May 30, 2019 
by Permission from the Court of Criminal Appeals Circuit
Court for Madison CountyNo. 16-109 Donald H. Allen, Judge.
defendant, Brandon Cole-Pugh, was convicted of being a felon
in possession of a handgun, in violation of Tennessee Code
Annotated section 39-17-1307(b)(1). The evidence presented at
trial suggested that the defendant obtained a handgun during
a physical altercation, during which the handgun became
loose, fell from another individual's possession, and
dropped to the floor. Prior to the trial court's
instructions to the jury, defense counsel orally requested an
instruction on the defense of necessity. The trial court
denied the request. Based upon the evidence presented at
trial, the briefs of the parties, the arguments of counsel,
and the applicable law, we hold that the defense of necessity
was fairly raised by the evidence and that the trial court
erred in refusing to instruct the jury accordingly. We
further hold that Tennessee law does not preclude plenary
review of a claim of error based on a trial court's
failure to instruct the jury on a general defense when the
request was not made in writing. We, therefore, reverse the
judgment of the Court of Criminal Appeals and remand this
case to the trial court for further proceedings consistent
with this opinion.
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Criminal Appeals Reversed; Case Remanded to the Trial
Taylor, Jackson, Tennessee (at trial); and Lance R. Chism,
Memphis, Tennessee (on appeal), for the appellant, Brandon
Herbert H. Slatery III, Attorney General and Reporter;
Andrée Sophia Blumstein, Solicitor General; Jonathan
David Shaub, Assistant Solicitor General; Jody S. Pickens,
District Attorney General; and Aaron Chaplin, Assistant
District Attorney General, for the appellee, State of
A. Page, J., delivered the opinion of the court, in which
Jeffrey S. Bivins, C.J., and Cornelia A. Clark, Sharon G.
Lee, and Holly Kirby, JJ., joined.
A. PAGE, JUSTICE.
Alshaif was the owner/manager of The Gold Line Market and
convenience store in Jackson, Tennessee. In the early morning
hours of November 22, 2015, Mr. Alshaif was summoned to the
store by one of his employees, Hassan Hamd, who reported that
a fight had erupted and had ended in a shooting. When Mr.
Alshaif arrived at the store, he witnessed the destruction
that had occurred as a result of the struggle. Law
enforcement officers responded to the scene and asked to view
the video camera recordings. Mr. Alshaif maintained sixteen
cameras in and around the store, and he provided officers
with copies of the recordings from all of them.
Police Officer Paul Bozza responded to a "shots
fired" call at the store. Upon arrival, he was advised
that a female, Antalisha Jeter, had been shot, and he
rendered aid until an ambulance arrived. After assisting the
injured woman, Officer Bozza asked the defendant to remain at
the scene while Officer Bozza watched the video recordings
from the store cameras. In the video, the defendant could be
seen holding a firearm. Based upon his prior knowledge,
Officer Bozza knew that the defendant was a convicted felon,
but he verified the defendant's status on the crime
watching the video, Officer Bozza questioned the defendant
and asked where he had placed the gun because the defendant
no longer had possession of it. The defendant said that
"he didn't have a gun." The defendant was
ultimately arrested, but the officers did not find the weapon
on his person or in the vehicle in which Ms. Jeter had been
trial, Officer Bozza narrated the video as it was played for
the jury. The video showed the defendant walking toward the
store, holding what was presumably a cellular telephone in
one hand. He did not appear to be carrying a weapon at that
point. There was a large crowd gathered in the store. The
defendant put his telephone away as several people began
backing up and "crowding" in front of the store.
