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Court of Criminal Appeals hears challenge to trial counsel over self‑defense instruction in Timothy McKinney case
Summary
At an oral argument in Jackson, Tennessee, attorneys debated whether trial and appellate counsel were constitutionally ineffective for failing to secure a self‑defense jury instruction after the trial judge ruled a statutory provision barred the defense when a third party was injured.
The Tennessee Court of Criminal Appeals heard oral argument in Jackson on a post‑conviction petition by Timothy McKinney challenging his trial and appellate counsel’s handling of a self‑defense instruction.
At the hearing, petitioner’s attorney Lance Chisholm said trial counsel conceded that a self‑defense instruction was unavailable after the trial judge relied on the statutory provision the transcript cites as "39 11 6 0 4." Chisholm told the court that trial counsel had said at trial, "I'm not familiar with 39 11 6 0 4, or the Jeremy Jarvis case," and later did not press the judge to adopt the interpretation Chisholm urged. Chisholm argued the statute should not have barred self‑defense for a transferred‑intent charge of attempted first‑degree murder and asked the court to reverse the post‑conviction denial.
The argument centers on whether the statutory language cited in the hearing precludes a self‑defense instruction when a defendant is charged under transferred intent for an intentional homicide offense. Chisholm said the trial record and the Jarvis decision (an unpublished, cited opinion) supported giving self‑defense because McKinney was convicted under a specific‑intent theory, not for a reckless injury to a third party. He also argued appellate counsel should have raised the issue because the law on the point was unsettled.
Representing the state, Ray Lapone asked the court to affirm the post‑conviction court. Lapone said trial counsel, identified in the post‑conviction record as Mr. McAfee, litigated the issue at trial, asked for a continuance to research the cited authority and ultimately agreed with the trial court’s reading. "This court should affirm the judgments of the post conviction court," Lapone told the panel. The state argued the petitioner failed to prove both deficient performance and prejudice under Strickland v. Washington.
Both sides pointed to Tennessee and federal authorities discussed at trial and in briefing, including Jarvis, Perrier, Howard, State v. Hawkins, and a concurring opinion by Justice Duroda in State v. Carpenter, as bearing on how the statute should be read and applied. Chisholm urged the panel to treat Jarvis and related discussion as supportive of giving self‑defense for specific‑intent charges; Lapone emphasized that the trial judge, the trial lawyer and the post‑conviction judge all read the authorities consistently against that result.
Counsel also debated lesser‑included offenses. Chisholm argued trial counsel waived a misdemeanor reckless endangerment instruction by failing to submit it in writing; he contended the jury did not have the opportunity to consider reckless mental states. The state countered that the video evidence and witness testimony meant the jury would not have returned a different verdict even if alternative instructions had been given.
After questioning and argument from both sides, the panel — which included Judges Robert Weitemeyer, Matthew J. Wilson and Senior Judge Roy B. Morgan Jr. — took the case under advisement and recessed.
The court did not issue a decision during the hearing; counsel asked the appeals court to resolve whether the post‑conviction court erred in finding no ineffective assistance and whether any claimed error was prejudicial.
