### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE June 15, 200 4 S es sio n

STATE OF TENNESS EE v . JERE MY TUCKER DAVIS ,

A LI A S JE R R Y TU C KE R D A V IS

Appeal f romthe Cr im inal Cou rt for Ham ilton Coun ty Nos. 239457, 240681, 240682, & 240919 Douglas A. Me yer, Judge

No. E2003-02214-CC A-R3- CD - F iled Novem ber 15, 2004

A Hamilton CountyCriminal Court juryconvicted the defe ndant o f th eatt empted first de g ree murder of a po lic e of fi c e r, a ndthe de fe nd a nt ple d g uil ty to twe nty -n ine c ha rg e s, inc lud ing mul tip le c ou nts

o f c a rb u r g l ar y , f

e l o n y t h e f t , a n d m i s d e m e a n o r

t h e f t

. T h e tr i a l c o u r ts e n t e n c e d h i ma s a R a n g e I,

s t a n d ar d o f

f e n d e r t o t w e n t y- f

i v e y e ar s f

o r t h e a t t e m p t e d m u r d e r

c o n v i c t i o n a n d a s a

R a n g e II, multipl e off

ender to an ef fec tive sentenc e of six y ear s for the rema ining convictions. The trial court order ed that the twe nty -five- y ear and six -y ear

sentenc es be se rved c onsecutively to eac h other a nd

consec utively

to a six -y ea r re v o k ed probation sentence . The de fenda nt appea ls, claiming tha t the
tr ia l c ou rt e rr e d ( 1) by

re fu sin g to d ism iss a jur or fo r c a us e ; ( 2) by

re fu sin g to c omp e l th e state to provide the de fense with the police depa rtment’s written use -of- forc e policy ; (3) by ref using to allow the def ense to cross-e x amine police office rs about the use-of -for ce policy ; ( 4) by

ref using to a llow

an ex pert to testify about t he victim ’s ex cessive use of for ce a g ainst the defe ndant; (5) by ref using to instruct the jury

on deadly

forc e; and ( 6) by

ordering c onsecutive se ntencing. W e affirm the judgme nts of the trial court.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt Aff irm ed

J OS EP H M. T I PTON , J ., delivere d the opinion of the court, in which T H O M A S T. W O O D A LL and J OHN E VE R E TT W I L L I AMS , J J ., joined.

Wil liam M. Speek, Chattanoog a, Te nnessee , for the a ppellant, J ere my

Tucke r Da vis, alias J erry Tu c ke r D a vis

.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a nd Re po rt e r; Re ne e W. Tu rn e r, As sis ta nt A tto rn e y Ge ne ra l; Wil liam H. Cox , I I I , District Attorney Gene ral; and B arry A. S teelman, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.-2- OP IN ION

Th is c a se re la te s to the de fe nd a nt’ s sh oo tin g Chattanoo ga P olic e Of fi c e r D a vidW. May s. Th oma s M a n g h a n e t e s t i f i e d t h a t o n Ja n u ar y 8
, 2 0 0 2
, h e l i v e d o n N o r t h Jo i n e r R o a d i n the Ea st B ra ine rdare a

of Cha tta no og a a ndwe nt out sid e abo ut 4:3 0 a. m. to warm up his a nd his wi fe ’s c ars

. He f ound that someone ha d broken into both car s and taken items from them. His wife tele phoned the po lic e , a ndwh e n th e po lic e arrive d, Mr

. Ma ng ha ne dis c ov e re d that so me on e a lso ha d b ro ke n in to the storag e building be hind his house and had take n his work jacke t. Tony Cabrer a, who lived on L e nn y L a ne , a ndMis ty

Jac ks on , w ho liv e d o n E ri c Drive , te sti fi e d th a t th e y a lso liv ed in the Ea st Br ainer d are a and that someone broke into their car s on J anuary 8th.

Offic er Cra ig A llen Nabor s of the Chattanooga P o l i ce Depa rtment testified that he w as working in the East B rai n er d ar ea in the ear ly morning hours of January 8, 2002, that the police department r ece ived reports of burg laries in the are a, and that the depa rtment dispatched a

“be- onthe-lookout” (B OL O) for two suspicious males wea ring dark clothing a nd riding bicy cles. Of fice r Nabor s responde d to the burglary call at Mr. M ang hane’ s home and then w ent to the Maxi Muffler parking lot on North J oiner Road to complete his report. Whil e parked in the lot, Office r Na bors saw two white males who w ere riding bicy cles a nd matched the BO L O d escription. Officer Nabor s pulled out of the par

king lot and be g an following the suspects. At some point, the suspec ts looked back, sa w Off

icer Nabor s, and beg an peda ling f aster. Offic er Nabor s followed the suspe cts behind
a g roce ry store, g ot out of his patrol car , and order ed them to stop. Howeve r, the suspec ts rode off in differ ent direc tions.

On e o f t h e s u s p e c t s r o d e t h r o u g h a w o o d e d ar e a t o Jo h n H e n r y R o a d a n d t u rn e d w e st. Offic er N abors c hased thesuspect, who was the defe ndant, on foot but lost sight of him. As Off icer Nab o r s chase d the def

endant, the de fenda nt turned ar ound repe atedly , looked at the of fice r, and a cted like he wa s rea ching for something in his jacket. At the corne r of North J oiner a nd J ohn Henry , an of fi c e r i n a pa tr ol c ar m e t O ff

ic e r N abo rs

. Of

fi c e r N abo rs he ardOf

fi c e r M a y s o ve r the po lic e ra dio and saw May s’ patrol c ar in a ditch on No rt h J oiner Road. Of fice r Na bors and the othe r off

icer beg an looki ng for May s and found him at t he end of a driveway

. Offic er May s was confused a nd told them that he had bee n shot.

Offic er D avid W. May s of t h e C h attanoog a Police De partment testified that on J anuary 8, 2002, he wa s on patrol in the East B raine rd ar ea and hear d the B OL O. L ater , Offic er May s hear d Of fi c e r N abo rs sa y

ov e r the po lic e ra dio that he wa s in a fo ot p ur su it , an d O ff

ic e r M a y s d ro ve in Nabor s’ direc tion. Office r M ay s saw the de fenda nt riding a bicy cle a nd followed him. The de fe nd a nt tur ne d in to a

wo od e d dr ive way , a nd Of fi c e r Ma y s c on tin ue d fo llo wi ng the de fe nd a nt i n his patrol car

. Offic er May s bumped t he defenda nt’s bicy cle with the car, and the defe ndant jumped or fe ll off the bicy cle. Of fice r May s go t o u t of the c ar a nd told the defe ndant, “Come he re.” The defe ndant t ried to run, Of fice r May s caug ht him, and they strug g led. Off

icer May s threw the de fe nd a nt o nto the g ro un d, a ndthe de fe nd a nt, wh o w a s on his ba c k, be g a n fla ili ng his arm s a ndle g s. Using a “c losed hand tec hnique,” Office r May s struck the defe ndant t wice on the s ide of the f ace

. The de fenda nt rolled ont o his stomach, and Offic er May s tried t o pull back the de fenda nt’s rig ht arm-3-

in order to handcuff him. Offic er May s also put his knee on the back of the de fenda nt’s head a nd
t o l d h i m , “ G i v e m e yo u r h a n d s

. ” W h e n t h e d e f

e n d a n tr e f

u s e d t o b e h a n d c u f

f e d
, O f f i c e r M a ys spray ed the defe ndant with pe pper spray , and the defe ndant y elled for help. Offic er Ma y s decide d to stop strugg ling with the de fenda nt and to hold him at gunpoint until backup office rs arrived. As Offic er Ma y s stepped aw ay from the defe ndant and beg an to unsnap hi s g un holster, the def endant shot him i n the fa ce.

