### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Jun e 7, 200 5

STA TE OF TEN NES SEE v. ED DIE H ATC HETT

Appeal f romthe Cr im inal Cou rt for Shelby Coun ty No. 03-05044 W. Otis Higgs, Jud ge

No. W2004-01073-C CA-R 3-CD - F iled Jul y 21, 2005

A Sh e lby Co un tyCr im in al C ou rtju ry con vi cte d t he d efen dan t, Ed di e Hat chet t, of aggravat e d a ssa ult
, a Cla ss C fe lon y , a nd the tr ia l c ou rt se nte nc e d h im a s a Ra ng e I I , mu lti ple of

fe nd e r t o e ig ht y e ars in the De pa rt me nt of Cor

re c tio n. Th e de fe nd a nt a

pp e a ls, c la imi ng the e vid e nc e is i ns uf fi c ie nt b e c a us e the state fa ile d to ne g a te his c la im o f s e lf -d e fe ns e . We a ff

ir m th e tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

J OS EP H M. T I PTON , J ., delivere d the opinion of the court, in which D AVI D G. H AYES and T HOMAS T. W O O D A LL , J J ., joined.

Robert Wils on J ones, District Public Defe nder, a nd Tony N. Brayton and Robert C. Fe lkner, As sis ta nt P ub lic De fe nd e rs , f or the app e lla nt, Ed die Hatc he tt.

Pa ul G. Sum me rs , At torne y Ge ne ra l a nd Re po rt e r; Da vid H. F ind le y , A ssi sta nt A tto rn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and D avid Michae l Z ak, Jr., Assist ant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

Th is c a se re la te s to the de fe nd a nt’ s sh oo tin g To ny Pot ts. At the tr ia l, T on y

Pot ts, the vic tim
, testified that on April 27, 2003, he was cele brating his thirtieth birthday with his g irlfriend, Sele na Hatche tt, who i s also the defendant’s sist er. He said that he and Ms. Hatchett left the pa rty around 3:00 a.m. He sa i d t h at t h ey went to her aunt’s apa

rtment wher e they

found the de fenda nt. The victim sa id he told the defe ndant to le ave beca use the police had previously warned the de fenda nt to stay awa y from the victim a nd Ms. Hatche tt and warned the victim and Ms. Hatchett to stay awa y fr om the de fe nd a nt. He sa id h e fo llo we d the de fe nd a nt ou t the do or a ndsta rt e d a rg uin g wi th h im. He sa id that he and the de fenda nt were insulti ng and cur sing e ach othe r and tha t the defe ndant threa tened to kill him. He said he followed the def endant to the de fenda nt’s apartment, which was in the same c omplex . He sa id that while the defe ndant was still outside, he re turned to his g irlfriend,

re tr ie ve d a me ta l c ru tc h, re turne d to the de fe nd a nt’ s apa rt me nt, a nd be g a n striki ng the do or . H e sa id-2-

that afte r he hit the door a couple of times, he stopped, told the defe ndant, “y ou ain’t worth me g oing to j a il, ” a ndle ft . H e sa id he re turne d to his g ir lf ri e nd ’s a un t’ s a

pa rt me nt a ndbe g a n ta lki ng wi th h is g ir lf ri e ndby the fr on t do or . H e sa id tha t th e de fe nd a nt “ c ome ou t th e do or wi th a ri fl e , s too d o n h is ste ps , r a ise d it

up a ndsh ot m e .” He sa id tha t a ft e r h e he ardthe g un sh ot, he sa w a lot of blo odon his chest a nd told his g irlfriend that the defe ndant had shot him. He said the bullet e ntere d and exited his jaw. He said that when the defe ndant s hot him, the di stance betwee n himself and the de fenda nt

wa s a bo ut thr e e c ar l e ng ths

.
On c ro ss- e xami na tio n, the vic tim te sti fi e d that he is 6' 3" ta ll a nd that he we ig hs 24 5 p ou nd s. He a cknowledg ed that whe n he was at the party , he had bee n drinking and smoking marijuana and that if he ha d been g iven a “b re at h al i z er,” he would have failed. The victim repeated that he wa s sta nd ing in the do or

of his g ir lf ri e nd ’s a un t’ s a

pa rt me nt w he n th e de fe nd a nt s ho t hi m.

