IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

May 10, 2000 Session

STATE OF TENNESSEE v. STANLEY BLACKWOOD

Appeal as of Right from the Circuit Court for Madison County

No. 96-541 Franklin Murchison, Judge

No. W1999-01221-CCA-R3-CD - Filed November 2, 2000

A Madison County Grand Jury indicted the defendant, Stanley Blackwood, for one count of firstdegree murder, three counts of attempted first-degree murder, five counts of aggravated assault, two

counts of reckless endangerment and one count of aggravated burglary. Following a trial, a jury

convicted the defendant on all counts, and the trial court imposed an effective sentence of life plus

twenty-two (22) years incarceration. On appeal, the defendant contends (1) that the evidence was

insufficient to sustain all of the convictions; (2) that the trial court erroneously instructed the jury;

(3) that the trial court erroneously refused to admit results of a polygraph examination; (4) that the

trial court should have merged two counts of aggravated assault with two counts of attempted firstdegree murder; and (5) that the defendant’s sentence was excessive. After a thorough review of the

record, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court of Madison County

is Affirmed

JERRY L. SMITH, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., and

ROBERT W. WEDEMEYER, JJ., joined.

Patrick Martin, Jackson, Tennessee, at trial, and Lloyd R. Tatum, Henderson, Tennessee, on appeal,

for appellant, Stanley Blackwood.

Paul G. Summer, Attorney General & Reporter, Mark E. Davidson, Assistant Attorney General,

Nashville, Tennessee and Jerry Woodall, District Attorney General, Al Earls, Assistant District

Attorney, for appellee, State of Tennessee.
1

Since the shooting, Officer Jackie Mills married Officer Gary Benton; accordingly, her married name, and

her name at the time of trial, is Jackie Mills Benton.

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OPINION

Factual Background

Bonnie Massengill, the principal victim in this case, lived with her parents, Rebecca and Pete

Carey, and her two daughters, eleven-year-old Crystal Carey and four-year-old Summer Massengill

in May, 1996. On the evening of May 28, 1996, Ms. Massengill was working on her father’s race

car in a garage on the property with two friends, Jack Lawrence III and Jerry Williford, when the

defendant came to visit Ms. Massengill. He greeted Mr. Lawrence and Mr. Williford, and then asked

Ms. Massengill to accompany him outside. Once outside, the defendant fired two shots at Ms.

Massengill, who fell and screamed as she was hit. The defendant then fired a third shot into her head

after she lay on the ground. The victim’s parents, Rebecca and Pete Carey, were inside the house

when the shots were fired. After hearing the shots, Pete Carey retrieved a gun and both Pete and

Rebecca Carey tried to go outside to help their daughter. While Mr. and Mrs. Carey were outside,

the defendant fired several shots at the couple. Mr. and Mrs. Carey ran back in the house where their

granddaughters were. Mrs. Carey then called 911, took the two girls and hid inside the house. The

defendant then came into the house, yelled “hey,” and shot his gun in the house several times. The

defendant went back into the yard, and, at some point, went into the garage, where Mr. Williford was

hiding. The defendant then threatened Mr. Williford and shot inside the garage. Mr. Williford was

not hit. Officers Gary Benton, Jackie Mills, and Barry Austin, all of the Jackson Police Department,

arrived shortly thereafter.1 Officer Benton told the defendant to drop his weapon, and the defendant

responded by shooting twice at the Officers. Police apprehended the defendant after he ran out of

ammunition.

On September 3, 1996, a Madison County Grand Jury indicted the defendant as follows:

count one, first-degree murder of Bonnie Massengill; count two, attempted first degree murder of

Pete Carey; count three, aggravated assault of Pete Carey; count four, attempted first-degree murder

of Rebecca Carey; count five, aggravatedassault of Rebecca Carey; count six, reckless endangerment

of Crystal Carey; count seven, reckless endangerment of Summer Massengill; count eight, attempted

first-degree murder of Officer Gary Benton; count nine, aggravated assault of Officer Gary Benton;

count ten, aggravated assault of Officer Jackie Mills; count eleven, aggravated assault of Officer

Barry Austin; and count twelve, aggravated burglary of Pete and Rebecca Carey. The defendant was

tried on October 14, 1997. 

At trial, the state’s first witness was Crystal Carey, Ms. Massengill’s oldest daughter. In

May, 1996, eleven-year-old Crystal was living with her grandparents, Pete and Rebecca Carey, her

mother and her younger sister. On May 28, 1996 at about 10:00 p.m., Crystal and Summer were in

the house watching television while her mother was outside working on Pete Carey’s race car with

some friends. Crystal testified that she heard two “pops” or loud noises outside. She was not

initially startled, because the race car often made loud noises. However, she then heard her mother

yell for Mr. Carey, and that she had been shot. Crystal testified that she went to the back door to see
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what had happened. There, she saw the defendant pointing a gun at her mother, and she saw her

mother bleeding. Crystal stated that she went to get Pete Carey, who got his gun and went out the

back door. Mrs. Carey called the police, and then also went outside. While Mr. and Mrs. Carey

were outside, Crystal heard two more shots, after which Mr. and Mrs. Carey came inside. Once

inside, Mr. and Mrs. Carey took Crystal and her sister into the back bedroom and told her to get

down. The next thing Crystal heard was the defendant come in the back door. Crystal testified that

the defendant yelled “hey” and fired his gun three or four times into the living room. Crystal hid

until the police came and apprehended the defendant. 