Of fi c e r M a y s te sti fi e d th a t h e di d not s e e the de fe nd a nt’ s g un bu t he arda g un sh ot andfe lt
g unpowder . He f

ell, beg an cr awling away from the de fen d an t , an d felt anothe r shot in his back. Offic er May s fell down an e mbankment and into some wa ter. He called ove r his police ra dio that he had be en shot and fir ed two shots in the defe ndant’s direc tion. He then hea rd the de fenda nt open h i s p a t r o l c ar ’ s d o o r

a n d h e ar d t h e c ar

b a c k u p

. A s th e d e f

e n d a n tb a c k e d u p t h e c ar , O f f i c e r M a ys stood up and fire d a shot a bove the driver’ s side headlig ht. The c ar’ s back tire s went into a ditch, and the c ar stopped moving . The de fenda nt got out of t he car and fled, and Offic er Ma y s hid behind
a tre e and r eloade d his gun.

On cross-examination, Offic er May s testified that befor e cha sing the defe ndant, he ha d not hear d any reports tha t the suspects we re violent. He said that afte r he he ard O ffice r Na bors re port the foot pursui t, h e d r o v e to Jo in e r Ro a d b e c a u s e h e th o u g h t th e s u s p e c ts w o u ldc o me o u t o f the woods and onto the roa d. He sa id that he hit the defe ndant’s bicy cle in orde r to end the pur suit and acknow ledg ed that he may have f lipped the def

endant of f the bicy cle. He d en i ed striking the defe ndant more tha n twice but ac knowledg ed that in a state ment to Serg ean t T im Carroll shortly afte r the shooting, he may

have sa id he hit the defe ndant “a whole bunch of t imes.” He said, thoug h, that he wa s still in shock when he g ave the statement. Off icer May s acknow ledg ed that he was tra ined
to s top fl e e ing su sp e c ts b ut s a id tha t he wa s n ot t raine d o n h ow to use a c ar to stop the m. He sa id that a bullet did not strike him in the fac e but that his fac e suff ere d g unpowder

burns. He sa id that his bulletproof vest pre vented a bullet from g oing into his bac k but that his back wa s injured.

Connie Butler

testified that she lived on North J oiner Road in E ast Br ainer d and that she w ent outside about 5:30 a.m. on J anuary 8 to fee d her c ats. I t was dark outside, a nd Ms. Butler he ard
g unshots and saw blue lig hts on a police c ar, w hich bac ked up quickly

. Ms. B utler ente red he r home, looked out her w indow, saw the police car in a ditch, and tele phoned 9-1- 1.

Christopher L ong testified t hat he lived on J enkins Road in the East Br ainer d are a. Ar ound lunchtime on J anuary

8, he wa s working in his home and hea rd a muffled c oug h. He we nt downstairs to investigate and looked outside but d i d n o t s ee any one. Mr. L ong went upstairs a nd he a rd s o m e o n e c o u g h a g a i n

. H e w e n td o w n s t a i r s , o p e n e d h i s b a s e m e n td o o r , t u r n e d o n t h e l i g ht, and saw someone standing in his basement. The pe rson had a hood over his hea d and wa s staring at the floor, and Mr. L ong could not see the pe rson’s fa ce. H e turne d off the lig ht, dead- bolted the door, and te lephoned the police

. Serg eant Da vid Roddyof the Chattanooga Police Depa rtment testified t hat he wa s a SWAT team lea der a nd responde d to the call at Mr. L ong ’s house. The police believe d that the def endant-4-

was locke d in Mr. L ong ’s base ment, and SWAT team members sur rounded the home. A police

o ff i ce r o p en ed t h e b as em en td o o r a n d t o l d t h e d ef en d an t t h at h e wa s go i n g t o s en d i n a p o l i ce d o g. When the defe ndant did not re spond, the offic ers r elea sed the dog into the basement. Serg eant Roddy hear d the dog g rowling , indicating that the do g h ad appre hended the defe ndant. Serg eant Roddy an d the other of

fice rs went into the base ment and saw that the dog had g rabbe d the defe ndant’s lef

t forea rm. The de fenda nt had his rig ht hand in his right jac ket pocke t, and the off icer s told him t o show them his hand. The de fenda nt refuse d, and anothe r off icer pinned the def

endant
to the g ro un d. Th e de fe nd a nt b e g a n to re si st , and a n o ff ic e r h e ld the de fe nd a nt’ s h e a d in or de r t o preve nt him from thrashing . Serg eant Roddy said that he tried to pull t he def endant’ s rig ht hand out of the po c ke t and that he hit the de fe nd a nt ac ro ss the no se wi th a “p a lm- he e l” strike , whi c h h e sa id

was a g ood stunning tec hnique. Serg eant Roddy pulled the defendant’s ha nd out of his pocket, and the office rs handcuf

fed him. The office rs beg an patting down the defe ndant and found a .38 revolve r in his right jac ket pocke t. On cross-e x amination, Serg eant Roddy testified that the palm-he el strike does not cause serious injury and that he did not re call any one else hitting the def endant. He denied hitting the def

endant on the side of his head, a round his lips, or in his ey e.

Offic er Todd Roy val of the C hattanoog a P olice Department testified that he wa s a member of the SWAT te a m on Janu ary 8 a ndre ma ine d o uts ide wh ile oth e r o ff ic e rs we nt i nto the ba se me nt. When the office rs broug ht the defe ndant outside, the defe ndant was strug g ling a nd the offic ers we re having to drag him. Office r Roy val sea rche d t h e d ef

en d an t and found a

revolve r in his rig ht coat
po c ke t. L a te r, Of

fi c e r Roy va l lea

rn e d the c oat bel on g e d to T ho ma s Mang ha ne . O ff ic e r R oy va l a lso found a L eathe rman-ty

pe tool, a mini flashlight, a Swiss army

knife, a corksc rew , a file, key s, and

a c oin pu rs e in the de fe nd a nt’ s p oc ke ts.

Serg eant Mike Mathis, a detec tive in the Chatta n o o ga Police Depa rtment’s Major Crimes Di vis ion , te sti fi e d th a t he wa s the le a d in ve sti g a tor in the sh oo tin g of

Of fi c e r M a y s a ndta lke d w ith the def endant at the police department a few hours after the defenda nt was ar rested. T he def

endant told Serg eant Ma this that he did not know why he wa s there and that he had not done anything.

TimothyCommers of the Chattanoog a Police De partment testified tha t h e ex am i n ed the evidenc e in the ca se, including Offic er May s’ bul let proof ve st. The vest had a bullet hole in the rea

r pa ne l, a ndMr . Co mme rs re c ov e re d a bu lle t f ro m th e ve st. S hel ly B e tts , a sp e c ia l a g e nt f

or e ns ic scientist with the Tennesse e B ureau of I nvestig ation, testified that she e x amined the g un rec overe d from the de fenda nt and the bullet r ecove red from the vest. She conclude d that the defe ndant’s g un fi re d th e bu lle t.

