State v. Edwards, 1987 Tenn. Crim. App. LEXIS 2437 (TN Ct. App. 1987)

State of Tennessee, Appellee v. Curtis Lee Edwards, Appellant

No. C.C.A. No. 1127

Court of Criminal Appeals of Tennessee

1987 Tenn. Crim. App. LEXIS 2437

December 17, 1987, Filed

COUNSEL:
For the Appellant: Gail F. Wortley.
For the Appellee: W. J. Michael Cody, Street State Attorney General & Reporter; Janice Bossing, Assistant State Attorney General; William E. Dossett, District Attorney General; William H. Crabtree, Mark E. Stephens, and Jo Helm, Asst. District Attorneys General.

JUDGES:
John K. Byers, Judge; CONCUR: Martha Craig Daughtrey, Judge and Adolpho A. Birch, Jr., Judge.

OPINION

John K. Byers, Judge

The defendant was convicted of aggravated assault and sentenced to serve seven years thereon. He was also sentenced to an additional five years for use of a firearm in the commission of a felony. The defendant was found to be a persistent offender.

The only issue raised is whether an instruction on self-defense should have been given.

The judgment is reversed, and the case is remanded for a new trial.

The state’s evidence shows an altercation occurred in the parking lot of a bar, and according to the victim, the only state’s witness to the event, he intervened in a conversation between the defendant and a third party. Angered by the defendant’s “cocky” attitude, the victim grabbed the defendant by the collar and shook him. When the defendant’s cousin jumped on his back, the victim released the defendant and “just flipped [the other man] over my shoulder.”

The victim testified that as he then walked away, he heard someone say, “You just ought to shoot him.” He heard a shot zing past his head. Having nowhere to retreat, the victim advanced on the defendant to disarm him and was shot in the leg. He complimented the defendant on his aim, saying “Good shot,” and the defendant left.

In addition, the victim described himself as a karate expert, over six feet tall, and weighing two hundred and twenty pounds. He acknowledged the defendant was “a small guy,” and estimated his weight at one hundred and thirty pounds.

The defendant did not testify but offered two witnesses. Their accounts of the episode are substantially the same as the victim’s up to the point that he threw the defendant’s cousin off his back.

One witness testified the victim then stepped toward the defendant, who produced a gun which first misfired and then fired the bullet that caused the injury.

The second witness, the cousin who jumped on the victim’s back, testified the victim “broke out like Kung Fu,” and then the defendant fired his gun.

At the close of the proof, the defendant made an oral request for a jury charge on self-defense. The trial judge refused to give this instruction, and the defendant says this was error.

The state insists the issue of self-defense was not fairly raised by the evidence because the defendant did not testify that he was in fear, nor does the proof show he expressed his fear at the time of the shooting.

We find no authority for this position, and the cases cited by the parties do not deal with this aspect of the defense. “[If] a party is in real or apparent danger of death or great bodily harm, or believes himself to be so, as evidenced by the circumstances justifying that belief, and he in good faith, under such apprehension [assault] his adversary” the defense is available. Frazier v. State, 117 Tenn. 430, 100 S.W. 94 (1906) (quoting Allsup v. State, 73 Tenn. (5Lea) 362 (1880)) (emphasis added).

And more recently, our Court has said the defendant must have a genuine and well-founded fear that he was in danger of death or great bodily harm. State v. Gilbert, 622 S.W.2d 88 (Tenn. Cr. App. 1980). The genuineness of the fear may be shown by the circumstances.

There is no question here that the defendant was aware of the victim’s hostile conduct toward him, and if his witnesses are believed, the victim was resuming his assault at the time of the shooting.

This evidence fairly raises the issue of self-defense, and it was the duty of the jury to resolve the matter under a proper instruction from the court. In the absence of the instruction the defendant was deprived of his defense, and he is entitled to a new trial.

A matter not raised in this appeal but which we deem sufficiently significant to note is the enhancement of the defendant’s sentence by a consecutive five-year term for the use of a firearm while committing a felony.

The defendant was charged in a four-count indictment. The first count charged the defendant with assault with intent to commit first degree murder, and the second count charged the defendant with assault to commit second degree murder.

The third count charged the defendant with aggravated assault by causing serious bodily injury willfully and knowingly under circumstances manifesting extreme indifference to the value of human life. This count is based upon T.C.A. ß 39-2-101(2)(b)(1). The fourth count of the indictment charged the defendant with aggravated assault in causing bodily injury by use of a deadly weapon “to-wit: a pistol.” This count is based upon T.C.A. ß 39-2-101(2)(b)(2).

The jury returned a verdict of guilt on count three and did not report on the other counts.

We are of the opinion that the enhancement of the punishment cannot stand.

The jury was not instructed on the matter of the enhancement of a sentence when a firearm is employed in the commission of a felony, and they made no finding that a pistol was used to commit the offense as alleged in count four of the indictment.

Although it is patently obvious the jury could have not found otherwise, a trial judge may not summarily enhance punishment for the use of a firearm, under T.C.A. ß 39-6-1710, in the absence of a jury finding.

CONCUR: Martha Craig Daughtrey, Judge and Adolpho A. Birch, Jr., Judge.