State of Tennessee v. Anthony Henvey aka Anthony Hervey

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 1, 2014

STATE OF TENNESSEE v. ANTHONY HENVEY aka ANTHONY
HERVEY

Appeal from the Criminal Court for Shelby County
No. 11-05726 W. Mark Ward, Judge

No. W2013-00654-CCA-R3-CD - Filed June 5, 2014

A Shelby County Criminal Court Jury convicted the appellant, Anthony Henvey aka Anthony
Hervey, of attempted second degree murder, a Class B felony, and possession of a weapon
during the commission of a dangerous felony, a Class C felony, and he received an effective
sixteen-year sentence. On appeal, the appellant contends that the evidence is insufficient to
support the attempted murder conviction and that the trial court erroneously instructed the
jury on self-defense. Based upon the record and the parties’ briefs, we conclude that the self-
defense instruction was erroneous but that the error was harmless. Therefore, the appellant’s
convictions are affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which JERRY L. S MITH and
D. K ELLY T HOMAS, J R., JJ., joined.

Tony N. Brayton (on appeal) and Brent Walker (at trial), Memphis, Tennessee, for the
appellant, Anthony Henvey aka Anthony Hervey.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Senior Counsel;
Amy P. Weirich, District Attorney General; and Megan Fowler, Assistant District Attorney
General, for the appellee, State of Tennessee.

OPINION

I. Factual Background
 At trial, Officer Joe Criner of the Memphis Police Department (MPD) testified that
on the afternoon of May 28, 2011, he was dispatched to a home on Maumee Street. When
he arrived, the victim, Andrew Gillard, came out of the home and into the yard, where he fell.
Officer Criner saw that the victim had a gunshot wound to the stomach, and the victim said
that he had been shot by the appellant. The victim described the appellant, and Officer
Criner relayed the description over the police radio. Later, but before paramedics transported
the victim to the hospital, the appellant was brought to the scene in a patrol car. He did not
have a gun but told Officer Criner that he shot the victim.

On cross-examination, Officer Criner testified that he and his partner were the first
officers on the scene. The victim may have been outside when they arrived.

MPD Officer Vornell Montgomery, Officer Criner’s partner, testified that when he
and Officer Criner arrived at the home on Maumee Street, he knocked on the front door. The
victim opened the door and said, “‘He shot me.’” The victim fell into Officer Montgomery’s
arms, and Officer Montgomery noticed that the victim had a gunshot wound to his mid-
section. Officer Montgomery laid the victim on the ground and left the area to search for the
suspect, who had been described as wearing a red shirt. Officer Montgomery learned that
officers had arrested the suspect down the street and went to that location. The suspect, who
was the appellant, was lying between a car and the street curb, and officers were getting him
off the ground. Although the appellant was wearing a white t-shirt, a red shirt was
underneath him. He told Officer Montgomery that he shot the victim and that he would lead
the officers to the gun. The appellant took the officers to a yard with very tall grass, and the
officers searched the yard but never found the weapon. They put the appellant into the back
of a patrol car and returned him to the home on Maumee Street.

Officer David Smith of the MPD testified that he went to the crime scene on Maumee
Street to take photographs and collect evidence. He found a lithium battery for a cellular
telephone on the ground between two houses, and the battery appeared to have a bullet hole
in it. He also found a black Cricket cellular telephone and the back of a cellular telephone,
both of which appeared to have a bullet hole in them. Officer Smith went to a second crime
scene on Chickamauga Avenue, which was about five houses away from the first crime
scene, and found a red shirt and a hat. He went to a third crime scene on Tahoe Road to look
for a gun. He used a metal detector to search for the gun but could not find it due to the tall
grass.

On cross-examination, Officer Smith testified that he was not present when officers
arrested the appellant on Chickamauga Avenue. He acknowledged that he did not find any
evidence at the victim’s address on Maumee Street. He never found any bullet casings or a

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walking stick.

Sergeant Byron Braxton of the MPD testified that he went to the scene on Maumee
Street to investigate the shooting. When he arrived, the suspect was in the back of a patrol
car. Sergeant Braxton said that the suspect was “sweating profusely” and “really excited”
and that he decided not to talk with the suspect that day “due to the state of agitation.”
Sergeant Braxton spoke with Sergeant Frank Hannah, who had gone to the hospital to speak
with the victim. The victim told Sergeant Hannah that “Wayne shot him.” Sergeant Braxton
said that the suspect’s name was Anthony Dewayne Hervey and that “[s]o we [were] more
than likely talking about the same person.” Sergeant Braxton had the suspect transported to
jail and placed on a “48 hour hold.” On cross-examination, Sergeant Braxton testified that
he did not see a stick at the crime scene.

