### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs O ct obe r 4, 200 5

STA TE OF TEN NES SEE v. TEV IAS B LED SOE

Appeal f romthe Cr im inal Cou rt for Shelby Coun ty No. 03-05465 Joseph P . Dailey, Judge

No. W2004-01585-C CA-R 3-CD - F iled Janu ary 19, 2006

The ap p e ll a n t, T e v ia s B le d s o e , w a s in d ic te d o n o n e c o u n t o f p r e me d it a te d mu r d e r , o ne count of felony murder, one count of e specia lly ag g ravated robbe ry , and thre e counts o f possession of a firea rm by a convic ted fe lon. After a jury trial, the appe llant was ac quitted of all cha rg es except for the fire ar m p o ssession char g es. The trial court nolle prosse d two of the fir earm char g es and
sentenc ed the appellant to four y ear s as a Rang e I I multipl e off

ender for the r emaining conviction. Af te r the de nia l of a mot ion fo r ne w tr ia l, the app e lla nt fi le d a tim e ly no tic e of app e a l. On app e a l, the appe llant contends that the trial court committed plain err or by failing to instruct the jury on the de fe ns e of

du re ss. We a g re e a ndre ve rs e a ndre ma ndthe jud g me nt o f the tr ia l c ou rt

.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Tr ial Co ur t i s R e ve r se d and Rem anded

J ER R Y L. S MI TH , J ., delivere d the opi n i o n o f t h e court, in which D AVI D H. W EL L ES , and A L AN E. G L EN N , J J ., joined.

Bill Ander son, Memphis, Tennessee , for the a ppellant, Tevia s Bledsoe

.

Pa ul G . Su mme rs , At torne y Ge ne ra l a nd Re po rt e r; Da vid H. F ind le y , As sis ta nt A tto rn e y Ge ne ra l; and William L

. G ib b o n s, District Attorney Gene ral; Steve Jones and Amy Weirich, Assistant District Attorney s Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

I n J uly of 2003, the appellant was indi cted in a mul ti-count indictment on char g es of f elony murder, f irst deg ree murder, espec ially ag g ravated robbery
, and three counts of being a convicted felon in possession of a ha ndg un, al l re l ati ng to the death of Nathan Ma

roney , the victim, on September 9, 2001.-2-

At tr i al
, Al o nzo Holt t estified that in the ea rly morning hours of Septembe r 9, he w as returning home from a party near South S ide Hig h School in Memphis, Tennessee , when he hear d

a n arg ume nt. Mr . H olt

de c ide d to inv e sti g a te . Fro m a bo ut thirty

to f orty y ard s a way , M r. Ho lt c ou ld

see a bei ge sp orts u til ity

ve hic le pa

rk e d o n th e sid e of

the ro a d n e ar the hig h s c ho ol. Tw o ma le individuals were sta nding on the sidewalk nex t to the passeng er door . The ve hicle wa s running and the hea dlights we re on.

Mr. Holt saw one of the men point a g un at the other . Mr. Holt thought the man wit h the g un said, “Give me s omething or I was going to kill y ou” to the ot her man. Mr. Holt never saw the othe r man with the g un and hea rd the victim say

something tha t sounded like “oka y .”

Mr

. Ho lt kn e w that the re wa s a se c urity c a me ra a t the sc ho ol andy e lle d o ut that a ny of the ir actions would be caug ht on came ra. Mr. Holt te stified that he hear d the victim e x claim, “I d on’t kn ow wh y

he wa nts to d o th is, I

tho ug ht we we re frie nd s. ” At that po int , M r. Ho lt c la ime d th a t bo th men turned to look in his directio n

. Mr. Holt turned a nd beg an bac king a way . When he g lance d back ove r his shoulder, he sa w the two men enta ng led in a fig ht, then hear d the g un discharg e. Mr. Holt claimed that the victim fe ll to the gr ound and the shooter beg an g oing thr oug h the victim’s pockets. Mr. Holt next s aw the shoote r g o to the truck a nd look at its contents. Mr. Holt testified that the shooter went bac k to the victim’s body befor e g etting ba ck into the vehicle and driving awa y at a hig h rate of spee d. Mr. Holt did not see the shooter take a ny thing f

rom the victim’s person.