Officer Mike Turner, a Crime Scene Technician and Evidence Custodian for the Jackson

Police Department, was the state’s next witness. He testified that he recovered an empty Glock .40

caliber semiautomatic handgun, fifteen (15) shell casings and six (6) bullets and/or bullet fragments

from the crime scene. Three (3) shell casings were found inside the house, not far from the back

door, and there were four (4) bullet holes in the living room wall. Officer Turner testified that, based

on the location of the shell casings and the bullet holes, the shooter stood inside the house when he

shot into the living room. Officer Turner also stated that a “speed loader” and a shoulder holster

were recovered from the defendant. Agent Steve Scott of the Tennessee Bureau of Investigation

testified that all of the bullets and all of the shell casings were .40 caliber, and that all of the shell

casings came from the gun recovered at the crime scene. He could not be sure that all of the bullets

were fired from the gun found on the scene. 

Next, Dr. Wendy Gunther, an Assistant Medical Examiner and Forensic Pathologist for

Shelby County, testified that she examined Ms. Massengill’s body after Ms. Massengill died. Dr.

Gunther told the jury that Ms. Massengill was shot three times: once in the nostril, once in the arm,

and once in the torso. Dr. Gunther opined that, although Ms. Massengill was alive when she

received each wound, the gunshot to the head would have proven fatal immediately. 

The state’s next witness was Jack Lawrence III. He testified that he was at the Carey

residence on May 28, 1996, working on Mr. Carey’s race car with Jerry Williford and Bonnie

Massengill in the garage, when the defendant came to visit. Mr. Lawrence stated that the defendant

asked Ms. Massengill to accompany him outside, and she did. A minute or two after the defendant

and Ms. Massengill went outside, Mr. Lawrence heard two or three shots being fired. Mr. Lawrence

walked outside, and saw Ms. Massengill and the defendant. Ms. Massengill was lying on the

ground, yelling “Daddy, Daddy, he shot me,” and the defendant had a pistol in his hand. Mr.

Lawrence ran about three-hundred (300) yards away from the Careys’ house, but he heard one or two

more shots after he stopped running. Mr. Lawrence did not return until police arrived. 

 Jerry Williford testified next. On May 28, 1996, Mr. Williford was also working on Mr.

Carey’s race car with Ms. Massengill and Mr. Lawrence when the defendant came to visit. Mr.

Williford stated that the defendant asked Ms. Massengill to go outside with him, and she did. Mr.

Williford heard a noise that sounded like fireworks, and then heard Ms. Massengill say “Daddy, he

shot me” or something to that effect. Mr. Williford testified that he went outside and saw Ms.

Massengill and the defendant, and the defendant had a gun. Mr. Williford stated that he and Mr.

Lawrence went back inside the garage, and that Mr. Lawrence ran away. Then, Mr. Williford either

came out or looked out of the garage, and he saw Pete Carey at the back door . Mr. Carey had a gun,

but did not fire it. Mr. Carey told the defendant to put the gun down, but the defendant fired several

shots at Mr. Carey. 
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Mr. Williford testified that he went back in the garage and hid behind a wall in the back

room. The defendant then came in the opposite side of the garage and said “you S.O.B., I am going

to get you too” and then fired his gun in the garage. Mr. Williford testified that he was afraid he was

going to die. However, the next shots Mr. Williford heard came from outside. Mr. Williford stayed

in the garage until police arrived. 

Rebecca Carey, Bonnie Massengill’s mother, was the state’s next witness. She testified that

on May 28, 1996, she was at home with her two granddaughters, Crystal Carey and Summer

Massengill. Mrs. Carey testified that Ms. Massengill, Mr. Williford and Mr. Lawrence were all

working in the garage that night, and that her granddaughters were watching television in the house.

 At about 9:45 p.m., after Mrs. Carey had gone to bed, her husband, Pete Carey, came home and also

went to bed. Soon after Mr. Carey came to bed, the couple heard shots outside. Mr. and Mrs. Carey

started to get up when Crystal came in and said “[the defendant] shot my momma.” Mr. Carey

proceeded to go outside, but Mrs. Carey initially stayed behind him and tried to keep her

granddaughters from going outside. At some point, Mrs. Carey called 911. Mrs. Carey testified that

she finally went outside as Mr. Carey was trying to come back in. When Mrs. Carey looked outside,

she saw her daughter standing in the back yard, holding her arm with “blood all over her.” Mrs.

Carey pushed the back door open, and the defendant pointed a gun at Mrs. Carey and fired. Scared

that she would die, Mrs. Carey dropped to the floor and pulled her granddaughters down with her.