Tony Stevenson testified through an interpreter for the deaf that he was the victim’s
friend, that he lived across the street from the victim, and that the victim looked out for him.
He said that he and the appellant had mutual friends and that he had seen the appellant
“around.” In May 2011, Stevenson and the appellant were in a dispute over $60 that
Stevenson owed the appellant for crack cocaine. Stevenson said that he asked the appellant
to wait until the first of the month for the money but that the appellant “kept coming on.”
One time, the appellant pointed a knife at Stevenson’s face, and Stevenson thought the
appellant was going to cut him. Stevenson said he was afraid of the appellant because he
thought the appellant might try to kill him and that he told the victim about the debt and the
knife incident. On May 28, 2011, Stevenson was not home. He had left his home with the
lights turned off and the front door closed and locked. He said that when he returned home,
the door was “wide open” and the lights were on.

On cross-examination, Stevenson testified that although he was deaf, he could “talk
some.” He spoke with the victim about the appellant but denied telling the victim to “go get”
the appellant. He acknowledged that the appellant seemed angry with him but that the
appellant never physically harmed him. He also acknowledged that he smoked crack cocaine
and that his house was a gathering place for people, including the victim, to smoke it.

Sergeant Frank Hannah of the MPD testified that on May 28, 2011, he went to The
Med to speak with the victim. The victim told Sergeant Hannah that he had a confrontation
with a man he knew as “Wayne” about a drug deal between Wayne and the victim’s friend,
“Dumb-Dumb.” The victim claimed Wayne shot him without any provocation or notice.
Sergeant Hannah telephoned Sergeant Braxton, who advised him that the police had detained
a suspect named Anthony Dewayne Hervey. Sergeant Hannah returned to the police
department, ran the name through the “W.A.S.P. system,” and located information about the
appellant and a photograph. Sergeant Hannah created a six-photograph array, returned to the

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hospital, and showed it to the victim. The victim pointed to the appellant’s photograph. The
victim was in intensive care for 30 to 40 days and then had to recuperate at home, so
Sergeant Hannah did not take his statement until July 2011. The victim’s statement was
consistent with what he had told Sergeant Hannah in the hospital.

Sergeant Hannah testified that on May 30, 2011, he spoke with the appellant. The
appellant waived his Miranda rights and gave a statement. In the statement, the appellant
said he was the shooter and did not regret shooting the victim. The appellant claimed that
he was not a drug dealer but that he sold cocaine to a man he knew as “Dumb-Dumb.” The
man was nicknamed Dumb-Dumb because he was deaf and dumb. The appellant told
Sergeant Hannah that the day before the shooting, he had threatened to cut Dumb-Dumb’s
ears and throat with a drywall cutter. Afterward, the victim telephoned the appellant, told
him to leave Dumb-Dumb alone, and told him that they would try to come up with some kind
of arrangement. The victim asked the appellant to come to his house so they could talk about
the situation. The appellant went to the victim’s home, and the victim was on the porch.
Their discussion became heated. The appellant called the victim names and threatened him,
and the victim hit the appellant with a stick he was carving. The appellant left the porch and
threw two bricks at the victim. The first brick missed, but the second hit the victim. The
victim told the appellant that “‘Dumb-Dumb don’t owe [you] shit,’” and the appellant
answered, “‘[N]o Dumb-Dumb don’t owe me shit, you owe me now.’”

Sergeant Hannah testified that according to the appellant’s statement, the appellant
removed a handgun from his waistband, wrapped a towel around it, and went to Dumb-
Dumb’s house. He kicked open the door, looking for Dumb-Dumb, but Dumb-Dumb was
not home, so the appellant walked toward the appellant’s cousin’s house, which was
“diagonally across the street.” The appellant said he was going to get his tools from his
cousin’s house because he “knew there was gonna be trouble down the street.” The victim
saw the appellant and threatened to call the police, and the appellant told him to “go ahead.”
The victim “came at” the appellant with the stick, and the appellant shot at the victim. At
first, the appellant thought he had missed the victim because the victim was about seven feet
away. The victim turned around and came at the appellant a second time, and the appellant
shot him again. After the fifth or sixth shot, the victim grabbed his stomach. The appellant
told Sergeant Hannah, “‘I don’t know how many times I shot, because he kept coming at
me.’”

Sergeant Hannah testified that the appellant said he ran behind a vacant house after
the shooting and threw the gun and towel in a large grassy area. The appellant hid inside a
car, but the car was too hot, so he got out of the car, took off his hat and shirt, and lay down
in the gutter between the curb and the car, where the police found him. Sergeant Hannah
said that the appellant never claimed he was afraid of the victim and that after the appellant

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gave the statement, the appellant “made it real clear that he hoped that Mr. Gillard dies and
if he didn’t, if he gets the chance he is going to shoot him again and make sure he kills him
next time.” Sergeant Hannah said the appellant shot the victim for “sticking his nose in his
business and his business dealings with Dumb-Dumb.” Sergeant Hannah stated that the
appellant may have wrapped the gun in the towel to conceal it, muffle it, and/or catch the
casings so that the police could not collect them as evidence.

