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Posted by: Amelia Ferrell Knisely on Apr 27, 2016

Head Comment: JAMES CURWOOD WITT, JR., J., concurring.

Court: TN Court of Criminal Appeals

Attorneys 1:

Vickie M. Carriker (on appeal and at trial) and David Hamilton (at trial), Memphis, Tennessee, for the Appellant, Michael Bonsky.

Attorneys 2:

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Glen Baity and Bryce Phillips, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge(s): OGLE

The Appellant, Michael Bonsky, was convicted by a jury in the Shelby County Criminal Court of second degree murder, attempted second degree murder, and especially aggravated robbery. The trial court imposed a total effective sentence of sixty years in the Tennessee Department of Correction. On appeal, the Appellant raises the following issues: (1) whether the trial court erred by drafting its own jury instruction regarding diminished capacity; (2) whether the trial court erred by admitting evidence regarding the Appellant‘s presence at a casino and committing a robbery in Mississippi within hours of the instant offenses; (3) whether the trial court erred by admitting a recording of the telephone call one of the victims made to 911; (4) whether the trial court erred by admitting the Appellant‘s statement into evidence; (5) whether the trial court erred by not allowing an expert witness to testify regarding the Appellant‘s level of intoxication and his ability to form the requisite intent; (6) whether the trial court erred in sentencing the Appellant; and (7) whether the evidence was sufficient to sustain the Appellant‘s convictions. Upon review, we conclude that the trial court‘s instruction to the jury regarding diminished capacity was error and that the error was not harmless; therefore, the Appellant‘s convictions are reversed, and the case is remanded for a new trial.