the air, the
victim had gotten back into his car. “. . . and he started to get back out. And
then when he done that, I levered the gun again and was going to bring it down
to the ground and about right in there somewhere, the gun went off. . . . I didn’t
mean to shoot him . . . ; it just accidentally went off . . . .” From the proof
introduced at trial, the jury found the appellant guilty of voluntary manslaughter.
II. Jury Instructions
The appellant contends that the trial court erred by refusing to instruct the
jury as to the defenses of self-defense, defense of habitation, and accident. At
trial, the appellant requested that the court charge the jury on these defenses.
The court denied the appellant's requests, finding that there was no proof offered
to raise self-defense, defense of habitation, or accident as legitimate defenses in
this case.
Every defendant has the right to have every issue of fact raised by the
evidence and material to his or her defense submitted to the jury on proper
instructions. Tenn. Code Ann. § 39-11-203(c) (1991);Tenn. Code Ann. §39-11-
4
The a utopsy rep ort indicated the appe llant’s blood a lcohol level w as .18 pe rcent.
4
204(d) (1991); see also State v. Jones, 889 S.W.2d 225, 229 (Tenn. Crim.
App.), perm. to appeal denied, (Tenn. 1994). "[T]o determine whether a
statutory defense is fairly raised by the proof so as to require its submission to
the jury, a court must, in effect, consider the evidence in the light most favorable
to the defendant, including drawing all reasonable inferences flowing from that
evidence." State v. Shropshire, 874 S.W.2d 634, 639 (Tenn. Crim. App. 1993).
A. Self-Defense
In order to establish a claim of self-defense, a defendant must show that
the danger of death or serious bodily harm was imminent and impending,
manifested by some words or overt acts at the time clearly indicative of a present
purpose to do injury. Tenn. Code Ann. §39-11-611 (1991). 5 See also State v.
Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993). The evidence in the present
case does not raise an inference requiring an instruction on self-defense. There
is no proof that the victim ever committed an assault against the appellant or that
he intended to harm the appellant or any family member. The appellant testified
that he was not afraid of the victim, in fact, he and the victim were friends.
Although a pistol was found by the victim’s body, it was not unusual for the victim
to have a gun in his car, and there is no proof which even suggests that the
weapon was ever displayed or used in a threatening manner against the
appellant. Furthermore, the appellant explained that he fired the rifle in order to
scare the victim into leaving his property. Thus, there was no error in the trial
court's refusal to give such a charge. See, e.g., State v. Johnson, No. 03C01-
9510-CR-00331 (Tenn. Crim. App. at Knoxville, Sept. 18, 1996).
B. Defense of Home
5
Our current criminal code treats “self-defense” as justification for conduct that otherwise
would co nstitute an offens e. Thus , the actor’s condu ct is “justified” o r though t to be right. See
MODEL PENAL CODE § 3.01.
5
The appellant contends that the trial court erred in failing to instruct the
jury on the defense of habitation. The 1989 CRIMINAL CODE, which was in effect
at the time of this offense, contains no provision which, per se, recognizes the
“defense of a habitation.”6 Our current law, however, provides that
“Any person using force intended or likely to cause death or
serious bodily injury within their own residence is presumed to have
held a reasonable fear of imminent peril or death or serious bodily
injury to self, family or a member of the household when that force
is used against another person, not a member of the family or
household, who unlawfully and forcibly enters or has unlawfully and
forcibly entered the residence, and the person using the force knew
or had reason to believe that an unlawful and forcible entry
occurred.” Tenn. Code Ann. § 39-11-611(b) (emphasis added).
Clearly, this provision which simply extends the defense of self-defense into the
residence with the accompanying presumption is inapplicable because (1) no
evidence of an intent to harm was established and (2) the alleged conduct
occurred outside the appellant’s residence.7 This issue is without merit.
C. Accident
At trial, the appellant maintained that his act of shooting Hensley was an
accident. He contends that the shooting was unintentional and that he was only
attempting to shoot into the ground to scare Hensley. He argues that “[a]
legitimate issue of ‘accident’ was raised and an instruction should have been
given for the jury to consider accidental killing versus voluntary manslaughter.”
As previously stated, the 1989 CRIMINAL CODE codified all defenses available to
prosecution. See Supra note 6. Unless a defense to prosecution is so labeled,
6
In 19 89, o ur leg islatu re ad opte d a ne w crim inal co de, w hich , for th e firs t time , cod ified a ll
defens es availab le to prose cution. State v. Latham, 910 S.W.2d 892, 895 (Tenn. Crim. App.
1995). While it created statutory defenses, the new code expressly abolished all common law
defens es. Ten n. Code Ann. § 39 -11-203 (e)(2)(19 91); see also Latham, 910 S.W .2d at 896 .
Becau se of its om ission in the crimina l code, the "defens e of hab itation," per se, is no longer
recognized as a criminal defense in Tennessee. Tenn. Code Ann. § 39-11-203.
7
W e note tha t our crim inal code recogn izes the de fense o f protection of prope rty. See
Tenn. Code Ann. § 38-2-102, § 39-11-614(a-c). When read in pari m ateria , these two statutes
evinc e a cle ar leg islative inten t that d ead ly forc e is no t perm itted in the d efen se of prop erty.
