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Click here for the full text of this decision FACTS:John Arlin Walters shot and killed his older brother, Russell L. Walters Jr. At the time, John Walters was in his late 50s and Russell Walters was in his late 60s. The shooting was the climax of an apparent long-standing animosity between the two and occurred on a church parking lot after an argument over a water bill. That John shot his brother is not at issue. According to John, Russell approached John’s pickup truck while John was driving away from the parking lot. Russell followed alongside the pickup on foot, threatening his younger brother. Russell opened the pickup door and had his right hand behind his back. When he did, John shot him twice, once in the neck and once in the torso. The only question was whether John Walters acted in self-defense. The jury failed to so find. The jury convicted John of murder. The jury assessed punishment at 32 years of imprisonment and he was sentenced accordingly. John appealed, contending the trial court erred by: 1. refusing to allow him to introduce evidence contradicting the state’s evidence; 2. improperly instructing the jury at the guilt/innocence phase; 3. failing to grant a mistrial at the punishment phase when the state commented on Walters’ failure to testify; and 4. admitting evidence of expert opinions. Specifically, John contended that the court erred by failing to properly instruct the jury concerning threats made by the deceased and on how to properly consider such threats. He also argued that the charge erroneously limited his self-defense by including language regarding provocation when there was no evidence to support such a charge. HOLDING:Reversed and remanded for a new trial. There was considerable evidence in the record supporting John’s request for the jury instruction on threats, the court stated. John testified that he informed the sheriff’s office in a telephone conversation that Russell had threatened him with a gun in the past. A defendant, the court stated, is entitled to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of the trial court’s opinion about the credibility of the defense. The court then stated that an error that has been properly preserved is reversible unless it is harmless. Counsel objected to the court’s jury instruction on self-defense and tendered a correct instruction, the court noted. In light of the fact that self-defense was the only real issue before the jury, the court held that the trial court’s failure to specifically instruct the jury concerning prior verbal threats by the decedent was calculated to injure the rights of the defendant and was therefore harmful and reversible error. The court also found that the trial court erred by allowing the state to publish 911 tape conversations to the jury, then denying defendant’s request to introduce identical, contradictory evidence, rulings that effectively denied him confrontation of witnesses for the state and requiring him to testify in his own defense. The trial court abused its discretion, the court stated, by admitting into evidence over a hearsay objection three of four related telephone conversations and then excluding the fourth conversation by sustaining a hearsay objection. In sum, the fourth conversation should have also been admitted under the rule of optional completeness. OPINION:Ross, J.; Morriss, C.J., and Ross, J. CONCURRENCE:Carter, J. “Because I agree with the lead opinion that the failure to instruct the jury concerning prior verbal threats was reversible error, I concur in that part of the lead opinion and in the judgment remanding the case for a new trial. However, I disagree with the analysis regarding the application of the rule of optional completeness.”

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