 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                         AT KNOXVILLE                                        FILED
                      JULY 1999 SESSION                                    November 4, 1999

                                                                           Cecil Crowson, Jr.
                                                                          Appellate Court Clerk


STATE OF TENNESSEE,               )
                                              )     NO. 03C01-9806-CC-00215
       Appellee,                              )
                                              )     ANDERSON COUNTY
VS.                                           )
                                              )     HON. JAMES B. SCOTT,
CURTIS J. ELY,                                )     JUDGE
                                              )
       Appellant.                             )     (Felony Murder - Life Sentence)

                                 DISSENTING OPINION

              Some recent decisions from the supreme court make it difficult to

quarrel with the analysis in the lead opinion on the issue of whether the trial court

failed to provide the jury with instructions on the lesser offenses of second degree

murder, reckless homicide, or criminally negligent homicide. State v. Trusty, 919

S.W.2d 305, 310-11 (Tenn. 1996). Judge Riley concludes that there is no error for

the failure to instruct on a lesser offense when the record "clearly shows that the

defendant was guilty of the greater offense, and the record is devoid of any

evidence permitting an inference of guilt of the lesser offenses." Slip op. at 14
(quoting State v. Langford, 994 S.W.2d 126, 126-28 (Tenn. 1999). The lead opinion

also relies upon State v. Vann, 976 S.W.2d 93 (Tenn. 1998), wherein our supreme

court ruled that the trial court did not err by failing to give a jury instruction on
second degree murder or facilitation of a felony when all of the proof offered

established that the victim had either been killed during the perpetration of a rape,

died from an accidental choking, or had committed suicide. In the Vann opinion, our

supreme court ruled that "this case is devoid of evidence to support a jury charge on

the offenses of second degree murder and facilitation of a felony." Id. at 101. By

the use of that authority, Judge Riley has determined in this case that the evidence

would not have been sufficient to support any of the lesser offenses.


              In his concurring opinion, Judge Welles points out a flaw in that

rationale. Relying on State v. Cleveland, 959 S.W.2d 548 (Tenn. 1997), he believes

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that trial courts are under a duty to "instruct the jury on all lesser grades or classes

of offenses and all lesser included offenses if the evidence will support a conviction

for those offenses.... [A]llowing consideration of the lesser included offenses and
the ... lesser grades ..., if the evidence supports guilt on those offenses, more evenly

balances the rights of the defense and the prosecution and serves the interests of

justice. Id. at 553. Judge Welles not only points out that the proof offered in this

case would have been sufficient to support the lesser offenses but he also illustrates

potential damage to the interests of the state when the trial judge denies a request

for instructions on lesser crimes. 1 In State v. Bolden, 979 S.W.2d 587 (Tenn. 1998),

for example, the defendant, who was charged with premeditated first degree

murder, was willing to gamble on an "all or nothing" verdict by asking the trial judge

not to charge the lesser included offense of second degree murder; the trial judge
refused and the defendant was convicted on that lesser crime. While our supreme

court affirmed the second degree murder conviction, its opinion emphasized the

mandate of the statute requiring trial courts to "instruct the jury on all lesser offenses

if the evidence introduced at trial is legally sufficient to support a conviction of the

lesser offense." Id. at 593. In Bolden, our supreme court acknowledged that a

"purpose of the statute is to protect the right to trial by jury by instructing the jury on

the elements of all offenses embraced by the indictment [and to] facilitate[] the

overall truth-seeking function of the process." Id. at 593.



                 In this case, the evidence presented might have allowed the jury to

infer that the defendant was not involved in the robbery of the victim but knowingly
participated in the killing of the victim. The circumstances, in my view, would have

at least warranted an instruction on second degree murder. I believe that under our

system, it is the duty of the jury to assess the facts and circumstances, weigh the

credibility of the witnesses, and draw their own inferences from the evidence
presented at trial. See Wright v. State, 549 S.W.2d 682 (Tenn. 1977); Johnson v.

State, 397 S.W.2d 170, 1974 (1965). While, as Judge Welles indicates, that may

    1
     In Schad v. Arizona, 501 U.S. 644 ( 199 1), the Sup rem e Co urt no ted th at the aim of the rule
established in Beck v. Alabama, 447 U.S.625 (1980), was "to eliminate the distortion of the fact-finding
proces s that is cre ated wh en the jury is fo rced into a n all-or-noth ing choic e." Schad v. Arizona, 501
U.S. at 64 8.