Mr. Holt left the sce ne, ca lled the police a nd returne d to the scene to wait for the police . He saw the vic tim’s wallet on the g round next to his body
, along with a tube of lip balm and a piec e of pa pe r. Mr . H olt

wa s n ot a

ble to i de nti fy

the sh oo te r w he n a sk e d b y the of fi c e rs

.

The victim suffe red a

single g un shot w ound to the upper left chest and sever al abra sions on his head. The victim bled to death as a result of his injuries.

Once the police a

rrived on the scene , they located the victim’s w allet. I nside the wallet, the police found two f

ifty dollar bills which wer e folded very small a nd hidden in poc kets of the wa llet
not or dinarily used for storing cash. The police also found cash on the victim’s per s o n i n s i d e the watch poc ket of his pants.

Kevin Maze testified tha t about one we ek prior to the mur d er , h e and the a ppellant wer e riding around in the a

ppellant’s ca

r whe n it broke down on the interstate. The c ar w as towed, but the appe llant did not have the money to ge t the car

from the towing c o m pany . Acc ording to Mr. Maze, the appe llant was upset bec ause he had a lot of mone y invested in the ca

r and w as mad a t Mr. Maze bec ause he thought that Mr. Ma ze had the ca r towed.

Around 3:00 a.m. on the morning o f t h e m u rder , Mr. Maze saw the appellant driving the victim’s vehicle. The appellant first told Mr. Maze that he g ot the vehicle f rom a “ junkie” who wa s g oing to a llow the appellant to use the vehicle f or a fe w d ay s i n ex chang e for money . Then the appellant told Mr. Maze that a homosex ual had trie d to “come on” t o him, so he robbed the m an of-3-

his ke y s, c e llu lar p ho ne a ndmon e y . A t on e po int , M r. Ma ze sa t in the ve hic le wi th the app e lla nt, looking at the CDs that were inside the vehicle . The ap p el l an t wanted to pa rk the ve hicle at Mr. Maze’s house, but Mr

. Maze was able to c onvince the a ppellant to park the vehicle at his girlfriend, L akesha Nelson’s house just up the stre et.

When Mr. Maze returned home that morning , he saw the news on television and rea liz ed that the vehicle the appe llant was driving belong ed to t he murde red vic tim and that his finge rprints wer e inside the vehicle . Mr. Maze notified the police and later led them to the vehicle

.

F or me r P oli c e Of

fi c e r Curtis Ha fl e y , n ow a me mbe r o f the Ho me la ndSe c urity De pa rt me nt, testified t hat he was approac hed during a traff ic s top by two men who informe d him of the location of the vic tim ’s ve hic le a ndthe app e lla nt. Of fi c e r Ha fl e y loc a te d the ve hic le ba c ke d int o a sp ot c los e to a re sidence . After

running the VIN number, Haf ley learned that the vehicle w as stolen and wa nted in connec tion with a homicide.

H a f le y r e q u e s te d b a c ku p a n d h e a n d o th e r o f f ic e r s k n o c k e d o n th e d o o r o f th e r e s id e n c e n e xt to the parke d vehicle at around 4:00 a .m. After knocking loudly for about fiftee n minutes, a phone call wa s made to the oc cupants of the residenc e. The appellant e x ited the re sidence and wa s place d under a rre st. As t h e off

icer s were escorting the a ppellant to a police c ar, the appellant a sked the of fi c e rs if he c ou ld r e tr ie ve so me of his pe rs on a l be lon g ing s f ro m in sid e the ve hi cle . A f e ma le residen t h a n d e d a s e t o f c ar k e y s to th e p o li c e o f f ic e r s

. Sh e s tate d th a t th e k e y s b e lo n g ed to the appellant.

Offic er Ernestine Da vison of the Memphis Police Depa rtment to o k a statement fr om the appellant on Septembe r 10. Afte r the a ppellant was notified of

his Miranda rig hts, but prior to the be g inn ing of

the state me nt, the app e lla nt a sk e d if the vic tim

ha d f ile d a ro bb e ry re po rt

in r e g ard s to his vehicle. Of

fice r Da vison did not not ify the appe llant at that time that the victim was dea d.

