Supreme Court Holds That Trial Courts Must Give Jury Instruction When Issue Is Fairly Raised By The Evidence; Oral Request Sufficient To Preserve Issue On Appeal

October 25, 2019

The Tennessee Supreme Court has clarified that a defendant is entitled to a jury instruction on the defense of necessity when it is fairly raised by the evidence presented at trial.  Moreover, an oral request during the trial is sufficient to preserve the issue on appeal.

The defendant, Brandon Cole-Pugh, was charged with being a felon in possession of a handgun.  The evidence presented at trial suggested that he became involved in a physical altercation at a convenience store, during which a handgun became loose, fell from another individual’s possession, and dropped to the floor.  The defendant then obtained possession of the handgun.  After the defendant exited the store but before any of the parties left the scene, someone procured a second handgun, and two individuals were shot.  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.  A Madison County jury convicted the defendant of the charged offense.

The defendant appealed to the Tennessee Court of Criminal Appeals, which affirmed his conviction.  The Supreme Court granted the defendant permission to appeal to consider whether the trial court erred in denying the defendant’s oral request for a jury instruction on the defense of necessity based on the facts of this case, and whether the defendant waived the issue by failing to make his request for the necessity instruction in writing.

In a unanimous opinion released today, the Court held that, when the defense of necessity is fairly raised by the evidence, the trial court is obligated to instruct the jury accordingly, regardless of whether the instruction is requested in writing.  A defendant need not testify that he reasonably feared imminent bodily harm; the trial court may draw this inference from the evidence as it is viewed in the light most favorable to the defendant. The defense of necessity generally provides that otherwise prohibited conduct is justified if a person reasonably believes the conduct is immediately necessary to avoid imminent harm.  Applying this definition, the Supreme Court concluded that the defense of necessity was fairly raised by the evidence in this case and that the trial court erred in denying the defendant’s oral request for a jury instruction on necessity. 

To read the unanimous opinion in State v. Cole-Pugh, authored by Justice Roger A. Page, visit the opinions section of