Tisch ia Wa tt s , th e d e f

e n d a n t’ s s is te r

- in

- la w , te s ti f ie d f o r th e d e f e n d a n t th a t a d ayor two befor e this incident, she and the defe ndant went to her g randmother ’s hous e in order to steal a gun. She and the de fenda nt were addicted to metha mphetamine and ne eded the g un in order to trade it for drug s. Ms. W atts took the g un from her g randmother ’s bedroom and g ave it to the def endant. On
t h e n i g ht of J anuary

7, Ms. Watts saw the de fenda nt at a friend’s house. She a sked the de fenda nt if he ha d tr a de d th e g un , a ndhe sa id tha t he ha d n ot t ra de d it be c a us e he ne e de d to g e t mo re ite ms-5-

to trade f or drug s. The defe ndant left the friend’ s house shortly there afte r. On c ross-examination, Ms. Wat ts s a id the de fe nd a nt h a d s tol e n it e ms b e fo re in o rd e r t o tr a de the m f or dr ug s.

Br enda Wee kley

testified that she lived on J oiner Road and hear d a commotion in fr ont of her house on J anuary

8. When she looked out he r window, she saw a man standing in the street a nd talking loudly

to another man in a ca

r. It was dar

k outside, but Ms. W eekle y thought that the c ar w as a police c ruiser. She then hea rd three to five g unshots, a pause, a nd five to six more g unshots. Soon afte r she he ard the shots, poli ce car s arrived. On cr oss-examination, Ms. W eekle y acknow ledg ed that what she saw was consistent with one poli ce office r st opping his patrol car to pick up another office r, who wa s on foot. The jury convicted the defe ndant of the attempted first deg ree murder of Of fi c e r M a y s.

I. DI SM ISSA L OF JU RO R

The d ef en d ant claims that the trial c ourt err ed by ref using to dismiss a potential juror for

cause beca

use the potential j u ror ha d a prior r elationship with Office r May s. He c ontends that he

wa s p re j u d i ce d b y

t h e e rr o r b ec au s e t h e t ri al co u rt ’s re fu s al fo rc ed h i m t o u s e a p er em p t o rych al l en ge to remove the potential juror fr om the panel and beca use he used all of his per emptory strikes. The state cla ims that the t rial court corr ectly determined that dismiss ing the potential juror for cause was

unnece ssary . We ag ree with the state and hold that the tria l court did n o t abuse its discre tion by ref using to dismiss the potential juror for c ause.

Rul e 24 (b ), Te nn . R. Cr im. P., g ov e rn s c ha lle ng e s to po te nti a l jur or s fo r c a us e a ndstate s, in pertinent pa

rt, that

[any ] party

may challeng e a pr ospective juror for c ause if:

(1) ther e exists any

g round for

challeng e for cause provided by law;

(2) the pr ospective juror ’s exposure to pote ntially prejudicia l informatio n makes the pe rson unac cepta ble as a juror. B oth the deg ree of ex posure and the prospective juror’ s testimonyas to his or her state of mind shall be consider ed in determining ac cepta bility . A
pr os pe c tiv e jur or wh o s ta te s th a t he or sh e wi ll b e un able to o ve rc ome prec onceptions shall be subjec t to c halleng e for cause no matter how slight the e x posure. I f the prospe ctive juror ha s seen or hear d and

re me mbe rs inf

or ma tio n that wi ll be de ve lop e d in the c ou rs e of tr ia l, or that may

be inadmissible but is not so prejudicial as t o cre ate a substant ial risk that his or her judg ment will be aff ecte d, the
prospec tive juror’s a cce ptab i l i t y shall depend on w hether the testimonyas to impartiality is b el ieved. I f the prospe ctive juror

a dmi ts t o h a vin g fo rm e d a n op in io n, he or sh e sh a ll b e su bje c t to-6- challeng e for

cause unless the examination shows unequivocally that the pr os pe c tiv e jur or

c a n b e imp art ia l.

A trial court has wide discr etion in ruling on the qualifications o f j u ro rs

. State v. Kilburn, 782 S.W. 2d19 9, 20 3 ( Te nn . Crim. Ap p. 19 89 ). Ev e n “ the fo rm a tio n o f an o pin ion o n th e me ri ts w ill not disqualify

a juror i f she ca n lay

aside he r opinion and re nder a verdic t based on the e vidence
prese nted in court.” State v. Sammons, 656 S .W.2d 862, 869 (Tenn. Crim. App. 1982). The “ failure
to c or re c tly e xclu de a jur or fo r caus e is g ro un ds fo r re ve rs a l only if the de fe nd a nt e xha us ts a ll o f h is
pere mptory

challeng es and a n incompetent juror is f orce d upon him.” State v. Howell, 868 S.W.2d 238, 248 (Tenn. 1993)

. During voir dire, the trial court asked the prospec tive jurors if any of them knew the parties inv olv e d in the c a se or

kn e w o f any

re a so n w hy the y

c ou ld n ot b e imp art ia l. Jur or B a umg ard ne r t old the tr ia l c ou rt

that th e vic tim

wa s h e r f

orme r s tud e nt. Upon fu rthe r q ue sti on ing by the state , M s. Baumga rdner said that she had be en a librarian at East Ridge Hig h School for many y ear s and that the victim had worke d for he r in the library

. Upon questioning by the defe ndant, Ms. Baumga rdner said that she had liked most of the students who ha d worke d for he r, that she c ould not say she had liked the victim more than her other students, that she ha d not seen the vic tim in a long time, and that she had r ead in the ne wspape r about his being shot

. Ms. Baumga rdner also stated t hat s he could be fa ir a ndthat he r r e la tio ns hip wi th the vic tim wo uldno t “ g e t in the way ” of the tr ia l. T he de fe ns e

mov e d to strike Ms. B aumg ard ne r f or c a us e ba se d u po n h e r “ pe rs on a l r e la tio ns hip ” wi th the vic tim

. T h e t ri al co u rt stated that it did not believe Ms. Ba umga rdner and the victim had a

persona l

re la tio ns hip and refu sed t o s tr ike he r f ro m th e pa ne l. L a te r, a

pe re mpt ory

c ha lle ng e wa s u se d to d i s m i s s M s

. B a u m g ar d n e r f r o mt h e j u r y.

We h oldthat th e tr ial c ou rt didno t a

bu se its dis c re tio n b y

re fu sin g to e xcu se Ms. B a umg ard ne r f

or c a us e . M s. B a umg ard ne r t e sti fi e d th a t a lth ou g h the vic tim wa s h e r f orme r s tud e nt,

s h e co u l d b e fa i r. M o re o v er , al t h o u gh t h e d ef en d an t m ay h av e h ad t o u s e ap er em p t o rych al l en ge to remove he r and ma y

have e x hausted a ll of his pe remptory challeng es, he has f ailed to make a ny showing that his having to use a pe remptory challeng e to stri k e h er from the pa nel re sulted in an incompetent juror se rving on the jury

.

II. USE-OF-F ORCE P OLICY

The de fenda nt claims that the trial court err ed by ref using to c ompel the state to turn over the C h at tanoog a Police De partment’s w ritten use-of -for ce policy th a t w a s in e f f e c t a t th e ti me of the

s h o o t i n g. He c ont ends that the policy was re levant to his theory of self- defe nse and tha t he was entitled to the policy

pursuant to Rule 16(a) (1)( C), Tenn. R. Crim. P. The state ar g ues that the trial court prope rly

determined that Rule 16 did not require the state to turn over the policy

and that the de fe nd a nt h a s f

a ile d to sh ow that th e po lic y wa s r e le va nt o r he lpf

ul to his se lf

-d e fe ns e the ory . I n h is reply brief, the defe ndant ar g ues that he c ould not show the policy ’s rele vance beca use he ne ver

rec eived the policy . We ag ree with the state that the defe n d an t has fa iled to show that he wa s h ar m ed b y

t h e t ri al co u rt ’s ru l i n g.-7-

B e f o r e trial, th e d e f

e n d a n t a s k e d th e tria l c o u r t to c o mp e l th e s tate to tu r n o v e r th e police department’s use-of

-for ce po l i cy t h at was in ef fec t at the time of the shooting . I n a hea ring , the defe nse told the trial court that the s tate had turned over a use -of- forc e policy but that it was not the policy that was in eff

ect on J anuary 8, 2002. The state a rg ued that althoug h it had turned ove r a use

of-f orce policy

that was in ef

fec t after the shooting, it di d not want to g ive t he defense the policy that was in ef fec t at the ti m e o f t h e s h o o t ing be cause the state did not want the jury to “follow a r ed herring a nd find that the office r is g uilty of not f ollowing departmental policy .” The de fense arg ued that if the policy

reve aled Of

fice r May s had ac ted with more force than the policy allowed, then the policy would be relevant to show that the defendant was justified in shooting the off icer . The trial court disag ree d, holding that the policy was irr eleva nt.