Selena Hat chett testi fied that she is the vic tim’s girlfriend and the de fenda nt’s sister. She said she and the victim wer e li ving in her aunt’s apartment when the event in question occ urre d. She said that on the nig ht in question, she and the victim c elebr ated his birthda y

. She said eve ry one at the party was drinking and smoking marijuana

. She said that when they returne d from the pa

rty , they fo un d th e de fe nd a nt in he r a un t’ s apa rt me nt. She sa id the vic tim tol d th e de fe nd a nt t o le a ve be c a us e the po lic e ha d to ld the vic tim a nd he r onl y a fe w da y s bef or e to ha ve no c on ta c t with the de fe nd a nt. She said that the victim followed the de fenda nt when he le ft t h e apartment and that “ther e wa s y e lli ng a ndsc re a min g , c a lli ng e a c h o the r n a me s a nd stu ff .” She sa id the de fe nd a nt t oldthe vic tim he wa s g oin g to kill him , p ro mpt ing the vic tim to r e tr e a t to the apa

rt me nt t o g e t th e c ru tc h. She sa id that afte r re trieving the cr utch, the victim went to the def endant’ s apartment an d s t ruck the defe ndant’s door w ith the crutch twic e. She said the vic tim then came ba ck to he r aunt’s a partment and turne d around in the doorwa y

. She said the defe ndant then shot the victim. She said that afte r the g unshot, she tried to g et the g un awa y from the defenda nt but that the def endant pushe d her dow n
a ndre turne d to his apa

rt me nt.

On c ro ss-ex ami nat io n, Ms . Ha tch ett adm it ted th at t he d efen dan t’ s ev ict in g her an d t he v ict im fr om his apa

rt me nt ma de the vic tim ve ry up se t wi th the de fe nd a nt. She sa id tha t sh e tol d th e vic tim to l e a ve the de fe nd a nt a lon e a ndno t arg ue wi th h im b ut t ha t th e vic tim wo uldno t li ste n to he r. Ms. Hatche tt acknowledg ed that the victim’s striking the door with t he crutch m ade a loud noise. She acknow ledg ed that she a nd the victim stil l had key s to the defendant’s apartment which they did not return when the defe ndant evicted them. She also acknow ledg ed not telling the police the de fenda nt ha d th re a te ne d to kil l th e vic tim

. Memphis Fire Depa

rtment Off

icer Ang elo Desha n L amar testified that he wa s called to the

scene on the nig ht in question. He said that he wa s a t ra i n ed Emerg ency Medica l Technic ian and that when he arrived on the s cene , the vi ctim was ly ing on the front porch, covere d by a blanket. He said the def

endant ha d been shot in the he ad.

Memphis Poli c e D e p a

r tm e n t O ffice r Tre nis Swim s testified that he a nd his partner responde d to a “shooting call” at the victim’s addre ss. He said that when he arrived on the s cene , he re quested-3-

a par amedic unit, sec ured the scene , and we nt to the defe ndant’s apa rtment. He sa id that after a fe w minutes, the defe ndant opene d the door a nd that he ar rested the defe ndant. Off icer Swims said that while he wa s doing pa

perw ork, the de fenda nt talked “a bout how they was into it previously and how he g ot tired of [the victim] messing w ith him bl abbing on about . . . stuff he just g ot tire d of it. He

sa id I tol d y a ’l l if

y a ’l l di dn ’t

do so me thi ng wi th h im tha t . . . s ome thi ng lik e thi s was g oin g to happen.”

