                    IN THE SUPREME COURT OF TENNESSEE
                               AT NASHVILLE
                   May 29, 2014 Session heard at Lipscomb University


              CALVIN EUGENE BRYANT v. STATE OF TENNESSEE

                Appeal by Permission from the Court of Criminal Appeals
                          Criminal Court for Davidson County
                       No. 2008B1478       Steve R. Dozier, Judge


                   No. M2012-01560-SC-R11-PC – Filed March 13, 2015




GARY R. WADE, J., concurring in part and dissenting in part.

        I concur with the majority that a conviction on a greater offense does not preclude
a claim of ineffective assistance of counsel for the failure to request jury instructions on
lesser included offenses. Although a small number of recent opinions by the Court of
Criminal Appeals have held otherwise, most panels have endorsed the traditional view
that the trial court has the obligation to provide instructions on the charged offense and all
lesser included offenses warranted by the proof at trial, and that defense counsel, absent a
reasonably based strategy, has the duty to seek instructions on all lesser included offenses.
 In contrast to the majority, I believe that trial counsel in this instance provided
constitutionally inadequate representation by failing to request an instruction on
facilitation as a lesser included offense of the sale of ecstasy within a school zone. I
must, therefore, respectfully dissent to the extent that I would grant a new trial.

                            I. Facts and Procedural History
       Calvin Eugene Bryant (the APetitioner@) was indicted for three counts of the sale of
ecstasy, a Schedule I controlled substance, within 1000 feet of a school based upon three
separate transactions.1 The proof at trial as to each transaction was as follows:

        (1)     In February of 2008, a confidential informant named Terrance Knowles
                repeatedly telephoned the Petitioner at the behest of the police, asking to

        1
           As to the second and third transactions, the Petitioner was also indicted for the delivery of
ecstasy as an alternative theory of liability.
             purchase a small quantity of ecstasy pills. The Petitioner testified that he
             initially refused to help, but eventually agreed to obtain the pills when
             Knowles, a long-time acquaintance, said that he needed to sell drugs to
             make money to feed his family. On March 4, 2008, Knowles drove to the
             home of the Petitioner and purchased twenty pills for $140.

      (2)    On March 21, 2008, Knowles telephoned the Petitioner asking to purchase
             100 ecstasy pills. The two men then met outside of the Petitioner=s
             residence. An unidentified driver of a Ford Explorer stopped near where
             the two men stood. Knowles handed the Petitioner $660, and the Petitioner
             took the money to a person in the passenger seat of the Explorer in
             exchange for the pills. The Petitioner then transferred the pills to Knowles
             and handed back $10 in changeCthe difference between $660 and the actual
             price of $650 as charged by the supplier of the pills.

      (3)    On April 23, 2008, Knowles contacted the Petitioner asking for 200 ecstasy
             pills. They met at a basketball court near the residence of the Petitioner.
             When an unidentified driver arrived in a Jeep Cherokee, Knowles handed
             $1200 to the Petitioner, who transferred the money to the driver in exchange
             for pills. The Petitioner then turned the pills over to Knowles.

        The Petitioner, who chose to testify at trial, admitted that he had participated in
each of the three transactions but asserted the defense of entrapment, claiming that he was
not a drug dealer and had been induced to participate by Knowles, whom he had known
since childhood. As to each transaction, the trial court instructed the jury on the
following offenses: (1) the sale of a controlled substance within 1000 feet of a school, a
Class A felony; (2) the lesser included offense of the sale of a controlled substance
outside of a school zone, a Class B felony; and (3) the lesser included offense of simple
possession or casual exchange within 1000 feet of a school, a Class A misdemeanor. See
Tenn. Code Ann. '' 39-17-417(a)(3), (b); -418(a), (c)(1); -432(b)(1) (2014). Because
the Petitioner qualified as a Range I offender, the sentencing ranges for the offenses
charged were as follows: (1) sale of a controlled substance within 1000 feet of a
schoolCfifteen to twenty years; (2) sale of a controlled substance outside of a school
zoneCeight to twelve years; and (3) simple possession or casual exchange within 1000
feet of a schoolCup to eleven months and twenty-nine days. See Tenn. Code Ann. 
40-35-111(e)(1), -112(a)(1)B(2) (2014). Trial counsel did not request a jury instruction
on facilitation as a lesser included offense of the sale of a controlled substance within
1000 feet of a school, which would have resulted in a sentencing range of eight to twelve
years. Further, the trial court did not provide facilitation instructions as to any of the
three transactions.

