             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                        September 12, 2000, Session

             STATE OF TENNESSEE v. DEREKE EMONT FITZGERALD

                        Direct Appeal from the Circuit Court for Henry County
                                  No. 12893, Julian P. Guinn, Judge



                        No. W2000-01279-CCA-R3-CD - Filed October 24, 2000


The appellant, Dereke Emont Fitzgerald, was convicted by a jury of aggravated assault and was
sentenced to six years incarceration in the Tennessee Department of Correction. On appeal, the
appellant raises one issue: Whether the trial court erred in refusing to instruct the jury on the issue
of self-defense. Finding no error, we affirm the judgment.

                    Tenn. R. App. P. 3; Judgment of the Circuit Court is affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P.J. and THOMAS
T. WOODALL , J., joined.

Larry E. Fitzgerald, Memphis, Tennessee, for the appellant, Dereke Emont Fitzgerald.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Lucian D.
Geise, Assistant Attorney General, Robert “Gus” Radford, District Attorney General, and Steven L.
Garrett, Assistant District Attorney General, for the appellee, State of Tennessee.


                                                       OPINION

        Following a jury trial, the appellant, Dereke Emont Fitzgerald, was convicted of aggravated
assault in the Henry County Circuit Court. He was sentenced to six years incarceration in the
Tennessee Department of Correction as a Range II offender. The six-year sentence was to run
consecutive to an earlier sentence imposed.1 On appeal, the appellant argues that the trial court erred
by not instructing the jury on the issue of self-defense. Specifically, the appellant asserts that the
instruction should have been given because the issue of self-defense was raised several times at trial.



         1
          On December 8, 1997, the appellant was sentenced to eight years Community Corrections for possession of
a Schedule II substance with the intent to ma nufacture, de liver, or sell. At sentencing in the present case, the trial court
revoked the appellant’s Community Corrections sentence.
After review, we find no error. Accordingly, we affirm the judgment of the Henry County Circuit
Court.

                                                    Background

         On June 7, 1999, Joseph Penny, was repairing the brakes on his girlfriend’s car in the
driveway of her mother’s house. Penny’s friend, Leslie Barnhart, was also there helping with the
repair project. As Penny was resting on his left side looking underneath the car, he heard someone
say “look out.” Penny looked upward and saw the appellant.2 As Penny tried to stand up, the
appellant grabbed him in a bear-hug and threw him to the ground. The appellant then picked up a
tire iron and stabbed Penny between his ear and jawbone. Penny did not fight back. After attacking
Penny, the appellant taunted him by saying, “What are you going to do now?” The appellant then
got into his car and left. Barnhart helped Penny to a chair and called the police. As a result of the
injuries, Penny remained hospitalized for three days.

                                    I. Self-Defense Instruction
        The appellant argues that the trial court erred by not instructing the jury on the issue of self-
defense. Specifically, the appellant contends that there was “sufficient testimony in the record to
raise the issue of self-defense” and that the trial court’s refusal to give the instruction constitutes
reversible error. We disagree and find the trial court properly denied the appellant’s request for a
jury instruction on self-defense.

        Every defendant has the right to have every issue of fact raised by the evidence and material
to his or her defense submitted to the jury on proper instructions. Tenn. Code Ann. § 39-11-
203(c)(1997); Tenn. Code Ann. § 39-11-204(d)(1997); see also State v. Ivy, 868 S.W.2d 724, 727
(Tenn. 1993). “[T]o determine whether a statutory defense is fairly raised by the proof so as to
require its submission to the jury, a court must, in effect, consider the evidence in the light most
favorable to the defendant, including drawing all reasonable inferences flowing from that evidence.”
State v. Bult, 989 S.W. 2d 730, 733 (Tenn. Crim. App. 1998), perm. to appeal denied, (Tenn.
1999)(citing State v. Shropshire, 874 S.W.2d 634, 639 (Tenn. Crim. App. 1993).

        In order to establish a claim of self-defense, a defendant must show that the danger of death
or serious bodily harm was imminent and impending, manifested by some words or overt acts at the
time clearly indicative of a present purpose to do injury.3 Tenn. Code Ann. § 39-11-611(a)(1997);
see also State v. Ivy, 868 S.W.2d at 727. Furthermore, the threat or use of force against another is
not justified if the person provoked the other individual’s use or attempted use of unlawful force,
unless (1) the person abandons the encounter or clearly communicates to the other the intent to do
so; and (2) the other nevertheless continues or attempts to use unlawful force against the person.

         2
          The appellant had previously been romantically involved with Penny’s girlfriend while Penn y was in jail on
an unrelated charge.
         3
          Our current criminal code treats “self-defense” as justification for conduct that otherwise would constitute an
offense. Th us, the actor’s co nduct is “justified” or thought to be right. See MODEL PEN AL CODE § 3.01.

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Tenn. Code Ann. § 39-11-611(d)(1997). Thus, a defendant who seeks to avoid criminal
responsibility for his conduct upon a theory of self-defense must be free from fault in bringing about
the necessity of using force or should have clearly abandoned his initial intent to do harm.

         The appellant concedes that he provoked the incident. However, he argues that the issue of
self-defense was raised when the victim’s response put the appellant at fear for his life. We disagree.
The facts simply do not support his contention. On the day in question, Penny was repairing the
brake system on his girlfriend’s car. Penny neither motioned nor yelled for the appellant to stop.
Instead, the appellant voluntarily stopped his vehicle and approached Penny. Penny was completely
unaware of the appellant’s presence until he began his attack. The facts establish that the appellant
shoved Penny to the ground, picked up a tire iron, and stabbed Penny in the head. Penny did not
fight back. There is no indication in the record that Penny was reaching for the tire iron himself.
Even so, Penny would have only been defending the attack of the appellant. The appellant did not
retreat, nor did he communicate an intent to withdraw from the attack. As the trial court properly
concluded, the “act that gave rise to the criminal case was of his own making” and the “defendant
failed to establish that fear of death or great bodily harm necessary to raise a charge of [self-
defense].”

        The evidence in the present case clearly does not raise an inference requiring an instruction
on self-defense. There is no proof that the appellant believed there was danger of imminent death
or serious bodily injury. Moreover, the appellant initiated the attack and never indicated an intent
to abandon the encounter. Therefore, the trial court correctly concluded that a self-defense
instruction to the jury would have been improper in this case.

                                          CONCLUSION

       Because the evidence did not fairly raise the issue of self-defense, the trial court correctly
denied the appellant’s request for a self-defense jury instruction. Accordingly, the judgment of the
Henry County Circuit Court is affirmed.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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