          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON                   FILED
                                                             November 25, 1998

                                                             Cecil Crowson, Jr.
STATE OF TENNESSEE,                 )                        Appellate C ourt Clerk
                                    )    NO. 02C01-9608-CR-00280
      Appellee,                     )
                                    )    SHELBY COUNTY
VS.                                 )
                                    )    HON. CHRIS CRAFT,
ALVIN ROBINSON, JR.,                )    JUDGE
                                    )
      Appellant.                    )    (First Degree Murder)



      UPON REMAND FROM THE SUPREME COURT OF TENNESSEE



FOR THE APPELLANT:                       FOR THE APPELLEE:

A. C. WHARTON                            JOHN KNOX WALKUP
Shelby County Public Defender            Attorney General and Reporter

W. MARK WARD                             WILLIAM DAVID BRIDGERS
BETTY THOMAS                             Assistant Attorney General
Assistant Public Defenders               Cordell Hull Building, 2nd Floor
201 Poplar Avenue, Ste. 201              425 Fifth Avenue North
Memphis, TN 38103-1947                   Nashville, TN 37243-0493

                                         WILLIAM L. GIBBONS
                                         District Attorney General

                                         JERRY R. KITCHEN
                                         Assistant District Attorney General
                                         201 Poplar Avenue, Ste. 301
                                         Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION


       This premeditated first degree murder case is again before this Court for

reconsideration following remand from the Supreme Court of Tennessee in light of

State v. Willie Williams, ___ S.W.2d ___ (Tenn. 1998). The sole issue upon remand

is whether the failure of the trial court to charge the lesser offense of criminally

negligent homicide was harmless error. We conclude that Williams is dispositive and

find harmless error. Therefore, we affirm the judgment of the trial court.



                              PROCEDURAL HISTORY



       Defendant, Alvin Robinson, Jr., was convicted by a Shelby County jury of

premeditated first degree murder and sentenced to life imprisonment without the

possibility of parole. In his original appeal to this Court, defendant presented two

issues for our review: (1) whether the evidence was sufficient to support the

conviction, and (2) whether the trial court erred in failing to properly instruct the jury.

This Court concluded the trial court erred in failing to instruct on the lesser offense

of criminally negligent homicide and remanded for a new trial. The other issues

raised on appeal by the defendant were found to be without merit. See State v. Alvin

Robinson, Jr., C.C.A. No. 02C01-9608-CR-00280, Shelby County (Tenn. Crim. App.

filed December 3, 1997, at Jackson).

       The Supreme Court of Tennessee granted permission to appeal and

remanded to this Court “for reconsideration in light of ... State v. Willie Williams, ___

S.W.2d ___ (Tenn. 1998).” State v. Alvin Robinson, Jr., No. 02C01-9608-CR-00280,

Shelby County (Tenn. filed November 9, 1998, at Jackson).



                                         FACTS



       The essential facts of the homicide were set forth in our original opinion.




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       The defendant arranged to have the victim,
Charles Moore, repair his car at the Overton Crossing
Car Center. The defendant originally sought to have an
acquaintance, John Muse, do the repair work but
ultimately decided Muse's estimate was too high. After
the repair work had been completed, the defendant
complained several times to Muse that he did not believe
the victim had repaired his car properly, and he
suspected the victim had not installed parts the
defendant had purchased from Auto Zone for the vehicle.

       In February of 1994, the defendant had an
argument with the victim over the $ 200.00 the defendant
had paid to have the car repaired. During this argument
the defendant "slapped around" the victim with a
telephone. Roger Miller, the lessor of the garage,
arranged for a meeting between the defendant and the
victim following this incident so they could resolve the
dispute. Miller testified that after the meeting he thought
the two men had reached an agreement. The defendant
denies that this altercation ever took place.

        At approximately 2:00 p.m. on March 15, 1994, the
defendant visited Muse because his car had stalled
several times that day. Muse informed the defendant that
he needed to have the car fixed properly. The defendant
stated he was either going to get his money and his parts
back from the victim so Muse could repair the car
properly or "he was going to kill the S-O-B and get it over
with . . . [because] he was tired of messing with him."
Muse observed that the defendant had a pistol in his
back pocket. The defendant stated he always carried a
pistol with him for protection; however, he denied
threatening to kill the victim if his money was not
returned.