                                           2
        The jury acquitted the Petitioner on the first transaction. As to the second and
third transactions, the jury returned guilty verdicts for the sale of a controlled substance
within 1000 feet of a school.2 The trial court imposed two seventeen-year sentences to
be served concurrently. The convictions and sentences were upheld on the direct appeal.
 State v. Bryant, No. M2009-01718-CCA-R3-CD, 2010 WL 4324287, at *22 (Tenn.
Crim. App. Nov. 1, 2010), perm. app. denied (Tenn. Apr. 13, 2011).

        The Petitioner presented a single claim in his petition for post-conviction relief:
that he had been deprived of the effective assistance of counsel when his trial counsel
failed to request a lesser included offense instruction on facilitation. Because the
Petitioner was charged with the sale of a controlled substance within 1000 feet of a
school, a Class A felony carrying a potential sentence of fifteen to twenty years, a
conviction for the facilitation of this offense, a Class B felony, could have resulted in a
sentence of as little as eight years. See Tenn. Code Ann. ' 39-11-403(b) (2014) (AThe
facilitation of the commission of a felony is an offense of the class next below the felony
facilitated by the person so charged.@). The Petitioner maintained that if his counsel had
sought an instruction on facilitation as a lesser included offense, there was a reasonable
likelihood under these particular circumstances that he would have been convicted of the
lesser crime. The only witness at the post-conviction hearing was the Petitioner=s trial
counsel, Joy Kimbrough, who admitted that she had simply failed to request a jury
instruction for the lesser included offense of facilitation.

        The post-conviction court denied relief, and the Court of Criminal Appeals
affirmed, holding that the Petitioner had failed to demonstrate deficient performance of
counsel for three reasons: (1) trial counsel made a strategic decision not to request a
facilitation instruction; (2) a theory of facilitation would have undermined the Petitioner=s
entrapment defense; and (3) the evidence did not support a facilitation instruction.
Bryant v. State, No. M2012-01560-CCA-R3-PC, 2013 WL 4401166, at *20-21 (Tenn.
Crim. App. Aug. 16, 2013). In addition, the Court of Criminal Appeals held that the
failure to request an instruction on a lesser included offense could never result in
prejudice so long as the jury returned a guilty verdict on the greater offense. Id. at *22.
This Court granted the Petitioner=s application for permission to appeal.

                                     II. Analysis
      The Sixth Amendment to the United States Constitution provides that A[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of
        2
        The jury also returned guilty verdicts on the alternative theory of liability for delivery of the
drugs. The trial court properly merged each delivery conviction into the corresponding sale conviction.


                                                  3
Counsel for his defence.@ Likewise, article I, section 9 of the Tennessee Constitution
provides A[t]hat in all criminal prosecutions, the accused hath the right to be heard by
himself and his counsel.@ These constitutional provisions guarantee every person
charged with a felony the right to effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 686 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). To prevail on a claim of ineffective assistance of counsel, however, a petitioner
must prove not only a deficiency in the performance of counsel but also that the deficient
performance had a prejudicial effect upon the defense. Strickland, 466 U.S. at 687; Felts
v. State, 354 S.W.3d 266, 276 (Tenn. 2011). In my view, the Petitioner has met this
burden.

                                 A. Deficient Performance
       The first prong of an ineffective assistance of counsel claim requires a showing
Athat counsel=s representation fell below an objective standard of reasonableness,@ a level
of performance measured by Aprofessional norms@ existing at the time of the trial or the
appeal. Strickland, 466 U.S. at 688. Although a petitioner cannot establish deficient
performance based upon a failed strategy or an unsuccessful trial tactic, strategic choices
are given deference only when counsel has conducted a reasonably adequate level of
preparation prior to making such a decision. Goad v. State, 938 S.W.2d 363, 369 (Tenn.
1996) (citing Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)); see also Cooper v. State,
847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (A[D]eference to tactical choices only
applies if the choices are informed ones based upon adequate preparation.@).

