            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON

                                 JUNE 1999 SESSION
                                                              FILED
                                                                 March 9, 2000
STATE OF TE NNE SSE E,                     )   C.C.A. NO. W1998-00637-CCA-R3-CD
                                                            Cecil Crowson, Jr.
                                           )               Appellate Court Clerk
              Appellee,                    )
                                           )     SHELBY COUNTY
V.                                         )
                                           )
                                           )     HON. W. FRED AXLEY, JUDGE
KHANH V. LE,                               )
                                           )
              Appe llant.                  )     (FIRST D EGRE E MU RDER )




                     SEPARATE OPINION CONCURRING
                     IN PART AND DISSENTING IN PART


              I concur with Judge Ogle’s opinion concerning the issue of sufficiency

of the evidence to sustain the conviction for first degree murder and the issue

regarding the suppression of identification testimony. I con cur that the trial court did

not err by refusing to charge voluntary manslaughter as a lesser-included offense.

I also concur that the trial court erred by failing to charge second degree murder as

a lesser-included offense. However, I dissent from the majority opinion’s conclusion

that this erro r was no t reversible e rror.



              In State v. Williams, 977 S.W.2d 101 (Tenn. 1998), the defendant was

convicted of first degre e prem editated m urder. T he trial cou rt charge d the jury w ith

the lesser-included offenses of second degree murder and reckless homicide. The

court of criminal appeals reversed and re man ded fo r a new trial on th e bas is it was

revers ible error for the trial court to not charge voluntary manslaughter as a lesser-
included offense. The suprem e court a greed th at it was erro r to not charge vo luntary

mans laughte r, but held th at it was ha rmless , and no t reversible e rror. Id. at 106.



              Specifically, the supreme court stated:


       According ly, we conclude that a trial court’s erroneous failure to instruct
       on voluntary manslaughter is subject to harmless error analysis.
       Reversal is required if the error affirmatively appears to have affected
       the result of the trial on the merits, or in other words, revers al is
       required if the error more probably than not affected the judgment to the
       defen dant’s prejudice. See, e.g., State v. Hamm, 611 S.W.2d 826
       (Tenn. 1981) (apply ing ha rmles s error analys is and concluding that the
       trial court’s failure to instruct upon the lesser offense constituted
       prejudicia l error).


Id. at 105



              In Williams, the supre me co urt also he ld,


       . . . by finding the defendant guilty of the highest offense to the
       exclusion of the immediately lesser offense, second degree murder, the
       jury necessarily rejected all other lesser offenses, included voluntary
       manslau ghter. Accordingly, the trial court’s erroneous failure to charge
       voluntary manslaughter is harmless beyond a reasonable doubt
       because the jury’s ve rdict of g uilt on the greater offense of first degree
       murder and its disinclination to consider the lesser-included offense of
       second degree murder clearly demonstrates that it certainly would not
       have returned a verdict on voluntary m anslaughte r.

Id. at 106 (emp hasis adde d).



              Under State v. Burns, 6 S.W.3d 453 (Tenn. 1999), I am constrain ed to

note that it is somewhat unclear to m e whether failure to p roperly charge a lesser-

included offense is a constitutional (affecting the cons titutional right to trial by jury)

error or on ly a non-c onstitution al statutory e rror.




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              This is an important distinction because of the difference in the tests for

harmlessness of constitutional errors and non-constitutional errors. Recently, the

supreme court set forth the difference as follows:


       For exam ple, in T enne ssee , non-c onstitu tional e rrors w ill not result in
       reversal unless the error affirmatively appears to have affected the
       result of the trial on the merits, or considering the whole record, the
       error involves a substantial right which more probably than not, affected
       the judgment or would result in prejudice to the judicial process. Tenn.
       R. Crim. P . 52(a); Te nn. R. A pp. P. 36 (b); State v. Cook, 816 S.W.2d
       322, 326 (T enn. 19 91); State v. Williams, 977 S.W.2d 101, 105 (Tenn.
       1998). In contrast, a constitutional error will result in reversal unless
       the reviewing court is convin ced “b eyond a reas onab le doubt” that the
       error did not affect the trial o utcom e. Chapm an v. Califor nia, 386 U.S.
       18, 87 S.C t. 824, 17 L .Ed.2d 7 05 (196 7); How ell, 868 S.W .2d at 260;
       Cook, 816 S.W .2d at 326; Te nn. R. Crim . P. 52(a).


