         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                   November 4, 2003 Session

              STATE OF TENNESSEE v. ANDREW THOMAS AND
                           ANTHONY BOND

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 00-03095    Joseph B. Dailey, Judge



                   No. W2001-02701-CCA-R3-DD - Filed February 27, 2004



JOE G. RILEY , J., concurring in part and dissenting in part.

       I agree with the majority opinion in all respects with one exception. The majority opinion
concludes the failure of the trial court to charge the lesser-included offense of facilitation of felony
murder as to Defendant Bond was not harmless error. I respectfully disagree with this conclusion.

         In conducting a harmless error analysis, this court must conduct a thorough examination of
the record, which should include “the evidence presented at trial, the defendant’s theory of defense,
and the verdict returned by the jury.” State v. Allen, 69 S.W.3d 181, 191 (Tenn. 2002). “[I]n
determining whether it was harmless beyond a reasonable doubt not to charge a lesser-included
offense, the reviewing court must determine whether a reasonable jury would have convicted the
defendant of the lesser-included offense instead of the charged offense.” State v. Richmond, 90
S.W.3d 648, 662 (Tenn. 2002) (emphasis in original). Here, as the majority opinion notes, (1) both
defendants discussed the plan to rob an armored truck the day prior to the robbery/murder; (2)
Defendant Bond admitted he drove the getaway car after Defendant Thomas shot and robbed the
victim; (3) Defendant Bond shared in the robbery proceeds; and (4) Defendant Bond, prior to the
instant trial, entered a guilty plea in federal court to charges arising from the robbery. Defendant Bond
defended on the basis that the gunshot wound was not the cause of death.

        An essential element of facilitation of felony murder is that the defendant knew another
person intended to commit the underlying felony (robbery in this case), but did not intend to promote
or assist in that offense or to benefit in the proceeds of that offense. State v. Ely, 48 S.W.3d 710,
720 (Tenn. 2001) (citing Tenn. Code Ann. §§ 39-13-202, 39-11-403 (1997)). The intent for felony
murder relates to the underlying felony of robbery, not the intent to kill. See Tenn. Code Ann. § 39-
13-202(b).

        Here, it is undisputed that Defendant Bond intended to, and did in fact, promote and assist
in the robbery as well as share in its proceeds. Defendant Bond’s lack of intent was not his theory
of defense, and the jury verdict rejected his theory of defense. Simply because no lessers were
charged is no indication the jury “would” have convicted on a lesser offense had it been charged.

        In order for the jury to find Defendant Bond guilty of facilitation of felony murder as opposed
to felony murder, the jury would have to disregard the undisputed evidence and conclude Defendant
Bond did not intend to promote or assist in the robbery or share in its proceeds. Although the jury
within its prerogative could have done so,1 the harmless error issue is not determined by what the
jury could have done. I would conclude beyond a reasonable doubt, based upon (1) the undisputed
proof at trial; (2) Defendant Bond’s theory of defense; and (3) the jury’s rejection of his theory of
defense; that no reasonable jury would have convicted Defendant Bond of facilitation of felony
murder instead of the charged offense. See Richmond, 90 S.W.3d at 662. Thus, I would affirm
Defendant Bond’s conviction for felony murder.



                                                                   _____________________________________
                                                                   JOE G. RILEY, JUDGE




         1
           Ely concluded it was not even error to refuse to charge facilitation of felony murder where “the evidence was
clear that the commission of the underlying felony of robbery was a joint undertaking,” and

         no reasonable juror could have believed that although Ely was present, knew that Carden intended to
         commit the robbery, and furnished substantial assistance in the commission of the robbery, he
         nevertheless did not intend “to promote or assist the commission of the offense or to benefit in the
         proceeds or results of the offense.”

48 S.W .3d at 724. Although it is arguable this language might indicate the trial court in the case at bar did not err in its
refusal to charge facilitation, it appears that both Ely and his co-perpetrator personally participated in assaulting the
victim. Id. In the case at bar, Defendant Bond did not personally participate in the assault upon the victim. Thus, I agree
with the majority that the trial court erred in refusing to charge facilitation of felony murder.