       The majority provides two reasons for concluding that trial counsel=s failure to
request a jury instruction on facilitation did not amount to deficient performance: (1) the
evidence did not warrant a facilitation instruction; and (2) trial counsel acted strategically
because if the Petitioner had taken the position that he had facilitated the transactions, that
argument would have undermined the defense theory of entrapment. I do not concur
with this assessment.

                               1. Sufficiency of the Evidence
       As the majority notes, it is undisputed that facilitation is a lesser included offense
of the sale of a controlled substance within 1000 feet of a school. See Bryant, 2013 WL
4401166, at *17 (AThe law is well-settled that facilitation is a lesser included offense to
the charged offenses.@); State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999) (AAn offense
is a lesser-included offense if . . . it consists of . . . facilitation of the offense
charged . . . .@). The failure to request a lesser included offense may constitute deficient
performance by trial counsel if Athe record contains any evidence which reasonable minds
could accept as to the lesser included offense,@ and such evidence, viewed Aliberally in the
light most favorable to the existence of the lesser included offense[,] . . . is legally

                                             4
sufficient to support a conviction for the lesser included offense.@ Tenn. Code Ann. '
40-18-110(a) (2012) (emphasis added); see also Burns, 6 S.W.3d at 469. With these
standards in mind, I must respectfully disagree with the majority=s conclusion that the
Petitioner has Apresented no evidence of facilitation@ that would warrant an instruction on
the lesser included offense.
        The offense of facilitation is defined as follows: AA person is criminally
responsible for the facilitation of a felony, if, knowing that another intends to commit a
specific felony, but without the intent required for criminal responsibility under [section]
39-11-402(2), the person knowingly furnishes substantial assistance in the commission of
the felony.@ Tenn. Code Ann. ' 39-11-403(a). When parsed, the offense of facilitation
is comprised of three elements: (1) that the defendant knew another person intended to
commit the charged felony; (2) that the defendant lacked the requisite intent to be found
guilty under a theory of criminal responsibility; and (3) that the defendant knowingly
furnished substantial assistance in the commission of the felony. In my view, a rational
juror could have found each of these three elements from the evidence presented relating
to the second and third drug transactions.

        As to the first element of facilitation, the post-conviction court denied relief on the
mistaken basis that Athe proof in this case fail[ed] to establish the . . . existence of >another
person= who participated in the commission of the crime[s].@ Bryant, 2013 WL 4401166,
at *12. The evidence showed that the second and third transactions were initiated by
Knowles, who implored the Petitioner to aid him in the acquisition of ecstasy pills.
There was no evidence that the Petitioner had possession of the drugs at any time prior to
the second or third transactions with Knowles. Instead, on both occasions, the Petitioner
acquired the drugs from an unidentified third person contemporaneously to his meetings
with Knowles.3 In my view, this evidence is sufficient to establish the first element of
facilitation because the Petitioner knew that another personCthe unidentified drug dealer
who brought the ecstasy pills to the second and third transactions with KnowlesCintended
to sell or deliver a controlled substance.

       As to the second and third elements of facilitation, there was sufficient evidence
for a reasonable jury, properly instructed, to have found that the Petitioner substantially
        3
           Although the Petitioner was acquitted of the charges related to the first transaction, the evidence
of this transaction also shows that the direct participation of Aanother person@ was necessary for Knowles to
acquire the ecstasy pills. As in the second and third transactions, there was no evidence that the Petitioner
possessed any drugs prior to Knowles= first request for ecstasy pills in February of 2008. The Petitioner
testified at trial that he was in possession of the drugs at the time he met with Knowles for the first
transaction only because Knowles had failed to meet the Petitioner as scheduled but Athe guy had already
brought [the drugs] to [the Petitioner].@ But for Knowles= failure to arrive as scheduled to purchase the
drugs, the first transaction could have taken place in the same manner as the second and third transactions.


