State of Tennessee v. Antoine Perrier
W2015-01642-SC-R11-CD
Tenn.Nov 21, 2017Background
- On Feb. 13, 2010 Antoine Perrier fired a handgun toward a convenience store after an exchange with patrons; bullets struck an 8-year-old girl and grazed others. Perrier admitted prior felony conviction and possession of the handgun.
- Perrier was convicted of attempted voluntary manslaughter (lesser-included of attempted second-degree murder), employing a firearm during a dangerous felony, five counts of aggravated assault, and one assault; effective 30-year sentence.
- After procedural delays and appeals, the Tennessee Supreme Court granted review to decide (1) the meaning of “not engaged in unlawful activity” in Tenn. Code Ann. § 39-11-611(b) and (2) whether the court or jury determines if the defendant was so engaged.
- Trial judge had given self-defense instructions but improperly left the question whether Perrier was “engaged in unlawful activity” for the jury to decide and added examples of unlawful activity.
- The Supreme Court reviewed statutory construction de novo and examined statutory history, prior common-law duty-to-retreat, and comparative authority from other states.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Perrier) | Held |
|---|---|---|---|
| Meaning of “not engaged in unlawful activity” in § 39-11-611(b) | Phrase is plain and does not require a causal nexus to the claimed self-defense; it qualifies the no-duty-to-retreat rule. | Phrase is ambiguous; it should only limit the duty-to-retreat (not the entire defense) and, if applied, require a causal nexus between unlawful activity and the need to defend. | Court: "not engaged in unlawful activity" is a condition on the statutory privilege not to retreat (i.e., limits the no-duty-to-retreat aspect). |
| Who decides whether defendant was engaged in unlawful activity for the no-duty-to-retreat rule | The threshold determination should be made by the trial court before instructing the jury. | The jury should decide whether the defendant was engaged in unlawful activity. | Court: Trial court must make the threshold determination (use clear and convincing evidence standard for showing unlawful activity); then decide whether to give no-duty-to-retreat instruction. |
| Whether Perrier’s status as a felon in possession constituted "unlawful activity" under § 39-11-611(b) | The State: felon-in-possession is unlawful activity and can preclude the no-duty-to-retreat instruction. | Perrier: possession as justification for precluding the defense is improper; argued statutory language and interplay with weapons self-defense statute counsels otherwise. | Court: Felon-in-possession qualified as unlawful activity here. |
| Remaining claims (lesser-included firearm instruction, indictment notice, necessity defense, sufficiency of evidence) | State: trial court’s rulings were correct or harmless; indictment adequate under precedent; necessity not fairly raised; evidence sufficient. | Perrier: trial court erred by not instructing lesser-included possession-of-firearm, indictment deficient, necessity instruction required, assault conviction unsupported. | Court: Affirmed convictions. Failure to give lesser instruction not plain error; indictment adequate under Martin/Duncan; necessity not fairly raised; evidence sufficient. |
Key Cases Cited
- State v. Renner, 912 S.W.2d 701 (Tenn. 1995) (discusses no-duty-to-retreat/"true man" doctrine and factors for retreat rule)
- State v. Kennamore, 604 S.W.2d 856 (Tenn. 1980) (common-law duty to retreat prior to statutory change)
- State v. Hawkins, 406 S.W.3d 121 (Tenn. 2013) (self-defense is a general defense that must be fairly raised before submission to jury)
- State v. Pruitt, 510 S.W.3d 398 (Tenn. 2016) (treats duty-to-retreat issues as jury questions under existing instruction structure)
- State v. Martin, 505 S.W.3d 492 (Tenn. 2016) (rejects claim that indictment must name the underlying dangerous felony and addresses lesser-included instruction issue)
- State v. Duncan, 505 S.W.3d 480 (Tenn. 2016) (holds indictments referencing statutory list of dangerous felonies provide constitutionally adequate notice)
- Jackson v. Commonwealth, 481 S.W.3d 794 (Ky. 2016) (concludes defendant engaged in unlawful activity during heroin collection and thus not entitled to no-duty-to-retreat instruction)