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not have made a difference in this case, the function of the jury is so important, in

my opinion, that there should be a strict harmless error analysis.



                 My particular concern about the concurring opinion of Judge Welles is

his reliance upon State v. Williams, 977 S.W.2d 101 (Tenn. 1998), to adequately

assess the effect of the error. 2 In Williams, our supreme court recognized that the
trial court had erred by failing to charge voluntary manslaughter when instructions

had been given on first degree premeditated murder and second degree murder.

Nonetheless, a majority of the supreme court ruled that the failure to so instruct
violated only the statute and that the requirement to charge lesser included offenses

was not based on a constitutional right to trial by jury. In consequence, the majority

opinion rejected the constitutional error analysis and instead adopted the standard
provided in Rule 52 of the Tennessee Rules of Criminal Procedure:

                   (a) Harmless Error. No judgment of conviction shall be
                 reversed on appeal except for errors which affirmatively
                 appear to have affected the result of the trial on the
                 merits.

                   (b) Plain Error. An error which has affected the
                 substantial rights of an accused may be noticed at any
                 time, even though not raised in the motion for a new trial
                 or assigned as error on appeal, in the discretion of the
                 appellate court where necessary to do substantial justice.
(Emphasis added).



                 Judge Welles suggests that the burden placed upon the appealing
party to show that "the error more probably than not affected the judgment" is so

onerous that a reversal would rarely result for the failure to charge a lesser offense.

See State v. Williams, 977 S.W.2d at 105.



   2
     I would also disagree with the holding of a panel of our court in State v. Elder, 982 S.W.2d 817
(Tenn. Crim. App . 1998), wherein the trial court refused to charge attempted voluntary ma nslaughter,
concluding there was no "evidence in my judgment that the jury could possibly have used to find
provocation sufficient under the statute to justify a charge of attempted voluntary manslaughter." The
panel determined, after a review of the record, that an argument between the victim and the defendant
could not qualify as a "state of passion," as defined by Tenn. Code Ann. § 39-13-211, when there had
been an interval of four and one-half hours before a shooting. In my view, the trial court in Elder
encroached up on the province of the jury by returning the charge and no appellate court should have
the prero gative to es tablish an a rbitrary stand ard within w hich pas sions m ust nec essarily sub side.
See Tennessee Constitution, art. I, §§ 6, 9, and 19 stating "the jury shall have the right to determine
the law an d the fac ts."


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                 Sometimes the egregiousness of the facts obscure the legitimacy of a

legal issue. As unlikely as it may have been in this case for the jury to accredit any

theory offered by the defense, the trial judge had at least the statutory duty to
instruct the jury because the proof would have been sufficient to support a second

degree murder:

                 It is the duty of all judges charging juries in cases of
                 criminal prosecutions of any felony wherein two or more
                 grades or classes of offense may be included in the
                 indictment, to charge the jury as to all of the law each
                 offense included in the indictment, without any request
                 on the part of the defendant to do so.

Tenn. Code Ann. § 40-18-110 (emphasis added).                       As early as McGowan v. State,

17 Tenn. 84 (1836), our supreme court determined that this statutory mandate is
founded in the terms of our state constitution. A number of decisions since support

that view. 3 In Bolden, decided shortly after Williams, our supreme court ruled that

the failure to instruct on a lesser offense should be subject to error analysis under

the constitutional standard of harmless beyond a reasonable doubt. It is when the

record is practically devoid of any evidence of a lesser offense that the error is

harmless beyond a reasonable doubt. While that is an imprecise standard, it places

the burden appropriately upon the state to assure that there was not an

impermissible invasion of the jury's role as fact finder. Because the evidence here