                                                    5
assisted the dealer in selling or delivering a controlled substance but lacked the requisite
intent to be found guilty under a theory of criminal responsibility. Although the intent of
the Petitioner was a key factor in the post-conviction court=s denial of relief, see Bryant,
2013 WL 4401166, at *12, *21, the majority opinion does not address the criminal
responsibility statute that is referenced within the definition of facilitation, see Tenn.
Code Ann. ' 39-11-403(a) (stating that to be convicted of facilitation a person must act
Awithout the intent required for criminal responsibility under [section] 39-11-402(2)@).
Tennessee Code Annotated section 39-11-402(2) (2014) states that a person is criminally
responsible for an offense committed by another if, A[a]cting with intent to promote or
assist the commission of the offense, or to benefit in the proceeds or results of the
offense, the person solicits, directs, aids, or attempts to aid another person to commit the
offense.@ In consequence, the second and third elements of facilitation would be met in
this instance if there was any evidence that the Petitioner provided substantial assistance
to the unidentified drug dealer but lacked the intent to promote or benefit from the sale of
ecstasy pills to Knowles.

       There was proof at trial that the Petitioner had repeatedly declined to acquire
ecstasy pills for Knowles until Knowles explained that he needed the Petitioner=s help in
obtaining drugs that he could sell in order to make money to feed his family. That each
transaction was initiated at the behest of Knowles is not in dispute. On the second and
third occasions, the Petitioner made contact with an unidentified dealer, took the money
provided by Knowles to the dealer, and transferred the pills supplied by the dealer to
Knowles. There was no proof that the Petitioner possessed the pills prior to the
transactions, that he solicited Knowles or any other potential buyers on behalf of the
dealer, or that he kept any of the money exchanged between the dealer and Knowles. In
fact, during the transaction on March 21, 2008, the Petitioner returned ten dollars in
change to Knowles after retrieving 100 ecstasy pills from the dealer at the scene.
Viewing this proof in the light most favorable to the existence of the lesser included
offense, a rational juror could have concluded that the Petitioner merely acted as a
Ago-between@ in these transactions, thereby providing substantial assistance to the
unidentified dealer in the sale of a controlled substance without intending to promote or
benefit from the offenses.4 See State v. Allen, 69 S.W.3d 181, 188 (Tenn. 2002) (finding
        4
           In my view, there is no evidence supporting the conclusion by the majority that the Petitioner
Adid not merely furnish substantial assistance in the drug sale[s], but instead[] was the seller of the drugs.@
First, the majority states that A[t]he uncontroverted evidence shows that [the Petitioner] set the price for the
drugs,@ when in fact the Petitioner testified repeatedly that the price for ecstasy pills in various quantities
was Acommon knowledge@ in his neighborhood. Second, the majority states that the Petitioner never
argued that he was Amerely assisting the drug supplier,@ even though the Petitioner testified several times
about the direct involvement of the drug dealer who, at the time of the transactions, supplied the pills to the
Petitioner who then turned them over to Knowles. Likewise, the majority states that the Petitioner Anever
testified he was a middle-man for the sale[s],@ despite the testimony of the Petitioner that he arranged the

                                                     6
the evidence warranted a facilitation instruction where A[t]here was no evidence that [the
defendant] received any proceeds of the robbery@); State v. Flemming, 19 S.W.3d 195,
200 (Tenn. 2000) (finding the evidence warranted a facilitation instruction where the
defendant Aparticipated substantially [in the aggravated robbery] by kicking and beating
the victim@ but lacked the intent to promote or benefit from the crime Abecause he took no
property from the victim@).

                                          2. Strategy
        At the post-conviction hearing, trial counsel acknowledged that she had failed to
request a facilitation instruction, not for strategic purposes, but because of her
inexperience in the practice of criminal defense. On direct examination, trial counsel
explained her failure to request a facilitation instruction as follows: AI don=t know why I
didn=t ask for facilitation. . . . Thinking back, I=m sure I should have. I don=t know if I
was real familiar with facilitation at that time. . . . I was sort of . . . new in the law.@
She further testified that lesser included offenses were Aunfamiliar to [her], . . . back at
that time.@ On cross-examination by the State, counsel testified that she did not
remember any conversation between the trial court and the prosecution about the
inclusion of a facilitation instruction. Finally, on re-direct examination, counsel was
specifically asked whether it was Astrategy on [her] part to fail to request a facilitation
instruction,@ to which she replied, ANo, it was no strategy.@ She also admitted that prior
to trial neither she nor any of the other attorneys involved in the case had researched or
discussed the possible lesser included offenses.