        At approximately 4:00 p.m., the defendant arrived
at the Overton Crossing Car Center, where both the
victim and Steve Kuehner, or "Smut," were working. The
defendant calmly asked the victim for his $ 200.00. When
the victim said he did not have the money, the defendant
pulled out his gun and shot the victim once in the chest.
The defendant told Kuehner, "when the cops come tell
them some big white guy done it." Witnesses testified the
defendant drove away immediately after the shot was
fired. As the defendant left the scene, he told Kuehner
"you better not say anything. I'll get my buddies on you."

        Several minutes later, the defendant called the
garage and asked Miller "what was up." When Miller
related that the victim had been shot, the defendant
asked "well, is he dead?" When Miller said he believed
the victim was alive, the defendant said "Damn, I thought
I killed the m///--f///--." The victim died within a few
minutes. The cause of death was a gunshot wound to the
chest and abdomen with internal bleeding. The victim
was shot from more than two feet away. Prior to trial, the
defendant called Miller and told him to convince Kuehner
not to testify or "somebody on the outside . . . could take
care of Smut [Kuehner] if he did."


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                    The defendant disputes the other witnesses'
            description of the murder. According to the defendant,
            when he arrived at the garage and asked the victim for
            the $ 200.00, the victim stated another customer would
            be arriving shortly to pay him and this money would be
            used to reimburse the defendant. The defendant testified
            that while he was waiting for the customer to arrive, the
            victim asked the defendant if he could borrow some
            money. The two men argued, and the defendant stated
            the victim asked Kuehner to retrieve a shotgun from a
            back room. While retreating from the victim, the
            defendant slipped, and, as he was getting up, he
            observed Kuehner heading towards the room where the
            shotgun was kept. The victim was approaching the
            defendant with a monkey wrench in his hand. The
            defendant testified he was afraid of the victim because
            he had overheard the victim threatening to shoot other
            customers and his own wife in the past. The defendant
            testified he pulled his gun to scare the victim and it
            accidentally discharged. He told Kuehner, "man I didn't
            mean to do it [shoot the victim]." After arguing with
            Kuehner about what to do next, the defendant testified he
            panicked and fled the scene. He felt no one would
            believe his version of what occurred because he had shot
            a white man. The defendant stated he fled from the
            garage about ten minutes after the shooting. He denied
            telling Kuehner to give the police false information, calling
            Miller after the shooting, threatening Kuehner not to
            testify, or telling Miller to convince Kuehner not to testify.

                     Two defense experts testified regarding the
             defendant's mental state. Dr. Little testified the defendant
             was not retarded or psychotic, he had good contact with
             reality, and had good intellectual skills. He also testified
             the defendant had significant personality problems, was
             aggressive, and was manipulative, particularly when it
             placed him in a better light. Dr. Little found the defendant
             suffered from depression brought on by severe
             psychological stressors, and made a tentative diagnosis
             of intermittent explosive disorder. Dr. Little stated he had
             no doubt the defendant could have premeditated murder,
             although it was possible the murder was committed on
             impulse. Dr. Hutson, who also testified for the defense,
             stated that the defendant was able to appreciate
             wrongfulness and was capable of premeditation.




                  FAILURE TO CHARGE LESSER OFFENSE



      The trial court charged the indicted offense of premeditated first degree

murder as well as the lesser offenses of second degree murder and voluntary

manslaughter. Although the defendant also requested the jury be charged as to




                                          4
criminally negligent homicide, the trial court refused. This Court in the original appeal

held that there was sufficient evidence to justify a jury charge on criminally negligent

homicide; therefore, we reversed and remanded for a new trial.



                                 STATE V. WILLIAMS



       The Supreme Court in Williams concluded that the erroneous failure to instruct

on a lesser offense is subject to harmless error analysis. ___ S.W.2d at _____. The

Court further concluded that the failure to instruct as to voluntary manslaughter was

harmless error because the jury was instructed as to the lesser offense of second

degree murder but convicted the defendant of the greater charged offense of

premeditated first degree murder. Id. at ____.

       The above holding in Williams is dispositive of this appeal. In the case sub

judice the jury was instructed as to premeditated first degree murder and the lesser

offenses of second degree murder and voluntary manslaughter. The jury convicted

the defendant of premeditated first degree murder in spite of the other charged

offenses. Under the holding of Williams, the failure to charge the lesser offense of

criminally negligent homicide was harmless error.



                                    CONCLUSION



       In light of State v. Williams and after a careful review of the record, the

judgment of the trial court is affirmed.1




       1
       Presiding Judge Joe B. Jones authored this Court’s original opinion. Judge Jones is
now deceased; therefore, only two judges participated in this opinion.

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                                    _____________________________
                                    JOE G. RILEY, JUDGE




CONCUR:



_________________________________
DAVID H. WELLES, JUDGE




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