    3
      See State v. Staggs, 554 S.W .2d 620 (Tenn. 1977) (a pa rt of the constitutional right to trial by jury
is to have e very issue mad e by the evide nce de termin ed by the jur y under a c orrect an d com plete
charge of the law); Strader v. State, 362 S.W.2d 224 (Tenn. 1962). Recent cases stating rule that
failure to charge lesser offense is a constitutional deprivation rely on State v. Wright, 618 S.W.2d 310
(Tenn . Crim. A pp. 1981 ) (Joe D . Dunca n, Judg e), and inc lude the fo llowing: State v. Belser, 945
S.W .2d 776 ( Tenn . Crim. A pp. 1996 ); State v. Howard, 926 S.W .2d 579 (Tenn. Crim . App. 1996);
State v. Sum me rall, 926 S.W .2d 272 ( Tenn . Crim. A pp. 1995 ); State v. Ruane, 912 S.W.2d 766
(Tenn . Crim. A pp. 1995 ); State v. Lew is, 919 S.W .2d 62 (T enn. Cr im. Ap p. 1995) ; State v. Boyce, 920
S.W .2d 224 ( Tenn . Crim. A pp. 1995 ); State v. King, 905 S.W .2d 207 ( Tenn . Crim. A pp. 1995 ); State
v. McKnight, 900 S.W .2d 36 (T enn. Cr im. Ap p. 1994) ; State v. Vance, 888 S.W .2d 7 76 (T enn . Crim .
App. 19 94); State v. Banes, 874 S.W .2d 73 (T enn. Cr im. Ap p. 1993) ; State v. Richard Darrell Miller
and Johnny Wayne Garner, C.C.A N o. 01C0 1-9703 -CC-0 0087 (T enn. Cr im. Ap p., at Nas hville, Sept.
11, 1998 ); State v. George Rose, C.C.A. No. 02C01-9710-CR-00405 (Tenn. Crim. App., at Jackson,
July 2, 1998 ); State v. Harvey Phillip Hester, C.C.A. No. 03C01-9704-CR-00144 (Tenn. Crim. App., at
Knoxv ille, June 4, 19 98); State v. Bec ky Da vis, C.C.A. N o. 03C0 1-9701 -CR-0 0027 (T enn. Cr im. Ap p.,
at Knox ville, May 1, 199 8); State v. Willie D. Graham, C.C .A. N o. 03 C01 -970 7-C C-0 031 4 (T enn . Crim .
App., at K noxville, Ma y 7, 1998); State v. Warren Tyrone Fowler, C.C.A. No. 03C01-9709-CC-00391
(Tenn . Crim. A pp., at Kno xville, Apr. 29 , 1998); State v. Harvey D'Hati Moore, C.C.A. No. 03C01-
9704-C R-001 31 (Te nn. Crim . App., at Kn oxville, Mar . 18, 1998 ); State v. Daniel Joe Brown, C.C.A.
No. 02C 01-961 1-CC -00385 (Tenn . Crim. A pp., at Jac kson , Dec. 3, 1 997); State v. Michael Tyrone
Gordon, C.C.A. N o. 01C0 1-9606 -CR-0 0213 (T enn. Cr im. Ap p., at Nas hville, Sept. 18 , 1997); State v.
George Brooks, C.C.A. N o. 02C0 1-9602 -CR-0 0050 (T enn. Cr im. Ap p., at Jack son, M ay 15, 199 7);
State v. Janice Hansbrough-Eason, C.C.A. No. 02C01-9504-CR-00098 (Tenn. Crim. App., at
Jack son, De c. 19, 199 6); State v. Hollis Ray Williams, C.C.A. No. 03C01-9406-CR-00209 (Tenn.
Crim . App., at Kn oxville, July 23, 1 996); State v. R andall Sc ott, C.C.A. No. 01C01-9307-CR-00240
(Tenn . Crim. A pp., at Na shville, Jan. 5 , 1996); State v. Deborah Gladish, C.C.A. No. 02C01-9404-CC-
00070 (Tenn . Crim. A pp., at Jac kson , Nov. 21 , 1995); State v. Eric J. Fa ir, C.C.A. No. 02C01-9403-
CR-00055 (T enn. Crim. App., at Jacks on, Nov. 15, 1995).


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would have supported a conviction for second degree murder, the jury should have

received instructions on that offense. I cannot say that the error was harmless

beyond a reasonable doubt. The jury should have been allowed the choice between
felony murder and second degree murder.



             I therefore dissent.


                                        __________________________________
                                        Gary R. Wade, Presiding Judge




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