                IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                 AT JACKSON

                   STATE OF TENNESSEE v. JASON THOMAS BEELER

                    Direct Appeal from the Circuit Court for Obion County
                            No. 7-588 William B. Acree, Jr., Judge



                 No. W1999-01417-CCA-R3-CD - Decided November 22, 2000


The defendant appeals from jury trial convictions for reckless homicide, felony murder, aggravated
burglary, and two counts of especially aggravated kidnapping. In this appeal, the defendant alleges
insufficient evidence, errors in admitting certain evidence, prosecutorial misconduct, improper
instructions, and error in denying his writ of error coram nobis. Concluding that it was reversible
error to not instruct on the lesser-included offenses of felony murder, we remand for a new trial on
the felony murder count. We affirm the remaining convictions.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed in Part,
   Reversed in Part, and Remanded for a New Trial for Indictment for Felony Murder

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JERRY L. SMITH and
ROBERT W. WEDEMEYER , JJ., joined.

Charles S. Kelly, Sr., Dyersburg, Tennessee, and L. Lee Harrell, Trenton, Tennessee, for the
appellant, Jason Thomas Beeler.

Paul G. Summers, Attorney General & Reporter, Mark E. Davidson, Assistant Attorney General,
Thomas A. Thomas, District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                The defendant, Jason Thomas Beeler, appeals from his Obion County Circuit Court
convictions of reckless homicide, a Class D felony; first degree felony murder, a Class A felony;
aggravated burglary, a Class C felony; and two counts of especially aggravated kidnapping, Class
A felonies. See Tenn. Code Ann. § 39-13-215 (1997) (reckless homicide); § 39-13-202 (1997)
(felony murder); § 39-14-403 (1997) (aggravated burglary); § 39-13-305 (1997) (especially
aggravated kidnapping). After being convicted by a jury, the defendant was sentenced as a Range
I standard offender to two years for the reckless homicide, life for the first degree murder, three years
for the aggravated burglary, and 20 years for each especially aggravated kidnapping. The reckless
homicide conviction was merged into the first degree murder conviction. The sentences were to be
served concurrently in the Department of Correction. In this appeal, the defendant makes the
following allegations:
         1. The evidence was not sufficient,1

         2. The trial court erred in denying a motion of acquittal after hearing testimony that the
         defendant was not capable of forming the requisite intent,

         3. The trial court erred by permitting testimony that the defendant chose not to make a
         statement when he was booked,

         4. The trial court erred by admitting evidence of prior bad acts,

         5. The trial court erred by admitting evidence of the defendant’s prior felony conviction,

         6. The testimony of one witness was offered solely to arouse passion and sympathy in the
         jury,

         7. The trial court erred by not admitting a statement he made to his father,

         8. The trial court erred by not admitting a statement made by his wife to the police,

         9. The trial court erred by admitting testimony of Dr. Deering, the medical examiner,

         10. The trial court erred by admitting testimony from the state’s psychologist regarding
         statements the defendant made during the evaluation,

         11. The state committed prosecutorial misconduct in its closing argument,

         12. The trial court erred by not instructing the jury on lesser-included offenses for felony
         murder,

         13. The trial erred by not giving a special instruction on diminished capacity,

         14. The trial court erred by failing to give a proper instruction regarding mental disease or
         defect,

         15. The trial court erred by giving the jury written instructions that had portions crossed out,
         and




         1
                   We ha ve comb ined severa l of the defend ant’s issues into a single sufficiency issue which covers all
of his convictions.


                                                          -2-
          16. The trial court erred by denying the petition for writ of error coram nobis.2

Following a review of the record and the briefs of the parties, we reverse the felony murder
conviction because the trial court failed to instruct the jury on the lesser-included offenses, and we
affirm the remaining convictions.

               In the light most favorable to the state, the evidence at trial demonstrated that the
defendant and his then-wife, Jeanne Beth, were having marital difficulties. The turning point in their
relationship occurred after the birthday party for their five-year-old daughter in late February 1998.
Before the end of that month, the defendant and his wife separated with Jeanne Beth caring for their
daughter.

               On Friday, March 7, Jeanne Beth and her daughter were staying at Jeanne Beth’s
father’s house. She expected her father, a truck driver, to return late that night. Also sharing the
house that night were Jamie Boane, the homicide victim, and Chucky Minnick. These two men
worked for Jeanne Beth’s father and roomed in his house.

                 Throughout that Friday evening, the defendant called Jeanne Beth on the telephone.
The defendant asked to speak with his daughter on the first call. He also spoke with his wife, during
that call and later ones, about their getting back together. He told her that life was not worth living
without her. After one of those calls, Jeanne Beth called the defendant’s mother and told her that
the defendant had threatened suicide. During the defendant’s last telephone call to Jeanne Beth, he
told her that if she did not hear from him in ten minutes, it would be because he had killed himself.

               After making the last call, the defendant drove to Jeanne Beth’s father’s house. He
parked off to one side of the house. Carrying a pump action shotgun, he walked to the front of the
house, stood on a plastic bucket and peered into a bedroom window. He saw someone sleeping in
the bed. He continued walking around the house until he came to the back door.

