            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                           MAY SESSION, 1998

                                                                        FILED
STATE OF TENNESSEE,                 )                              August 14, 1998
                                    )       No. 02C01-9708-CR-00309
       Appellee                     )                             Cecil Crowson, Jr.
                                    )       SHELBY COUNTY         Appellate C ourt Clerk

vs.                                 )
                                    )       Hon. W. Fred Axley, Judge
BRIAN J. HUNTER,                    )
                                    )       (Interlocutory Appeal)
       Appellant                    )




                                DISSENTING OPINION


       Because I find that an instruction on the lesser grade offense of voluntary

manslaughter was not warranted by the proof presented at trial, I am unable to join

with the majority’s conclusion. Accordingly, I would reverse and remand for

dismissal of the indictment.

       Although the majority concludes, absent any lesser offense analysis, that the

evidence is sufficient to support a conviction for voluntary manslaughter, I find such

a review crucial in order to resolve the ultimate issue presently before this court. A

trial court has the duty, in criminal cases, to fully instruct the jury on the general

principles of law relevant to the issues raised by the evidence. This obligation

includes giving instructions on lesser offenses included in the indictment, without

any request on the part of the defendant. See Tenn. Code Ann. § 40-18-

110(a)(1990). Nonetheless, it remains a principle well-established in the law of this

state that, where there is no proof in the record to support an instruction on a lesser

offense, no jury instruction on the same need be submitted. Elder, No. 03C01-

9702-CR-00053 (citing Trusty, 919 S.W.2d at 311). See also Keeble v. United

States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995 (1973) (holding that there is no

constitutional right to a jury instruction on a lesser offense in every case). Thus, a

proper review of the issue before this court involves (1) a determination of the lesser
offenses of the offense charged in the indictment and (2) whether an instruction on

any of the lesser offenses is warranted by the evidence. State v. Elder, No. 03C01-

9702-CR-00053 (Tenn. Crim. App. at Knoxville, Apr. 23, 1998). See also State v.

Trusty, 919 S.W.2d 305, 310 (Tenn. 1996).

        It is without dispute that voluntary manslaughter is a lesser offense of second

degree murder as it is a lesser grade or class of that offense. See Elder, No.

03C01-9702-CR-00053 (citing Tenn. Code Ann. § 39-13-201 et seq. (1991)). Thus,

the remaining question is whether such an instruction on voluntary manslaughter is

warranted by the proof presented in the case sub judice.

        The Due Process Clause of the Fourteenth Amendment entitles a defendant

to an “instruction on a lesser . . . offense if the evidence would permit a jury to

rationally find him guilty of the lesser offense and acquit him of the greater.” Keeble

v. United States, 412 U.S. at 208, 93 S.Ct. at 1995 (internal footnote omitted)

(emphasis added); see also Trusty, 919 S.W.2d at 311. The court “must determine

whether the evidence, when viewed in the light most favorable to the defendant’s

theory of the case, would justify a jury verdict in accord with the defendant’s theory,

and would permit a rational trier of fact to find the defendant guilty of the lesser

offense and not guilty of the greater offense.” Elder, No. 03C01-9702-CR-

00053(citations omitted). 1 Absent this standard, the trial judge who charges a lesser

offense based upon less than sufficient evidence would be faced with the absurd

necessity, predicated upon its own invited error, of entering a judgment of acquittal

following the jury’s guilty verdict on the lesser offense. Elder, No. 03C01-9702-CR-

00053 (citations omitted). Moreover, to employ a lesser standard in determining

which lesser offenses need be instructed invites the jury to return a compromise or

otherwise unwarranted verdict. Elder, No. 03C01-9702-CR-00053 (citations




        1
          But see State v. Howard, 926 S.W .2d 5 79, 5 86-5 87 (T enn . Crim . App . 199 6 (“re latively
scant te stimon y”); State v. Ruane, 912 S.W .2d 766, 7 82 (Te nn. Crim . App. 199 5) (“slight”
evidence).

                                                    2
omitted). Indeed, this is exactly what occurred in the present case.2

        After review, I am unable to conclude that the evidence, in this case, when

viewed in the light most favorable to the appellant, is sufficient for a rational trier of

fact to find the elements of voluntary manslaughter. The proof established that both

the victim and the appellant were professionals. The appellant was employed as an

investment banker and the victim was a medical lab technician. The victim had

serious health problems and had been diagnosed with Hepatitis C and mixed

connective tissue disease. The proof also revealed that the appellant and the

victim, neighbors in an apartment complex, routinely socialized and it was not

unusual for them to visit back and forth, sometimes at unusual hours. The record is

absent any indicia of hostility or ill will between the two neighbors prior to the

incidents occurring immediately preceding the shooting.