On cross-examination, defense counsel showed Sergeant Hannah the appellant’s
statement. Sergeant Hannah acknowledged that the appellant’s comment about shooting the
victim for sticking his nose in the appellant’s business was not in it. Sergeant Hannah stated
that some of the appellant’s comments were not included in the statement because “he said
stuff in the pre-interview that he didn’t repeat in the oral statement.” When Sergeant Hannah
spoke with the victim, the victim admitting hitting the appellant with the stick. Sergeant
Hannah said that hitting someone with a stick could be a crime but that the victim was not
charged in this case.

On redirect examination, Sergeant Hannah testified that the appellant was nice and
very calm when the interview began but that the appellant became angry and agitated when
the appellant spoke about the victim. Sergeant Hannah acknowledged that according to the
appellant, the victim ran, but the appellant kept shooting at him. When the victim could not
get back to the victim’s house, the appellant shot him again. On recross-examination,
Sergeant Hannah acknowledged that the appellant also said in the statement that he was on
his way to his cousin’s house before the shooting occurred. Sergeant Hannah acknowledged
that the shooting did not take place at the victim’s home.

The victim acknowledged that he had a prior conviction for burglary and served time
in prison. He testified that he knew Tony Stevenson as “Dumb-Dumb” and the appellant as
“Wayne.” Stevenson and the appellant had been involved in drug dealings, and there was
tension between them. The victim telephoned the appellant about the situation, and the
appellant said he would come to the victim’s house. The appellant first came to the victim’s
house about 7:00 a.m. on the day of the shooting. The appellant returned about 10:00 or
11:00 a.m. while the victim was whittling a walking stick on his front porch. The victim said
that he and the appellant began talking about Stevenson’s debt and that “all of a sudden, [the
appellant’s] persona, just changed.” The appellant began to sweat and curse, and the victim
got upset. The appellant called the victim a “bitch” and told the victim to stay out of his
business. The victim stood up and hit the appellant with the walking stick one time because
the appellant had disrespected him. The appellant ran, and the victim chased him for twenty
or thirty feet. The appellant stopped, picked up two bricks, and threw them at the victim but
missed. The appellant told the victim, “I won’t miss next time.” The victim turned around
and walked home.

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 The victim testified that later that day, he went to a friend’s house on Tahoe Road.
As he was walking home, he saw the appellant kick in Stevenson’s front door. The victim
yelled at the appellant and told the appellant that he was calling the police. The appellant
came out of the house, walked around the mailbox, and shot at the victim three times. The
victim ran between two houses and began calling 911 with his cellular telephone. The
appellant shot at him again, shooting the phone out of his hand. The victim was about fifteen
feet from the appellant and threw his walking stick at the appellant, hitting the appellant’s
back. The appellant shot at the victim. The victim said that the appellant shot at him a total
of nine or ten times and that he was hit three times, twice in the stomach and once in the
hand.

The victim testified that after the shooting, he returned home and told his fiancé to call
the police. The victim was transported to The Med, had surgery, and spoke with Sergeant
Hannah in intensive care. Sergeant Hannah showed him a photograph array, and the victim
picked out the appellant’s photo. The victim had two surgeries, one to repair his stomach and
remove his spleen and one for internal bleeding, and spent 30 days in the hospital. He said
that he could no longer stand for long periods of time, that his balance was “off,” and that
he stumbled when he walked. He said that as the appellant was shooting at him, the appellant
said, “You won’t die. Why won’t you die?”

On cross-examination, the victim acknowledged that during his encounter with the
appellant on the front porch, he may have hit the appellant with the stick more than one time.
He also acknowledged that he hit the appellant because he was angry, not because he was
afraid. At the time of the shooting, the victim weighed about 225 pounds. He said that he
was right-handed but that he was holding his cellular telephone in his left hand when the
appellant shot at him. One of the bullets hit the victim’s left hand and cell phone. The victim
was holding the walking stick, which was about six feet long, in his right hand. He denied
that he ran toward the appellant or that he was going to hit the appellant with the stick. He
said he did not know if he had been shot when he threw the stick at the appellant. He said
that he and Stevenson were friends, and he acknowledged that he refused to speak to defense
counsel’s investigator. At the conclusion of the victim’s testimony, the State rested its case-
in-chief.

Melinda Smith, the appellant’s cousin, testified for him that at the time of the
shooting, her daughter and granddaughter lived in a house on Maumee Street. On the day
of the shooting, Smith drove to the house to pick them up for a movie. She said that when
she arrived, she saw “a lot of commotion going on” and heard people saying, “‘Wayne Logan
did it, Wayne Logan did it.’” The appellant was in the back of a patrol car and told her,
“‘Cuz, I am okay.’” A few feet from the mailbox, Smith saw a stick on the ground. She
notified a police officer about the stick.

