Issues: Should the trial court or jury determine whether the defendant was “engaged in unlawful activity” in a self-defense case? What is the proper interpretation of that phrase?
Facts: The defendant argued self-defense. The trial court read the pattern jury instruction stating that the defendant was entitled to use self-defense if, among other things, he was “not engaged in unlawful activity.” The trial court also deviated from the pattern instructions by providing that it is illegal for felons to possess firearms (which was applicable to the defendant).
Appellate Decision: The intermediate court held that the trial court correctly instructed the jury to consider whether the defendant was engaged in lawful activity. The intermediate court also held that is was error to “charge any offenses that were not charged in the indictment” because this created “a trial within a trial.” However, this error was harmless.
Review Granted: November 22, 2016.
Prediction: Ben thinks the Supreme Court will affirm the lower court’s holding, but clarify the “engaged in unlawful activity” terminology. The statute itself does not merely say that a person not breaking the law can use self-defense. Rather, the statute says that a person (1) not engaged in unlawful activity and (2) is in a place they have the right to be “has no duty to retreat” before force can be used in defense. TCA 39-11-611. Thus, the unlawful activity component is tied to the duty to retreat rather than the use of force. It makes sense that, for self-defense to be unavailable: there should be some nexus between the disqualifying unlawful activity and the circumstances involving self-defense. For example, burglarizing a victim should preclude self-defense if the victim fights back, but not possession of marijuana in the defendant’s pocket. David believes the Court may even suggest some amendments to the pattern instructions to clarify the point.