D u r i n g a s e c o n d p r e tr i a l h e ar i n g , t h e d e f e n s e a g a i n c l a i m e d t h a t i t w a s e n t i t l e d t o t h e p o l i c y. The state argu ed t hat the def endant c ould testify

at trial about his belief

that he nee ded to def

end himself from Officer May s. The trial court ruled that the policy would confuse the jury

and denie d the de fe nd a nt’ s r e qu e st. Du ri ng the hearin g o n th e de fe nd a nt’ s mo tio n f or ne w t ri a l, the de fe ns e arg ued th a t th e tria l c o u r t h a d e rr e d b y r e f u s in g to c o mp e l t

h e s tate to tu r n o v e r

th e p o li c y

. The defe nse t old the t rial court that the s tate had turned over a second policy during the trial but that the

se c on d p oli c y

wa s old e r tha n the fi rs t po lic y a nd sti ll wa s no t the po lic y that wa s in e ff e c t a t th e tim e of the shooting. In its order de ny ing the motion for new tria l, the trial court noted that although the two policies turned ove r by the state we re not in ef

fec t at the time of the shooting , they did not
appea r to diffe r from the policy that was in e ffe ct at the time of the c rimes. The tria l court held that beca use the “ policy

in question did not reveal a ny less forc eful method of a

rre st . . . that the prior a nd

su bs e qu e nt p oli c ie s d id n ot r e ve a l,” a ny e rr or in n ot f or c ing the state t o tur n o ve r the po lic y in
qu e sti on wa s h arm le ss.

Our re view of the rec ord re veals that the policy g iven to the def

ense by the state bef

ore tria l is t itl e d “ AD M- 5 - USEOF F OR CE” a ndha s a

“ Date of I ssu e ” a s F e br

ua ry 6, 20 02 , a lmo st a

mon th afte r the shooting

. The policy also provides that it “ Amends/Supersede s: A DM-5 (04/01/01).” The policy g iven to the defe nse by

the state during the trial is titled “ADM-5 - USE OF F ORCE” and ha s a “D ate of I ssue” a s September 9, 2000. The parties ag ree that a third policy , which wa s not turned

ov e r t o th e de fe ns e a ndis n ot i n th e re c or d b e fo re us , w a s in e ff e c t a t th e tim e of

the c ri me s.

Under Tenn. R. Crim. P. 16(a)(1) (C), the state is re quired to “pe rmit the defe ndant to inspect and copy or photogr aph . . . docume nts . . . which are within the possession, custody or control of the State,” a nd materia l to the defe ndant’s pre paration of his defense
, intended for use by the state,

or we re obta ined from the de fenda nt. I f a party fails to comply

with a discovery

reque st, “the court

ma y or de r s uc h p art y

to pe rm it the dis c ov e ry or ins pe c tio n, g rant a

c on tin ua nc e , o r p ro hib it the pa rt y from introducing evidenc e not disclosed, or it may enter such other or der a s it deems just under the circ umstances.” Tenn. R. Crim. P. 16(d)( 2). Whether a defe ndant has been prejudice d by the state’s failure to disclose information is a sig nificant fa ctor in dete rmining a n appropriate re medy . State v. Smith, 92 6 S.W.2 d 2 67 , 2 70 (T e nn . Crim. Ap p. 19 95 ). Whe n a rg uin g that th e state vio la te d Ru le 16, the defe ndant bear s the burden of showing “the deg ree to w hich the impediments to discove ry hindere d trial prepa

ration and de fense at trial.” State v. B rown, 836 S.W.2d 530, 548 (Tenn. 1992)

.-8-

The state contends that the defe ndant has failed to show that he was ha rmed by not rec eiving the po lic y that w a s in e ff

e c t a t the tim e of the sh oo tin g

. Th e de fe nd a nt arg ue s th a t sh ow ing ha rm is i m p o s sible because he ne ver r ece ived the policy . We disag ree with the defe ndant. We have revie wed the two policie s that the state t urned over to the def ense, a nd they

are almost identical. The only differ ence betwee n the two policies is that a brie f p ar agr ap h o n the use of police dog s as

wea pons is in the Febr

uary 2, 2002 policy but absent fr om the September 9, 2000 policy . I n light of the fa c t th a t th e de fe nd a nt h a d th e se tw o p oli c ie s a ndthat th e se po lic ie s a re ob vio us ly

sim ila r t o the policy in question, we ag ree with the state that t h e d ef endant could have shown how he wa s ha rm e d b y the tr ia l c ou rt ’s re fu sin g to c omp e l the state to turn ov e r the po lic y in e ff e c t a t th e tim e of the shooting

. Be cause he has failed to demonstrate prejudice
, we hold that the t rial court did not

e rr b y r e f u s i n g t o c o m p e l t h e s t a t e t o p r o d u c e t h e w i t h h e l d p o l i c y.

III. CROSS -EXAMIN ATION OF P OLICE O F F ICERS

The de fenda nt contends that the trial c ourt err ed by ref using to a llow him to cross-examine the state’s w itnesses about Off icer May s’ use of f

orce ag ainst him. S pecif

ically , he ar g ues that he should have be en allowed to ask Off icer May s and Off

icer Nabor s as to whether

May s’ using the patrol ca r to knock him off his bicy cl e violated the police department’s use-of -for ce policy

and constituted deadly forc e. He contends that showing May s violated the policy would have supported his claim that May s used ex cessive force
, that he feare d for his life, and tha t he shot May s in selfdefe nse. The sta te ar g ues that the policy was not r eleva nt to the defe ndant’s claim of self- defe nse. We ag ree with the state.

Evid en ce i s relevant if it has “a ny tendenc y to make the e x istence of any fac t that is of
conseq u e n c e to th e d e te r mi n a ti o n o f th e a c ti o n mo r e p r o b ab le o r le s s p r o b ab le th a n it would be wi tho ut the e vid e nc e .” Te nn . R. Evid . 401

. Pur su a nt to T.C .A . § 39 -1 1- 61 1( a ), a pe rs on c a n a c t in

se lf -d e fe ns e un de r the fo llo wi ng c ir c ums ta nc e s:

A p e r s o n i s j u s t i f

i e d i n t h r e a t e n i n g o r

u s i n g f o r c e a g a ins t another person whe n and to the deg ree the person rea sonably believes the fo rc e is imm e diate ly ne c e ssa ry to p ro te c t a g a ins t th e oth e r’ s u se or attem p ted use of unla wful for ce. T he per son must have a

rea sonable be lief that there is an imminent dang er of death or serious bodily injury . The da ng er c re at i ng the belief of imminent death or serious bodily

injury must b e real, or hone stlybelieved to be rea l at the time, a nd must be founded upon rea sonable g rounds. Ther e is no duty to retre at bef

ore a person thre atens or use s forc e.