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 The appellant testified that on May 28, 2011, he did not live on Maumee Street but
was in the area to mow yards. The victim telephoned the appellant and said he needed to
speak with the appellant but did not say what he wanted to discuss. The appellant walked
to the victim’s house. He had an unloaded gun and a loaded clip in his waistband. He said
he had the gun because he had been shot at previously. He usually kept the gun in his car but
did not want to leave the gun in the car for someone to steal. When the appellant got to the
victim’s home, the victim “came from around the side of the house” and asked if the
appellant had been to Tony Stevenson’s home. The appellant said yes and, “[W]hat do you
have to do with it?” The victim hit the appellant three times with a stick, striking the
appellant’s arm, wrist, and shoulder and leaving a knot on his wrist. The appellant described
the stick as “a handmade stick that he had been carving on. It was thick and it was long.”
The appellant ran, and the victim pursued him. The appellant picked up two bricks and threw
them at the victim. One brick missed, but the second brick may have hit the victim’s leg.
The appellant said he was “furious” but did not pull the gun out of his waistband. He said
he wrapped a towel around his wrist.

The appellant testified that he loaded his gun and went to Stevenson’s house, which
was directly across the street from the victim’s house, to confront Stevenson about involving
the victim in their dispute. He kicked in the door, but Stevenson was not home, so he walked
back across the street “at an angle” to his cousin’s house. The appellant had the gun in his
hand but had no intention of using it on Stevenson or anyone else.

The appellant testified that when he got to his cousin’s house, he saw the victim. The
victim told him that “you kicked his door in and I am going to call the police.” The appellant
told the victim to go ahead. He said that the victim came close enough to hit him with the
stick and that the victim hit his back with the stick while his back was turned. The appellant
was holding the gun down and had not pointed it at the victim.

The appellant testified that when he turned around, the victim was holding up the stick
again, so he shot the victim. The appellant said he did not see a cellular telephone in the
victim’s hand and was in fear for his life because the victim was “a big guy.” At that time,
the appellant was five feet, eleven inches tall and weighed 150 to 155 pounds. He said that
he fired the gun three or four times, that he did not know he had shot the victim, and that the
victim did not fall but retreated. The appellant did not chase the victim. However, the victim
returned with the stick raised, so the appellant shot at him. The victim told the appellant he
had been shot and held his stomach. The victim went toward his house, and the appellant
went to Tahoe Road. He threw the gun away and took off his shirt because he was sweating
profusely. He then sat on the curb to wait for the police. When the police arrived, he turned
himself in. The appellant told the officers what had happened and showed them exactly
where he threw the gun. The police took him to Maumee Street, and he tried to show them

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the location of the walking stick. Defense counsel asked the appellant if he intentionally
tried to kill the victim, and he said no.

On cross-examination, the appellant acknowledged that when he first went to the
victim’s house, he had no idea what the victim wanted to discuss. He also acknowledged that
he did not tell Sergeant Hannah that the victim hit his wrist, causing it to swell, or that his
gun was unloaded. He said he did not remember telling the victim that “you owe me now.”
He acknowledged that he was mad at Stevenson when he went to Stevenson’s home and that
Stevenson had not invited him there. After the appellant shot at the victim, the victim ran
away. However, the victim “turned around and came back at” the appellant. The appellant
acknowledged that he did not have a license to carry the gun, a nine millimeter
semiautomatic, and that he fired at the victim until the clip was empty. He said he did so
because he was afraid for his life and that he told the officers he shot the victim because he
was scared. Prior to firing his gun, he wrapped the towel around his wrist; the gun was in
his hand.

The appellant denied selling crack cocaine to Stevenson. He said he gave the drug to
Stevenson but loaned Stevenson money. He acknowledged initialing every page of his
statement and signing the statement. He said, though, that Sergeant Hannah “said some
things in here that wasn’t on that paper” and that Sergeant Hannah paraphrased what he told
the officer. He said that he was upset and confused when he gave his statement, that he may
have referred to the victim as a “shyster” in the statement, and that he may have cursed in the
statement. He acknowledged that he used to live in California and said that he was convicted
in that state of robbery or attempted robbery.

Greg Flint testified on rebuttal that he was a criminal investigator for the Shelby
County District Attorney General’s Office, that he used to work as a Collierville police
officer, and that he had training and experience with handguns. He stated that in order for
a semiautomatic handgun to fire, the clip had to be inserted into the gun, and the shooter had
to pull back and release the slide. On cross-examination, Flint testified that it was possible
the gun could fire one round without the clip being in the gun.

At the conclusion of the appellant’s testimony, the jury convicted him as charged of
attempted second degree murder, a Class B felony, and possession of a weapon during the
commission of a dangerous felony, a Class C felony. After a sentencing hearing, the trial
court sentenced him as a Range I, violent offender to ten years for the attempted murder
conviction and as a Range I, standard offender to six years for the possession of a weapon
conviction. The trial court ordered that the appellant serve the sentences consecutively for
a total effective sentence of sixteen years.

