                                                                                             07/06/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               December 20, 2016 Session

        STATE OF TENNESSEE v. BRANDON SCOTT DONALDSON

                   Appeal from the Criminal Court for Knox County
                      No. 101256 Steven Wayne Sword, Judge
                      ___________________________________

                            No. E2016-00262-CCA-R3-CD
                        ___________________________________

THOMAS T. WOODALL, P.J., concurring in part, concurring in results only in part.

       I concur in all parts of the lead opinion, except section II.B., “State of Passion”
and Sequential Jury Instructions. As to that particular section, I concur in the result that
Defendant is not entitled to relief on his challenge to the use of acquittal-first instructions
pursuant to State v. Davis, 266 S.W.3d 896 (Tenn. 2008) and that he is not entitled to
relief on the issue challenging the jury instruction that passion and provocation are
elements of voluntary manslaughter.

        I will explain why I am unable to join in the lead opinion’s discussion and analysis
in section II.B. The General Assembly has specifically stated that “voluntary
manslaughter is a lesser included offense of premeditated first degree murder and second
degree murder.” T.C.A. § 40-18-110(g)(2). As to voluntary manslaughter being a lesser
included offense of premeditated first degree murder and second degree murder, the
statute does away with any need to refer to State v. Burns, 6 S.W.3d 453, 466-67 (Tenn.
1999) in this case. The judgments show that Defendant was convicted of second degree
murder in the specific counts that charge premeditated first degree murder.

        T.C.A. § 39-13-211(a) states that “[v]oluntary manslaughter is the intentional or
knowing killing of another in a state of passion produced by adequate provocation
sufficient to lead a reasonable person to act in an irrational manner.” The lead opinion
concludes that according to the “more precise” interpretation of State v. Dominy, 6
S.W.3d 472 (Tenn. 1999), “the passion and provocation components of voluntary
manslaughter are defensive considerations and not essential elements” of voluntary
manslaughter. (emphasis added). The lead opinion asserts that this treatment of
voluntary manslaughter is supported by T.C.A. § 39-11-203(e)(1) which states that “[a]
ground of defense, other than one negating an element of the offense or an affirmative
defense, that is not plainly labeled in accordance with this part has the procedural and
evidentiary consequences of a defense.” (emphasis added). I am unable to so broadly
interpret this statute as does the lead opinion. State v. Paul Clifford Moore, Jr., No.
E2015-00585-CCA-R3-CD, 2016 WL 2865759 at *8-11 (Tenn. Crim. App. May 12,
2016) perm. app. denied (Tenn. Sept. 22, 2016). Elsewhere in the lead opinion it is stated
that “passion and provocation by their very nature express neither elements . . . nor an
absolute defense; instead, they are a type of built-in mitigation to a knowing or
intentional killing.” (emphasis added). I am not aware of any statute that allows a court
to interpret words within the definition of a crime to be “a type of built-in mitigation.”
Accordingly, I am unable to join in with the lengthy discussion and analysis contained in
section II.B. of the lead opinion. See State v. Khaliq Ra-El, No. W2013-01130-CCA-R3-
CD, 2014 WL 3511038 (Tenn. Crim. App. July 11, 2014), perm. app. denied (Tenn. Nov.
20, 2014) (majority opinion by Judge Woodall, joined by Judge Wedemeyer, separate
opinion concurring in results only by Judge Witt); Paul Clifford Moore, Jr., 2016 WL
2865759 at *13-14 (a unanimous opinion authored by Judge McMullen and joined by
Judge Ogle and Judge Wedemeyer).

      Also, in State v. Williams, 38 S.W.3d 532 (Tenn. 2001), the Tennessee Supreme
Court held,
        Comparing the revised second degree murder and voluntary
        manslaughter statutes, the essential element that now distinguishes
        these two offenses (which are both “knowing” killings) is whether the
        killing was committed “in a state of passion produced by adequate
        provocation sufficient to lead a reasonable person to act in an irrational
        manner.” [Tenn. Code Ann. § 39-13-211(a)]

Id. at 538. (emphasis added).

       Until our supreme court overrules this holding in Williams, or otherwise explains
that this language in Williams has been erroneously interpreted on numerous occasions
since 2001, I am compelled to follow what appears to me to be a clear directive.
Accordingly, I concur with all portions of the lead opinion except section II.B. With that
section I only concur with the result that Defendant is not entitled to relief on the issues
raised pertaining to the jury instructions. However, I most respectfully urge our supreme
court to again address the issue as to whether “passion produced by adequate provocation
sufficient to lead a reasonable person to act in an irrational manner” are elements of the
crime of voluntary manslaughter.

       I am authorized to state that Judge Ogle joins me in this separate opinion.

                                         ________________________________________
                                         THOMAS T. WOODALL, PRESIDING JUDGE

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