        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs September 10, 2015

        STATE OF TENNESSEE v. LACARVIS MARQUIS MILLER

               Appeal from the Circuit Court for Williamson County
                  No. II-CR016984 Timothy L. Easter, Judge


             No. M2014-01745-CCA-R3-CD – Filed September 24, 2015
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A Williamson County jury convicted the Defendant, Lecarvis Marquis Miller, of reckless
aggravated assault and simple assault. The trial court merged the convictions and
sentenced the Defendant to serve ten years as a Range III, persistent offender. On appeal,
the Defendant asserts that the trial court erred when it failed to give the jury a
supplemental unanimity instruction. After a thorough review of the record and applicable
law, we affirm the trial court‟s judgment.

    Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

Benjamin C. Signer and Vanesssa P. Bryan, Public Defender (on appeal), Franklin,
Tennessee; Robert W. Jones and Henry Ambrose, Assistant Public Defenders (at trial),
Franklin, Tennessee, for the appellant, Lacarvis Marquis Miller.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Kim R. Helper, District Attorney General; and Jessica N. Borne, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION
                                        I. Facts

       This case arises from an altercation between two men outside a Williamson
County residence. For his role in this event, a Williamson County grand jury charged the
Defendant with two counts of aggravated assault based upon the one incident, but the
offenses are charged in the alternative. The first count alleges that the Defendant
committed aggravated assault with a deadly weapon, and the second count alleges that
the Defendant committed aggravated assault by causing serious bodily injury to the
victim, James Kelton. On appeal, the Defendant does not challenge the sufficiency of the
evidence against him nor does his challenge directly rely on the evidence presented at
trial; therefore, we will abbreviate our summary of the facts and present them in the light
most favorable to the State.

       On October 13, 2012, Charity Taylor held her daughter‟s birthday party at her
home located on Natchez Street in Williamson County, Tennessee. Among other party-
goers present at the party were Charity Taylor‟s sister, Deprecia Taylor and brother,
Jarvis Taylor. Deprecia Taylor was involved in an ongoing romantic relationship with
both the Defendant and the victim, James Kelton. Deprecia Taylor was dating the
Defendant at the time of the party but had two children with Mr. Kelton. According to
Mr. Kelton, he and Deprecia Taylor, although “friends,” still engaged in a sexual
relationship. Mr. Kelton was “bothered” by Deprecia Taylor‟s relationship with the
Defendant because he and Deprecia Taylor had “just [come] out of a long-term
relationship.”

       Mr. Kelton brought his children to the birthday party at Charity Taylor‟s home.
He parked in front of the residence and walked the children inside. After a few minutes,
Mr. Kelton exited the residence with Deprecia Taylor. When Deprecia Taylor urged Mr.
Kelton to leave because the Defendant was nearby,1 he became angry and grabbed her
wig,2 throwing it to the ground. Mr. Kelton continued toward his car as the Defendant
drove up in Deprecia Taylor‟s car and parked directly in front of Mr. Kelton‟s car. The
Defendant approached and stabbed Mr. Kelton in the chest and the arm with a blue and
silver pocket knife. Jarvis Taylor grabbed the Defendant from behind and separated the
two men. The Defendant walked away, and Mr. Kelton called 911 to report the stabbing.

       An officer responding to the call arrived at the scene and observed Mr. Kelton
standing on the front sidewalk with his “entire chest [ ] covered in blood.” The officer
observed a puncture wound to Mr. Kelton‟s chest and requested medical assistance. Mr.
Kelton was transported to Vanderbilt Trauma and treated for wounds to his chest and
arm. Mr. Kelton was unable to return to work for six weeks due to his injuries and, at the
time of trial, still had scars as a result of the injuries.

       Later at the police station during a police interview, the Defendant initially denied
to the police that he had any memory of the event, explaining that he “blacked out.” The

       1
         The defense presented testimony from Deprecia Taylor indicating that the altercation
began because Charity Taylor asked Mr. Kelton to leave her residence.
       2
         Deprecia Taylor was being treated for a brain tumor. Due to the treatment “most of her
hair” was missing, thus, she wore a wig.
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Defendant said he observed Mr. Kelton hit Deprecia Taylor and that he became
concerned. As Detective Green continued to ask questions, the Defendant recalled that
he did have a knife in his hand, that he was ordered to drop the knife, and that he
complied. Ultimately, he stated that he “must have” stabbed Mr. Kelton because, after
the incident, he saw blood on himself, but he was not cut. The Defendant removed an
outer shirt he was wearing at the time of the incident and discarded it after he fled the
scene. The Defendant took police officers to the location where he left the shirt, and an
officer recovered it. The Defendant explained that he fled because Deprecia Taylor urged
him to do so.