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 II. Analysis

A. Sufficiency of the Evidence

The appellant contends that the evidence is insufficient to support his conviction for
attempted second degree murder, arguing that the victim instigated the shooting by hitting
him with the walking stick, that the shooting was the result of a quarrel and combat, and that
he only intended to stop the victim from “continuing to beat him” with the stick. In support
of his argument, the appellant claims that when he realized the victim had been wounded and
was no longer a threat to him, he stopped firing his weapon. He also asserts that, at most, he
is guilty of attempted voluntary manslaughter. The State argues that the evidence is
sufficient to support the conviction. We agree with the State.

When an appellant challenges the sufficiency of the convicting evidence, the standard
for review by an appellate court is “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate view of the evidence
and all reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and
the weight and value to be afforded the evidence, as well as all factual issues raised by the
evidence, are resolved by the trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
This court will not reweigh or reevaluate the evidence, nor will this court substitute its
inferences drawn from the circumstantial evidence for those inferences drawn by the jury.
Id. Because a jury conviction removes the presumption of innocence with which a defendant
is initially cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant
has the burden of demonstrating to this court that the evidence is insufficient. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

Second degree murder is the knowing killing of another. Tenn. Code Ann. §
39-13-210(a)(1). A person acts knowingly with respect to a result of the person’s conduct
when the person is aware that the conduct is reasonably certain to cause the result. Tenn.
Code Ann. § 39-11-106(a)(20). Criminal attempt requires that one act “with the kind of
culpability otherwise required for the offense . . . [and] with intent to cause a result that is an
element of the offense, and believes the conduct will cause the result without further conduct
on the person’s part.” Tenn. Code Ann. § 39-12-101(a)(2).

The appellant is claiming that he acted in self-defense. Tennessee Code Annotated
section 39-11-611(b)(2) provides that

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 Notwithstanding § 39-17-1322,[1] a person who is not engaged
in unlawful activity and is in a place where the person has a
right to be has no duty to retreat before threatening or using
force intended or likely to cause death or serious bodily injury,
if:

(A) The person has a reasonable belief that
there is an imminent danger of death or serious
bodily injury;

(B) The danger creating the belief of
imminent death or serious bodily injury is real, or
honestly believed to be real at the time; and

(C) The belief of danger is founded upon
reasonable grounds.

Self-defense is a fact question for the jury. State v. Clifton, 880 S.W.2d 737, 743 (Tenn.
Crim. App. 1994); State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993). When a
defendant relies upon a theory of self-defense, it is the State’s burden to show that the
defendant did not act in self-defense. State v. Sims, 45 S.W.3d 1, 10 (Tenn. 2001).

Taken in the light most favorable to the State, the evidence shows that on May 28,
2011, the appellant and the victim got into an altercation on the victim’s porch and that the
victim struck the appellant with the walking stick. The appellant ran away from the victim,
went to Tony Stevenson’s home, and kicked in the front door to confront Stevenson.
Stevenson was not there, so the appellant walked to his cousin’s house. The victim, seeing
that the appellant had kicked in Stevenson’s door, told the appellant that he was calling the
police. The appellant wrapped a towel around his gun and began shooting at the victim,
shooting the cellular telephone out of the victim’s hand. The appellant fired the gun nine or
ten times, striking the victim once in the hand and twice in the stomach.

Although the appellant claimed at trial that he shot the victim in self-defense, the
appellant never claimed before trial that he believed he was in imminent danger of death or
serious bodily injury. To the contrary, the appellant expressed to Sergeant Hannah that he

1
Tennessee Code Annotated section 39-17-1322 provides, “A person shall not be charged with or
convicted of a violation under this part if the person possessed, displayed or employed a handgun in
justifiable self-defense or in justifiable defense of another during the commission of a crime in which
that person or the other person defended was a victim.

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was furious with the victim, that he wanted the victim to die for interfering in his business
with Stevenson, and that, if the victim did not die, he was going to shoot him again and kill
him next time. The victim testified that while the appellant was shooting him, the appellant
said, “You won’t die. Why won’t you die?” Therefore, we conclude that the evidence is
more than sufficient to support the appellant’s conviction for attempted second degree
murder.

B. Self-Defense Instruction

Next, the appellant claims that the trial court’s self-defense jury instruction was
erroneous. Specifically, the appellant contends that the trial court should not have instructed
the jury that he had been convicted of a felony, i.e., robbery or attempted robbery, in
California; that the trial court should not have instructed the jury on robbery in California;
and that the trial court should not have instructed the jury on federal laws. The appellant
contends that the trial court’s instructions were an incomplete statement of the law and
constituted an improper comment on the evidence. The State argues that the trial court
properly instructed the jury and that, in any event, the trial court’s error was harmless. We
conclude that the instruction was erroneous but that the error was harmless.