Reg arding a per son’s use of se lf-def ense a g ainst a police of

fice r, the self

-defense statute pr ovides that the-9- threa t or use of force ag ainst another is not just ified to resist a ha lt at

a ro a db loc k, a

rr e st, se arc h, or

sto p a ndfrisk

that th e pe rs on kn ow s is be ing ma de by

a la w e nf or c e me nt o ff

ic e r, un le ss:

(1 ) T he l a w e nf

or c e me nt o ff

ic e r u se s o r atte mpt s to us e g reater for ce tha n nece ssary to make the arr est, sear ch, st op and frisk, or halt; and

(2 ) Th e pe rs on re a so na bly be lie ve s th a t th e fo rc e is immediately

nece s s ar yto protect a g ainst the law e nforc ement

o f f i c e r ’ s u s e o r

a t t e m p t e d u s e o f

g r e a t e r f o r c e t h a n n e c e s s ar y.

T. C.A . § 39 -1 1- 61 1( e ). Ac c or din g to the Se nte nc ing Com mis sio n Comme nts , sel f- de fe ns e no t on ly entails what a

defe ndant ac tually

believes, but a lso entails what is a re asonable beli ef u nder the

c ir cum st ances. As state d in Sta te v. B ult , 9 89 S.W. 2d73 0, 73 2 ( Te nn . Crim. Ap p. 19 98 ), “ Th is means that the de fenda nt’s conduct a nd mental state must m ee t an objec tive standard of

rea sonablene ss for the c onduct to be justified under these statutory

defe nses. Thus, the mer e fa ct that
t h e d e f e n d a n tb e l i e v e s t h a th i s c o n d u c ti s j u s t i f i e d w o u l d n o ts u f

f i c e t o j u s t i f

y h i s c o n d u c t

. ” In Graham v. Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 1872 (1989), a ca se involving e x cessive fo rc e un de r 4 2 U .S. C. § 19 83 , th e Un ite d St a te s Su pr e me Co urt ex plai ne d th a t th e F ou rth Amendment’s objec tive rea sonablene ss standard must be ev aluated “ from the pe rspec tive of a

rea sonable off

icer on the sce ne, rather than with the 20/20 vision of hindsi g ht” and “ must embody the a llo wa nc e fo r the fa c t that po lic e of fi c e rs are of

te n fo rc e d to make sp lit -s e c on d jud g me nts -- in

c ir c ums ta nc e s th a t are te ns e , u ncer tai n and ra pid ly e vo lvi ng -- abo ut the a mou nt o f f or c e that is

nece ssary in a particular situation.”

Some fede ral a nd state courts have he ld that police d ep ar t ment use-of -for ce policie s are rele vant when evaluating e x cessive use -of- forc e cla ims. For example, in Scott v. Henrich, 39 F .3d 912 (9th Cir. 1994), a wif e sued police officer s fo r ex ce ssive forc e af ter they shot and killed her husband, who had barricade d himself in an apartment bui lding. The plainti ff tried to arg ue that the office rs had violated police department guide lines when they shot her husband without first calling for a ssistance or neg otiating with him. The a ppellate c ourt stated that the g uidelines wer e re levant “whe n one of the ir purposes is to protec t the i ndividual ag ainst whom forc e is used.” I d. at 915-16. Concluding that the purpose of t he guidelines in question was to protec t police officer s and innoce nt by standers, not suspe cts, the appellate court held that the g uidelines wer e irrele vant. I n Drummond

v. City of Anaheim, 343 F.3d 1052 (9th Cir. 2003), the victim’s gua rdian sued police office rs and the city afte r the off

icer s’ use of f

orce ag ainst the vi ctim during an arrest lef t the victim in a coma. I n reve rsing summary judgme nt for the defe ndants, the appe llate court considere d the offic ers’ useof -f or c e g uid e lin e s, statin g that “ ‘i t ma y be dif fi c ult to c on c lud e that th e of fi c e rs a c te d r e a so na

bly if the y pe rf

or me d an a c tio n tha t had be e n ba nn e d by the ir de pa rt me nt or of wh os e da ng e rs in the se circ umstances they

had bee n warned.’” I d. at 1059 (quoting Gutierre z v. City of S an Antonio, 139 F.3d 441, 449 ( 5th Cir. 1998)). I n Ludwig v. Ander son, 54 F.3d 465, 472 (8th Cir. 1995), a mother

s u e d t w o p o l i c e o f

f i c e r s a f t e rt h e y s h o ta n d k i l l e d h e r

e m o t i o n a l l y

d i s t u r b e d s o n

. Id

. a t9 1 6

. In-10-

determining whe ther the of fice rs’ use of

deadly forc e ag ainst the victim was objectively rea sonable, the ap p el late court looked to the police depa rtment’s manua l, which spec ifically addre ssed how office rs wer e to handle e motionallydisturbed per sons. The co u rt s t at ed that while these “ ‘police d ep ar t m en t guide lines do not create a c onstitut ional rig ht,’ they are rele vant to the ana ly sis of constitutionally excessive force.” I d. at 472 (quoti ng Cole v. Bone , 993 F.2d 1328, 1334 ( 8th Cir. 1995)).

Rely ing on L

udwig , the I ndiana Court of Appea ls a lso he ld that a police depa rtment policy

was re levant to a de fenda nt’s excessive use-of -for ce and self- d ef

ense c laims. I n Shoultz v. State, 73 5 N .E .2 d 8 18 (Ind . Ct . A pp . 2 00 0) , a n o ff ic e r h it thede fe nd a nt o n th e he a d w ith a fl a sh lig ht w hil e try ing to a rre st him for disorderly conduct and resisting arr est. Although the trial court ha d aff irmed the def endant’ s convictions for those offe nses, the appe llate court reve rsed, holding that the offic er used excessive for ce a gai n s t the def endant. In analy zing whethe r the off icer ’s use of f

orce was ob je c tiv e ly re a so na ble , th e c ou rt

loo ke d to the po lic e de pa rt me nt’ s g uid e lin e s, wh ic h s pe c if ic a lly prohibited offic ers f

rom using f

lashlights to hit suspe cts unless “absolutely nece ssary .” I d. at 824. Finally , in Be dley

v. State, 374 S.E.2d 841 (Ga. Ct. App. 1 9 8 8 ), t h e defenda nt police offic er w as convicted of

simple battery

for striking a jail inmate. I n contesting the s ufficie ncy of the e vidence
on appea l, the defe ndant claimed that the trial court ha d err ed by al l o wi ng into evidence a police department manual outlining proc edure s on use of for ce. T he appe llate court ruled that because the de fe nd a nt’ s de fe ns e ha d be e n “ that hi s u se of fo rc e wa s ju sti fi e d, a ndthe ma nu a l di re c tly re la te d to the def ense of justification, it was theref ore a dmissibl e.” I d. at 842.

On the other hand, som e federa l and state c ases ha ve held that police department policies are irrele vant to excessive use-of -force c laims. For e x ample, in Smith v. Freland, 954 F .2d 343, 347 (6th Cir. 1992), the Six th Circuit Court of Appeals stated,

Under § 1983, the issue is whethe r [ t h e off icer ] vi olated the Constit ution, not whe ther he should be disciplined by the local police forc e. A c ity

can c erta inly

choose to hol d its officer s to a hig her standard th an that re quired by the Constitut ion without being subjected to incr ease d liabilityunder § 1983.

