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State v. Myers

Supreme Court of Tennessee, Nashville

August 5, 2019


          Session February 6, 2019

          Appeal by Permission from the Court of Criminal Appeals Criminal Court for Davidson County No. 2014-B-1303 Steve R. Dozier, Judge

         The defendant, Leroy Myers, Jr., was indicted for the aggravated assault of Sandra Custode, an inspector with the Department of Codes and Public Safety ("Metro Codes Department"), by intentionally or knowingly causing her to reasonably fear imminent bodily injury by use or display of a deadly weapon. See Tenn. Code Ann. § 39-13-102(a)(1)(A)(iii). Following a bench trial, he was convicted of felony reckless endangerment, which is not a lesser-included offense of aggravated assault as indicted in this case. Both the trial court and the Court of Criminal Appeals concluded that the defendant, through the actions of counsel, caused an effective amendment of the indictment. We granted the defendant's application for permission to appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure to consider whether and under what circumstances the actions of counsel can rise to the level of causing an effective amendment to an indictment absent the clear consent of the defendant. Upon our review, we hold: (1) Tennessee Rule of Criminal Procedure 7(b)(1) sets forth the procedure for amending an indictment with a defendant's consent, and these mandates were not followed in this case; and (2) the actions of counsel amounted, at most, to mere acquiescence rather than an affirmative request for the trial court to consider felony reckless endangerment as a lesser offense. We reverse the judgment of the trial court and the Court of Criminal Appeals, vacate the judgment of conviction, and dismiss the case.

         Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Reversed; Conviction of Felony Reckless Endangerment Vacated and Dismissed

          Thomas Jay Norman, Nashville, Tennessee, for the appellant, Leroy Myers, Jr.

          Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor General; Clark B. Thornton, Senior Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Jennifer Charles, Assistant District Attorney General, for the appellee, State of Tennessee.

          Roger A. Page, J., delivered the opinion of the court, in which Jeffrey S. Bivins, C.J., Cornelia A. Clark, Sharon G. Lee, and Holly Kirby, JJ., joined.



         The issue in this case is whether the proceedings in this bench trial constituted the defendant's effective consent to amend the indictment charging him with aggravated assault, a Class C felony, to include felony reckless endangerment, a Class E felony, which is not a lesser-included offense of aggravated assault as charged.

         I. Facts and Procedural History

         Sandra Custode, the victim in this case, was employed as a property standards inspector with the Metro Codes Department in Nashville, Tennessee. Her job entailed inspecting properties about which people filed complaints involving debris on the property, dilapidated houses, or old cars being kept on the property. Ms. Custode had previously inspected the defendant's property due to a complaint that he had been operating an automobile repair shop in the garage of his home, which was located in a residential neighborhood. On March 13, 2014, she conducted a second inspection of the defendant's property to investigate whether the defendant had complied with her abatement letter.

         Ms. Custode arrived in her clearly-marked government vehicle. Because this was the second visit about the complaint, she intended to take photographs as evidence of whether the defendant was in compliance with the directive to abate. As she was driving toward the defendant's property, Ms. Custode could clearly see several automobiles parked behind a fence in the yard and two automobiles in front of the garage. At the front of the defendant's house, she saw several people talking to him as he worked on one of the cars.

         Ms. Custode parked her car in the right-of-way in front of the defendant's garage to take photographs because he had previously "ordered" her off of his property. For that reason, she did not venture onto his property but rather took photographs from her vehicle. The defendant saw Ms. Custode taking pictures and began "yelling" as he walked toward her car. When he arrived at Ms. Custode's car, the defendant called her names and cursed at her. He directed her to other properties in the area and suggested that Ms. Custode go "get" them. Ms. Custode recalled, "He was pacing back and forth and just flailing his arms. He was screaming at the top of his voice. He was really angry. Spit was flying out of his mouth. He was just mad." She attempted to answer the defendant's questions from her vehicle, but he would not listen to her. The defendant suddenly stopped his tirade and "stomped off towards his garage" with his "fists clenched." Believing that the dialogue was over, Ms. Custode began to drive away. She looked in her rearview mirror and pulled onto the road. She then heard shots. Upon hearing the second shot, she turned, looked over her shoulder, and saw the defendant lowering a gun. Ms. Custode described the gun as a "long gun," "like a rifle." The defendant was about two feet outside of the garage, facing Ms. Custode, and two people were standing alongside him. One of the people, a female, was laughing. The defendant turned and walked into the garage.

         Ms. Custode drove to Ivy Point Road, where she pulled over her vehicle to see if the defendant had followed her. She telephoned her employer, who advised her to call the police. The police instructed her to drive to the bottom of the hill on Ivy Point Road, and she complied. There, a police officer approached her and asked her to follow him to the defendant's house. She identified the defendant then remained there until she was instructed to drive to the police department to file a complaint.

         Metropolitan Nashville Police ("Metro") Sergeant Lukas Merithew along with Officers Jason Dugley and Joshua Borumn arrived at the scene to investigate Ms. Custode's complaint. Officer Dugley found a Mossberg pump-action shotgun just inside the "primary entrance," leaning against a washing machine. He cleared the weapon, rendered it safe, and placed it in a patrol car as evidence. Neither he nor anyone else located spent shotgun shells, but he clarified that one must manually eject the shells from this type of weapon.

