                  IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                   AT NASHVILLE
                                 MAY SESSION, 1998                       FILED
                                                                          December 9, 1998

                                                                    Cecil W. Crowson
STATE OF TENNESSEE,                         )
                                                                  Appellate Court Clerk
                                            )        No. 01C01-9704-CC-00122
         Appellee                           )
                                            )        MAURY COUNTY
vs.                                         )        (Transferred from Giles County)
                                            )        Hon. WILLIAM B. CAIN, Judge
STEPHEN JOHN ABBOTT,                        )
                                            )        (Second Degree Murder (Two Counts);
         Appellant                          )        attempted First Degree Murder; and
                                            )        Attempted Second Degree Murder)



              SEPARATE CONCURRING IN PART AND DISSENTING IN PART

         Judge Wade, writing for the majority, finds reversible error in the trial court's

failure to charge facilitation upon each of the indicted charges. Judge Smith finds

the error harmless. Both reach their respective positions after review of our

supreme court's recent decision in State v. Willie Williams, No. 03S01-9706-CR-

00060, (Tenn. Sept. 21, 1998) (for publication), wherein the court applied a

harmless error analysis to the trial court’s refusal to instruct on a lesser offense.



         After reviewing the proof, I join with Judge Wade in concluding that the failure

to instruct on facilitation was not harmless. I write separately, however, as I believe

the true test for determining whether "harmless error" has occurred lies in the

common ground left unaddressed by Judges Wade and Smith.



         The Supreme Court in Sansone v. United States, 380 U.S. 343, 349, 85 S.Ct.

1004,1009 (1965), held:

         The basic principles controlling whether or not a lesser-included
         offense charge should be given in a particular case have been settled
         by this Court. Rule 31(c) of the Federal Rules of Criminal Procedure[1]
         provides in relevant part, that the 'defendant may be found guilty of an
         offense necessarily included in the offense charged.' Thus, '[i]n a case
         where some of the elements of the crime charged themselves

         1
             Rule 31(c) of the Tennessee Rules of Criminal Procedure is identical to Fed. R. Crim. P.
31(c).
       constitute a lesser crime, the defendant, if the evidence justifie[s] it * *
       * [is] entitled to an instruction which would permit a finding of guilt of
       the lesser offense.' Berra v. United States, [351 U.S. 131,] 134, 76
       S.Ct. [685,] 688.


More recently, the Supreme Court has interpreted lesser offense principles to

include "whether the evidence would permit a jury to rationally find the defendant

guilty of the lesser and acquit him of the greater.” Keeble v. United States., 412

U.S. 205, 208, 93 S.Ct. 1993, 1995 (1973). See also State v. Trusty, 919 S.W.2d

305, 311 (Tenn. 1996); State v. Elder, No. 03C01-9702-CR-00053 (Tenn. Crim.

App. at Knoxville, Apr. 23, 1998). “Accordingly, before instructing on a lesser

offense, the trial court must determine whether the evidence, when viewed in the

light most favorable to the defendant’s theory of the case, would justify a verdict in

accord with [that] theory . . . .” Elder, No. 03C01-9702-CR-00053 (emphasis added)

(citations and footnote omitted).



       Where the trial court fails to instruct the jury on any lesser offenses, although

raised sufficiently by the proof, the jury is left with the sole option of either to convict

the defendant of the greater offense or acquit. Thus, the jury may choose to find the

defendant guilty of the greater offense rather than to acquit him altogether even

though it had a reasonable doubt that he really committed the greater offense. Beck

v. Alabama, 447 U.S. 625, 634, 100 S.Ct. 2382, 2388 (1980). Alternatively, the jury

may find the defendant not guilty of the greater offense and let him go unpunished

even though he is in fact guilty of a lesser offense. This error can never be held

harmless; the harm is automatic. See, e.g., Schad v. Arizona, 501 U.S. 624, 646-

647, 111 S.Ct. 2491, 2505 (1991); Spaziano v. Florida, 468 U.S. 447, 455, 104 S.Ct.

3154, 3159 (1984); Beck v. Alabama, 447 U.S. at 634, 100 S.Ct. at 2388; State v.

Jiminez, 953 S.W.2d 293, 299 (Tex. App. 1997); Saunders v. State, 913 S.W.2d

564 (Tex. Crim. App. 1995).