I n Scott v. Edinburg
, 346 F.3d 752 (7th Cir. 2003), an off- duty police off icer shot and killed a man

w h o w a s t r yi n g t o s t e a l t h e o f f i c e r ’ s p e r s o n a l c ar

. T h e v i c t i m ’ s f a m i l y s u e d t h e o f

f i c e r a n d t h e c i t y, claiming that the offic er use d excessive forc e. F inding that the of fi ce r’s use of

forc e had be en objectively

rea sonable, the tria l c ourt g rante d summary judgme nt. On appea l, the plaintiffs arg ued that an expert’s testify ing that theo f fice r had violate d police depa rtment policies pre cluded summary judgme nt. Howeve r, in upholding the lower court, t he appellate court stated t hat “42 U.S.C. § 1983 prot e c ts p la in ti f

f s f r o m c o n s ti tu ti o n a l v io lati o n s , n o t v io lati o n s o f s tate la w s o r , in th is c ase, departmental reg ulations and police pra ctices.” I d. at 760.

Simi larly , in Mace v. Cityof Palestine, 213 F . Supp. 2d 691 (E.D. Te x . 2002), a police office r sh ot a ndkil le d a

ma n w ho ha d w ie lde d a

sw or d. A re pr e se ntativ e fo r the ma n’ s est a te su e d the c ity-11-

un de r 4 2 U .S. C. § 19 83 , c la imi ng that th e of fi c e r u se d e xce ssi ve fo rc e . In s up po rt of he r a rg ume nt, the plaintiff noted that the of fice r’s a ctions during the conf rontation had violated t h e police department’s use-of

-for ce policy

. Howeve r, the district court held that the offic er’ s violation of the
p o l i cywa s i rr el ev an t“i f h i s u s e o f d ea d l y fo rc e a gai n s tan i n t o x i ca t ed
, d i s t u rb ed
, t h re at en i n g, individual in close proxi mityto him an d h is other offic ers, a rmed with a swor d was re asonable .” I d. at 697. I n Woods v. J eff erson County , 2003 U.S. Dist. L EXI S 605 (W.D. Ky . J an. 8, 2003), the pla int if f s ue d th e po lic e de pa

rt me nt u nd e r 42 U.S.C § 1 98 3 a ft e r h e wa s in jur e d d uring his arr e st. The de fend an t claimed that the a rre sting off

icer ’s written re primand for violating police policy during the ar

rest supported his e x cessive f orce claim. Howe ver, the court disag ree d, stating,

I n ev a lu ati n g w h e th e r an of fice r’s use of

forc e is constitutional

un de r G ra

ha m, the iss ue is w he the r i t w a s o bje c tiv e ly re aso nab le under all of the circ umstances confr onting the of fice r, not whethe r the office r viol at ed a c ity

or depa rtmental policy . Whether an of fice r follo w e d o r v io late d p o li c e d e p artm e n t p o li c y a n d g u id e li n e s is not

re le va nt u nd e r G ra

ha m.

I d. at *10 (c itation omit ted).

I n L ozano v. State, 584 So. 2d 19 (Fla. Dist. Ct. App. 19 9 1 ), t h e defenda nt office r wa s convicted of manslaug hter for shooting and killing a suspect during a hig h-spee d chase . Over the defe ndant’s objec tion, the trial court admitted into evidenc e the fac t that the defe ndant had violated the police de partment’s poli cy re gar ding de adly forc e and shooting at a moving vehicle. T he appellate court rule d that the trial court erre d by admitting the policy and cited othe r ca ses holding the same. I d. at 24 (c iting Pitts v. S tate, 473 So. 2d 1370, 1373-74 (F la. Dist. Ct. App. 1985) (re versing a police of

fice r’s c onviction for vehic ular homicide wh en p o l i ce policy manuals we re admitted as evidence that he had operated hi s police vehicle i n a re ckless manne r), a pp. denied ( Fla. 1986); Cityof St. Petersburg v. Reed, 330 So. 2d 256, 258 (F la. Dist. Ct. App. 1976) (stating that

“ state wi de sta nd ard s f

or the us e of

de a dl y for c e mus t be c on tr oll ing ” a ndthat “ int ro du c tio n in to evidenc e of the safe ty

order was e rror ”), a

pp. denied ( Fla. 1976) ; Chastain v. Civil Serv. B d., 327 So. 2d 230, 232 (Fla. D ist. Ct . Ap p

. 1 9 7 6 ) (s tating that a police de partment’s de adly forc e policy

“ w o u l d n o t a f

f e c tt h e s t a n d ar d b y

w h i c h t h e o f

f i c e r s ’ c r i m i n a l o r

c i v i l l i ab i l i t y

i s m e a s u r e d ” ) )

. In State v. L eslie Ann He beler , 2001 I owa App. L EXI S 3 6 3 (I owa Ct. App. June 13, 2001), a police office r stopped the de fenda nt for spee ding and arrested he r whe n she re fused to sig n the spee ding citation. The de fenda nt was convic ted of interf ere nce of officia l acts re sulting in bodily harm. On
appea l, she claimed the trial court e rre d by ref using to admit i nto evidence the police de partment’s manual, which pr ovided that offic ers we re to tre at the p u b l i c in a posit ive and r espec tive manner

. The a ppellate c ourt disag ree d, stating that it was the offic er’ s conduct at issue, “not the comparison of that conduc t to policies that are not c laimed or shown to ha ve leg ally binding a ffe ct.” I d. at *19- 20.

Turning to the prese nt case , the issues that the jury had to resolve we re ( 1) whe ther Of fice r May s ’ c o n d u ct v i o l at ed s t at u t o rys t an d ar d s co n ce rn i n g u s e o f r ea s o n ab l e f o rc e t o ar re s tt he def

endant-12-

and (2) whether

the def endant’ s use of forc e ag ainst May s fell within statutory standards tha t allow the use of re asonable forc e to re sist unlawful forc e. The defe ndant claims that being able to show May s violated the use- of-f orce policy

would have de monstrated that the officer used excessive for ce. Howeve r, we conclude that fede ral and state ca ses holding suc h police depa rtment policies to be irrele vant take the more re asoned approa ch. I n resolving excessive use-of -for ce claims, juries ar e to use an objectively rea sonable standard t hat m ust be based on the circ umstances that oc curr ed at the tim e of the arr e st. Whe the r an of fi c e r vio la te d a poli c e de pa rt me nt pol ic y , w hic h h a s n o le g a lly binding e ffe ct, will be irre levant to whethe r the off icer was a cting appropriately under the

c ir c ums ta nc e s. We c on c lud e that th e tr ia l c ou rt didno t e rr

in r e fu sin g to a llo w the de fe nd a nt t o question the offic ers a

bout the policy

.

I n any event, e ven if the tria l court er red, such err or was harmless. After Offic er May s struck the de fe nd a nt w ith the pa tr ol ca r an d k no c ke d th e de fe nd a nt o ff his bic y c le , th e de fe nd a nt w a s a ble
to r e sis t O ff

ic e r M a y s’ us e of

fo rc e a ndpu ll a g un

. Th e de fe nd a nt sho t Off ic e r Ma y s tw ic e , o nc e in the fa ce and once in the back afte r the office r had fallen to the g round and wa s cra wling a way from him. I n light of these fac ts, w e hold that any err or re g arding the def

endant’ s inabilityto question the of fi c e rs abo ut the po lic e de pa rt me nt’ s p oli c y

wa s h arm le ss.