The a ppellant first cla imed that he left the victim at the corne r of Humbe r and Par kway and that the vic tim g a ve the app e lla nt his c e ll p ho ne so that he c ou ld c a ll w he n h e wa nte d mo re dr ug s. About thirty

minutes later, the appellant cha ng ed his story , this ti me claiming that the victim tried to rob him. The appe llant even c laimed that the victim called him [ afte r the time that the victim was found dea d] i n sear ch of dr ug s.

After learning that the victim died, the app ellant told a third version of the story , claiming that the victim tried to rob him of drug s at g unpoint. The appellant claimed in this ver sion that he was able to g et t he gun and hit the vi ctim on the head with it. When he hit the vi ctim, the appellant claimed that the g un discharg ed and t h e victim was shot. The appe llant told the officer s that he threw the g un in some bushes as he dr ove aw ay . The murde r we apon wa s never located and the appellant’ s fing erprints were f ound inside the victim’s vehicle.

The a ppellant t o o k t h e s t an d in his own defense . He testified that he and the vic tim were acqua intances a nd met during a drug transac tion. The appe llant admitted that he was a drug deale r.-4-

At the time of the incide nt, the appellant claimed t hat he had known the vi ctim for a f ew we eks. The two men hung out toge ther for most of the evening

. At some point, while the two wer e riding in the victim’s ve hicle, the victim be g an acc using the appellant of stealing his drug s. The appe llant denied stealing the drug s. At that time, the appellant c laimed that the victim pulled a g un on him and de ma nd e d h is d ru g s. Th e app e lla nt j ump e d o ut o f the ve hic le in an a tte mpt to l e a ve , b ut the vic tim
sto pp e d th e ve hic le a ndc on tin ue d to ho ld the g un on him . T he app e lla nt c la ime d th a t he wa s a ble to slap the g un out of the victim’s hand and, af ter a n exchang e of blows, take control of the w eapon. The appellant testified t hat he cocke d the gun and then heard som eone say that there was a

came ra

on the school property

. As the appellant turned to se e who made the statement, he st at ed t h at the victim g rabbe d for the g un and it discharg ed. The appellant sa w the victim fall to the g round. The appellant testified that he looked over the victim for a g un shot wound. The appe llant claimed that he saw no wounds so he lef t in the victim’s truck.

At the conc lusion of the jury trial, th e j u ry fo u n d the appe llant not guilty of all crimes as char g ed in the indictment except for be ing a convicted f

elon in possession of a fir earm. At
sentenc ing, the trial court nolle prossed two of the “fe lon in possession of a firea rm” char g es a nd

s en t en ce d t h e a p p el l an tt o fo u r y ea rs as a R an ge II m u l t i p l e o ff

en d erfo r t h e s o l e f

i re ar mch ar ge

rema ining.

The a ppellant subsequently

filed a motion for ne w trial arg uing merely that the “ve rdict of the jury was c ontrary

to the weig ht of the evidenc e.” The motion for new tria l was denie d and the appellant f

iled a timely

noti ce o f ap p eal. On a ppeal, the a

ppellant ar g ues that the trial c ourt committed plain error

by failing to char g e the jury with duress.

An a ly sis

On app e a l, the app e lla nt a rg ue s tha t “th e e vid e nc e c le arl y re ve a ls that th e de fe ns e of du re ss sh ou ld h a ve be e n in clu de d in the jury ins truc tio ns ” a ndthat th e tr ia l c ou rt ’s failu re to d o s o

a mou nte d to pla in e rr or

un de r R ule 52 (b ) of the Te nn e sse e Rul e s o f C ri min a l Pr oc e du re . T he Sta te counter s that the appellant waived the issue for failure to raise it in a mot ion for new trial, or, in the alternative, that the trial court’s failure to instruct the jury on duress wa s not plain error beca use the evidenc e at tria l did not support such an instruction.

A trial court has a duty

to give a com p lete cha

rg e of the law applica

ble to the fa cts of the

case . State v. Har

ris, 839 S.W .2d 54, 73 (Tenn. 1992). Any thing short of a c omplete cha rg e denie s a def endant his constitutional rig ht to trial by a jury

. State v. McAfe e, 737 S.W .2d 304, 308 (Tenn. Crim. App. 1987). Howeve r, Tennessee law does not mandate that any particula r jury instructions be g iven so long as the trial court g ives a complete char g e on the applica ble law. State v. West, 844 S.W. 2d14 4, 15 1 (T e nn

