by Douglas Ankney

The Supreme Court of Tennessee reversed Brandon Cole-Pugh’s conviction because the trial court refused to instruct the jury on the defense of necessity.

According to witness Michael Douglas, while Cole-Pugh was inside The Gold Line Market, he saw that a Ms. Thomas was arguing with two men. When Cole-Pugh asked what was going on, one of the two men took a swing at him. As Cole-Pugh and the other man fought, a gun fell from the other man’s jacket. The other man and his friend both reached for the gun, but Cole-Pugh grabbed it first. The other man then ran out of the store. Cole-Pugh then walked out of the store. He held the gun pointed toward the ground and did not point it at anyone. Cole-Pugh then walked back inside the store. When he exited again, he no longer had the gun. In the meantime, witness Douglas approached the other man, with whom he was familiar, and said they should all go. They shook hands, and Douglas began walking toward Cole-Pugh’s vehicle. He heard gunshots and saw that Antalisha Jeter had been shot in the thigh by a third man. When Douglas went to assist Jeter, he was shot in the back. Police arrived and examined surveillance footage.

Cole-Pugh could clearly be seen with the pistol in his right hand, pointing it toward the ground outside the store. He was charged with being a felon in possession of a firearm, even though no weapon was found on him or recovered at the scene. After the evidence was presented at Cole-Pugh’s trial, his attorney requested an instruction on the defense of necessity. The trial court refused to give the instruction because Cole-Pugh did not testify at trial; thus, he presented no testimony that he was in fear. Cole-Pugh was found guilty. The Court of Criminal Appeals affirmed, and the Tennessee Supreme Court granted further review.

The Court observed “[a]n accused has a constitutional right to complete and accurate jury instructions on the law, and the trial court’s failure to provide complete and accurate jury instructions deprives a defendant of the constitutional right to a jury trial.” Cauthern v. State, 145 S.W.3d 571 (Tenn. Crim. App. 2004). In criminal cases, trial courts have the duty, without request, to give proper jury instructions as to the law governing the issues raised by the nature of the proceeding and the evidence introduced at trial. State v. Hawkins, 406 S.W.3d 121 (Tenn. 2013). In Tennessee, the defense of necessity is a general defense. Id. A general defense need not be submitted to the jury unless it is “fairly raised by the proof.” Tenn. Code Ann. § 39-11-203(c) (2010). When determining whether a general defense has been fairly raised by the proof, a court must consider the evidence in the light most favorable to the defendant and draw all inferences in the defendant’s favor. State v. Perrier, 536 S.W.3d 388 (Tenn. 2017). The quantum of proof necessary to raise a general defense is less than that required by a preponderance of the evidence. Id.

Whenever admissible evidence fairly raises a general defense, the trial court is required to submit the general defense to the jury. Id. From that point, the burden shifts to the prosecution to prove beyond a reasonable doubt that the defense does not apply. Id. The defense of necessity is defined as criminal conduct that is justified if: “(1) the person reasonably believes the conduct is immediately necessary to avoid imminent harm; and (2) the desirability and urgency of avoiding the harm clearly outweigh the harm sought to be prevented by the law proscribing the conduct, according to ordinary standards of reasonableness. Tenn. Code Ann. § 39-11-609. If the harm sought to be avoided was, by ordinary standards of reasonableness, clearly greater than the harm actually caused, the defendant’s actions will be justified. State v. Green, 995 S.W.2d 591 (Tenn. Crim. App. 1998). The defense of necessity is available only in extremely rare situations in which criminal activity is an objectively reasonable response to an extreme situation. Id.
The Supreme Court explained that the trial court erred when it faulted Cole-Pugh for not testifying that he was in fear. A criminal defendant has a Fifth Amendment right not to testify or be a witness against himself. Compelling the defendant to waive his right not to give evidence against himself or to provide evidence of his mental state to secure his constitutional right to a complete jury instruction is an untenable position, stated the Court.

That’s why it is incumbent upon the trial court to draw all reasonable inferences in the defendant’s favor; it’s not the defendant who must provide such proof or inferences. Cole-Pugh was in a fight with another man when a pistol fell from the other man’s jacket. The other man and his friend both reached for the gun. Cole-Pugh could allow those men to grab the gun and perhaps use it on him, or Cole-Pugh could grab the gun himself, violating the law proscribing a convicted felon from possessing a firearm but preventing the more serious harm of being shot with the firearm.

The Court, viewing all inferences in favor of Cole-Pugh, determined that the evidence showed a reasonable person would grab the gun because it was immediately necessary to avoid imminent harm. The fact that harm was imminent is evident by the fact that two people were shot. And the desirability and urgency of avoiding the harm of being shot clearly outweighed the harm of violating the proscription against a felon possessing a firearm. The Court concluded the trial court erred in refusing to give the necessity instruction.

Accordingly, the Court reversed the judgment of the Court of Criminal Appeals and remanded to the trial court for proceedings consistent with the Court’s opinion. See: Tennessee v. Cole-Pugh, 2019 Tenn. LEXIS 498 (2019).

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