State of Tennessee v. Antoine Perrier

W2015-01642-SC-R11-CD

Attorney: Nicholas Bolduc

Criminal Law Journal Member: Dakota Dexter

Full Article PDF: State of Tennessee v. Antoine Perrier

This opinion arose from a February 2010 shooting that occurred in a Memphis, Tennessee convenience store.  According to trial testimony, convicted felon Antoine Perrier, the defendant, and his female acquaintance visited the Miracles Mini Market to purchase alcohol.  Inside the store, a customer “ogled” Mr. Perrier’s acquaintance and later exchanged words with Mr. Perrier outside the store because of this lustful gazing.  While the testimony concerning the level of the words’ hostility differed, the witnesses all agreed that Mr. Perrier drew a pistol from his person and fired towards the store door.  Several shots passed through one victim’s clothing without causing injury.  However, a child inside the store was not so lucky.  Investigators then discovered that Mr. Perrier possessed the only weapon at the scene.  The Shelby County Grand Jury indicted Mr. Perrier on one count of attempted second-degree murder, one count of employing a firearm during the commission of a dangerous felony, and six counts of aggravated assault.

At trial, Mr. Perrier testified that he shot in self-defense due to one of the victim’s actions.  After the conclusion of evidence, the trial court provided the pattern self-defense jury instruction to the jury, but added language regarding actions that may constitute unlawful activity as to negate the “no duty to retreat” language of the self-defense statute.  The trial court listed various illegal conduct related to the self-defense statute and instructed the jury that it was to determine whether Mr. Perrier was “engaged in unlawful activity” at the time he fired his pistol when it decided whether Mr. Perrier could properly claim self-defense without retreat.  After deliberations, the jury rejected Mr. Perrier’s self-defense claim and convicted him of one count of attempted voluntary manslaughter as a lesser-included offense of attempted second-degree murder; one count of employing a firearm during the commission of a dangerous felony; five counts of aggravated assault; and one count of assault of the store owner as a lesser-included offense of aggravated assault. During Mr. Perrier’s post-conviction proceedings, the post-conviction court granted Mr. Perrier a delayed appeal to the Supreme Court of Tennessee.  This decision resulted.

The Supreme Court of Tennessee held that the Tennessee legislature intended that the phrase “not engaged in unlawful activity” contained in the self-defense statute constituted a condition on an individual’s privilege to not retreat prior to exercising self-defense.  The state supreme court further held that the trial court should determine whether a defendant was engaged in unlawful activity at the time of the alleged self-defense so as to negate the applicable instruction.  The Supreme Court of Tennessee also concluded that the trial court properly instructed the jury when the trial court did not instruct the jury on a lesser-included offense of employing a firearm in the commission of a dangerous felony; that the indictment provided sufficient notice of the qualifying dangerous felony for purposes of the “employing a firearm” charge; that the trial court did not err when it failed to instruct the jury on the necessity defense; and that the State introduced sufficient evidence to convict the defendant of assault of the store owner.

The Supreme Court of Tennessee first resolved a legal question as to whether the statutory language “not engaged in unlawful activity” applies only to the statutory privilege to not retreat prior to engaging in self-defense.  The Court held that a defendant claiming self-defense is entitled to a jury instruction on the duty to not retreat from a confrontation “only when the person was not engaged in unlawful activity and was in a place the person had a right to be.”  Here, this holding sealed Mr. Perrier’s fate.  In practical terms, if one is engaged in unlawful activity at the time of the alleged act of self-defense, like Mr. Perrier, he or she must retreat before threatening or using force or both.  The Court noted that these holdings abrogated Dyson and overruled Montgomery.

The Supreme Court of Tennessee also held that the trial court possesses the duty to determine whether the defendant met the conditions for the instruction on the privilege not to retreat.  The Court used an Alabama Court of Criminal Appeals case with similar underlying facts, Fuller, to decide this issue.  The Court reasoned that having the trial court decide whether the defendant submitted evidence to justify issuing the instruction was compatible with the pattern self-defense instruction.  Indeed, a Tennessee trial court must provide a self-defense instruction when the proof “fairly rais[es]” the issue.  Thus, the trial court could simply decide another legal issue regarding the jury instruction, and this procedure provides yet another duty for the trial court.  Moving forward, parties must submit evidence to obtain whatever instruction result they desire.  The defense must put forth evidence to fairly raise the self-defense issue so that the applicable instruction will be provided.  Likewise, the State must produce clear and convincing evidence that the defendant was engaged in unlawful activity so that the duty-to-retreat instruction would be inapplicable.