                                           2
        In formulating a harmless error rule, our supreme court in Williams

recognized the evils of the “all-or-nothing” approach condemned in Beck. In

determining whether the trial court’s failure to instruct on a lesser offense is

harmless, the court applied the presumption that, “by finding the defendant guilty of

the highest offense to the exclusion of the immediately lesser offense, . . . the jury

necessarily rejected all other offenses.” 2 Williams, No. 03S01-9706-CR-00060

(emphasis added). That is, when the jury is provided an instruction on the

immediate lessor, the “all-or-nothing” option is removed; the jury is given the

opportunity to compromise. See Beck v. Alabama, 447 U.S. at 634, 100 S.Ct. at

2388. However, the jury’s rejection of the “intervening lessor” may not in every

instance render harmless the trial court’s failure to instruct upon another lesser

offense also raised by the evidence. The existence of the “intervening lesser” will

only “save” the court’s failure to charge on another warranted lesser where the

“intervening lesser” instruction indicates a lack of likelihood that the jury would have

adopted the uninstructed lesser offense. In other words, an instruction on an

“intervening lesser” will only hold harmless the court’s failure to instruct on another

lesser when the “intervening lesser” encompasses the defendant’s theory of the

case.



        Under the Due Process Clause of the Fourteenth Amendment, criminal

defendants must be afforded a meaningful opportunity to present a complete

defense. California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532 (1984).

Implicit within the right to present a defense is the right to have the jury, via a jury

instruction, consider the defense. As a general proposition, a defendant is entitled

to an instruction as to any recognized defense for which there exists evidence

sufficient for a reasonable jury to find in his favor. See Matthews v. United States,

485 U.S. 58, 64, 108 S.Ct. 883, 887 (1988) (citing Stevenson v. United States, 162


        2
         The trial court, in Williams, instructed on premeditated m urder, second degree m urder,
and reckless hom icide, however, the trial court denied the request for an instruction on voluntary
man slaughte r. The jur y convicted the defe ndant of first degre e mu rder.

                                                 3
U.S. 313, 16 S.Ct. 839 (1896); 4 C. Torcia, Wharton's Criminal Procedure § 538, p.

11 (12th ed. 1976)). Parallel to the right to an instruction on a particular defense is

the right to an instruction on a lesser offense sufficiently raised by the proof. See

Matthews v. United States, 485 U.S. at 64, 108 S.Ct. at 887 (citing Fed. Rule Crim.

Proc. 31(c); Keeble v. United States, 412 U.S. at 208, 93 S.Ct. at 1995; Sansone v.

United States, 380 U.S. at 349, 85 S.Ct. at 1009).                 Failure to provide instructions

encompassing the defendant’s theory of the case, whether it be in the form of a

“defense instruction” or a “lesser offense instruction,” sufficiently raised by the

evidence, renders the due process right to present a defense only half a right.

Moreover, it subverts the adversarial process in that it only permits the prosecution's

theory of the case to go to the jury. However, the right to have the jury consider the

defendant’s theory of the case does not equate with a right to have the trial court

charge on defense theories that have no evidentiary support or that are inconsistent

with the defendant’s theory of the case.3



        Thus, where the “intervening lesser” instruction fails to present the

defendant’s theory, which is sufficiently raised by the evidence, the reviewing court

must determine whether the evidence supporting the judgment of conviction is so

relatively strong and the evidence supporting a different outcome is so

comparatively weak that there is no reasonable probability the error of which the

defendant complains affected the result. If the court so determines, the error is

harmless. If the court determines otherwise, the error is reversible.



        The proof before us established that the defendant and Rouse had been

friends for approximately one and one-half years. During this period, the defendant,

on different occasions, had heard Rouse threaten to kill his brother, a State Trooper,

a coach, a teacher, and an ex-girlfriend. Previous to the school shootings, the

        3
          The principles governing lesser offense instructions espoused herein are not adopted
simply to alleviate the dangers of an “all-or-nothing choice,” but to assure, in the interest of justice,
the m ost acc urate po ssible verd ict encom passe d by the ch arge an d supp orted by the evidenc e.
See People v. Breverman, 960 P.2d 1094, 1105 (Ca l. 1998).

                                                   4
defendant knew of no attempts by Rouse to carry out any of these threats. On the

morning of the shootings, the defendant rode with his friend Rouse to school as he

had done on other occasions. On the way to school, they stopped at the house of

their friend, Stephen Ray. Ray saw the rifle in the truck and asked, "Who are you

going after?" Rouse replied, "Hobbs and whoever gets in the way." Ray thought

Rouse was joking and did not consider his comments as serious. After the

shootings, Rouse told an investigator that he did not believe the defendant had

taken him seriously. The defendant, at trial and in his statements to the police,

admitted that he was aware of Rouse's threats to kill on the date of the shooting. He

testified, however, that he never believed Rouse would do such a thing.



       The trial court instructed the jury upon the State’s theory that the defendant

was criminally liable as a principle offender based upon the conduct of the co-

defendant, Rouse. See Tenn. Code Ann. § 39-11-402(3). This theory is applicable

when it is based upon the premise that the defendant knowingly, voluntarily, and

with common intent united with the co-defendant in the commission of the crime.

See State v. Carson, 950 S.W.2d 951 (Tenn. 1997). Moreover, in Carson, our

supreme court held that criminal responsibility, under an aiding and abetting theory,

“requires that a defendant act with a culpable mental state, specifically, the intent to

promote or assist the commission of the offenses. . . .” Id. at 954.



