         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                      Remanded By Supreme Court October 3, 2000

                     STATE OF TENNESSEE v. KHANH V. LE

                      Appeal from the Criminal Court for Shelby County
                          Nos. 96-01118    W. Fred Axley, Judge


                   No. W1998-00637-CCA-R3-CD - Filed January 25, 2002
                   No. W2001-01615-CCA-RM-CD - Filed January 25, 2002



THOMAS T. WOODA LL, J., concurring on remand.


        Consistent with my conclusion when this case was originally before our court, I concur that
it was reversible error for the trial court to not charge the jury with the lesser-included offense of
second degree murder. Along with Judge Welles, I disagree with the statement in the lead opinion
by Judge Ogle that “a failure to instruct a jury on lesser-included offenses will only be found
harmless beyond a reasonable doubt under the circumstances presented” in State v. Williams, 977
S.W.2d 101, 106 (Tenn. 1998). There may be other circumstances, not presently before our court,
where the erroneous failure to charge a lesser-included offense would be harmless error.

        However, I write separately in order to distinguish one point, although it may be a matter of
form over substance. In Judge Welles’ hypothetical described in his concurring opinion, I would
conclude that assault should not be charged as a lesser-included offense of aggravated assault
because it would not meet the requirement in State v. Burns, 6 S.W.3d 453, 469 (Tenn. 1999) that
an instruction on a lesser-included offense should be given. Specifically, in the hypothetical
described by Judge Welles, I would conclude that evidence did not exist that reasonable minds could
accept as to the lesser-included offense. Therefore, I would conclude that where “nullification” can
be the only explanation for a jury finding a person guilty of a Burns “part (a)” lesser-included
offense, that failure to charge the offense as a lesser-included offense would not be error, and the
issue of whether it was harmless error or reversible error would not have to be reached.


                                                      ____________________________________
                                                      THOMAS T. WOODALL, JUDGE
