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State v. Fayne

Supreme Court of Tennessee, Jackson

October 27, 2014

STATE OF TENNESSEE
v.
BRODERICK DEVONTE FAYNE

Session Heard at McKenzie April 10, 2014 [1]

Page 363

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Affirmed. Appeal by Permission from the Court of Criminal Appeals Circuit Court for Tipton County. No. 7219. Joe H. Walker, III, Judge.

Gary F. Antrican (on appeal), District Public Defender; and Parker O. Dixon (on appeal and at trial) and Melissa Downing (at trial), Assistant District Public Defenders, for the appellant, Broderick Devonte Fayne.

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor General; Rachel E. Willis, Senior Counsel; D. Michael Dunavant, District Attorney General; and Billy G. Burk, Assistant District Attorney General, for the appellee, State of Tennessee.

GARY R. WADE, J., delivered the opinion of the Court, in which SHARON G. LEE, C.J., and JANICE M. HOLDER, CORNELIA A. CLARK, and WILLIAM C. KOCH, JR., JJ., joined.

OPINION

GARY R. WADE, J.

Page 364

The defendant and an accomplice were indicted for aggravated burglary and employment of a firearm during the commission of a dangerous felony. At the trial of the defendant, the court denied a request by the defense for a special jury instruction on the definition of actual and constructive possession as an element of employment of a firearm. The jury convicted the defendant on both charges, and the trial court imposed an effective nine-year sentence. On appeal, the defendant argued that the trial court erred by denying his request for the special jury instruction and by failing to instruct the jury on the crime of possession of a firearm during the commission of a dangerous felony as a lesser included offense. The Court of Criminal Appeals affirmed the trial court. We hold that possession of a firearm during the commission of a dangerous felony qualifies as a lesser included offense of employment of a firearm during the commission of a dangerous felony. In this instance, however, the defendant waived the issue, and he is not entitled to relief under the plain error doctrine. We further hold that the trial court did not err by refusing the defendant's request for a special instruction on the definition of possession. Accordingly, the judgment of the Court of Criminal Appeals is affirmed.

OPINION

Page 365

I. Facts and Procedural History

On July 14, 2011, two African-American males kicked in the back door of a Covington residence, and one of the two men pointed a gun at fourteen-year-old Kylan Spearmon (the " victim" ) and forced him to the floor. Within fifteen minutes, the two individuals ran out the back door. The victim then contacted his aunt, Octavia Buck, who called the police.

Sergeant Larry McGarity of the Covington Police Department questioned the victim, who described one of the burglars as wearing a white tank top, a blue bandana across his face, and a hat with " balls hanging from it." Sergeant McGarity discovered a few open drawers in a bedroom but determined that nothing was missing from the Spearmon residence.

Twelve days later, a relative notified Broderick Fayne (the " Defendant" ) that the Defendant's cousin, Rodnicholas Lewis, had admitted his involvement in the burglary and had implicated the Defendant. Later that day, the Defendant provided a written statement to the police acknowledging his participation in the crime:

[Lewis] picked me up and told me that we could get some [guns] and[/]or drugs. I agreed to go along with him. We went and parked the car at his aunt['s] house and walked around the house to [Lavondis Boyd's house]. We went to the [victim's] house and entered by kicking in the door and proceeded to rob the house[.] [W]e left the house and ran back to his aunt's house[,] fleeing the scene[.]

The Defendant and Lewis were each indicted for aggravated burglary and employment of a firearm during the commission of a dangerous felony. Later, Lewis pled guilty to aggravated burglary, and the State dismissed the firearm charge in exchange for his testimony in the Defendant's trial.

At trial, the victim testified that on the day of the burglary he heard the doorbell ring and looked out the window but did not answer the door because he did not recognize the individual outside. Some thirty minutes later, however, the victim heard a " bang[] on the [back] door real loudly," and two men forced their way into the residence. A " dark skinned, tall" [2] male holding a pistol and wearing a white tank top, bandana, and toboggan loudly ordered the victim to " get down on the floor . . . or [he would] shoot [the victim's] brains out." The victim testified that he saw only a " shadow" of the other burglar as he entered a bedroom. After about fifteen minutes, the victim heard the burglar who had entered the bedroom say, " Let's go," and both burglars ran out the back door.

Lewis testified that he, the Defendant, Lavondis Boyd, and two other individuals were members of a " rap group" called " Trap Money." He stated that they had a disagreement with a rival group, " Long Money," and that Rodney Gude, a member of " Long Money" who was also the victim's cousin, often stayed the night at the victim's residence in Covington, which was " not even [fifteen] steps" from Boyd's residence.

Lewis testified that on the day of the burglary, he drove the Defendant to the Boyd residence, and Boyd persuaded them to " go over there and kick [in] the door." According to Lewis, Boyd first approached the Spearmon residence and rang the doorbell, and when no one answered, the Defendant kicked in the back door and entered the residence. Lewis explained that he stepped inside but immediately " got scared" and " turned around and ran."

Page 366

Lewis denied having a firearm during the burglary; however, he testified that he saw the Defendant " pull[] a gun out of his shorts" prior to entering the residence. Lewis claimed that he said nothing during the course of the burglary.

Sergeant McGarity also testified for the State. He recalled that during the Defendant's interview at the police station, he had claimed that Lewis was the one who used the firearm during the burglary.

Sharon Russell, a cousin to both Lewis and the Defendant, testified that she had overheard the Defendant's statement to Sergeant McGarity. She stated that " [i]t was said that there was a gun," but she claimed that the Defendant had informed Sergeant McGarity that Lewis did not have one.

The Defendant's testimony was consistent with the written statement he provided to the police. He claimed that after he kicked in the door, he entered a room on his left, searched some drawers, and upon failing to find guns or drugs, fled the scene. He denied possessing or using any kind of weapon and further indicated that he was unaware of whether Lewis had used a firearm.

At the close of proof, the trial court reviewed the proposed jury instructions with counsel outside the presence of the jury. The trial court informed counsel of its intention to instruct the jury on aggravated burglary as well as the lesser included offenses of criminal trespass of a habitation, criminal trespass, and criminal attempt. As to the second count, the charge for employing a firearm during the commission of a dangerous felony, the following dialogue took place:

The Court: In Count 2, employing a firearm during the commission or attempt to commit aggravated burglary. I don't know of any lesser included. Does the State know of any lesser included?
[The State]: No, sir.
The Court: Does the [D]efendant ...

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