State v. Polston8/19/2004
the defendant, the reasons for it and the weight to be given to it are questions for you to determine.
This instruction is taken verbatim from the Tennessee Pattern Jury Instructions. See 7 Tenn. Practice, Tenn. Pattern Jury Inst.-Criminal 42.18 (2003). This pattern jury instruction is a correct statement of the applicable law and has been previously cited with approval by our court. See, e.g., State v. Kendricks, 947 S.W.2d 875, 885-86 (Tenn. Crim. App. 1996). In order for a trial court to charge the jury on flight as an inference of guilt, there must be sufficient evidence to support such instruction. There is sufficient evidence to support a jury charge on flight where there is proof of "both a leaving the scene of the difficulty and a subsequent hiding out, evasion, or concealment in the community, or leaving the community for parts unknown." State v. Burns, 979 S.W.2d 279, 289-90 (Tenn.1998) (quoting State v. Payton, 782 S.W.2d 490, 498 (Tenn. Crim. App. 1989)); State v. Franks, No. W2003-0003-CCA-R3-CD, 2003 WL 22351024, *3 (Tenn. Crim. App., at Jackson, Oct. 14, 2003), perm. app. denied (Tenn. Nov. 13, 2003); see also Rogers v. State, 2 Tenn. Crim. App. 491, 455 S.W.2d 182, 187 (1970).
The trial court's flight instruction is appropriate in light of the evidence presented at trial. The Defendant admitted that he left the scene of the crime as soon as he hit the victim in the face. Other witnesses also testified that the Defendant fled the scene after the victim fell on the ground. The Defendant testified that he left the state shortly after the incident at Flashbacks. Detective Wright and Alicia Polston also discussed the Defendant's departure from Tennessee. Therefore, the issue of flight was properly raised for the jury instruction. As fact finder, the jury was then left to decide the relevance of the Defendant's leaving.
D. Duress and Necessity Instructions
The Defendant contends that the trial court should have charged the jury with the defenses of duress and necessity. We review the trial court's instructions to the jury de novo, with no presumption of correctness. See State v. David Wayne Smart, No. M2001-02881-CCA-R3-CD, 2003 WL 21077997, at *15 (Tenn. Crim. App., at Nashville, May 13, 2003), perm app. denied (Tenn. Oct. 13, 2003); see State v. Bowles, 52 S.W.3d 69, 74 (Tenn. 2001). A trial court has a duty "to give a complete charge of the law applicable to the facts of a case." State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see also Tenn. R. Crim. P. 30. " defendant has a constitutional right to a correct and complete charge of the law." State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). Our law requires that all of the elements of each offense be described and defined in connection with that offense. See State v. Cravens, 764 S.W.2d 754, 756 (Tenn. 1989). Jury instructions must, however, be reviewed in the context of the overall charge rather than in isolation. Sandstrom v. Montana, 442 U.S. 510, 527 (1979); see also State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). A charge is prejudicial error "if it fails to fairly submit the legal issues or if it misleads the jury as to the applicable law." State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997).
Because duress and necessity are defenses, rather than affirmative defenses, if the evidence fairly raises either defense, the trial court must submit the issue to the jury. Tenn. Code Ann. § 39-11-203(c) (1997); State v. Culp, 900 S.W.2d 707, 710 (Tenn. Crim. App. 1994) (citing State v. Hood, 868 S.W.2d 744, 748 (Tenn. Crim. App. 1993)). For a statutory defense to be raised by proof, "a court must, in effect, consider the evidence in the light most favorable to the defendant, includi
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