IV. EXP ERT TE STIMONY

Next, the defenda nt claims that the t rial court erre d by ref using to a llow an expert to testify that Offic er May s used excessive force ag ainst him. He arg ues t hat t he expert’s opinion, which wa s based in pa

rt upon the Chattanaoog a Police De partment’s use -of- forc e p o li cy , was ne cessa ry to show that he wa s justified in shooti ng Offic er May s. He co n t en d s that the expert had spec ialized experience in police t raining and tactics and would have been able t o explain to t he jury that Offic er May s’ using a patr ol ca r t o knock him off his bicy cle, hitting him, and spr ay ing him with peppe r sp r a y a mo u n te d to e xc e s s iv e f o r c e

. T h e s tate c laim s th a t th e tria l c o u r t p r o p e r ly e xc lude d the

e xpe rt ’s te sti mon y . We c on c lud e that a ny e rr or wa s h arm le ss.

T h e r e c o r d r e f

l e c t s t h a ta f

t e r t h e d e f

e n s e r e c e i v e d t h e F e b ru ar y 6
, 2 0 0 2 u s e

- o f

- f o r c e p o l i c y, it f o r w ar d e d th e p o li c y to Ph il li p L

. D a v id s o n , a f o r me r p o li c e o f

f ic e r a n d p u rp o r te d expert on

ex ce s s i v e u s e- o f- fo rc e. Us i n g t h e p o l i cy , t h e p re l i m i n a r y h ea ri n g tra n s cr i p t , an d t h e C h at t an o o ga Police Depa

rtment’s interview with O ffice r May s, Mr. Davidson pre pare d a written report in which h e c o n c l u d e d t h a tO f

f i c e r M a ys h a d u s e d d e a d l y f o r c e a g a i n s tt h e d e f

e n d a n tw h e n O f

f i c e r M a ys struck the de fenda nt’s bicy cl e wi t h the patrol c ar. H e also c oncluded that the of fice r had use d excessive forc e ag ainst the defe ndant when the office r hit the defe ndant wit h his fists and spray ed the def endant with peppe r spray . I n his opinion, t he defenda nt “quite justifiably beg an to def

end himself.” The trial court r efuse d t o l et M r. Davidson testify , stating that Mr. Davidson wa s not qualified to g ive an opinion and that Mr. D avidson was “ taking the position of sitt ing a s a juror.”

Th e a dmi ssi bil ity of e xpe rt te sti mon y is a mat te r within the tr ia l c ou rt ’s dis c re tio n a ndwi ll not be re verse d on appea l absent an a buse of discr etion. State v. Tizard, 897 S.W .2d 732, 748 (Tenn. Crim. App. 1994). Rule 702, Tenn. R. Evid., states, “If scientific, tec hnical, or othe r spec ialized-13-

knowledg e will substantially assist the trier of f

act to under stand the evide nce or to determine a fa ct in issue, a witness qualified as an e x pert by knowledg e, skill, ex perie nce, tr aining , or educ ation may
te sti fy in the fo rm

of a n o pin io n or o the rw ise .” Rul e 70 3, Te nn . R. Ev id. , s ta te s, “ Th e c ou rt sh a ll disallow testimonyin the form of a n opinion or infere nce if the under ly ing f

acts or data indi cate lack of t rustworthiness.” Determinations conce rning the admis sibili ty of expert testimony , including the basis of the e x pert opinion, are within the discretion of the trial court. State v. B allard, 855 S.W.2d 557, 562 (Tenn. 1993) ; see a lso St ate v. Ha ll, 958 S.W .2d 679, 689 (Tenn. 1997) . Howeve r, the jury determines the weig ht and credibility of the e x pert’s te stimony . State v. Ander son, 880 S.W .2d 720, 732 (Tenn. Crim. App. 1994)

.

I nitially , we note that although Mr . Davidson’s written report is in the appe llate re cord, Mr

. Da v i d s on’s cur

riculum vitae is not attache d to the report and the def ense ma de no off

er of proof

re g ard ing his c re de nti a ls. Th e re fo re , w e are un able to de te rm ine wh e the r the tr ia l c ou rt e rr e d in its ruling that Mr. Davidson wa s not qualified to testify . I n any event, e ven if the trial court e rre d by ref using to let Mr. Davidson t estify
, we hold that the error wa s harmless. The defe nse questioned Of f ic e r M a y s e xte n s iv e ly d u r in g c r o s s

- e xa mi n a ti o n ab o u t h is u s in g th e p a tr o l c ar to k n o c k the defe ndant off the bicy cle, a bout his hit ting the d ef

en d an t in the fac e, and a bout his spray ing the de fe nd a nt w ith pe pp e r s pr a y . Of fi c e r Ma y s ac kn ow le dg e d tha t he ha d not be e n tr a ine d o n h ow to use a patrol car

to stop a suspect fr om fleeing on a bicy cle a nd that his using the patrol car to knock the de fe nd a nt o ff

the bic y c le c ou ld h a ve c a used the d e fe nd a nt t o b re ak h is n e c k o r s uf fe r a br a in injury

. He a lso testified that he hit the defe ndant in the fa ce and spray ed the de fenda nt with pepper
spray despite having no indication that the def endant ha d a g un. The jury was we ll awar e of O ffice r Ma y s’ a c tio ns a g a ins t th e de fe nd a nt.

Moreove r, as pr eviously

noted by this court, the e vidence reve aled that a fter the defe ndant fe ll o ff the bic y c le , h e jumpe d u p, tr ie d to ru n f ro m O ff ic e r M a y s, a ndstr

ug g le d v iol e ntl y

a g a ins t Of fi c e r Ma y s’ a tte mpt s to han dc uf f him

. Whe n Of

fi c e r M a y s st op pe d s trug g lin g wi th the de fe nd a nt, the de fe nd a nt p ull e d a

g un a ndsh ot O ff

ic e r M a y s tw ic e . The de fe nd a nt fi re d one of tho se sh ots int o Of fi c e r Ma y s’ ba c k a s Ma y s c ra wl e d a way fr om h im. I n li g ht o f the e vid e nc e , w e ho ld that e ve n if Mr. Davidson ha d testified fa vorably for the de fense , no jury would have c on cl u d ed that the defe ndant ac ted in self-de fense . Thus, the def endant is not entitled to relief

.

V. DE AD LY F OR CE IN STR UC TIO N

The de fenda nt claims that the trial court err ed by ref using to inst ruct the jury

on deadly forc e. He arg ue s th a t in lig ht o f O ff ic e r M a y s’ te sti mon y

that th e de fe nd ant cou ld hav e be e n s e ve re ly inj ur e d w he n M a y s st

ru c k h im w ith the pa tr ol c ar, su c h a n in str uc tio n w a s w arr a nte d. Th e state contends that the tria l court did not err by ref usi n g t o gi v e the instruction. We hold that the trial court’s r efusa l was harmless error

.

A d e fe nd a nt h a s a

ri g ht t o h a ve e a c h is su e of fa c t r a ise d b y

the e vid e nc e a ndma te ri a l to his defe nse subm itted to the j ury upon proper instructions by the t rial court. State v. Br own, 836 S.W.2d 530, 553 (Tenn. 1992) . A trial court should g ive a reque sted instruction if (1) it is supported bythe-14-

evidenc e, (2) it embodies the party ’s theory of the c ase, ( 3) it is a corr ect state ment of the law , and (4) its substance has not alre ady been inc luded in other p o rt i o n s of the c harg e. See Mitche ll v. Smit h, 779 S.W .2d 384, 390-91 (Te nn. Ct. App. 1989). A “de adly wea pon” has b een defined a s

“ [a]n y thi ng that in the ma nn e r o f its use or int e nd e d use is c apa ble of c a us ing de a th o r s e ri ou s b od ily injury .” T.C.A. § 39-11- 106(a) (5)( B)

. This court has held t hat a car can be a deadly wea pon. See State v. Tate, 912 S.W.2d 785, 787-88 (Tenn. Crim. App. 1995)

.