               Inside the house, Jeanne Beth and Jamie Boane were in the kitchen. Jeanne Beth saw
a shadow through the backdoor window, and Boane went to the door. As Boane reached for the
door knob, the defendant shot through the lock to open the door, striking Boane in the left hand.
With his other hand, Boane pushed Jeanne Beth, who had come up behind him, back and away from
the door. A second shotgun blast through the backdoor window struck Boane in the left side of his
neck. He fell to the floor and cried out, “I’m dying.”

                Jeanne Beth ran from the kitchen into the room where Chucky Minnick was sleeping
and then into her father’s bedroom where her daughter was sleeping. Minnick woke up when he
heard the shots, and after Jeanne Beth ran through the room yelling that Boane had been shot, he hid
in the closet. When Jeanne Beth entered the bedroom she locked the door behind her. Moments


          2
                 Our discussion of the issues in this opinion is in a different order than their presentation in the parties'
briefs.


                                                           -3-
later, the defendant kicked down the bedroom door and Jeanne Beth jumped on her daughter to cover
and protect her. Still carrying the shotgun, the defendant told Jeanne Beth to come with him and
bring his daughter. He escorted them to his parked car, and he drove them away.

               After hearing the defendant leave, Minnick left the closet and saw Jamie Boane, who
had crawled from the kitchen to the living room. Minnick tried to use the telephone to call for help,
but the line was dead. He then drove to the victim’s mother’s house, where they called the sheriff
and an ambulance.

               During this time, the defendant’s family was searching for him. Remembering that
the defendant had his wife’s cellular telephone, the defendant’s father called the defendant, who was
driving around with Jeanne Beth and his daughter. He told his father, “Somebody told me that I shot
somebody.” The defendant agreed to meet his father in a field near his grandparents’ home. When
the defendant’s parents got to the field, they found the defendant and his wife outside the car. The
defendant’s daughter was in the backseat of the car, and the shotgun was still in the car. The
defendant’s father took the child to his house, and the defendant’s mother stayed with the defendant
and his wife. The three walked to the defendant’s grandparents’ home, where the defendant finally
gave himself up to the police.

                The defendant was indicted and charged with one count of first-degree premeditated
murder, one count of murder in the perpetration of burglary, one count of aggravated burglary, and
two counts of especially aggravated kidnapping. At the conclusion of the proof at trial, the trial
court granted a judgment of acquittal only on the charge of first-degree premeditated murder; on that
count of the indictment the trial court submitted to the jury the charge of second-degree murder and
the lesser-included offenses of voluntary manslaughter, reckless homicide, and criminally negligent
homicide. The jury returned a verdict finding the defendant guilty of reckless homicide, felony
murder, aggravated burglary, and the two counts of especially aggravated kidnapping.

                                   I. Sufficiency of the Evidence

                 The defendant challenges the sufficiency of the convicting evidence. When an
accused challenges the sufficiency of the evidence, an appellate court’s standard of review is
whether, after considering the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67
(Tenn. 1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt based upon direct
evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. State v.
Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

               Moreover, a criminal offense may be established exclusively by circumstantial
evidence. Duchac v. State, 505 S.W.2d 237 (Tenn. 1973); State v. Jones, 901 S.W.2d 393, 396
(Tenn. Crim. App. 1995); State v. Boling, 840 S.W.2d 944, 947 (Tenn. Crim. App. 1992); State v.
Lequire, 634 S.W.2d 608 (Tenn. Crim. App. 1987). However, before an accused may be convicted


                                                -4-
of a criminal offense based upon circumstantial evidence alone, the facts and circumstances "must
be so strong and cogent as to exclude every other reasonable hypothesis save the guilt of the
defendant." State v. Crawford, 225 Tenn. 478, 470 S.W.2d 610 (1971); Jones, 901 S.W.2d at 396.
In other words, "[a] web of guilt must be woven around the defendant from which he cannot escape
and from which facts and circumstances the jury could draw no other reasonable inference save the
guilt of the defendant beyond a reasonable doubt." Crawford, 470 S.W.2d at 613; State v. McAfee,
737 S.W.2d 304, 305 (Tenn. Crim. App. 1987).

                 In determining the sufficiency of the evidence, this court should not reweigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well
as all factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its inferences for those drawn by the
trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956);
Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this court must afford
the State of Tennessee the strongest legitimate view of the evidence contained in the record as well
as all reasonable and legitimate inferences which may be drawn from the evidence. Cabbage, 571
S.W.2d at 835.

                The defendant was convicted of felony murder, which depended upon the underlying
felony of aggravated burglary. He was convicted of aggravated burglary, which relied upon the
underlying felony of especially aggravated kidnapping. Accordingly, the defendant’s felony murder
conviction is ultimately predicated upon the defendant committing especially aggravated kidnapping.

a. Especially Aggravated Kidnapping

                The defendant complains that the evidence was insufficient to support his convictions
for especially aggravated kidnapping of his wife and child. Especially aggravated kidnapping is
defined in pertinent part as false imprisonment accomplished with a deadly weapon. Tenn. Code
Ann. § 39-13-302(a)(1) (1997). False imprisonment can be committed by a person “who knowingly
removes or confines another unlawfully so as to interfere substantially with the other's liberty.”
Tenn. Code Ann. § 39-13-302(a) (1997).