On the morning of trial, the prosecutor advised the trial court that the appellant had
a prior robbery conviction in California for which “he did eight months on a three year
sentence” and that “if he claims self defense, I will inquire about his robbery conviction . .
. due to the fact that he would be unlawfully possessing a handgun.” The trial court ruled
that the State could not impeach the appellant with the conviction pursuant to Rule 609,
Tennessee Rules of Evidence, because it was more than ten years old but stated that “I could
also see if he gets on the witness stand and says, self-defense, it just makes it relevant to the
case if he’s a convicted felon that’s carrying a weapon.”

After the appellant announced that he was going to testify, the prosecutor reminded
the trial court that “if he does raise self-defense, then I can question him about that, due to
the fact that he has to be acting lawfully.” The appellant interjected, “I haven’t been
convicted of a felony. . . . I pled to a lesser offense.” Defense counsel advised the court that
counsel had not seen a certified copy of the conviction, and the trial court asked the
prosecutor if she had a certified copy. The prosecutor answered no but said that she was
trying to obtain one and that her investigator could testify that “he has spoken to people that
we are getting the certified copy from that have, in fact, verified that Mr. Hervey was
convicted of robbery in 1995 and he was sentenced to three years.” The appellant stated, “I
committed a robbery, we’ll put it at that, that’s what it is, or whatever.” The prosecutor
stated that a National Crime Information Center (NCIC) report confirmed the conviction.
Defense counsel refused to stipulate to any prior conviction because the appellant “[was] not

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certain,” and the trial court noted that the investigator’s testimony would be hearsay. The
trial court then stated as follows:

And unfortunately the law says that he has to be acting lawfully
[to claim self-defense] and I am assuming that the proof is going
to come out that he was carrying some kind of handgun, when
he was a convicted felon.

....

[T]he state has a right to try to prove that he is a convicted felon.

....

I said it can’t be used for 609, but there are numerous criminal
offenses that involve felons carrying weapons.

....

And I would say that in this case the state has a good faith belief
that he is a convicted felon and they [ought] to be able to cross-
examine him about his convictions in California, that he now,
miraculously claims he has no clue what charge he pled to, or
went to prison for, for six, or seven months.

....

I would say with N. C. I. C. reports and whatever else she has
got and since this case went to trial with a notice of
impeachment it listed in that notice of impeachment the . . .
robbery out of California and now, all of a sudden, nobody
knowing anything about it, you know, whatever, I just have to
take it as it is.

The trial court took a break. When the parties returned to the courtroom, the trial
court asked the prosecutor what evidence she had to prove the prior conviction. The
prosecutor said she had the NCIC report, which showed the appellant’s social security
number, his conviction for robbery or attempted robbery, and his three-year sentence. The
trial court allowed the prosecutor to voir dire the appellant, and he acknowledged that the
social security number was his and that he pled guilty to attempted robbery. He said he did

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not know attempted robbery was a felony. The trial court ruled that the State could ask the
appellant on cross-examination if he had ever been convicted in California of robbery or
attempted robbery but advised the State that “you’re stuck with whatever his answer is.” The
State asked the court, “[I]f he continues in the vein of ‘I don’t know, I don’t remember, or
no’, will I be given leave to try to continue to get the certified copy of the conviction?” The
trial court agreed to recess the trial, if necessary, until the next day in order for the State to
obtain the certified copy. The trial court then announced the following regarding the self-
defense jury instruction:

Well, I’ve doctored the pattern. The pattern doesn’t say
anything about this issue that we have before us. All the pattern
jury instruction says is that you have to [be not] acting
unlawfully. Well, it doesn’t say anything about what the jury is
going to do with those . . . words. It’s just kind of subtle and it
won’t make any sense.

Regardless of whether we’ve got felonies here, this is all
an academic exercise because it is a misdemeanor in violation
of State law to carry a weapon in an attempt to go armed, unless
you have a permit.

It is also a violation of Federal law to possess [a] gun that
is not registered to you.

....

[A]nd I don’t know what the proof is and what he is going to say
on cross-examination. I don’t know if any of that stuff applies.
For all I know he’s got a permit, but I doubt it, if he got a felony
conviction. But, we’ll see[.]

During his cross-examination testimony, the appellant acknowledged that he lived in
California in 1993 and that he was charged in that state with robbery. The State asked him
if he was convicted of the charge, and the appellant answered, “My lawyer broke it down that
it was a robbery, or attempted robbery, yes.”

At the conclusion of the appellant’s testimony, the defense rested its case, and the trial
court sent the jury out for a brief recess. The trial court stated, “He wasn’t certain, it was
either robbery, or attempted robbery, . . . that is all that he testified to. I mean, do you think
that that is enough for the jury question, as to whether he was convicted of robbery, or simple

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robbery, if he testified to it[?]” Defense counsel argued that the trial court should not
mention any conviction during the jury instructions because, without a certified copy of the
judgment, the State failed to prove the appellant had been convicted of a felony. The trial
court, reading from the California Penal Code, noted that robbery was defined as a “felonious
taking” and that the punishment for attempted robbery was “imprisonment in state prison.
I don’t see a number of years associated with it.” The trial court ruled as follows:

All right. I am going to let the jury decide and y’all can argue
that the proof is not there, [defense counsel] you are free to
argue that the proof is not there, that this was a felony, or
whatever you want to argue. But, I think that I can look on West
Law and the public statutes of a state to determine what I have
determined.