She took the girls and crawled in a bedroom to hide. After she hid, Mrs. Carey heard the defendant

come in the back door and yell “hey.” Then, she heard several shots being fired in the house. Mrs.

Carey testified that she stayed there until the police came. 

Mr. Carey, Ms. Massengill’s father, died of natural causes before the trial, so the state read

Mr. Carey’s testimony from the defendant’s preliminary hearing to the jury. Mr. Carey testified at

the preliminary hearing that he was in bed around 10:00 p.m. on May 28, 1996. Mr. Carey heard

gunshots fired outside, and he looked out his window. He could not see anything, but one of his

granddaughters came in his room and told him that his daughter had been shot. Mr. Carey went out

the back door and saw his daughter with blood on her shirt. The defendant was on top of her. Mr.

Carey told the defendant to get off of Ms. Massengill, and the defendant shot at Mr. Carey three or

four times. Mr. Carey testified that he went back in the house, and the defendant came in after them.

Mr. Carey went to one bedroom, while Mrs. Carey took her grandchildren and went to another. The

defendant yelled “hey” and shot into the house several times. Mr. Carey waited until the police

came, and he told them that the defendant was in back of the house.

Jackson Police Officer Barry Austin was the next to testify. Officer Austin told the jury that

on May 28, 1996, at approximately 10:15 p.m., he was dispatched to the Carey residence along with

Officer Jackie Mills and Officer Gary Benton. The Officers went to the front of the residence where

they were met by Pete Carey. Mr. Carey told the Officers that someone was in the back of the

residence with a gun and that someone had been shot. Officer Austin followed Officer Benton to

the back of the residence. Before they got there, however, Officer Austin heard a gunshot and,

scared of receiving serious bodily injuries, took cover behind the corner of the house.Officer Benton

continued toward the garage. Officer Austin then got up and walked across the driveway and he

heard another shot. He looked in the backyard and saw two people, one of whom was the defendant,

lying on the ground. The defendant had an automatic pistol in his hand. The pistol’s slide was

locked back, indicating that the pistol was out of ammunition. Officer Austin advised the other
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Officers of the defendant’s location and proceeded to approach the defendant. He told the defendant

to drop his gun, and the defendant did so. Officer Austin and the other Officers proceeded to arrest

the defendant. 

Officer Gary Benton of the Jackson Police Department testified next. Officer Benton

testified that on May 28, 1996, he received a report of small arms fire at the Carey residence.

Officers Benton, Austin and Mills were dispatched to investigate. Officer Benton testified that when

he and the other Officers arrived at the residence, they were greeted by Pete Carey, who was standing

in front of the house. Mr. Carey told the Officers that “he shot one of them” and indicated that “he”

was in back of the house. Officer Benton went toward the back of the house with Officers Austin and

Mills behind him. He saw Ms. Massengill lying on the ground and the defendant, armed with a

pistol, lying on top of her. Officer Benton told the defendant to drop the gun, and the defendant fired

at the Officer. Officer Benton, scared for his life, ran for cover, at which time he heard another shot.

 Then, Officer Austin approached the defendant, who by this time was out of ammunition. The

Officers then took the defendant into custody.

The state’s next witness was Jackie Mills. She also testified that she was dispatched to the

Carey residence on May 28, 1996. Officer Mills told the jury that when the Officers went behind

the house to investigate, Officer Benton told the defendant to drop the gun. Then, Officer Mills

heard a gunshot, and she and the other Officers “scattered.” Although she did not know where the

shot came from, Officer Mills was scared for her life. Officer Mills heard another gunshot before

the Officers apprehended the defendant. She told the jury that, after the defendant was apprehended,

she tried to help Ms. Massengill. Ms. Massengill was bleeding, but still breathing. Then,

paramedics arrived and took over. 

The state’s final witness was Officer Calvin Scott of the Jackson Police Department. On

May 28, 1996, Officer Scott was dispatched to the Carey residence. When Officer Scott arrived at

the residence, the defendant had already been taken into custody. Officer Scott testified that he

transported the defendant to the police station. Officer Scott recovered a shoulder holster, a .40

caliber round of ammunition, and a “magazine speed loader” from the defendant’s person. The state

rested. 

The defendant testified on his own behalf. He told the jury that he and Ms. Massengill had

dated in the past. He stated that, on May 28, 1996, he went to the Careys’ house to give Ms.

Massengill a gun to use for protection. He told the jury that when he arrived at the Careys’ house,

he found Ms. Massengill working on Mr. Carey’s race car in the garage. The defendant said that he

saw Mr. Williford and Mr. Lawrence in the garage with Ms. Massengill, and he said hello to them.