                Visualizing the evidence most favorably to the state, we conclude that the evidence
sufficiently supports the defendant's convictions of especially aggravated kidnapping of his then-wife
and child. The defendant, after shooting his way into the house and fatally wounding Jamie Boane,
kicked down the door where his wife and child were hiding. His wife’s first reaction when the
defendant broke down the door was to protect and shield her five-year-old daughter by covering her
with her body. The defendant, with shotgun in hand, told his wife that he was going to kill her.
Apparently changing his mind, he told her to get his daughter and come with him. The defendant’s
wife testified that she felt threatened because the defendant had the shotgun, and it was pointed at
her. The defendant escorted them out of the house, into his car, and drove away. These facts lead
us to the inescapable conclusion that a jury which accredited the state's proof could find beyond a


                                                 -5-
reasonable doubt that the defendant committed especially aggravated kidnapping of his wife and
daughter.

               The defendant argues that it was legally impossible to kidnap his wife and child
because he was not yet divorced, there was no protective order against him, and as father, he still had
custody of the child. We disagree. The familial status of the victim is irrelevant to the offense of
kidnapping. It is clear that a non-custodial parent can be guilty of kidnapping his child. See State
v. Holtcamp, 614 S.W.2d 389, 392 (Tenn. Crim. App. 1980). In addition, and although fortunately
not occurring frequently, there are reported cases of kidnappings involving family members where
the kidnapper is married or has custody of the child. See, e.g., King v. State, 992 S.W.2d 946, 949-
50, 956 (Tenn. 1999) (previous conviction where defendant kidnapped his wife used as aggravating
circumstance); State v. Herndon, 704 S.W.2d 728, 729 (Tenn. Cr. App. 1985) (father, who was
awarded custody of child in Tennessee, convicted of kidnapping his child from mother in Nevada).

                In King, for instance, our supreme court affirmed the use of a prior kidnapping
conviction as an aggravating circumstance supporting the defendant’s sentence of death. King, 992
S.W.2d at 949-50. The court stated that the “mere fact that the victim of a kidnapping is either a
spouse or a former spouse does not decrease the magnitude or substance and persuasiveness of that
crime.” Id. at 950.

                Consequently, we conclude that in this case the familial relationship is not relevant
considering the defendant’s violence in gaining entrance to where his wife had sought security for
herself and her daughter and considering his use of a deadly weapon to ensure compliance with his
wishes.

                The defendant also argues that he did not have the intent to remove or confine the
victims and that the proof showed this by his statement to his wife to get his daughter and “let’s go.”
He claims that this shows that he was concerned for their safety and wanted to get them away from
the scene of the shooting. Questions concerning the weight and value of the evidence are resolved
by the jury and not by this court. See Cabbage, 571 S.W.2d at 835. Because evidence contradictory
to the defendant’s position was introduced, this became a classic jury question. The jury’s
determination warrants our approbation.

b. Aggravated Burglary

                The defendant complains that the evidence was insufficient to support his conviction
for aggravated burglary. Aggravated burglary occurs when an individual enters a habitation "without
the effective consent of the property owner" and, in this case, commits or attempts to commit a
felony, theft or assault. Tenn. Code Ann. §§ 39-14-402(a)(3), -403 (1997).

                 In the case at bar, the proof showed that the defendant used a shotgun to shoot the
lock from the back door in order to enter the house. His wife testified that she had no intention of
letting him in the house. The house was the usual residence of three others, and the defendant’s wife


                                                 -6-
was staying there for the night. The defendant entered the house and committed especially
aggravated kidnapping. These facts provide overwhelming evidence from which a jury could find
beyond a reasonable doubt that the defendant committed aggravated burglary.

                The defendant argues that he did not have the intent to commit a crime in the house,
although he admits to breaking into the house. One statutory definition of aggravated burglary
requires that the offender enter a habitation without consent but with the intent to commit a felony,
theft or assault. Tenn. Code Ann. § 39-14-402(a)(1) (1997). Another definition of aggravated
burglary does not require that the defendant enter with intent to commit a crime but requires only
that the defendant enter and commit or attempt to commit a felony, theft or assault. Tenn. Code
Ann. § 39-14-402(a)(3) (1997). The indictment charged the defendant with committing aggravated
burglary under this second definition, and the trial court instructed the jury on aggravated burglary
under this second definition. The evidence showed that the defendant committed a felony in the
house after entering without consent, and the jury convicted the defendant accordingly. Thus, the
evidence supports a conclusion that the defendant committed aggravated burglary.

c. Felony Murder

                The defendant complains that the evidence was insufficient to support his conviction
for felony murder in the perpetration of a burglary. The statute under which the defendant was
convicted defined felony murder as a “killing of another committed in the perpetration of . . . any .
. . burglary.” Tenn. Code Ann. § 39-13-202(a)(2) (1997).

                The proof in this case showed that Jamie Boane died as a result of two shotgun
wounds, one to the hand and the other to the neck. The defendant admitted to firing the first shotgun
blast, which struck the victim in the hand. There was proof that the second shotgun blast was fired
by the same pump action shotgun. The defendant also admitted that he fired the first shot in order
to open the locked door and enter the house. Once inside the house, the defendant committed
especially aggravated kidnapping. These facts supply abundant evidence from which a jury could
find beyond a reasonable doubt that the defendant committed felony murder.