        On the fateful evening of the shooting, the appellant and the victim met on

four occasions. On all four occasions, it was the victim who initiated the encounters.

The testimony established that both had been drinking alcohol.3 The first meeting

occurred as the appellant was returning to his apartment from work when he met the

victim on the steps of their apartment building. Their exchange was fairly brief and

without any notable unpleasantries. The victim told the appellant that he had been

advised by his doctor that his medical condition had worsened and that he only had

two and one-half to five years to live. The appellant, in passing, told the victim that

he had seen a mutual friend, a local pharmacist, who said “hello.” The victim, in

response to this statement, questioned the appellant as to whether their mutual

friend had said anything else about him. The appellant assured him that their friend

had not said anything further and the conversation ended. The remaining

encounters involved an extension of the first conversation. In sum, during ensuing


         2
           I acknowledge the trial court’s dilemma in resolving this issue. Indeed, the trial court
observed that the proper charge would be “either murder second or nothing.” However, under
the dictate s of a de cision by a p revious p anel of this c ourt, Sum mer all v. State, 926 S.W.2d 278,
279 (Tenn. Crim . App. 1995), the court noted that it had no choice but to instruct on voluntary
man slaughte r.

        3
        The a utopsy rep ort revea led that the v ictim’s bloo d alcoho l level was .42 per cen t with
cocaine and m eperidine also being presen t.

                                                    3
meetings between the two, the victim expressed, with growing hostility, that he did

not think the appellant had shown appropriate compassion for his worsened medical

condition and that he believed the pharmacist had said more than the appellant was

relating.

       The record reflects that, although the victim’s frustration intensified with each

meeting, the appellant remained calm and, in fact, attempted to calm the victim.

The last encounter occurred when the victim returned to the appellant’s apartment

at approximately 10:30 p.m. Prior to entering, the victim remarked, “I’d like to come

in and apologize for the way I acted earlier.” As the appellant opened the door, the

victim pushed his way into the apartment and grabbed the appellant. The appellant

retreated to the bedroom where the victim continued, in a “hostile and irate state,” to

make threats against the appellant’s life. Shortly, thereafter, the victim “crammed” a

pistol into the appellant’s ear and exclaimed, “You’ve got thirty seconds left to live.”

The appellant was ultimately able to retrieve the pistol and, during a final scuffle,

shot the victim.

       Before a defendant can be found guilty of voluntary manslaughter, there must

be evidence that he acted in a state of passion sufficient to obscure his reasoning

and that the passion was produced by reasonable and adequate provocation. State

v. Brown, 836 S.W.2d 530, 553 (Tenn. 1992); see also Tenn. Code Ann. § 39-13-

211. In other words, an instruction on voluntary manslaughter is proper only if the

proof establishes both provocation and passion. Although the proof clearly

establishes that the victim was “hostile and irate,” there is simply no evidence that

the appellant acted in sudden passion as to obscure his judgment or that the

appellant acted in an irrational manner and without cool purpose. See Sentencing

Commission Comments, Tenn. Code Ann. § 39-13-211. Indeed, the proof shows

that the appellant shot the victim with “cool purpose,” believing that the use of

deadly force was necessary under the circumstances to prevent his own death, i.e.,

self-defense. In the absence of proof of passion, I find the trial court’s instruction for

voluntary manslaughter improper.


                                          4
       Additionally, it could be argued that the instruction on voluntary manslaughter

in the present case abridged the appellant’s constitutional right to present his

defense. The appellant chose to proceed on an “all or nothing” approach, i.e., either

he was guilty of second degree murder or the homicide was justified under a theory

of self-defense. Voluntary manslaughter does not fall squarely under either

category. Rather, it lies someplace between the justifiable killing and the unlawful

taking of a human life, in other words, a so-called imperfect self-defense.

       Again, voluntary manslaughter differs from homicide which is
       excusable because committed in self-defense; in the latter case, there
       is an apparent necessity to kill the agressor for self-preservation, and
       in the former, no necessity at all. Usually, voluntary manslaughter is a
       consequence of quarrels and combats. It is committed suddenly,
       without reflection, and repels the supposition that it is the result of
       premediation or a prearranged plan to kill.

40 Am.Jur.2d Homicide § 57. Obviously, in a homicide case defended upon a

theory of self-defense where there is no proof of either passion or provocation, an

instruction on manslaughter effectively compromises the defendant’s theory of the

case. Cf. People v. Strohl, 456 N.E.2d 276, 280 (Ill. App. 1983).

       For the above reasons, I respectfully dissent.




                                   ____________________________________
                                   DAVID G. HAYES, Judge




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