Due to the applicability of these new holdings, the Supreme Court of Tennessee then had to decide whether the trial court committed reversible error when it instructed the jury.  The state supreme court held that the trial court erred when it instructed the jury.  However, the Supreme Court of Tennessee then held that the trial court’s error was harmless beyond a reasonable doubt.  The state supreme court held the error harmless “because no reasonable jury would have accepted the defendant’s self-defense theory.  The Court also left Mr. Perrier’s “causal nexus” argument for another day.  Indeed, the accredited facts demonstrated that, as only mere words were exchanged prior to the shooting, Mr. Perrier could not have been in imminent danger of death or serious bodily injury to warrant self-defense.

The Supreme Court of Tennessee also decided several other issues, all against Mr. Perrier.  First, the trial court did not plainly err when it failed to instruct the jury on “possession of a firearm” as a lesser-included offense of “employment of a firearm during the commission of a dangerous felony.”  Mr. Perrier argued that the Court should adopt the Henderson rule.  However, comparing the facts to another decision, the Court did not address Mr. Perrier’s argument regarding Henderson because it determined that the evidence clearly showed that Mr. Perrier did not merely possess the firearm.  Indeed, Mr. Perrier fired the pistol during the store altercation, and thus he actually employed the firearm—.  Accordingly, the Court held that the trial court did not commit plain error by not instructing the jury on “possession of a firearm.”

The Supreme Court of Tennessee next decided that the indictment provided adequate notice of the underlying felony to Mr. Perrier for purposes of the “employing a firearm” charge.  Pursuant to both the state and federal constitutions, a defendant must be properly noticed to a charge so that he may defend himself against the allegation.  Mr. Perrier contended that the indictment provided insufficient notice because it did not expressly name the underlying dangerous felony.  The Supreme Court of Tennessee determined that Mr. Perrier possessed sufficient notice of the underlying dangerous felony because the “attempted second-degree murder” charge in Count One was the only count that constituted a dangerous felony.  The state supreme court also found that the firearm count referenced the applicable statutory section in the indictment.  Finally, Mr. Perrier failed to argue any reason why the applicable precedent should be overruled.  Thus, the state high court overruled Mr. Perrier’s challenge.

Next, the Court held that the trial court correctly decided to not instruct the jury on the necessity defense.  The necessity defense constitutes a general defense, and thus the trial court must instruct the jury on the defense if the proof adduced at trial fairly raises the defense.  The necessity defense may negate culpability if the defendant acts upon a reasonable belief that the action is necessary to avoid harm and where the harm to be avoided is clearly greater than the harm caused by the criminal act.  Here, the Supreme Court of Tennessee held that the necessity defense was unavailable to Mr. Perrier, reasoning that, even if one of the victims had threatened to shoot Mr. Perrier, his shooting towards the convenience store endangered multiple other people who were not involved in the altercation.

Finally, the Supreme Court of Tennessee decided that the State introduced sufficient evidence for the jury to convict Mr. Perrier of assaulting the convenience store owner.  Mr. Perrier contended that he did not assault the owner because the owner was behind bulletproof glass.  To prove that Mr. Perrier assaulted the owner, the State had to prove beyond a reasonable doubt that Mr. Perrier knowingly or intentionally caused the owner to reasonably fear imminent bodily injury.  At trial, the owner testified that he was scared after Mr. Perrier shot at him.  The Court decided that Mr. Perrier was simply requesting that the Court reweigh the evidence that jury already decided in the State’s favor.  Thus, the Supreme Court of Tennessee affirmed Mr. Perrier’s conviction for assaulting the store owner.

 In conclusion, the law now holds that the Tennessee legislature intended that the phrase “not engaged in unlawful activity” contained in the self-defense statute constitutes a condition on an individual’s privilege to not retreat prior to exercising self-defense.  Thus, a convicted felon, such as Mr. Perrier, seemingly must retreat prior to engaging in any use of a firearm for self-defense purposes.  Next, the trial court now possesses the duty of determining whether a defendant was engaged in unlawful activity at the time of the alleged self-defense as to negate the applicable instruction.  Those holdings are the newest additions to Tennessee law.  However, the Supreme Court of Tennessee also concluded that, in this case, the trial court  properly instructed the jury when it did not instruct it on a lesser-included offense of employing a firearm in the commission of a dangerous felony; that the indictment provided sufficient notice of the qualifying dangerous felony for purposes of the “employing a firearm” charge; that the trial court did not err when it did not instruct the jury on the necessity defense; and that the State introduced sufficient evidence to convict Mr. Perrier of assault.