                The defendant argues that he did not have the requisite intent to support the felony
murder conviction. He points to State v. Buggs, 995 S.W.2d 102 (Tenn. 1999), in support of his
argument. In Buggs, our supreme court held that “in a felony-murder case, intent to commit the
underlying felony must exist prior to or concurrent with the commission of the act causing the death
of the victim.” Id. at 107. Further, the court held that intent to commit the underlying felony may
not be presumed from the act of committing that felony. Id. The jury, however, may still “infer from
a defendant's actions immediately after a killing that the defendant had the intent to commit the
felony prior to, or concurrent with, the killing.” Id.

                The proof showed that the victim was fatally wounded as a result of the defendant
shooting at the back door in an attempt to open it. After entering the house and immediately going
to where his wife was hiding, the defendant told her that he was going to kill her. She testified that


                                                 -7-
he apparently changed his mind, and he escorted her and the child to his car. After driving to a field
and meeting his parents, the defendant wanted his mother to leave so that he and his wife could die.

                The defendant’s conviction for felony murder in perpetration of a burglary comports
completely with Buggs. Entering the house is one element of burglary. Tenn. Code Ann. § 39-14-
402(a) (1997). Another element is committing or attempting to commit a felony, theft or assault.
Tenn. Code Ann. § 39-14-402(a)(3) (1997). The defendant admitted that when he shot at the door,
he intended to enter the house and kill himself in front of his wife. Although killing oneself in front
of another is not a felony, the defendant’s actions immediately after the shooting indicate that he
intended more than just committing suicide. The evidence showed that as soon as the defendant
entered the house, he promptly went to where his wife was hiding, threatened her, and made her
leave the house with him. We conclude that a jury could reasonably infer from the defendant’s
actions immediately after the shooting that the defendant intended to kidnap his wife and child when
he fatally shot the victim.

d. Reckless Homicide

                The defendant admits in his appellate brief that the state’s proof would support the
reckless homicide conviction. Nonetheless, he argues that evidence was presented that negated his
culpability for that offense; however, he admits that the evidence in the light most favorable to the
state was sufficient to support the conviction for reckless homicide. To reiterate, questions
concerning the weight and value of the evidence are resolved by the jury and not by this court. See
Cabbage, 571 S.W.2d at 835. The evidence was sufficient. We discuss the defendant’s argument
with respect to his mental state in the next section.

e. Motion for Judgment of Acquittal

                 The defendant alleges that the trial court erred in denying a motion for judgment of
acquittal after hearing testimony from Dr. Monet that the defendant was not capable of forming the
requisite intent. The defendant argues that with this testimony, the evidence was insufficient to
convict him on any of the counts.

                 Rule 29 of the Rules of Criminal Procedure empowers the trial judge to direct a
judgment of acquittal when the evidence is insufficient to warrant a conviction either at the time the
state rests or at the conclusion of all the evidence. See Tenn. R. Crim. P. 29(a); State v. Ball, 973
S.W.2d 288, 292 (Tenn. Crim. App. 1998). The standard by which a trial court rules upon a motion
for judgment of acquittal is essentially the same standard applied on appeal in determining the
sufficiency of the evidence after a conviction. Ball, 973 S.W.2d at 292; see Tenn. R. Crim. P. 29(a).
We have previously determined that the evidence, in the light most favorable to the state, was
sufficient to support the defendant’s convictions. Because a judgment of acquittal requires that the
evidence be viewed in the light most favorable to the state, the trial court properly denied the motion
for judgment of acquittal.



                                                 -8-
                The defendant places too much weight on the testimony of his expert and ignores the
existence of contradictory evidence. Again, questions concerning the weight and value of the
evidence are resolved by the jury and not by this court. See Cabbage, 571 S.W.2d at 835. The
defendant presented evidence, through Dr. Monet, that he was incapable of forming the requisite
mental intent for the charged offenses. The state presented contradictory evidence, both in its case-
in-chief and in rebuttal. It was the jury’s duty to resolve the issue of whether the defendant was
capable of forming the requisite mental state for each of the offenses. The jury obviously accredited
the state’s witnesses by convicting the defendant.

                                      II. Admissibility of Evidence

              The admission of evidence is generally within the broad discretion of the trial court;
absent an abuse of that discretion, the trial court's decision will not be reversed. See State v.
McLeod, 937 S.W.2d 867, 871 (Tenn. 1996); State v. Harris, 839 S.W.2d 54, 66 (Tenn. 1992).

a. Evidence that Defendant Chose not to Make a Statement

                 The defendant complains that the trial court erred in permitting a police officer to
testify that the defendant chose not to make a statement when he was booked. The state concedes
that the testimony was improper and should have been excluded. However, the state argues that the
error was harmless.

               During the direct examination of Jeff Jackson, a Union City police officer, he testified
that he spoke with the defendant when he was being booked. Officer Jackson said that he advised
the defendant of his Miranda rights by reading from a standard form, which included a waiver of
those rights. The following exchange then transpired:

      [State]:         And when you read this to Mr. Beeler, in your opinion did he appear
                       to understand it?