       At the conclusion of the evidence, the trial court provided jury instructions, and
the jury retired for deliberations at 10:36 a.m. At 12:33 p.m., the trial court addressed
two questions the jury had submitted, first with the parties, and then provided to the jury
a response to the submitted questions. At 1:40 p.m., the trial court reconvened outside
the presence of the jury and informed the parties that a juror, who was not the foreman,
had submitted another question. The question was, “If the jury is hung and not in
agreement, can the State appeal the case and the defendant . . . get another trial? What is
the likelihood against of [sic] the State getting another trial if the jury is hung?
Specifically, what is the law?” The trial court then stated that when the court officer
went into the jury room to bring the jury into the courtroom to address the question, he
was told the jury was “very close to reaching a verdict.” The trial court stated that it was
unsure whether or not the juror needed a response, but it recited to the parties its prepared
response to the question if needed. The trial court recessed pending the return of the jury,
and at 2:01 p.m. the jury returned a guilty verdict of reckless aggravated assault for count
1 and a guilty verdict of assault for count 2.

       The trial court confirmed on the record that the verdict form was consistent with
the verdict announced by the foreperson. The trial court then polled the jury as to both
counts, and all twelve jurors raised their hands for each count indicating that guilt was
their unanimous verdict. The trial court merged the two counts and at a subsequent
sentencing hearing ordered the Defendant to serve a ten-year sentence in the Department
of Correction.

                                        II. Analysis

        On appeal, the Defendant asserts that the trial court erred when it failed to give the
jury a supplemental unanimity instruction after a juror raised a question about a hung
jury. The State responds that the trial court did not err when it did not give this additional
instruction because the record shows that the jury had reached a verdict and because a
poll of the jury confirmed a unanimous verdict. We agree with the State.

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        The 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 Tenn. R.
Crim. P. 30. “[I]n determining whether jury instructions are erroneous, this Court must
review the charge in its entirety” and invalidate the charge only if, when read as a whole,
“it fails to fairly submit the legal issues or . . . misleads the jury as to the applicable law.”
State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998). “The trial court has the authority to
respond to jury questions with a supplemental instruction.” State v. Forbes, 918 S.W.2d
431, 451 (Tenn. Crim. App. 1995) (citing State v. Moore, 751 S.W.2d 464, 467 (Tenn.
Crim. App. 1988)). When faced with a question from the jury regarding the definition of
legal terms, the proper procedure is for the trial court, after consultation with counsel, to
provide the jury with supplemental instructions. See United States v. Griffith, 756 F.2d
1244, 1251 (6th Cir.1985) (“„Questions or disputes as to the meaning of terms which
arise during jury deliberations should be settled by the court after consultation with
counsel, in supplemental instructions.‟”) (quoting United States v. Birges, 723 F.2d 666,
670-71 (9th Cir.), cert. denied, 466 U.S. 943, (1984)).

        First, we conclude that the Defendant waived this issue because he did not
contemporaneously object to the trial court‟s decision to wait and determine whether or
not the instruction was necessary.3 Tenn. R. App. P. 36(a); State v. McPherson, 882
S.W.2d 365, 375 (Tenn. Crim. App. 1994). Even if this issue was not waived, we
conclude that it is without merit. After the trial court received the question about jury
unanimity, the trial court prepared an appropriate supplemental instruction in response to
the questions. The trial court then received information that the jury was close to a
verdict. Several minutes later, the jury foreman announced a unanimous verdict, and the
trial court confirmed a unanimous verdict by polling all twelve jurors. Furthermore, the
trial court instructed the jury on unanimity as part of its instructions before the jury began
its deliberations. The Defendant has failed to show that either he or the judicial process
have been prejudiced by the trial court‟s handling of the juror‟s question. Therefore, we
conclude that the trial court did not err by not giving the supplemental instruction. The
Defendant is not entitled to relief.

                                           III. Conclusion

        After a thorough review of the record and relevant authorities, we conclude that
the trial court properly protected the defendant‟s right to a unanimous verdict. As such,
we affirm the trial court‟s judgment.


        3
            We note that the Defendant‟s attorney‟s raised an objection at the time the jury reached a
verdict; however, the objection related to the jury‟s first question regarding language in the indictment
rather than jury unanimity.
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    _________________________________
    ROBERT W. WEDEMEYER, JUDGE




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