The defendant nonetheless entered the store where a physical
Bozza described the fight that occurred inside the store,
which involved the defendant and another individual who was
unknown to the officer. The defendant was on the ground at
one point but thereafter exited the store holding a silver
pistol, pointed down, in his right hand. Other people could
then be seen running from the store, but the defendant
attempted to walk back inside with the gun. Before the
defendant could enter the store, he engaged in "some
kind of little standoff" with another man, who was also
armed. The video recording also showed Ms. Jeter, the
defendant's girlfriend, attempting to pull the defendant
toward the car. It is unclear whether the defendant still had
possession of the weapon at that time. A man wearing a gray
jacket and a "skull cap" approached them, pointed a
weapon in their direction, and fired two rounds, striking Ms.
Jeter in the leg. At no point during these events did the
defendant point the weapon toward any person. There was no
testimony or evidence that the defendant had ever fired the
parties stipulated that the defendant previously had been
convicted of a felony involving the attempted use of force,
violence, or a deadly weapon. The State then rested its
Douglas had also been present at the Gold Line Market and
witnessed the events in question. He had driven his own
vehicle to the market and saw the defendant and Ms. Jeter
when he arrived. Mr. Douglas recalled that when they arrived,
a "commotion" was occurring inside the store. The
defendant asked a female witness, Ms. Thomas, what was going
on. Ms. Thomas and two men were having a disagreement and had
begun to argue. After the defendant asked Ms. Thomas what was
happening, one of the men approached the defendant and
"took a swing at him." The man and the defendant
began "tussling," and a gun fell out of the other
man's jacket. Although Mr. Douglas did not know the
identity of the other man, he recognized the man from the
video as the one wearing a gray jacket. According to Mr.
Douglas, a fight ensued, but the defendant was merely trying
to defend himself.
Douglas tried to get to the middle of the fight to break it
up, but other people surrounded the fight. The man who had
originally possessed the gun and a friend of his both
attempted to reach the gun, but the defendant grabbed it
first. After the defendant obtained the weapon, the man with
whom he had been fighting stood up and ran out of the store.
The defendant also arose and walked outside carrying the
downward-pointed gun; he never pointed it at anyone. Mr.
Douglas said that when the defendant walked back inside the
store and exited again, he did not appear to have possession
of the gun anymore.
meantime, Mr. Douglas approached the other man, with whom he
was familiar, and said that they should all go. They shook
hands and Mr. Douglas began to walk toward the
defendant's vehicle. He did not see a gun in the
defendant's hand at that point. Soon thereafter he heard
gunshots and discovered that Ms. Jeter had been shot in the
thigh. Mr. Douglas attempted to help her into the vehicle
when he was shot in the back. Mr. Douglas was unaware of
whether the defendant attempted to further assist Ms. Jeter
because Mr. Douglas "got right back up[, ] hopped in the
car[, ] and sped off trying to go to the hospital." He
drove away from the scene, parked in an adjacent parking lot,
and awaited medical assistance.
the defense rested its case. The State did not present any
rebuttal. The jury was excused, and the trial court conferred
with the attorneys about the jury instructions. Defense
counsel requested an instruction on the defense of necessity.
As grounds therefor, counsel argued:
I would say that this has been raised by the proof of Mr.
Douglas. It's a defense to the offense charged, if the
Defendant acts -- reasonably believed that the conduct was
imminently necessary to avoid immediate harm and the
desirability or urgency avoiding the harm clearly outweighed
according to ordinary established standards of
reasonableness, the harm sought to be prevented by the law
pr[o]scribing the conduct.
Clearly what we have is a situation where there is a fight.
What we heard from the proof is the issue that, you know, my
client didn't start the fight[ ] . . . .
. . . .
You have proof that a fight occurred, and my client
obviously, according to the officer's testimony, Mr.
Douglas' testimony involved he's being hit, he's
being fought, other -- the people are attacking him, he's
--he's defending himself, but at -- at some point, the
gentleman that my client's fighting with, a pistol falls
out on the ground. You've heard proof that the other
individual in the fight with my client is reaching towards
the gun, and this other individual's reaching for the
gun, and which my client, it's -- it came from the
gentleman in the black coat or black pants, ...