second and third transactions by calling the supplier of the pills, meeting with Knowles to await the arrival
of the drug dealer, approaching the drug dealer=s vehicle to obtain the pills, transferring the pills to
Knowles in exchange for money, and then handing the money to the drug dealer in the vehicle. Moreover,
there was a complete lack of evidence that the Petitioner somehow benefitted from the transactions; he
even gave Knowles change during the second transaction. In summary, while the Petitioner may not have
testified using the exact words of the facilitation statuteCwhich is understandable considering his counsel=s
lack of knowledge on this issueCthe evidence nonetheless supported a facilitation instruction.


                                                    7
        The post-conviction court did not discredit any portion of trial counsel=s testimony.
 For this reason alone I would find that counsel=s failure to request a jury instruction on
facilitation was not a strategic decision and amounted to deficient performance. 5 See
Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014) (AAn attorney=s ignorance of a point of
law that is fundamental to his case combined with his failure to perform basic research on
that point is a quintessential example of unreasonable performance under Strickland.@).
The majority, however, implies that counsel must have been untruthful at the
post-conviction hearing because her Aactions at trial contradict her statements.@
According to the majority, counsel=s Afailure to request [a facilitation] instruction was not
an oversight@ because to request such an instruction would have undermined the defense
theory of entrapment. Respectfully, I cannot agree. Aside from the uncontroverted
testimony of trial counsel that she did not make a strategic decision to forgo a facilitation
instruction, there is no reason why counsel could not have argued both entrapment and
facilitation, just as she had argued both entrapment and simple possession or casual
exchange.

        In fact, the transcript reflects that trial counsel did make an argument that would
have supported a finding of facilitation when she told the jury, A[The Petitioner] profits
nothing. . . . He=s the middleman. He=s the middleman. When that UPS truck pulls up
and rings the doorbell and gets a package and gives it to someone else it belongs to in the
house, that person=s the middle person. They didn=t . . . sell.@ While these facts are
irrelevant to an argument based on simple possession or casual exchange, they fit closely
with the definition of facilitation. Compare Tenn. Code Ann. ' 39-17-418(a) (defining
simple possession and casual exchange without reference to any person other than the
person charged with the offense), with Tenn. Code Ann. ' 39-11-403(a) (defining
facilitation to include one person=s knowledge that another person intends to commit the
charged offense). The theory of an entrapment defense is that a person would not have
committed a crime but for inducement by the police. Here, trial counsel had an
evidentiary basis to argue that the Petitioner would not have facilitated the drug
transactions but for inducement by Knowles, a confidential informant. Because these
theories are not inconsistent, the fact that counsel argued the defense of entrapment at

        5
           The majority correctly states that Athe post-conviction court neither accredited nor discredited
trial counsel=s testimony,@ implying that the court was silent on this point, because Athe [post-conviction]
court had an independent basis for finding no deficient performance.@ In other words, the majority
acknowledges that the post-conviction court did not deny relief based on a finding that counsel for the
Petitioner was not credible. Instead, as discussed above, the court denied relief on the mistaken basis that
Athe proof in this case fail[ed] to establish the . . . existence of >another person= who participated in the
commission of the crime[s].@ Bryant, 2013 WL 4401166, at *12. Because counsel was not discredited,
and the post-conviction court=s denial of relief was based upon an inaccurate statement of the evidence, I
can only conclude that counsel was deficient.


                                                    8
trial does not establish that she was untruthful about her strategy, or lack thereof, at the
post-conviction hearing.