         Officer Borumn sat inside his patrol car typing his report while the defendant was in the back seat. Officer Borumn heard the defendant say that he was shooting at chicken hawks that were trying to attack his chickens; however, the officer did not observe any chickens in the front yard. During the time at the defendant's residence, Sergeant Merithew did not see any chickens on the property. The sergeant said that because of the rural nature of the area, it was not unusual to hear a shotgun being fired. The defendant also mentioned that he had a "history" with Ms. Custode from "codes." In the arrest warrant, Officer Borumn wrote that the "[d]efendant admitted that he fired off a few rounds at some animals that just happened to be in the general vicinity of the victim."

         During the course of the investigation, a young couple appeared at the defendant's residence. Officer Dugley characterized the couple as being "friendly" with the defendant. The female, Debra Mallory, testified at the bench trial that she had witnessed the altercation, that she heard what the defendant said to Ms. Custode, and that he neither cursed her nor threatened her. She recalled that Ms. Custode had "pulled down the road and . . . was away from the house" when the defendant responded to the commotion in the backyard and retrieved his gun. Although Ms. Mallory testified that the defendant fired the gun "once in the air and once in the backyard," she admitted that she did not actually see him shoot the gun. She said, "I didn't see him, no. I mean, I -- I was a little bit away from him, by -- seen him shoot up in the air, but I didn't see him." Ms. Mallory had given a statement to the State's investigator previously, in which she had stated that the defendant fired the gun because he was mad at Ms. Custode, who was taking pictures, but during the bench trial, she did not remember making that statement. She also denied having said in the statement that the defendant was firing at an animal, stating instead that he shot in the air and into the backyard, but not at an animal. The State's investigator testified in rebuttal that Ms. Mallory had previously stated that the defendant had fired his weapon because he was angry with the "codes lady."

         Ms. Custode recalled that she felt "really scared" and "terrified" during the incident. She began crying and shaking. She feared that the defendant intended to follow her vehicle and shoot her. Ms. Custode described the defendant as having been "crazed mad" at her. He previously had cursed at her, and his attitude toward her became more aggressive with each visit. She was certain that the defendant was shooting at her because "maybe only five seconds went by from the time [she] last saw him and [she] started [her] car and he was stomping to the garage."

         The defendant testified at the bench trial and said that he kept chickens in the backyard of his property. He kept several varieties, including bantams, which were very small. Hawks had flown down, grabbed bantams through the fence, and carried them away. He had lost twenty to twenty-five of those chickens within the six months prior to this incident. The problem was so pervasive that he kept a shotgun inside of the garage. Following the incident with Ms. Custode, during which the defendant admitted to having "words" and complaining to her, he said he observed a hawk flying "from the road . . . back towards [his] backyard." He grabbed the gun from his garage, walked outside, pointed the gun upward and toward the backyard, and fired twice. He said he did not see Ms. Custode at that time and had no idea how Ms. Custode could have seen him, positing that her testimony that he had retrieved a gun was a "lucky guess." Moreover, he asserted that Officer Borumn's testimony regarding the defendant's admission in the back of the patrol car was false.

          Ms. Custode testified that she did not believe the defendant's assertion that he was merely shooting at a hawk that was attempting to attack his chickens. She recalled that his chickens were confined in an enclosed coop from which the chickens could not escape and hawks could not enter. She maintained, "[H]e was shooting because of me. Whether or not he shot at me, I don't know. But he shot because of me."

         Ms. Custode had to return to the defendant's property at a later date because her job required her to do so, but she was still scared when she returned. Since the incident, the house in which the defendant lived had been torn down, but Ms. Custode was under the belief that he still resided in the area. A nearby residence had several vehicles parked in the yard, and Ms. Custode surmised that the defendant might have relocated there. Thus, she was afraid to knock on the door and speak with the owners because she feared it would be the defendant.

         After the presentation of evidence, the State made its closing argument, followed by a closing argument by defense counsel. Counsel argued first that the evidence was insufficient because Ms. Custode did not testify that she feared "imminent bodily injury." Furthermore, he argued that the defendant was exercising his right to free speech via actions to express his anger at the government and not with the intent of causing Ms. Custode to be fearful of imminent bodily harm.

[T]he Court knows I'm sure that firing a shotgun into a tree can't be reckless endangerment. There is [sic] many opinions, Tennessee Supreme Court has talked about that, and I believe it's State versus Payne. And if firing a shotgun into a tree can't be reckless endangerment, a class E felony, I don't know how in the world we are going to elevate this to a class C felony?
. . . .
State versus Shaw also speaks to it -- simply firing a weapon does not amount -- tantamount to reckless endangerment. I mean, that's the problem I have, Your Honor please. If you fire a shotgun up into a tree, if you're not recklessly endangering somebody, how can you say that is an actual assault unless the person is in the tree?

         Following closing arguments, the trial court explained that there were factors to consider before rendering a verdict, such as credibility issues and accuracy of the location of the initial confrontation between Ms. Custode and the defendant. The court also noted that defense counsel had "raised issues about, not in this direct discussion, but whether or not there might be less -- a lesser offense like reckless endangerment." The court encouraged defense counsel to submit the two cases to which he had referred during his closing argument, "in terms of imminent danger." The trial court then took the matter under advisement.

         On June 30, 2015, the trial court entered an order finding the defendant not guilty of aggravated assault but guilty of reckless endangerment, stating:

Here the [D]efendant did not merely shoot the gun into a tree. He fired the weapon twice in Ms. Custode's direction to scare her off of his property as she was leaving. Ms. Custode saw the [D]efendant lower the gun in her direction. Ms. Custode was present in the zone of danger, wherein a reasonable probability of danger existed. ...

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