      [Witness]:       Yes, he did.

      [State]:         And did he sign the form?

      [Witness]:       Yes, he did.

      [State]:         Did he make any statement?

      [Witness]:       The only thing he said was that he did not want to make a statement at
                       that time.




                                                  -9-
                Before this testimony was admitted, the defendant objected on the grounds that it was
prejudicial and that the defendant had the right to not make a statement. The state argued that the
purpose of this testimony was to show that the defendant understood what was going on and that he
was coherent shortly after the shooting. The trial court overruled the objection. No curative
instruction explaining the Miranda rights or that the defendant had the right to not make a statement
was requested or given.

                Our path of inquiry is well worn. In Harrison v. State, 532 S.W.2d 566 (Tenn. Crim.
App. 1975), this court held that it was improper for the state to elicit from a witness testimony that
the defendant refused to make any statement after being advised of his constitutional rights. See also
State v. Kelly, 683 S.W.2d 1, 6 (Tenn. Crim. App. 1984); Hart v. State, 592 S.W.2d 905, 906 (Tenn.
Crim. App. 1979).

       Of course it was improper for the State to elicit from its witness that the defendant
       refused to make any statement after being advised of his constitutional
       rights--including the right to remain silent. Mays v. State (Tenn. Cr. App.), 495
       S.W.2d 833; State v. Flanagan, 223 Tenn. 134, 443 S.W.2d 25. Manifestly, it is
       intolerable to penalize an accused for remaining silent or refusing to make a
       statement to police authorities after being advised of his constitutional right to remain
       silent in the face of accusation. It is elementary that a person arrested upon a charge
       of crime, and thus accused thereof, has an absolute and inviolable constitutional right
       under the Fifth Amendment, applicable to the states by operation of the Fourteenth
       Amendment (Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653), to
       remain silent. Indeed, Miranda mandates, among other things, that an accused be so
       advised before interrogation by law enforcement officials. It would be an intolerable
       anomaly if an accused's exercise of his constitutional right to remain silent, of which
       he must be informed before any questioning by law enforcement officials concerning
       the offense for which he was arrested, could thus be turned against him.



Harrison, 532 S.W.2d at 570-72. The trial court in this case thereby erred in allowing Officer
Jackson to testify that the defendant refused to make a statement after being advised of his
Miranda rights.

                Despite this offending testimony, we are convinced that its admission was harmless
beyond a reasonable doubt and that it did not trench upon the defendant’s constitutional rights to the
degree that would nullify his trial and conviction. We note that the testimony consists of a single
statement made during a three-day trial. The officer did not provide any details beyond the one
statement, and the state did not argue in closing that the defendant did not make a statement.
Moreover, on cross examination of the officer, defense counsel elicited from the officer that he had
to show the defendant where to sign the form, presumably to rebut that the defendant was coherent
after the shooting. See State v. Donald Ray Smith, No. W1990-00156-SC-R11-CD, slip op. at 10


                                                -10-
(Tenn., Jackson, June 30, 2000) (“When the State places objectionable evidence before the jury, and
defense counsel inquires at length about the evidence on cross-examination, any error in admitting
the evidence is generally cured.”). Although the trial court gave the jury no curative or limiting
instruction that a person in custody who has been advised of his rights is not obligated to make any
statement, we cannot conclude that the omission provides grounds for reversal. See, e.g., State v.
Reece, 637 S.W.2d 858, 861 (Tenn. 1982).

b. Evidence of Prior Bad Acts

              The defendant complains that evidence of a prior bad act was erroneously admitted
when Jeanne Beth testified that the defendant had broken into her father’s house a few days before
the shooting. He argues that the witness described an uncharged act that was inadmissible under
Rule 404(b) of the Tennessee Rules of Evidence. The defendant did not timely object to this
testimony.

                 It is a well-established rule that a defendant's failure to timely object and call this
issue to the trial court’s attention constitutes a waiver of appellate review of the issue. See Tenn.
R. App. P. 36(a); State v. Hall, 8 S.W.3d 593, 603 (Tenn. 1999); State v. Thornton, 10 S.W.3d 229,
234 (Tenn. Crim. App. 1999). Accordingly, this issue is waived. Regardless, a review of the record
shows that the witness volunteered the information, and the prosecutor did not inquire into the details
of the defendant breaking into the house. Furthermore, the danger and prejudice that arise from
admitting evidence of a prior bad act is that jurors may view a defendant as having a propensity to
commit certain offenses – “if he did it once, he’ll do it again” logic. In this case, the defendant
admitted that he fired the first shot in order to open the locked door and enter the house. As a result,
the jury had no reason to speculate whether an earlier break-in somehow demonstrated a propensity
for the defendant to commit any of the charged offenses. We conclude that the defendant was not
prejudiced by this testimony.

c. Impeachment of the Defendant as a Witness

                The defendant also complains that he was improperly impeached with evidence of
his prior felony theft conviction. The defendant argues that impeachment was improper because his
credibility was not at issue and that the evidence was inadmissible because it was highly prejudicial.
During the cross-examination of the defendant, the district attorney asked him if he had pleaded
guilty to felony theft of a vehicle in 1996. The defendant responded that the conviction was for
receiving stolen property, to which the district attorney countered that the record would show that
the defendant was convicted of felony theft for the possession of a stolen vehicle.