       The defendant contends that the trial court erred in submitting to the jury only

the State’s theory of the case, i.e., that the defendant was a principle offender. He

insists that, at best, the proof established culpability for facilitating, a subordinate

degree of criminal responsibility. The defendant’s position, at trial, was that he

acted not with the intent to promote or assist murder, but only with the intent to

assist his high school friend. These respective theories illustrate the principal




                                           5
distinction between “criminal facilitation” and “criminal responsibility.”4 Criminal

facilitation is established, in this case, if the proof demonstrated that the defendant

had knowledge that Rouse intended to commit murder and the defendant furnished

substantial assistance in the murder but without the intent to promote, assist or

benefit in the murders committed by Rouse.



        In this case, the jury was only instructed on the theory of criminal

responsibility. Thus, the jury was permitted to consider the defendant’s guilt or

innocence only upon this one theory. The proof in the record, when reviewed in the

light most favorable to the defendant, clearly supports the defendant’s theory of

facilitation.5 See Elder, No. 03C01-9702-CR-00053. Contrary to Judge Smith’s

assertion, the jury could not have rejected the defendant’s theory of “facilitation,”

because they were precluded by the trial court from even considering this theory.

Moreover, Judge Smith concludes, utilizing the Williams presumption, that, because

the jury was instructed on offenses lesser than those for which the defendant was

convicted, any error in refusing to charge facilitation was harmless. I believe this

analysis too narrow and too mechanical in its application. Under this rationale, the

failure to charge voluntary manslaughter would always be harmless in a case of first

degree murder as long as the trial court instructed on second degree murder, even

though the proof was replete with uncontested evidence of adequate provocation

and passions and the defendant conceded the elements of manslaughter.


        4
         The fo llowing two h ypothetical c ases p rovide clas sic illustrations of “crim inal facilitation:”
        In the first, the ‘offender’ sells large quantities of sugar and malt to illegal distillers
        with k now ledge of the ir illega l inten tions . He k now s tha t his c ond uct m ake s it
        possible for the offense to be committed, but, at the same time, he has no
        intention to fu rther the c riminal ob jective. In the s econd , the ‘offend er,’ a drugg ist,
        sells poiso nous s ubstan ces to a wom an with k nowled ge that sh e intends to
        poison her husband. As in the first case, the actor knows that his conduct
        facilitates commission of the offense but he has no intention to promote or
        contribute to its fruition.

See gene rally Kentucky Crime Com mission Commentary, Ky. Rev. Stat. Ann. § 506.080 (citing
generally to the New York Penal Code ).

        5
         Similar to a motion for directed verdict, the trial court must view the evidence in the light
mos t favorab le to the def endan t, indulging in all rea sonab le inferenc es in his fa vor. See Tenn.
Rules C iv. P. 50. Th e rule doe s not per mit a we ighing of the evidenc e by the trial judg e.
Obviously, a review of the evidence in the light most favorable to the State, following conviction,
would never reach the defendant’s theory of the case.

                                                     6
       Thus, I conclude that the failure of the trial court to instruct on a lesser

offense is harmless only where the jury’s resolution of disputed facts compels the

conclusion that the jury, by their verdict, necessarily rejected an alternative

resolution of fact that would have supported the lesser offense which was not

instructed. See Turner v. Commonwealth, 476 S.E.2d 504, 508 (Va. App. 1996).

In the instant case, the jury was not provided the opportunity to resolve “disputed

facts” regarding the theory of criminal liability. In sum, I find the trial court’s failure to

provide the jury of its option to find the defendant guilty of facilitation impaired the

jury’s truth-ascertainment function by forcing the jury to make an “all or nothing”

choice between conviction as a principal offender of the crimes charged or acquittal,

thereby denying the jury the opportunity to consider the defendant’s theory of the

lesser grade of criminal responsibility which was established by the evidence. See

Breverman, 960 P.2d at 1094. Thus, the error cannot be held harmless.



       Additionally, I am unable to join in the conclusion that the defendant was

properly classified as a dangerous offender thus warranting consecutive sentences.

The fact that an inherently dangerous offense occurred, as is clearly the case before

us, does not necessarily translate to the fact that all of the criminal actors involved

were dangerous offenders. The decision to impose consecutive sentences should

be based upon the presence of aggravating circumstances. See Gray v. State, 538

S.W.2d 391, 393 (Tenn. 1976). The defendant’s unlawful conduct in this case

involved the operation of a vehicle to the crime scene at the request of the co-

defendant. I am unable to conclude that this fact alone establishes that the

defendant has little or no regard for human life. Accordingly, I would find that the

defendant’s conduct in this case fails to establish aggravating circumstances

necessary for classification as a dangerous offender.

       For the foregoing reasons, I concur in part and dissent in part.



                                     ____________________________________
                                     DAVID G. HAYES, Judge


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