        Of greater importance, the presentation of various defense theories is not a bar to
an instruction on a lesser included offense so long as Athe record contains any evidence
which reasonable minds could accept as to the lesser included offense,@ Tenn. Code Ann.
' 40-18-110(a) (emphasis added). See, e.g., State v. Brown, 311 S.W.3d 422, 431 (Tenn.
2010) (A[T]he trial court=s duty to instruct on a lesser-included offense is not contingent
upon the lesser-included offense being consistent with the theory of the State or the
defendant . . . .@). The evidence is what drives the consideration of lesser included
offenses. The majority implies that the theories of the State and defense counsel dictate
how the evidence is to be construed by the jury. In my view, however, trial theories and
arguments by counsel are not relevant to whether Athe record contains any evidence which
reasonable minds could accept as to the lesser included offense.@ In this instance,
because the proof at trial was sufficient to support an instruction on facilitation as a lesser
included offense, 6 and counsel candidly admitted that her failure to request such an
instruction was not a strategic decision, the Petitioner was denied his constitutional right
to the effective assistance of counsel.

                                        B. Prejudice
        The second prong of an ineffective assistance of counsel claim requires a showing
of Aa reasonable probability that, but for counsel=s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.@ Strickland, 466 U.S. at 688.
Initially, I fully concur with the majority that a conviction on a greater offense does not
preclude a claim of ineffective assistance of counsel based upon the failure to request jury
instructions on lesser included offenses. I also agree with the majority that the proper
inquiry in this context is whether there is a reasonable probability that a properly
instructed jury would have convicted on the lesser included offense instead of the charged
offense. I depart from my colleagues, however, as to their conclusion that the Petitioner
has failed to prove prejudice in consequence of the deficient performance by his trial
counsel.




       6
            Likewise, if the instruction had been given and the Petitioner had been convicted only of
facilitation, the conviction would have withstood a challenge to the sufficiency of the evidence.


                                                9
        As indicated, the State=s proof established that the Petitioner arranged three
separate drug transactions at the request of Knowles, with whom he had a longstanding
relationship. It is undisputed that an unidentified drug dealer was involved at the scene
of the second and third transactions, for which the Petitioner was convicted. The
evidence supported a finding that the Petitioner, who had several character witnesses
attesting to his good reputation in the community, merely acted as a go-between as a favor
to a friend. There was no proof that the Petitioner had possession of the pills prior to
either of the last two transactions or that he profited from the exchanges. As stated, trial
counsel acknowledged at the post-conviction hearing that she should have requested a
jury instruction on facilitation but failed to do so, and she further testified that her failure
in this regard was not the result of any strategy. During closing argument, trial counsel
pointed out several key facts that would have supported convictions for facilitation rather
than the charged offenses. 7 Her lack of knowledge deprived the jury of any
consideration of facilitation as an alternative to its verdicts. In this instance, a reasonable
probability exists that a properly instructed jury may have convicted the Petitioner of
facilitating the drug transactions rather than selling or delivering the drugs.

                                        III. Conclusion
        I concur in the majority=s determination that a conviction on a greater offense does
not preclude a claim of ineffective assistance of counsel for the failure to request jury
instructions on lesser included offenses. Trial courts have the obligation to provide
instructions on the charged offense and all lesser included offenses warranted by the
proof at trial, and defense attorneys, absent a reasonable strategic decision, have the duty
to seek instructions on all lesser included offenses. Because the evidence in this trial
supported a facilitation instruction, and trial counsel did not have a strategic basis for
waiving this instruction, the performance was deficient. But for this error, there is a
reasonable probability that a properly instructed jury would have convicted the Petitioner
of facilitation as a lesser included offense. I would, therefore, vacate the convictions and
remand for a new trial.

        I am authorized to state that Justice Janice M. Holder joins in this opinion.


        7
           The majority dismisses trial counsel=s UPS analogy and middle-man characterization as a
Alast-minute argument@ that should not have been considered by the jury. In my view, this argument had a
sound evidentiary basis but was unavailing because of counsel=s failure to request a facilitation instruction.
 If the jury had been properly instructed as to facilitation, it would have understood why trial counsel was
using the term Amiddle man@ to describe the Petitioner=s role in the drug transactions. Thus, the failure by
trial counsel to request an instruction as to facilitation deprived the jury of the option to find the Petitioner
guilty of the lesser included offense. In addition, the closing argument made by trial counsel further
supports the conclusion that her failure to request a facilitation instruction was not a strategic decision.


                                                     10
       _________________________________
       GARY R. WADE, JUSTICE




11