....

I am going to leave it in the charge. I’ll just let the jury decide
and let y’all argue about whether or not it is a felony. And you
can argue, whatever you want to argue, but I think that I have to
explain to them that under California Law robbery and attempt
robbery are felonies.

....

What I am saying is, I’m not telling them about the N. C. I. C.
report and I am not making my decision on the N. C. I. C. report,
but if I looked up West California Code and it said robbery is a
felony, then that N. C. I. C. report, at least, corroborates what I
have looked up. Whatever that means.

But, the N. C. I. C. report doesn’t come in and she’ll have
to make an argument that [the State] has proven that he was
convicted of it through his testimony and you’ll have to argue
that your client is not a lawyer and he doesn’t know and you
can’t find beyond a reasonable doubt.

But, I don’t[] think that I should remove it from the jury’s
consideration.

....

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 Of course then, the question is, who should decide if he is not
engaged in unlawful activity, me or the jury and I am thinking
that the jury needs to make that call and not me.

And how do they decide whether he is engaged in
unlawful activity without defining some crimes that might be.
I don’t want to comment on the evidence, but on the other hand,
they’ve got to have the statutes in front of them to know whether
he is acting unlawfully.

....

And the question is, the only thing that I am doing is
telling the jury it is up to them to decide whether he is acting
unlawfully, which I think is a legitimate thing. And then, giving
them the definitions of offenses that might be applicable. I am
not saying that he committed these offenses. I am telling them
that this is what the state has to prove in order to show that he
committed these offenses so they can know what these
definitions are.

And the three of these that involve felonies, I am telling
them what California Law says, which is very similar to
Tennessee Law. But, how are they going to know whether he is
acting unlawful, if we don’t ever define what potential crimes
are he might, or might not be violating.

During the jury instructions, the trial court read the pattern jury instruction for self-
defense, which essentially followed Tennessee Code Annotated section 39-11-611(b)(2)
quoted in the section above on sufficiency of the evidence. The trial court also inserted the
following language:

Self-defense is not available to a defendant who was
engaged in unlawful activity at the time he or she is claiming
self-defense. Whether a defendant was engaged in unlawful
activity at the time he or she is claiming self defense is a
question for the jury’s determination.

[(a)] It is a violation of federal law and unlawful for any
person who has been convicted in any court of a crime

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punishable by imprisonment for a term exceeding one year to
ship or transport in interstate or foreign commerce any firearm
or ammunition, or to possess in or affecting commerce, any
firearm or ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or foreign
commerce. Under California law. Robbery is punishable by
imprisonment for a determinate sentence from three to nine
years.

(b) It is a violation of federal law and unlawful for any
person to receive or possess a firearm which is not registered to
him in the National Firearms Registration and Transfer record.

(c) It is a violation of state law and unlawful for a person
who has been convicted of a felony involving the use or
attempted use of force, violence, or a deadly weapon to possess
a firearm. In order to establish a violation of this provision the
state would have to prove beyond a reasonable doubt that (a) a
defendant had previously been convicted of robbery, (b) that the
defendant, after such felony conviction, possessed a firearm, (c)
that the defendant acted either intentionally, knowingly or
recklessly and (d) that the felony involved the use or attempted
use of force, violence or a deadly weapon. Under California
law, robbery is a felony and is defined as the felonious taking of
personal property in the possession of another, from his person
or immediate presence and against his will, accompanied by
means of force or fear.

(d) It is a violation of state law and unlawful for a person
who has been convicted of a felony to possess a handgun. In
order to establish a violation of this provision the state would
have to prove beyond a reasonable doubt that (a) that the
defendant had been convicted of robbery; (b) that the defendant,
after such felony conviction, possessed a handgun; and (c) that
the defendant acted either intentionally, knowingly or recklessly.
Under California law, robbery and attempted robbery are
felonies.

(e) It is a violation of state law for a person to unlawfully
carry a weapon with intent to go armed. In order to establish a

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 violation of this provision the state would have to prove beyond
a reasonable doubt that (a) the defendant carried a firearm; (b)
that the defendant did so with intent to go armed and (c) that the
defendant acted intentionally, knowingly or recklessly. Under
Tennessee law, a person who has been convicted of a felony is
ineligible to obtain a handgun carry permit.

Whether a defendant was engaged in unlawful activity at
the time he or she is claiming self defense is a question for the
jury’s determination.