The defendant showed Ms. Massengill his gun, and he injected a round of ammunition into the

chamber so that Ms. Massengill could see how the gun operated. Next, he ejected that round, picked

the bullet up and put it in his pocket. He then chambered another round. The defendant claimed that

Mr. Williford and Mr. Lawrence asked the defendant why he had a gun, and he replied “don’t worry

about it.” He asked Ms. Massengill to accompany him outside, which she did. The defendant

testified that, as they were walking, he lifted the gun up and jokingly pretended that he was “taking

[Ms. Massengill] hostage or hijacking her – just a funny gesture – we both kind of chuckled about

it.” He told the jury that Ms. Massengill then reached out to push the barrel away from her, the two

bumped together and her hand slid forward and pushed his hand which was on the trigger. The
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defendant testified that the gun went off twice and scared him. He claimed that after the first two

shots, Ms. Massengill fell and grabbed the defendant’s hands, and the gun went off a third time. 

At that time, Mr. Carey came out of his house. The defendant claimed that he saw Mr. Carey

and told him to get help. The defendant then tried to let Ms. Massengill lay down, but he

accidentally fell on top of her. The defendant claimed that this upset Mr. Carey, who was now armed

with a pistol. Mr. Carey told the defendant to get off Ms. Massengill. The defendant claimed that

Mr. Carey then fired his pistol at the defendant In response, the defendant shot his gun in the air

twice to frighten Mr. Carey. The defendant’s strategy worked, and Mr. Carey went back into the

house. 

Next, the defendant testified that he heard something behind him, and he was afraid that Mr.

Lawrence or Mr. Williford were going to “charge him,” so he shot twice toward the garage area to

prevent an attack. The defendant claimed that after he shot toward the garage, he decided to go for

help. He went over to the garage area to find Mr. Lawrence or Mr. Williford, but had no luck. 

Then, the defendant saw Mrs. Carey walking near Ms. Massengill, and he told Mrs. Carey to go for

help. When Mrs. Carey failed to respond, the defendant “shot a couple of shots up in the air to scare

her to get her to go back inside the house.” Mrs. Carey ran back into the house. 

The defendant claimed that he went to lie beside Ms. Massengill where he told her that

everything would be fine. However, the defendant testified that he became frustrated when help did

not arrive quickly enough. At some point the defendant reloaded his gun, and went to the house to

use the telephone to call for help. He claimed that he started to worry about Mr. Carey being in the

house with a gun, so he shot three or four times at the gas grill near the back door. Then, the

defendant went to the back door. He opened the door and yelled “hey,” but no one answered him.

The defendant saw a television inside the house. He testified that he decided to shoot the television

so that someone would get help. The defendant shot the television three times. Although the

defendant admitted shooting into the house, he claimed he never actually entered the house.

The defendant testified that he then went back into the back yard and laid down next to Ms.

Massengill. He claimed that he heard a noise, so he fired two shots to keep anyone from “charging

him.” After the second shot, the defendant ran out of ammunition. Police Officers then came and

arrested the defendant. 

Next, the defendant called three character witnesses, Marcus Smith, Karen Mainord, and

Mike McFarland, all of whom testified that the defendant had a good reputation for truth and

veracity. Following the character witnesses, the defense rested. Finally, the state called Rebecca

Carey on rebuttal. She testified that Ms. Massengill wore a short-sleeved shirt the night she was

murdered.

Sufficiency

On appeal, the defendant claims that the evidence was insufficient to support his convictions

for counts one, two, four, eight, nine, ten, eleven and twelve.

Where the sufficiency of the evidence is contested on appeal, the relevant question for the

reviewing court is whether any rational trier of fact could have found the accused guilty of every

element of the offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); State v. Harris, 839

S.W.2d 54, 75 (Tenn.1992). The state is entitled to the strongest legitimate view of the evidence as
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well as all reasonable and legitimate inferences that may be drawn therefrom. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). In conducting our evaluation of the convicting evidence, this Court

is precluded from reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383

(Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). 

Furthermore, a verdict of guilty by the jury, approved by the trial judge, accredits the

testimony of the state's witnesses and resolves all conflicts in the testimony in favor of the state.

State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Although an accused is originally cloaked with

a presumption of innocence, a jury verdict removes this presumption and replaces it with one of

guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof

rests with the defendant to demonstrate the insufficiency of the convicting evidence. Id.

The defendant first claims that the evidence was insufficient to support his conviction for the

first-degree murder of Bonnie Massengill because the state failed to prove (a) that the defendant had

any motive for the killing and (b) that the killing was premeditated. First-degree murder is defined

as a “premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202 (a)(1).

“‘Premeditation’ means that the intent to kill must have been formed prior to the act itself. It is not

necessary that the purpose to kill pre-exist in the mind of the accused for any definite period of

time.” Id., § 39-13-202 (d). Moreover, premeditation is a question of fact for the jury; it may be

inferred from the circumstances surrounding the killing. State v. Gentry, 881 S.W.2d 1, 3 (Tenn.

Crim. App. 1993). In this case, the defendant testified that he and Ms. Massengill had been lovers.

Armed with a pistol, the defendant went to visit Ms. Massengill at her home. He asked her to

accompany him outside, and she did. There, he shot her in ths stomach, in the arm, and in the face.