The re cord r efle cts that the def en s e s u b m itted to the trial court the f ollowing written instruction:

Dea dly

forc e mea ns anything that in the manner of its use or intended use is capa

ble of c ausing d ea t h or serious bodilyinjury . A motor vehicle c an constitute a de adly wea pon.

Th e tr ia l c ou rt re fu se d to g ive the ins truc tio n, statin g that the ins truc tio n w a s n ot w arr a nte d in thi s

case beca use Off icer May s did not use his patrol car as a de adly

wea pon. The trial c ourt did ag ree , howeve r, to g ive a self-de fense instruction. The trial court g ave, in pe rtinent par t , t h e f o l l o wing instruction:

Se lf de fe ns e : I nc lud e d in the de fe nd a nt’ s ple a of no t g uil ty

is his plea of se lf defe nse. When a p er s o n i s assaulted by the use of forc e or attempted use of f orce in such a w ay

as to cre ate in his mind

a re asonable belief that he is in imminent or ac tual dang er of death or serious bodily injury
, he will be justified in using fo rc e t o defe nd h i m s el f, ev en t o t h e e x t en to f k i l l i n g an o t h erh u m an b ei n g. The use of

forc e can only

be to the deg ree rea sonably believed to be immediately

nece s s ar yto protect a g ainst the other’ s use of
at te mp te d - - o th e r ’ s u s e o r a tt e mp te d u s e o f

u n la w f u l f o r c e

. T he dang er c reating the be lief of imminent death or serious bodily injury must be rea l or honestly believed to be rea l at the time, and must be fo un de d u po n r e a so na

ble g ro un ds

.

. . . .

I n d ete rm ini ng wh e the r a de fe nd a nt’ s u se of

fo rc e in de fe nd ing him se lf

wa s r e a so na

ble , y ou ma y

c on sid e r n ot o nly

his us e of for ce but a lso all the fac ts a n d ci rc u mstances surr ounding and le a din g up to i t.

. . . .

Th e us e of

fo rc e a g a ins t a no the r t o resist or e va de a n a

rr e st that the def

endant knows is being made by a law e nforc ement off icer-15- is j us tif ie d o nly if the la w en fo rc e me nt of fi c e r use s or at te mpt s to us e g reater for ce tha n nece ssary to m ak e the arre st, and the def endant

rea sonably

believes tha t the forc e is immediately nece ssary

to protect ag ainst the law e nforc ement off icer ’s use or attempted use of a g reater f o r c e t h a n n e c e s s ar y.

We believe the trial court err ed by ref using to g ive the instruction. Whether or not Of fice r Ma y s u se d h is p a tr ol c ar a s d e a dly fo rc e wa s f

or the jury

to d e c ide , n ot the tr ia l c ou rt . N e ve rthe le ss, we hold that the e rr o r was harmless. Althoug h the trial court did not specifically instruct the jury

on de a dly fo rc e , the c ou rt did ins truc t th e jury that in c on sid e ri ng the de fe nd a nt’ s se lf -d e fe ns e c la im, it could consider a ll of the fac ts leading up to the shooting, w hich included Of fice r’s May s’ knocking the defe ndant off the bicy cle. We note that a fter O ffice r May s hit the defendant with his patrol car, the def endant jumped up, t ri ed t o ru n, and strug g led with Offic er May s so violentlythat Offic er May s could not handcuf

f him even a fter O ffice r May s struck the de fenda nt with his fists and spray ed the def endant with pepper spray

. I n light of the thoroug h self-de fense instruction give n by the trial
court a nd in lig ht of

the fa cts of the c ase, w e hold that the trial c ourt’s er ror in re fusing to instruct the jury on the re qu e ste d s pe c ia l in str uc tio n w a s h arm le ss.

VI. CONSECUTIVE S ENTENCING

Finally , the def

endant c laims that the trial court e rre d by ordering him to serve the ef fec tive six -y ear sentenc e he r ece ived for the multipl e bur glary and thef t convictions consec utively to the twenty -five- y ear

sentenc e he r ece ived for the attempted first de g ree m u rd er conviction. He acknow ledg es that pursua nt to T. C

. A. § 40-35-115(b)(6) , the trial court could order the sentenc es in the prese nt case to run consec utively to a prior r evoked pr obation sentenc e bec ause he committed the crimes in this case while on probation. See T.C.A. § 40-35-115( b)(6) (providing for c onsecutive
sentenc ing if

the trial court finds by

a pre pondera nce of

the evidenc e that the defenda nt committed the offe nses while on probation for a prior crime) . Howeve r, he c l ai m s t h at t h e trial c ourt misint erpr eted T.C.A. § 40-35-115( b)(6) as allowing for the six -y ear and twenty -five- y ear sentenc es to run consec utively

to eac h other. The state ar g ues that th e t ri al court prope rly sentenc ed the defe ndant. We ag ree with the state.

Whe n a de fe nd a nt a

pp e a ls the le ng th o f s e rv ic e of a se nte nc e imp os e d by the tr ia l c ou rt , th is
court c onducts a de novo revie w of the r ecor d with a pre sumption t hat the trial c ourt’s determinations are c orre ct. T.C.A. § 40-35-401( d). The pr esumption of corr ectne ss is “conditioned upon the af

firmative showing in the rec ord that the trial court considere d the sentenc ing principles and all rele vant fac ts a nd circ umstances.” State v. Ashby
, 823 S.W .2d 166, 169 (Tenn. 1991). The burden of showing that the sentenc e is improper is upon the a ppealing party

. T.C.A. § 40-35-401( d), Se nte nc ing Com mis sio n Co mme nts . H ow e ve r, if the re c or d s ho ws that th e tr ial cou rt faile d to consider t he sente ncing principles and a ll releva nt fac ts and circ umstances, then r eview of the
sentenc e is purely

de novo. Ashby , 823 S.W .2d at 169. Concurre nt or conse cutive sente ncing is left to the sound discretion of the t rial court. State v. Hasting s, 25 S.W .3d 178, 181 (Tenn. Crim. App. 1999).-16-

Tenne ssee Code A nnotated § 40-35- 115(a) provides that if a defe ndant is convicted of more than one criminal offe nse, the trial court may order the sentenc es to run consec utively if any of the criteria listed unde r subpart (b) exis ts. One of those criteria is that the defe ndant is sentence d for a n offe nse while on probation. T.C.A. § 40-35-116( b)(6) . The de fenda nt does not contest the fa ct that he c omm itt e d th e c ri me s in thi s c a se wh ile he wa s o n pro batio n for prior of fe ns e s. Th us , by the pla in langua ge o f t h e s tatute, the trial c ourt could orde r him to serve his twenty -five- y ear and six -y ear sentenc es conse cutively

to eac h other. More over, the trial court c ould order that the defe ndant serve those sent en ce s co n s ecutively to his revoked pr obation sentenc e. See T enn. R. Crim. P. 32(c)(2) (providing that a trial court may order a defe ndant to se rve sentenc es for new co n victions

c on se c uti ve ly

to “ a dd iti on a l sen te nc e s n ot y e t f ull y se rv e d” ). Th e tr ia l c ou rt didno t a

bu se its discretion by

ordering c onsecutive se ntencing in this case.

Ba sed upon the for eg oing a nd the re cord a s a whole, w e af firm the judg ments of the trial

c ou rt

.

___________________________________ J OSEPH M. TI PTON, J UDGE