State v. Harris , 989 S.W .2d 307, 315 (Tenn. 199 9).



              In Williams, the majority opinion stated, as quoted above, that reversal

was required when the trial court erroneous ly failed to instruct on voluntary

manslau ghter, “. . . if the erro r affirm atively appears to have affected the result of the

trial on the merits , or in oth er wor ds, rev ersal is require d if the e rror m ore pro bably

than not affected the jud gment to the defendan t’s prejudice.” Williams, 977 S.W.2d

at 105.



              Howeve r, as also noted above, the majority opinion held that the trial

court’s erroneous failure to charge the lesser-included offense of voluntary

manslau ghter was “ha rmless beyo nd a reaso nable doub t.” Id. at 106.



              In addition, while spe cifically noting that Strade r v. State, 210 Tenn.

669, 362 S .W .2d 22 4 (196 2), disc usse s the d enial of the right to a jury trial which


                                              -3-
results when th e trial court e rroneou sly fails to charge a lesser-included offense,

Williams, 977 S.W.2d at 104 n. 4, and distinguishing Strader on other ground s, Id.

15 106 n. 6, the supreme court did not list Strader amo ng ca ses sp ecifica lly

overruled by Williams, Id. at 106 n. 7 .



             Strader specifically h olds that,


      [The defendant] had the right to have all the law as to these different
      grades of offenses explained to the jury, in order that they m ight ap ply
      the law in dete rmining whethe r he was guilty of any one or more of such
      offenses. [Defendant] had this right because the statute (T.C.A. § 40-
      2518) gave it to him, and because it was a part of his constitutional right
      of trial by jury to have every issue made by the evidence tried and
      determined by the jury under a correct and complete charge of the law
      given by the Judge.


Strader, 210 Ten n. at 682-83, 36 2 S.W .2d at 230 (em phasis add ed).



             In State v. Bolden, 979 S.W.2d 587 (Tenn. 1998), filed appro ximate ly

two months a fter Williams was filed, a unanimous supreme court cited Strader in

holding,


      W e have frequently held that the trial cou rt’s oblig ation u nder th is
      statute is mandatory, provided there is sufficient evidence for a rational
      trier of fact to find th e defen dant gu ilty of a lesser o ffense. Strader v.
      State, 210 Ten n. 669, 362 S .W.2d 224, 228 (T enn. 1962 ). The failure
      to instruct on a lesser offense, however, may be shown to be harmless
      beyond a reasonable doubt under some circumstances. State v.
      Williams, 977 S.W .2d 101 (Te nn. 1998).

                                           ***

      One purpose of the statute [requiring the trial court to charge lesser
      offense] is to protec t the right to trial by jury by instructing the jury on
      the elem ents of all offe nses e mbrac ed by the indictme nt.


Bolden, 979 S.W .2d at 593 (em phasis add ed).


                                           -4-
              In spite of the unc ertainty of whether error b y failing to charge a less er-

included offens e is a con stitutional erro r, a non-c onstitution al error, or a non-

constitutional statutory error where reversal is necessary unless the appellate co urt

concludes beyond a reasonable doubt that the erro r did not affect the outcome of the

trial, I feel that Williams requires a finding o f reversible e rror in this ca se.



              In Williams, the ma jority opinion distinguishes the cases relied upon in

the dissenting opinion. Specifically it is stated:


       In other cases, cited by the dissent, the jury was not instr ucted a s to
       any lesser-included offenses, thoug h the record contained evidence of
       those offenses . See, e.g., Strader, supra; State v. Vance, 888 S.W.2d
       776 (Tenn. Crim. App. 1994); State v. McKnight, 900 S.W.2d 36 (Tenn.
       Crim. App. 19 94). Since the jury was given only one option, and the
       proof would have supported another, those cases also a re clea rly
       distinguishable from the circumstances of this case.


Williams, 977 S.W .2d at 105-06 n. 6 (emph asis added ).



              Therefore, pursuant to Williams’ reliance on Strader, Vance, and

McKnight, under circum stances wh ere the trial court does not charge a ny lesser-

included offenses, and there is error to fail to charge at least one lesser-included

offense, I am compelled to find that it is reversible error in this case for the trial cou rt

to not charge th e lesser-included offense of seco nd degree murder.



              For the above-stated reasons, I respectfully dissent, and would reverse

the con viction and reman d for a ne w trial.



                                    ____________________________________
                                    THOMAS T. W OODALL, Judge



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