When her family tried to intervene, the defendant shot at them. Indeed, when the police tried to

apprehend the defendant, he shot at the police. Furthermore, while proof of motive may help prove

premeditation or intent, it is not an element of first-degree murder. See Tenn. Code Ann. § 39-13-

202 (a). Thus, lack of proof of motive does not affect our sufficiency determination. In short, the

circumstances of the killing, taken as a whole, justify an inference of premeditation. Gentry, 881

S.W.2d at 4-5.

Similarly, the defendant argues that the evidence was insufficient to support his convictions

for the attempted first-degree murders of Pete and Rebecca Carey and the attempted first-degree

murder of Officer Gary Benton. Tenn. Code Ann. § 39-12-101 defines criminal attempt as follows:

(a) A person commits criminal attempt who, acting with the kind of culpability otherwise

required for the offense:

(1) Intentionally engages in action or causes a result that would constitute an offense if the

circumstances surrounding the conduct were as the person believes them to be;

(2) Acts 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; or

(3) Acts with intent to complete a course of action or cause a result that would constitute the

offense, under the circumstances surrounding the conduct as the person believes them to be,

and the conduct constitutes a substantial step toward the commission of the offense.
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Tenn. Code Ann. § 39-13-101. Thus, to support a charge of attempted first-degree murder, the

state must prove that the defendant intended to murder the victims with premeditation, and that the

defendant acted to accomplish the murder. Here, the evidence showed that the defendant went to

Mr. and Mrs. Carey’s house armed with a pistol. After Mr. and Mrs. Carey tried to aid their

daughter, the defendant shot at the couple several times. Then, he went into the house and fired the

weapon several times in the house. Although the defendant testified that he only shot at the Careys

in order to warn them and only shot inside the house to force someone to call the police, the jury

apparently did not believe him. The evidence supports the jury’s finding.

The evidence also supports the jury’s finding that the defendant attempted to murder Officer

Benton. Officer Benton testified that, after he told the defendant to drop his gun, the defendant fired

at the Officer. While Officer Benton attempted to flee, the defendant fired another shot. Although

the defendant now claims that “the sole reason the defendant fired his weapon in the direction of the

officers was to prevent an attack by a member of the Carey family,” the jury chose not to believe the

defendant’s testimony.

The defendant next claims that the evidence was insufficient to support his convictions for

aggravated assault of Officers Benton, Mills and Austin. However, the defendant has failed to

provide any argument in support of his contention. In any event, aggravated assault, as charged here,

is caused where a defendant intentionally or knowingly causes another to reasonably fear imminent

bodily injury and uses or displays a weapon. Tenn. Code Ann. §§ 39-13-101 (a)(2), -102 (a)(1)(B).

In this case, the defendant shot in the direction of the police officers as they tried to apprehend them,

and all three testified that they feared imminent bodily injury. Given the circumstances, we have no

doubt that the Officers’ fear was reasonable. Thus, the evidence was sufficient to support the

defendant’s convictions for aggravated assault. 

Finally, the defendant claims that the evidence was insufficient to support his conviction for

the aggravated burglary of Pete and Rebecca Carey’s house. Aggravated burglary is defined as

entering a habitation without the owner's effective consent and with the intent to commit a felony,

in this case attempted murder and aggravated assault. Tenn. Code Ann. §§ 39-14-402, -403. In this

case, although the defendant admitted that he shot inside the house, he claimed that he never actually

entered the house. However, his was the only testimony to that effect. Mr. and Mrs. Carey both

testified that the defendant entered the house before he fired his weapon. Furthermore, police

recovered several shell casings from inside the house. Finally, Officer Turner guessed that the

shooter had been inside the house based on the placement of the shell casings and the bullet holes.

The state presented sufficient evidence for the jury to find that the defendant entered the house with

the intent to commit a felony with a gun and thus committed aggravated burglary. This issue is

without merit.

Jury Instructions

A.

The defendant next claims that the trial court erred by refusing to instruct the jury to consider

the defenses of self-defense, necessity, and mistake of fact. To support his claim that he was entitled

to a self-defense instruction, the defendant points to his own testimony that Mr. Carey shot at the

defendant after the defendant accidentally shot Bonnie Massengill. Thus, he argues, he only fired

his weapon at the Careys in self-defense. The defendant also argues that his trial testimony showed
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that he fired “several shots around the premises and also in the Careys’ T.V. in hopes that this would

compel someone to call for help for Bonnie.” The defendant claims that this testimony supported

a jury instruction on necessity. Finally, the defendant testified that he only shot at the police officers

because he heard a sound and intended to “dissuade an attack.” He claims that he did not know that

he was firing at police officers, because his hearing was impaired and he could not hear the officers

telling him to drop the gun. Thus, the defendant argues that this testimony supported a juryinstruction on mistake-of-fact. 