Offic er Swims testified that he ha d been called to the defe ndant’s apartment be fore to break up an alterca tion betwee n the defendant, the victim, and Ms. Hatche tt. He sa id that on that occa sion, the def endant was loud and disorder ly but that the victim and Ms. Hatche tt were very cooper ative. On cr oss-examination, Office r Swims acknowledg ed that on the pr evious ca ll, he did not arre st the defe ndant. He a dmitted that Ms. Hatchett neve r told him that the defe ndant had pointed the g un at her or struck her

and that if she ha d said so, he would have charged the def endant with additional

cr i m es

. M em p h i s P o l i ce De p ar t m en tOf fi ce r K en n ed y

Ha l l ’s t es t i m o n y

wa s s i m i l art o t hat of Of

fice r Swi ms.
Memphis Poli ce D epartment Office r Carson testified that he questioned the de fenda nt as an invest igat or

fo r the F e lon y

Re sp on se Un it. He sa id the de fe nd a nt s a id h e sh ot the vic tim be c a us e he knew the vic ti m w o u ldr e tu r n

. H e s a idth a t h e a s k e d th e d e f e n d a n t w h a t th e v ic ti m w a s d o ing wh e n h e wa s sh ot a ndthat th e de fe nd a nt r e sp on de d th a t th e vic tim wa s run nin g a wa y

fr om h im.

I. SUFF ICIENCY OF THE E VIDENCE

Th e de fe nd a nt’ s so le iss ue on app e a l is the su ff ic ie nc y of the c on vic tin g e vid e nc e . H e c la ims that the state fa iled to overc ome its burden of neg ating his claim of self-def ense. The state conte nds the evidenc e is sufficie nt beca use t he victim had retreated t o the doorway of hi s g irlfriend’ s aunt’s apartment before the def

endant shot him, rendering the def endant’ s relianc e on Te nnessee ’s selfdefe nse statute misplace d. We ag ree with the state.

Our standa

rd of r eview w hen the de fenda nt questions the sufficienc y of th e ev i d ence on appea l is “whether , afte r viewing t h e ev i d en ce in the light most favora ble to the prosec ution, any

ratio na l tr ie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble d o u b t

. ” J ac k s o n v

. Vi rgi n i a, 4 4 3 U. S

. 3 0 7
, 3 1 9
, 9 9 S

. C t

. 2 7 8 1
, 2 7 8 9 (1 9 7 9 ). W e d o n o tre we i gh the evidenc e; rather, we presume that the jury has re solved all conflicts in the testimony and dra wn all rea sonable infe renc es from the evidenc e in f avor of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984) ; State v. Cabbag e, 571 S.W.2d 832, 835 (Tenn. 1978). I n Tenne ssee, questions about witness cre dibilit y are resolved by

the j u ry

. See State v. B land, 958 S.W.2d 651, 659 (Tenn. 1997)

.

I n o rd er t o sustain a conviction for ag g ravated assault, the state had to prove bey ond a

reas on abl e do ub t th a t th e de fe nd a nt i nte nti on a lly , k no wi ng ly , o r r e c kle ssl y c a us e d s e ri ou s b od ily inj ury to the vic tim . Se e T. C.A . § 39 -1 3- 10 1, -1 02

. How ever , Ten ne sse e ’s se lf -d e fe ns e statut e provides,-4- (a) A per son is justified in threa tening or using forc e ag ainst another person whe n and to the deg ree t h e per son rea sonably believes the forc e is immediately

nec es s ary

to protect a g ainst the other’ s use or
a tte mpt e d u se of

un la wf ul fo rc e . T he pe rs on mus t ha ve a re a so na ble be lie f that the re is a n imm ine nt da ng e r of de a th or se ri ou s b odily injury . The da ng er c reating the be li ef o f i m m inent death or serious bodily injury must be rea l, or honestly

believed to be rea l at the time,

a ndmus t be fo un de d u po n r e a so na ble g ro un ds . T he re is no duty to retre at bef

ore a person thre atens or use s forc e.
T.C.A. § 39-11-611( a).

Both the vic t i m and Ms. Hatche tt testified that the victim had retre ated to Ms. Hatc hett’s aunt’s doorw ay

befor e the de fenda nt returne d from inside his apartment w ith his rifle, r aised it, and shot the victim. Offic er Carson testified the defe ndant admitted to him that the victim was running

awa y when he shot him. The evidence was suff icient to ov er co m e the de fenda nt’s claim of self

defe nse.

B a se d upo n th e fo re g oin g a ndthe re c or d a s a wh ole , w e a ff

ir m th e jud g me nt o f the tr ia l c ou rt

.

___________________________________ J OSEPH M. TI PTON, J UDGE