                The State of Tennessee may use a prior conviction to impeach an accused if the
conviction meets the criteria established by Rule 609 of the Tennessee Rules of Evidence. The
criteria for admission under Rule 609 are: (a) the prior conviction was for a crime punishable by
death or imprisonment in excess of one (1) year or a misdemeanor conviction involving dishonesty
or a false statement; (b) less than ten (10) years has elapsed between the date the accused was


                                                 -11-
released from confinement and the commencement of the present prosecution; (c) the state must give
reasonable written notice of the particular convictions prior to trial if it intends to use them to
impeach the accused; and (d) the trial court, upon request, must find the probative value of each
conviction on the issue of credibility outweighs its unfair prejudicial effect. Tenn. R. Evid.
609(a)(2)-(3), (b). See State v. Farmer, 841 S.W.2d 837, 839 (Tenn. Crim. App. 1992).

                 In the case at bar, the defendant had been convicted previously of a Class E felony
theft which occurred less than ten years before his trial. Seven months before trial, the state filed a
written notice that it intended to impeach the defendant with his felony conviction. The first three
requirements of Rule 609 have thus been satisfied, and we now look at the fourth, whether the
probative value outweighs its unfair prejudicial effect. First, we note that the defendant himself
introduced evidence of this conviction during his direct examination. Defense counsel asked the
defendant if he knew that the vehicle was stolen, and the defendant replied that he did not. At this
point, the trial court properly rebuked defense counsel for delving into whether the defendant was
innocent of the crime for which he was convicted. The defendant then admitted that he pleaded
guilty to purchasing a stolen vehicle. On cross-examination, the district attorney established that the
defendant was convicted of felony theft. Inasmuch as the defendant first introduced this evidence,
he cannot now complain that it was improperly admitted. See, e.g., State v. Kendricks, 947 S.W.2d
875, 883 (Tenn. Crim. App. 1996) (defendant’s “less than candid” testimony on direct examination
opened the door to further inquiry on cross-examination about prior convictions).

                 Second, the defendant argues that his credibility was not at issue. We disagree. The
defendant testified at trial, and he desired the jury to believe his version of the circumstances over
that of the state’s witnesses. As such, his credibility was at issue. This principal is firmly embedded
in our jurisprudence. Evidence of a felony theft conviction is highly probative of credibility. See
State v. Baker, 956 S.W.2d 8, 15 (Tenn. Crim. App. 1997) (offense of theft is "highly probative of
credibility" because the crime involves dishonesty). Accordingly, we conclude that the district
attorney’s cross-examination with respect to the defendant’s felony theft conviction was proper.

d. Testimony Offered to Arouse Passion and Sympathy

                 The defendant complains that the testimony of Regina Caksackkar, the sister of the
homicide victim, was offered solely to arouse passion and sympathy of the jurors. Ms. Caksackkar
testified that the homicide victim was 31 years old when he died and that he had two children. She
said that his mother had a heart attack several weeks before the trial and could not attend. Also, Ms.
Caksackkar testified that she was engaged to Kenneth Tanner, Jeanne Beth’s father. The defendant
did not timely object to any of the testimony by Ms. Caksackkar, although he did raise the issue in
his motion for new trial. He now claims that the introduction of this evidence constitutes plain error.
It is a well-established rule that a defendant's failure to timely object and call this issue to the trial
court’s attention constitutes a waiver of appellate review of the issue. See Tenn. R. App. P. 36(a);
State v. Hall, 8 S.W.3d 593, 603 (Tenn. 1999); State v. Thornton, 10 S.W.3d 229, 234 (Tenn. Crim.
App. 1999). Accordingly, this issue is waived, and we do not find plain error.



                                                  -12-
                  Evidence is deemed relevant if it has "any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it would
be without the evidence." Tenn. R. Evid. 401. Although relevant evidence is generally admissible,
Tenn. R. Evid. 402, it "may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice ... or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence." Tenn. R. Evid. 403. We conclude that the testimony,
although not overly probative, was not unfairly prejudicial. The witness, who was the first witness
to testify in the three day trial, testified about the homicide victim’s family. She also testified about
her and the victim’s relationships to the defendant’s family. She was engaged to Jeanne Beth’s
father, and the victim worked for Jeanne Beth’s father. This testimony provided the jury with
background information on the various parties involved and future witnesses. There was no plain
error. See Tenn. R. Crim. P. 52(b).

e. Failure to Admit Defendant’s Statement

                The defendant complains that a statement he made to his father was not admitted by
the trial court. The defendant’s father testified that on the night of the shooting, he called the
defendant’s cellular telephone and when his son answered, his son blurted out, “Somebody told me
I shot somebody.” The defendant’s father asked, “What did you say?,” to which the defendant
answered, “Somebody told –.“ At this point, the state objected on hearsay grounds. The defendant
argued that the statement was not hearsay; rather, it was offered to show the circumstances leading
up to the defendant’s meeting with his father in the field. The trial court sustained the objection.
The trial court instructed the witness that he was not to testify as to what he was told. The trial court
did not give a curative or limiting instruction to the jury. The defendant did not make a proffer of
evidence of any additional statements made by the defendant to his father.