It is well-settled that the trial court has the duty of giving a correct and complete charge of

the law applicable to the facts of the case, and that the defendant has the right to have every issue

of fact raised by the evidence and material to the defense submitted to the jury upon proper

instructions by the trial court. State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990); State v. Bryant, 654

S.W.2d 389, 390 (Tenn. 1983). The defendant is correct that self-defense, necessity and mistake of

fact are not affirmative defenses. Rather, they are merely defenses; if the evidence fairly raises a

defense, the trial court must submit the defense to the jury and must instruct the jury that any

reasonable doubt on the existence of the defense requires acquittal. Tenn. Code Ann. §§ 39-11-203,

-502, -609, -611; State v. Bult, 989 S.W.2d 730, 733 (Tenn. Crim. App. 1998); State v. Culp, 900

S.W.2d 707, 710 (Tenn. Crim. App. 1994); State v. McPherson, 882 S.W.2d 365, 374 (Tenn. Crim.

App. 1994).

The jury should not have been instructed on the law of self-defense. Tennessee defines selfdefense as follows: 

A person is justified in threatening or using force against another person when and

to the degree the person reasonably believes the force is immediately necessary to

protect against the other's use or attempted use of unlawful force. The person must

have a reasonable belief that there is an imminent danger of death or serious bodily

injury. The danger creating the belief of imminent death or serious bodily injury

must be real, or honestly believed to be real at the time, and must be founded upon

reasonable grounds. 

Tenn. Code Ann. § 39-11-611(a). Here, the defendant testified that he believed he was under attack

because Mr. Carey shot at him. However, the defendant claimed that he only fired his own gun in

the air after he was attacked; he denied shooting at anyone. Therefore, notwithstanding the

improbability of the defendant’s testimony, he was not entitled to a self-defense instruction, because

even according to his own testimony, he did not intentionally fire at anyone.

Moreover, even if the jury believed that the defendant believed he was under attack and fired

at Mr. Carey to ward off the attack, a self-defense instruction would not have been warranted. As

quoted above a self-defense instruction is warranted where “the person reasonably believes the force

is immediately necessary to protect against the other’s use or attempted use of unlawful force.”

Tenn. Code Ann. § 39-11-611(a)(emphasis added). Here, Mr. Carey’s alleged use of force was not

unlawful. Tennessee Code Annotated section 39-11-612 provides 

A person is justified in threatening or using force against another to protect a third

person if:
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(1) Under the circumstances as the person reasonably believes them to be, the person

would be justified under § 39-11-611 in threatening or using force to protect against

the use or attempted use of unlawful force reasonably believed to be threatening the

third person sought to be protected; and

(2) The person reasonably believes that the intervention is immediately necessary to

protect the third person.

Tenn. Code Ann. 39-11-612. According to all of the witnesses, including the defendant, the

defendant had already shot Ms. Massengill when Mr. Carey exited the house. Thus, even assuming

Mr. Carey used force against the defendant, his use of force was lawful. 

Similarly, we do not agree with the defendant's argument that the facts in this case support

a trial court instruction on the defense of necessity. The defense of necessity is available when:

(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, according to

ordinary standards of reasonableness, the harm sought to be prevented by the law

proscribing the conduct. 

 Tenn. Code Ann. § 39-11-609.

Under this section, conduct which would ordinarily be criminal is justified if the accused

reasonably believes that the conduct is necessary to avoid imminent harm. In other words, to be

entitled to the defense of necessity, the defendant must show an immediately necessary action,

justifiable because of an imminent threat, where the action is the only means available to avoid the

harm. State v. Watson, 1 S.W.3d 676, 678 (Tenn. Crim. App. 1999). In this case, the defendant

testified that he fired his gun several times in order to force someone to phone the police. However,

the defendant never testified that he thought that firing his gun was the only means available to

summon help. Indeed, even if the defendant actually believed that gunshots were necessary to

summon help, it strains credibility to accept that the defendant’s belief was reasonable. Under these

circumstances we cannot find error in the trial court’s decision not to instruct the jury regarding the

defense of necessity.

Finally, we reject the defendant’s contention that the trial court should have instructed the

jury about the “mistake of fact” defense. The defendant claims that the instruction was warranted

because he did not realize that he was shooting at police officers. Thus, he argues that he fairly

raised mistake of fact as a defense to the aggravated assaults and attempted murder of the officers.

Mistake of fact is available as a defense if it negates the necessary culpable mental state of the

accused. Tenn. Code Ann. § 39-11-502. Here, the defendant has not raised the defense, because he

claimed that he shot into the air, not at the police officers. In other words, if the jury believed the

defendant, there would be no culpable mental state to negate.

Furthermore, even if the jury believed that the defendant fired at police because he

mistakenly thought his police were attackers, he would still not have been entitled to a mistake of

fact defense instruction, because his beliefs, even if reasonable, would not have justified his actions.
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Like Mr. Carey, the police were acting in defense of a third person; thus, their use of force would

not have been unlawful. Tenn. Code Ann. 39-11-612.

B.

Next, the defendant claims that the trial court should have instructed the jury to consider

voluntary manslaughter as a lesser offense of first-degree murder and attempted voluntary

manslaughter as a lesser offense of attempted first-degree murder. Because the defendant did not

raise this issue in his motion for new trial, the issue is waived. T.R.A.P. 3(e). 