. 19 92 ). Th e ins truc tio ns sh ou ld i nc lud e a c ha rg e on the de fe ns e of

du re ss if the fa cts would fair ly

support it. As duress is not classified by our code as an a ffirma tive defe nse, the def endant ne ed not pr ove it by a preponde ranc e of the evidenc e. State v. Culp, 900 S.W .2d 707, 710 (Tenn. Crim. App. 1994). Where the pr oof, howe ver, “ fairly raises” the def

ense, the trial court “must submit t he def

ense to the jury and the prosec ution must ‘prove be y ond a re asonable doubt that-5-

the def ense doe s not a

pply .’” I d. (quoting State v. Hood, 868 S.W .2d 744 (Tenn. Crim. App. 1993)). The test for

whether a spec ial instruction must be give n is whether “t h er e i s any evidenc e which

rea sonable minds could ac cept a s to any such [defense ] . . .

. ” J ohnson v. State, 531 S.W .2d 558, 559 (Tenn. 1975)

.

Ac c or din g to T e nn e sse e Cod e An no ta te d s e c tio n 3 9- 11 -5 04 :

Dure ss is a defe nse to prosec ution where the pe rs o n or a third pe rson is threate ned with harm which is pre sent, imminent, im pending and of suc h a natur e to induce a well-g rounded a

pprehe nsion of death or serious bodily injury if the ac t is not done. T h e threa tened ha

rm must be continuous throug hout the time the act is being

c o m m i t t e d
, a n d m u s tb e o n e f r o mw h i c h t h e p e r s o n c a n n o tw i t h d r a w i n s a f e t y. Further, the de s i rability

and urg ency

of avoiding the harm must clearly outweig h,

acc ording to ordinary

standards of rea sonablene ss, the harm soug ht to be preve nted by the law pr oscribing the conduc t.

(b) This def

ense is unavailable to a per son who intentionally , knowi n gl y , or

rec klessly become s involved in a situation in which it was probable that the per son would be subjec ted to compulsion.

Tenn. Code Ann. § 39- 11-504.

We note, as pointed out by the State, that the appe llant failed to re quest a spec ial instruction at trial and failed to raise the issue in a motion for new trial, instead choosing to raise the issue f or the fi rs t time on app e a l. T he app e lla nt c on c e de s in his brie f that th is i ssu e ha s b e e n w a ive d d ue to his failure to objec t to the j ury instructions at t rial and his failure to raise the issue in a motion for new tria l. Howeve r, the a

ppellant urg es this Court to review this issue under the plain err or standar d.

Ordinarily , the appe llant’s issue would be conside red w aived be cause he fa iled to make a contempora neous objec tion during tria l and fa iled to raise the issue in a motion for new trial. See Te nn . R. Ap p. P. 36 (a ); Te nn

. R. Ap p. P. 3 ( e ). Whe n a n is su e is r a ise d f or the fi rs t ti me on app e a l, it is t ypically

waived. State v. Alvara do, 961 S.W .2d 136, 153 (Tenn. Crim. App. 1996) . Howeve r, we may addre ss the issue in the event t h er e wa s p l ai n err or on the pa rt of the tria l court. State v. Smit h, 24 S.W .3d 274, 282 (Tenn. 2000) . Thus, if this Court is to review the claims of improper jury ins truc tio ns , w e mus t do so thr ou g h th e pr oc e ss o f “ plain e rr or ” re vie w e mbo die d in T e nn e sse e Rul e of Cr imi na l Pr oc e du re 52 (b ) w hic h p ro vid e s:

An er ror whic h has aff

ecte d the substantial rights of an ac cused ma y be noticed at any time, even thoug h not raised in the motion for a n ew t ri al or assig ned as e rror onT hi s r ul e by i t s t er ms a l l ows pl ai n erro r re vi ew onl y wh er e t her e i s a fai l ur e t o al l ege er r or i n t he new t r i al 1

m o t i o n or where t he error i s no t rai sed b ef o re t he ap p el l at e co urt

. N evert hel ess t he rul e has been i nterpret ed by t he appel l at e c our t s t o al l ow appel l at e rev i ew under s om e c i r cums t anc es i n t he abs enc e of a c ont emp oran eous object i on as

w e ll.