                On appeal, the defendant argues that his statement, “Somebody told me I shot
somebody,” falls under the excited utterance hearsay exception, see Tenn. R. Evid. 803(2), and under
the then existing state of mind, emotion and mental feeling hearsay exception. See Tenn. R. Evid.
803(3). The defendant claims that the statement is necessary to show the defendant’s state of mind
and behavior shortly after the shooting. The state responds that the jury heard, as substantive
evidence, the gist of the defendant’s statement, and only the repetition of the statement was cut off.


               The jury heard the evidence that the defendant complains was not admitted.
Furthermore, the jury was not instructed to ignore or to not consider the testimony reciting the
defendant’s statement. Accordingly, although the trial court sustained the objection, the “bell had
been rung” and the jury heard the evidence as substantive evidence. We find no reversible error.

f. Failure to Admit Wife’s Statement

                The defendant complains that his then-wife’s statement to the police was not shown
to the jury. Jeanne Beth testified on direct examination that she saw the defendant’s face through


                                                 -13-
the backdoor window before the shooting. During the defendant’s cross-examination of her, she
testified that she wrote a statement for the police the night of the shooting. She admitted that she did
not put in her statement that she saw the defendant before the shooting. Her statement read, “Then
I sat up on the bar then, through the window, I saw something. I went to get down, and Jamie saw
Jason.” She explained that the differences between her statement and testimony were because she
was upset when she made the statement. She was adamant that she saw the defendant that night, and
she was sure that the homicide victim also saw him because the victim was standing beside her when
she saw the defendant. The defendant cross-examined Deputy Gargus of the Obion County Sheriff’s
Department about Jeanne Beth’s statement. He testified that she made the statement. The defendant
then sought to admit a copy of the statement and show it to the jury. The trial court permitted the
statement to be marked for identification purposes only.

                The defendant argues that the statement was admissible as a prior inconsistent
statement. This court has said in the past that the Tennessee Rules of Evidence do not define
“inconsistent.” See State v. Kendricks, 947 S.W.2d 875, 882 (Tenn. Crim. App. 1996); see also
Tenn. R. Evid. 613. Considering that the witness’s statement was not clearly inconsistent with her
testimony, we do not feel compelled to address that issue in the case at bar. Rather, we are
persuaded by the general rule that “[e]xtrinsic evidence of a prior inconsistent statement remains
inadmissible when a witness unequivocally admits to having made the prior statement.” State v.
Martin, 964 S.W.2d 564, 567 (Tenn. 1998) (holding that “the admissibility of the extrinsic evidence
is contingent upon whether the witness admits or denies having made the prior inconsistent
statement”). “The unequivocal admission of a prior statement renders the extrinsic evidence both
cumulative and consistent with a statement made by the witness during trial.” Id. In the case at bar,
the witness testified that she wrote the statement, and she explained that she was upset that night.
In light of Jeanne Beth’s unequivocal admission to making the statement, we conclude that the copy
of the statement was inadmissible, and the trial court correctly permitted the statement to be marked
only for identification.

                The defendant also argues that the trial court did not comply with Tennessee Rule of
Criminal Procedure 30.01 because it did not have good cause for determining that the copy of the
statement should not go to the jury room. The defendant’s reliance on rule 30.01 is misplaced. That
rule requires that all exhibits be given to the jurors and taken into the jury room, unless the trial court
determines otherwise, for good cause. Tenn. R. Crim. P. 30.01. Because the statement was not
admissible, it was marked only for identification purposes and was not made an exhibit; therefore,
the rule does not apply.

g. Medical Examiner’s Testimony

                The defendant complains that the testimony of Dr. Deering, the medical examiner,
was improper. First, he complains that the doctor testified about the contents of hospital records that
he reviewed and that those records were not present in court. Next, the defendant complains that the
doctor testified as to the cause of death of the homicide victim only on redirect examination, but not



                                                  -14-
on direct. Finally, the defendant complains that the prosecutor engaged in improper redirect
examination.

                Dr. Deering’s testimony was straightforward and unremarkable. Quite simply, there
was nothing improper about allowing Dr. Deering to express his expert opinions and conclusions.
Pursuant to Rule 703 of the Tennessee Rules of Evidence, “[e]xperts in the field may base opinions
on facts not in evidence under this rule.” Advisory Commission Comments, Tenn. R. Evid. 703.
That Dr. Deering had reviewed and then testified about hospital records, which had not been
independently offered and admitted at trial, is of no moment. Moreover, Rule 705 of the Tennessee
Rules of Evidence provides a mechanism for the disclosure of facts or data underlying expert
opinions. The defendant could have, but did not, ask the trial court to require Dr. Deering or the
prosecution to obtain and produce for defense inspection the hospital records of which he complains.

                 More fundamentally, however, the defendant has failed to cite any authority in his
appellate brief to show why Dr. Deering’s testimony was objectionable and why it should have been
excluded. Likewise, he has failed to explain how any part of Dr. Deering’s testimony was
improperly and unduly prejudicial. Furthermore, the defendant failed to make any objection at trial
to the admission or alleged prejudicial character of Dr. Deering’s testimony. The issue is waived.
Tenn. R. Crim. App. 10(b).