We note that the defendant’s rights have not been vitiated by this waiver. The proof did not

warrant a jury instruction regarding voluntary manslaughter or attempted voluntary manslaughter,

because a trial court must instruct the jury on lesser-included offenses only if the evidence at trial

is legally sufficient to support a conviction for the lesser offense. State v. Burns, 6 S.W.3d 453, 464

(Tenn. 1999). In this case, the evidence adduced at trial did not support a voluntary manslaughter

charge because there was no proof that the defendant was provoked. “Voluntary manslaughter is the

intentional or knowing killing of another [committed] in a state of passion produced by adequate

provocation sufficient to lead a reasonable person to act in an irrational manner.” Tenn. Code Ann.

§ 39-13-211. The defendant testified that he accidentally shot Ms. Massengill, and that the other

shots were mere warnings. Therefore, even if the defendant’s testimony was believable, there was

absolutely no evidence whatsoever of provocation. Cf. State v. Ruane, 912 S.W.2d 766, 783 (Tenn.

Crim. App. 1995)(holding that the trial court’s failure to instruct jury regarding voluntary

manslaughter required reversal even where there was only slight evidence of provocation). 

Furthermore, regarding the murder of Bonnie Massengill, the trial court instructed the jury

to consider first-degree murder, second-degree murder, reckless homicide and criminally negligent

homicide. Regarding the attempted murders of Pete Carey, Rebecca Carey, and Officer Benton, the

court instructed the jury to consider attempted first-degree murder and attempted second-degree

murder. Where the record clearly shows that the defendant was guilty of the greater offense and is

devoid of any evidence permitting an inference of guilt of the lesser offense, it is not error to fail to

charge on a lesser offense. State v. Boyd, 797 S.W.2d 589, 593 (Tenn. 1990)(citing State v. King,

718 S.W.2d 241, 245 (Tenn.1986)). See also, State v. Williams, 977 S.W.2d 101, 106 (Tenn.

1998)(holding that “trial court's erroneous failure to charge voluntary manslaughter is harmless

beyond a reasonable doubt because the jury's verdict of guilt on the greater offense of first degree

murder and its disinclination to consider the lesser included offense of second degree murder clearly

demonstrates that it certainly would not have returned a verdict on voluntary manslaughter.”)

The jury rejected the defendant’s contention that he acted recklessly, negligently or even

knowingly. Thus, the trial court’s failure to instruct on voluntary manslaughter was not error. See

Boyd, 797 S.W.2d at 593 (holding that, in a first-degree murder prosecution, a trial court’s failure

to instruct on voluntary manslaughter was not error where jury was instructed to consider seconddegree murder but convicted of first-degree murder). This issue is without merit.

Polygraph Results

Prior to trial, the defendant moved the trial court to admit results of a polygraph examination.

The trial court denied the motion, and the defendant now claims that the trial court erred. He further

claims that a per se ban on the admission of polygraph results as evidence is outdated under
2

Although our analysis is based on Article I, § 10 of the Tennessee Constitution, the result would be the same

under the federa l double jeopardy clause, bec ause an a nalysis un der the fed eral doub le jeopard y clause is lim ited to the

Blockburger test. United States v. Dixon, 509 U .S. 688, 7 03-05 , 113 S. Ct. 2849, 1 25 L. Ed. 2d 55 6 (1993 ). 

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McDaniel v. CSX Transportation, 955 S.W.2d 257 (Tenn. 1997). In Tennessee, it is well-settled that

the results of a polygraph examination are not admissible as evidence in a criminal prosecution. Irick

v. State, 973 S.W.2d 643, 652 (Tenn. Crim. App. 1998); State v. Campbell, 904 S.W.2d 608, 614

(Tenn. Crim. App. 1995). This “unwavering principle . . . even applies to prevent the criminal

defendant from introducing polygraph evidence that would be helpful to his case.” Cohen, Paine and

Sheppeard, Tennessee Law of Evidence, § 401.34 at 142 (3d ed. 1995)(citing State v. Irick, 762

S.W.2d 121, 127 (Tenn. 1988)). The defendant has not pointed to anything in the Tennessee Rules

of Evidence or case law that requires us to abandon this well-settled principle. This issue is without

merit. 

Double Jeopardy

The defendant next claims that the trial court should have merged count two with count three

(attempted murder and aggravated assault of Pete Carey, respectively) and count four with count five

(attempted murder and aggravated assault of Rebecca Carey, respectively). He claims that the

charges violated his constitutional protection against double jeopardy because the facts supporting

the attempted murder charges were the same facts that supported the aggravated assault charges.2

To determine whether multiple convictions are permitted, this Court must: (1) conduct an

analysis of the statutory offenses pursuant to Blockburger v. United States, 284 U.S. 299, 52 S. Ct.

180, 76 L. Ed. 306 (1932); (2) analyze the evidence used to prove the offenses; (3) consider

whether there were multiple victims or discrete acts; and (4) compare the purposes of the respective

statutes. State v. Denton, 938 S.W.2d 373, 381 (Tenn. 1996).