The appellant contends that the State did not have a good faith basis to ask him about
the California conviction because the State was relying on the NCIC report, which our
supreme court has ruled is not admissible as a substitute for a certified copy of a judgment
of conviction. The appellant also contends that portions of the trial court’s instruction on
federal law, particularly the portions about shipping or transporting a firearm and receiving
or possessing a firearm not registered in the National Firearms Registration and Transfer
record, “completely misled the jury into believing the defendant had violated federal law.”
Finally, the appellant contends that the trial court’s instructing the jury about robbery in
California misled the jury into believing he had been convicted of that offense. In sum, the
appellant argues that the instruction incorporated facts not in evidence and constituted an
impermissible comment on the evidence.

A trial court in a jury case is obliged to provide a “complete charge of the law
applicable to the facts of a case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see
also Tenn. R. Crim. P. 30(d)(2). “‘Jury instructions must be reviewed in their entirety.
Phrases may not be examined in isolation.’” State v. James, 315 S.W.3d 440, 446 (Tenn.
2010) (quoting State v. Rimmer, 250 S.W.3d 12, 31 (Tenn. 2008)). A charge “is erroneous
if it fails to fairly submit the legal issues or if it misleads the jury as to the applicable law.”
James, 315 S.W.3d at 446 (quoting State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997)).
Whether a conviction should be reversed on the basis of an erroneous jury instruction is
determined by “‘whether the ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process.’” Rimmer, 250 S.W.3d at 31.

Regarding the NCIC report, such reports “are not admissible as a substitute for
certified copies of court convictions nor for any other purpose.” State v. Buck, 670 S.W.2d
600, 607 (Tenn. 1984). Moreover, the State may not use an NCIC report as a basis for
impeaching a witness with a prior conviction.” State v. Michael R. Smart, No.
M2009-02262-CCA-R3-CD, 2011 Tenn. Crim. App. LEXIS 268, at *10 (Nashville, Apr. 12,
2011) (citing State v. Philpott, 882 S.W.2d 394, 403 (Tenn. Crim. App. 1994)). However,

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in the instant case, the State was not seeking to admit the NCIC report as evidence or
impeach the appellant with it and was “stuck” with his answer. In any event, defense counsel
did not object to the State’s questioning the appellant about the conviction outside of the
jury’s presence, and the appellant admitted pleading guilty to attempted robbery. See Tenn.
R. App. P. 36(a).

Regarding the jury instruction, even after the appellant admitted during his cross-
examination testimony that he had a prior conviction for robbery or attempted robbery in
California, the trial court was concerned that the State had failed to prove he had been
convicted of a felony. The obvious and simple remedy for the trial court’s concern would
have been for the court to have ordered a brief recess, as the court had said it would, so that
the State could obtain a certified copy of the judgment.2 Instead, the trial court decided to
let the jurors determine whether the appellant had been convicted of a felony by instructing
them on portions of federal law, California law, and Tennessee law, much of which the jury
had no way of determining was factually relevant to the appellant’s prior conviction. In
short, we are puzzled as to how the trial court could expect twelve jurors, presumably lay
persons unversed in the law, to determine from the lengthy and somewhat convoluted
instruction whether the appellant had been convicted of a prior felony in California and,
therefore, was a felon in possession of a weapon on May 28, 2011. Thus, we agree with the
appellant that the trial court’s instruction to the jury was error.

We must now determine the effect of the error. An erroneous jury instruction is a
non-structural constitutional error; accordingly, the test to determine whether the error is
harmless is “‘whether it appears beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained.’” State v. Cecil, 409 S.W.3d 599, 610 (Tenn. 2010)
(quoting State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008)).

The State argues that the trial court’s error was harmless because the appellant was
engaged in unlawful activity at the time of the shooting. Indeed, the appellant does not
dispute that the crime was a felony or that he was a felon in possession of a handgun when
he shot the victim. The record reflects that the State introduced a certified copy of the
California conviction at the sentencing hearing. The certified copy confirms that the
appellant was convicted in 1993 of second degree attempted robbery and received a three-
year sentence. “To prevail on the theory of self-defense, a defendant must show that he or
she was ‘not engaged in unlawful activity’ and was ‘in a place where the person has a right

2
We question whether the State would have been able to obtain the copy even if the trial court
had granted the recess because the State advised the court that “we are just waiting on them to fax us the
copy. . . . I don’t know if I’ll get it tomorrow, I can only hope. But, we’ve been trying to get it for a week
now.”

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to be.’” State v. Hawkins, 406 S.W.3d 121, 128 (Tenn. 2013) (citing Tenn. Code Ann. §
39-11-611(b)(1) (2010)). Therefore, we agree with the State that the trial court’s erroneous
instruction did not affect the outcome of the trial.

III. Conclusion

Based upon the record and the parties’ briefs, we conclude that the trial court gave an
erroneous jury instruction on self-defense but that the error was harmless. Therefore, the
appellant’s convictions are affirmed.

_________________________________
NORMA McGEE OGLE, JUDGE

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