-6- appea l, in the discretion of the a ppel l at e co u rt wher e nec essary to do substantial justice. 1

I n order to review an is sue under the pl ain error doctrine, five f actor s must be present: (1) the re cord

mus t cle arl y e sta

bli sh wh a t occ ur

re d in the tr ia l cou rt ; (2) a c le ar an d une qu ivo c a l rul e of la w m us t have be en bre ache d; (3) a substantial right of the defendant must have be en adve rsely aff ecte d; (4) the a c c us ed di d no t wa ive the iss ue fo r t a c tic a l r e a so ns ; a nd(5 ) c on sid e ratio n o f the e rr or is

nece ssary to do substantial just ice. See Smit h, 24 S.W .3d at 282-83; State v. Adkisson, 899 S.W .2d 626, 641 (Tenn. Crim. App. 1994) ; see a lso Tenn. R. Crim. P. 52(b). For a “substantial right” of the

a c c us e d to ha ve be e n af

fe c te d, the e rr or mus t hav e pr e jud ic e d the app e lla nt. I n o the r w or ds , it mus t have a ffe cted the outc ome of the tria l court procee dings. United States v. Olano, 507 U.S. 725, 732- 37 (1993) ( analy zing the substantially simil ar F eder al Rule of Criminal Procedur e 52(b) ); Adkisson, 899 S.W .2d at 642. This is the same ty pe of inquiry

as the ha rmless err or ana ly sis under Tenne ssee Rul e of Ap pe llate Pr oc e du re 36 (b ), bu t the app e lla nt be ars the bu rd e n o f p e rs ua sio n w ith re sp e c t to plain err or cla ims. Olano, 507 U.S. at 732-37.

I n the ca se here in w e are persua ded that the a ppellant has succ essfully

car ried his burde n of persua sion in establishing a plain err or cla im. First, the re cord is fa irly clea r as to what happene d in the trial court. While the jury char g e is not part of the transcript, it appea rs i n the technic al re cord. Fr om the technica l rec ord, it appea rs that the trial c ourt did not instruct the jury on duress. More importantly , consideration of the issue is nec es s ar y to do substantial just ice. L ooking at the

e vid e nc e , w e are c on vin c e d th a t e vid e nc e “ fair ly raise s th e de fe ns e ” su c h th a t th e tr ia l c ou rt wo uld have be en oblig ated to submit the issue to the jury

. For a statutory

defe nse to be fairly

raised by the pr oo f “ a c ou rt mus t, i n e ff

e c t, c on sid e r the e vidence in the lig ht m os t f a vo ra ble to the de fe nd a nt, including dr awing all rea sonable inferenc es flowing fr om that evidence ,” bec ause the trial courts a nd appellate courts must avoid judg ing the cre dibilit y of the witnesses when making this determination. State v. Shropshire, 874 S.W.2d 634 (Tenn. Crim. App. 1994). After revie wing the re cord, w e ar e espec ially persua ded that the appellant “fa irly raised” the def ense of duress in lig ht of the fa ct that the jury , afte r hea

ring all of the evidenc e, acquitted the a ppellant of a ll charg es except for possession of a firea rm. See C ulp, 900 S.W .2d at 710. The evidence
, viewed in a li g ht most favorable to the appellant e stablished that during a s t ru g g le betwe en the victim and the a ppellant, the appe llant knocked the g un out of t he victim ’s hand, picked the g un up and pointed it at the victim in an attempt to “protec t himself.” Acc ording to t h e ap pellant, “the g un went off when [the victim] attacke d [hi m] .” The jury ’s ver dict in acquitting the appellant of the homicide and r obbery char g es appe ars to acc redit this theory

of the defe nse. Thus, we conclude that in or der to do substantial justice a jury must be allowed to c onsider the defe nse of “dure ss” in a ssessing the appellant’ s g uilt of the fire arm possession char g e. Unde r these c ircumstance s we a re of the opinion that the appellant ha s car ried his burden of pe rsuasion in convincing this Court to consider as plain err or the trial c ourt’s fa ilure-7-

to instruct the jury

on duress. Theref

ore, we m ust reve rse the judgme nt of t he trial court a nd rema nd the matter f

or a ne w trial on the c harg e of posse ssion of a fire arm by a fe lon.

Conclusion

For the fore g oing r easons, the judg ment of the trial c ourt is reve rsed a nd rema nded.

___________________________________ J ERRY L . SMI TH, JUDGE