6
a defense by prescribed statutory language is not a defense. Tenn. Code Ann. §
39-11-203(a). Our criminal code does not recognize the defense of “accident.”
This issue of “accident” is more properly addressed within our criminal
code’s requirement of mental culpability necessary to establish criminal liability.
Accidental is defined as “occurring unexpectedly, unintentionally or by chance.”
The AMERICAN HERITAGE DICTIONAR Y (3d ed. 1992) . When an accused argues
that he is not criminally liable for an offense because it was an accident, he is, in
effect, asserting that he lacked the culpable mental state required for conviction.
Tenn. Code Ann. § 39-11-301(b) (1991). No person may be convicted of an
offense unless the culpable mental state is proven beyond a reasonable doubt.
Tenn. Code Ann. § 39-11-201(a)(2)(1991). Thus, the appellant was free to
argue to the jury that the shooting was an accident, i.e. not intentional, and that,
because the homicide charged required proof that the killing be committed
knowingly or intentionally, he was not guilty. This court, in State v. Phipps, 883
S.W.2d 138, 142 (Tenn. Crim. App. 1994), held:
When the trial judge gives instructions that correctly, fully, and fairly
set forth the applicable law, it is not error to refuse to give a special
requested instruction. We must review the entire charge and only
invalidate it if, when read as a whole, it fails to fairly submit the
legal issues or misleads the jury as to the applicable law.
In the present case, the court fully and accurately instructed the jury on the
elements of first degree murder and on the lesser offenses of second degree
murder, voluntary manslaughter, reckless homicide, and criminally negligent
homicide. These instructions were sufficient to embrace the appellant’s
argument that the homicide was an accident. If the jury had determined that the
appellant's conduct resulted from an accident, then the elements of the crimes
with which the appellant was charged would not have been met, and the jury
would have returned a verdict of "not guilty." See State v. Jordan, No. 01C01-
9311-CC-00419 (Tenn. Crim. App. at Nashville, June 13, 1995), perm. to appeal
denied, concurring in results only, (Tenn. Feb. 5, 1996). This issue is without
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merit.
III. Denial of Alternative Sentence
The appellant also avers that the trial court erred by refusing to consider
an alternative sentencing option. When a defendant challenges the manner of
his sentence, this court must conduct a de novo review with the presumption that
the determination made by the trial court is correct. Tenn. Code Ann. § 40-35-
401(d)(1990). This presumption only applies, however, if the record shows that
the trial court properly considered relevant sentencing principles. State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). Moreover, the burden is upon the defendant
to show that the sentence imposed is improper. Sentencing Commission
Comments, Tenn. Code Ann. § 40-35-401.
In the present case, the trial court denied alternative sentencing based
upon the seriousness of the offense. See Tenn. Code Ann. § 40-35-103 (1990);
Tenn. Code Ann. § 40-35-102(6) (1994 Supp.). See also State v. Bonestel, 871
S.W.2d 163, 167 (Tenn. Crim. App. 1993). In so ruling, the trial court remarked:
Again, when we go to the extent of taking a weapon, firing at
someone, using it in such a way as to cause likelihood of
somebody being killed and say, well, it went off. . . . So people who
are going to do that must pay the consequences it seems to me,
and because of the seriousness of this offense, the life that has
been taken and the nature of it, that I think it would be a proper
sentence to impose Department of Corrections time to be served
on a four year sentence.
A trial court's denial of an alternative sentence based upon the "seriousness of
the offense" will be upheld if there is evidence in the record that indicates that
the circumstances of the offense, as committed, were especially violent,
horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or
exaggerated degree, and the nature of the offense outweighs all factors favoring
8
a sentence other than confinement. State v. Bingham, 910 S.W.2d 448, 454
(Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995) (citations omitted).
The record in this case demonstrates a basis for concluding that the nature of
the offense as committed is especially reprehensible and offensive. The trial
court considered both the nature and circumstances surrounding this offense
and the length of the sentence, four years, in denying an alternative sentence.
Consideration of leniency in both the verdict and the length of the sentence are
proper considerations for finding confinement necessary under Tenn. Code Ann.
§ 40-35-103(1)(B). See State v. Bush, No. 01C01-9605-CC-00220 (Tenn. Crim.
App. at Nashville, June 26, 1997); State v. Black, No. 03C01-9404-CR-00139
(Tenn. Crim. App. at Knoxville, Apr. 6, 1995); State v. Perry, No. 89-133-III
(Tenn. Crim. App. at Nashville, Aug. 29, 1990) (Dwyer, J., concurring and
dissenting).
The presumption of suitability for alternative sentencing has been
overcome by proof to the contrary. Moreover, the appellant has failed to
demonstrate that the trial court's ruling denying an alternative sentence was
improper. Again, the trial court's ruling that confinement is necessary to avoid
depreciating the seriousness of the offense is supported by the record.
Accordingly, the trial court's denial of an alternative sentence is affirmed.
Based upon the foregoing reasons, the judgment of the trial court is
affirmed.
____________________________________
DAVID G. HAYES, Judge
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CONCUR:
______________________________
PAUL G. SUMMERS, Judge
______________________________
JERRY L. SMITH, Judge
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