         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs August 13, 2003

                STATE OF TENNESSEE v. JEFFERY LEE MASON

                    Direct Appeal from the Circuit Court for Giles County
                            No. 10123    Stella Hargrove, Judge



                      No. M2002-01709-CCA-R3-CD - Filed May 19, 2004



Hayes, David G., Judge, dissenting


         I am unable to join with the majority in concluding that the evidence is sufficient to support
the defendant’s conviction for attempted voluntary manslaughter and that an instruction on this
offense was warranted under the facts of this case. I find nothing in the record which establishes
that, at the time of the attempted homicide, the defendant was “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) (2003). Accordingly, I respectfully dissent on the majority’s application
of both the law and facts.

        Preliminarily, I note that the defendant requested that the jury be instructed only on the
indicted offense of attempted first degree murder and misdemeanor reckless endangerment, as the
only lesser included offense established by the evidence. Over the objection of the defendant, the
trial court, in accordance with the State’s request, instructed on attempted voluntary manslaughter.
Thus, this issue is preserved for appeal. Tenn. Code Ann. § 40-18-110 (2003).

                                        Application of Facts

         While conceding that the convicting evidence “is at best only marginally sufficient,” the
majority concludes that “a subtle form of provocation could have been inferred by the jury.” The
majority opines that, by virtue of the defendant’s status as a shackled and handcuffed prisoner, these
facts could permit a finding of provocation by the jury, “at least by a subjective understanding of the
term.” Provocation, however, is statutorily governed by an objective or “reasonable person” standard
not by a subjective one. Tenn. Code Ann. § 39-13-211. Moreover, to reach this conclusion would
require pure speculation because, according to the testimony of Deputy Graves, the defendant was
cooperative throughout the procedure and there was no evidence that he was provoked by being
shackled and handcuffed. Testimony established that the defendant escaped because he did not like
jail conditions, and the majority concludes that this circumstance also supports provocation.
However, I find that, if anything, this shows that the defendant’s actions were deliberate and
calculated. While the defendant may have been angry, anger to reduce an unlawful homicide to the
degree of voluntary manslaughter, must be anger produced by adequate provocation. Hargrove v.
State, 281 S.W.2d 692, 698 (Tenn. 1955).

        If the facts of this case rise to a level of adequate provocation, then provocation would exist
in almost every set of circumstances in every homicide prosecution. To find provocation in this case
would require the finding that the deputy in the performances of his duties as a law enforcement
officer provoked the defendant into attacking him.

                                        Application of Law

        In finding the instruction on attempted voluntary manslaughter warranted, the majority relies
upon State v. Mellons, 557 S.W.2d 497 (Tenn. 1977), and State v. Davis, 751 S.W.2d 167 (Tenn.
Crim. App. 1988). These cases, as observed by the majority, permit a conviction to stand where
there is NO evidence to support the elements of the lesser included conviction, as long as there is
proof of the greater crime for which the defendant was charged. Davis relies entirely upon the
Mellon’s holding. Mellons predates Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2789
(1979), and Tenn. R. App. P. 13(e), both of which require proof of the essential elements of the
convicted offense beyond a reasonable doubt. Additionally, the rationale of Mellons was expressly
predicated upon then Tennessee Code Annotated § 40-2520, which was repealed in 1979. The
Supreme Court in Jackson v. Virginia denounced the “no evidence” rule, finding that application of
this rule violates a defendant’s due process rights because the rule “is simply inadequate to protect
against misapplications of the constitutional standard of reasonable doubt.” Jackson v. Virginia, 443
U.S. at 320, 99 S. Ct. at 2789. Accordingly, I find that Davis and Mellons were overruled sub
silentio by the holding in Jackson v. Virginia. In this state, provocation is an element of the offense
of voluntary manslaughter, and proof to convict may not be merely marginal but is required beyond
a reasonable doubt. Tenn. Code Ann. § 39-11-201 (2003); see also Mullaney v. Wilbur, 421 U.S.
684, 95 S. Ct. 1881 (1975) (state may not shift burden of proof to the defendant, as due process
requires state to prove elements of the offense beyond a reasonable doubt).

        Clearly, the lesser included test of Mellons does not comport with our current test in State
v. Burns, 6 S.W.3d 454 (Tenn. 1999). The majority summarily notes that attempted voluntary
manslaughter is a lesser included offense of attempted first degree murder under the Burns test. This
statement and the analysis which follows leave the clear implication that voluntary manslaughter is
a lesser offense under part (a) of the Burns test and should, therefore, be charged in every case.
However, it is well settled that voluntary manslaughter is a lesser included offense of first degree
murder under part (b) of the Burns test and, therefore, an instruction should be given only if (1)
reasonable minds could accept the offense as a lesser included and (2) the evidence is legally
sufficient to support a conviction for the lesser included offense. Burns, 6 S.W.3d at 469; see also
State v. Dominy, 6 S.W.3d 472, 477 n.9, (Tenn. 1999); State v. Kenneth Anthony Henderson, No.
M1999-00547-CCA-R3-CD (Tenn. Crim. App. at Nashville, Apr. 11, 2002); State v. William
Binkley, No. M2001-00404-CCA-R3-CD (Tenn. Crim. App. at Nashville, Apr. 5, 2002); (each of


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these cases expressly holds that voluntary manslaughter is a lesser included offense of first degree
murder under part (b) of the Burns test). The “alternative means” analysis utilized by the majority
in affirming the conviction applied the Mellons test and found that, although there was little or no
evidence of provocation by the defendant, there was proof of the greater crime of attempted first
degree murder and, therefore, the conviction could stand. This analysis ignores the fact that, under
Mellons, all lesser offenses would fall under part (a) of the Burns test. Mellons had no provision for
(b) or (c) Burns lesser included offenses. Under Mellons proof of the greater offense proved the
lesser, however, under Burns this is not necessarily true for lesser offenses under parts (b) and (c).

         The majority notes, “The Tennessee Constitution is unique in that in criminal cases, the jury
is the judge of the law and the facts.” In its complete form, Article I, section 19 states that the “the
jury shall have a right to determine the law and the facts, under the direction of the court[.]” This
does not mean that “the judge should tell the jury that this is the law but you don’t have to pay any
attention to it if you don’t want to.” Wright v. State, 394 S.W.2d 883, 884 (Tenn. 1965). This
section of our constitution places the responsibility for safeguarding the integrity of the jury trial in
the hands of the trial court. This includes withholding lesser offenses from the jury when the
evidence is not legally sufficient to support a conviction for such offense.

        In this case, the majority concludes that the evidence would have supported a conviction for
attempted first degree murder or attempted second degree murder. I fully agree. However, by
striving to uphold this conviction based upon a 1977 decision which totally conflicts with present
day jurisprudence, the majority only invites further confusion at the trial court level.

        In all other respects, I agree.




                                                        ______________________________
                                                        DAVID G. HAYES, JUDGE




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