UnderBlockburger, one must determine whether each offense requires proof of an additional

fact which the other does not. Aggravated assault requires proof that a defendant intentionally or

knowingly caused another to reasonably fear imminent bodily injury and uses or displays a weapon.

Tenn. Code Ann. §§ 39-13-101 (a)(2), -102 (a)(1)(B). The offense of attempt to commit first-degree

murder requires proof that defendant unlawfully attempted to kill the victim and that the attempt to

kill was intentional and premeditated.Tenn. Code Ann. §§ 39-12-101, 39-13-202 (a)(1). Aggravated

assault requires proof that defendant caused the victim to bodily injury; attempted first degree

murder does not. Attempted first degree murder requires proof that defendant intended to kill his

victim; whereas, aggravated assault does not. Application of the Blockburger test indicates that the

legislature intended to allow separate punishments for these offenses. State v. Adams, 973 S.W.2d

224, 229 (Tenn. Crim. App. 1997).

Our analysis of evidence used to prove the offenses is guided by Denton, 938 S.W.2d at 373.

Denton specifically addresses the due process issues inherent in a double jeopardy analysis by

evaluating the specific evidence used to prove each offense. Id. at 383. In that case, the state relied

on exactly the same evidence to establish both an aggravated assault and an attempted voluntary

manslaughter charge. Id. That is not the case here. In order to establish attempted first-degree

murder, the state relied on the evidence that the defendant fired his gun at the Careys when they
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came out of the house. However, the defendant also entered the house after the above incident and

fired his gun inside the house. That separate incident was sufficient to establish aggravated assault

independent of the evidence used to establish attempted first-degree murder. 

Moreover, although the purposes of statutes are similar, i.e., to protect the person, nearly any

two criminal offenses can be considered of singular purpose if viewed broadly enough. See State

v. Lawrence, 995 S.W.2d 142, 146 (Tenn. Crim. App. 1998). Finally, although all of the charges

arose from one course of conduct, discrete acts support each of the charges. See Duchac v. State,

505 S.W.2d 237, 240 (Tenn. 1973). Thus, the trial court correctly failed to merge the aggravated

assaults of Pete and Rebecca Carey with the attempted first-degree murders of Pete and Rebecca

Carey. This issue is without merit.

Sentencing

The defendant was sentenced to twenty-two (22) years for the attempted murder

of Officer Benton. The court found that the defendant was a “dangerous offender” and

accordingly ordered that sentence served consecutively to the other counts, all of which were

ordered to be served concurrently to each other. On appeal, the defendant challenges the

imposition of consecutive sentences.

 "When reviewing sentencing issues . . . the appellate court shall conduct a de novo

review on the record of such issues. Such review shall be conducted with a presumption that the

determinations made by the court from which the appeal is taken are correct." Tenn. Code Ann.

§ 40-35-401(d). "However, the presumption of correctness which accompanies the trial court's

action is conditioned upon the affirmative showing in the record that the trial court considered

the sentencing principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). In conducting our review, we must consider all the evidence, the

presentence report, the sentencing principles, the enhancing and mitigating factors, arguments of

counsel, the defendant's statements, the nature and character of the offense, and the defendant's

potential for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b); Ashby, 823 S.W.2d at

169. "The defendant has the burden of demonstrating that the sentence is improper." Id.

Consecutive sentencing is governed by Tennessee Code Annotated section 40-35-115. 

The trial court has the discretion to order consecutive sentencing if it finds that one or more of

the required statutory criteria exist. State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App.

1995). Further, when imposing consecutive sentencing based on a finding that a defendant is a

"dangerous offender", the court is required to determine whether the consecutive sentences (1)

are reasonably related to the severity of the offenses committed; (2) serve to protect the public

from further criminal conduct by the offender; and (3) are congruent with general principles of

sentencing. State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999); State v.. Wilkerson, 905 S.W.2d

933, 939 (Tenn. 1995).

In this case, although the trial court made no explicit reference to the Wilkerson

factors, its findings satisfy the criteria articulated in that case. First, consecutive sentences are

reasonably related to the severity of the defendant's offenses. As the trial court noted, this was a

case involving several victims and numerous crimes, the most severe of which was the murder of

Bonnie Massengill. The defendant “was shooting or threatening various individuals at random . .
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. [and did so] until police arrived. When the police arrived, the defendant was still ready and

willing to shoot, and he did shoot.” Second, consecutive sentences are required in this case in

order to protect the public from further criminal conduct by the defendant. There were eight

victims in this case, several of whom were police officers. The trial court also noted that

“[c]rimes of violence are a real problem [in our community]. It’s got to stop.” Finally, we find

that consecutive sentencing in this case is congruent with general principles of sentencing. This

case could have resulted in a wholesale massacre of numerous victims. Clearly, consecutive

sentencing was proper given the seriousness of these crimes. This issue has no merit.

Accordingly, the judgment of the trial court is AFFIRMED. 

___________________________________ 

JERRY L. SMITH, JUDGE