                                    III. Prosecutorial Misconduct

a. Defendant’s Statements Made to State’s Psychologist

                The defendant complains that it was prosecutorial misconduct for the prosecution
to question an examining psychologist regarding statements the defendant made during a forensic
evaluation. The psychologist, Dr. Lynne Zager, testified during the state’s rebuttal. When asked by
the state what the defendant told her about the shooting, she testified to the statements the defendant
made to her about the shooting. The defendant did not contemporaneously object to this testimony,
although he did raise the issue in his motion for new trial. The defendant’s failure to
contemporaneously object and call this issue to the trial court’s attention constitutes waiver of the
issue. See Tenn. R. App. P. 36(a); State v. Hall, 8 S.W.3d 593, 603 (Tenn. 1999); State v. Thornton,
10 S.W.3d 229, 234 (Tenn. Crim. App. 1999). Regardless, we will consider the issue on its merits.

                 Although the defendant couches this complaint as one of prosecutorial misconduct,
the issue is truly one of admissibility because, in essence, the defendant is complaining that the state
introduced evidence that was not admissible. Of course, there would be no prosecutorial misconduct
if the testimony was admissible. State v. Alley, 776 S.W.2d 506, 519 (Tenn. 1989) (holding that
prosecutor’s leading questions regarding false and non-existing facts constituted misconduct).

               The defendant points to State v. Huskey, 964 S.W.2d 892 (Tenn. 1998), as support
for his argument that the testimony of the psychologist was improper. In Huskey, the defendant filed
an interlocutory appeal to prevent disclosure of a mental evaluation to the state. Id. at 892-96. The


                                                 -15-
Huskey court reaffirmed its holding in State v. Martin, 950 S.W.2d 20 (Tenn.1997). In Martin, our
supreme court held

       that where a defendant asserts a defense based on his or her mental state, a
       court-ordered mental evaluation does not violate the right against self-incrimination
       provided any statements made during the evaluation, and any "fruits" derived from
       such statements, are used by the prosecution only for impeachment or rebuttal of the
       defense.

Martin, 950 S.W.2d at 21. The Huskey court stated that “the admissibility of the defendant's
statements made during an examination at trial is expressly limited to impeachment or rebuttal of
the mental condition evidence introduced by the defendant.” Huskey, 864 S.W.2d at 897. "In other
words, such material may not be used by the prosecution to prove the guilt of the defendant and may
not be used if the defense does not introduce testimony at trial on mental condition." Martin, 950
S.W.2d at 24-25.

                 In the case at bar, the defendant introduced evidence of his claimed diminished
capacity. The defendant’s expert testified that the defendant did not have the capacity to form the
intent to commit a crime, nor was he able to understand the wrongfulness of his conduct. In rebuttal,
the state called Dr. Zager. As part of her testimony concerning the defendant’s state of mind and his
ability to remember the events of the shooting, she repeated what the defendant told her that he
remembered of the shooting.

       I remember being at the house. I walked passed [sic] the front door. I could see in
       the living room that there was no one there. I looked in the window on the bucket
       and I saw someone in bed in the dad’s bedroom. I went to the back and I was pulling
       on the screen door to open it, and that’s when the gun went off. It shot through the
       window in the door, and then I tried to open the door and it was locked, so I tried to
       shoot the lock off the door.

It is this testimony of which the defendant complains. The defendant’s statement is a prior
inconsistent statement of his trial testimony and was used to impeach him. The defendant testified
at trial that he only remembered shooting the door to open it. He did not remember firing through
the window and he did not remember checking to see if the door was locked. The defendant’s prior
statement also tends to rebut his claim of diminished capacity because, for instance, the statement
recounts a logical, detailed version of events. Accordingly, we conclude that Dr. Zager’s testimony
was admissible, and it comports with Huskey and Martin; it was given by the doctor in relation to
her opinion regarding the defendant’s memories, which was relevant to the issue of the defendant’s
memory and mental state at the time of the shooting. Accordingly, this issue has no merit.

b. Closing Argument




                                               -16-
                 The defendant complains of prosecutorial misconduct in closing argument when the
district attorney argued elements not required for the offense, made references to facts not in
evidence, used sarcasm, and made improper comments. Generally, counsel for both the state and
the defendant are permitted wide latitude in arguing their cases to the jury. State v. Bigbee, 885
S.W.2d 797, 809 (Tenn. 1994). Arguments must be temperate, predicated on evidence introduced
during the trial, relevant to the issues being tried, and not otherwise improper under the facts or law.
State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999).

              To prevail on a claim of prosecutorial misconduct, the defendant must show that the
argument was so inflammatory or the conduct so improper that it affected the verdict to his
detriment. See Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758, 759 (1965); State v. Gray, 960
S.W.2d 598, 609 (Tenn. Crim. App. 1997). On appellate review, this court should

        “consider several factors including the intent of the prosecutor, the curative measures
        which were undertaken by the court, the improper conduct viewed in context and in
        light of the facts and circumstances of the case, the cumulative effect of the remarks
        with any other errors in the record, and the relative strength or weakness of the case.”

Gray, 960 S.W.2d at 609. In addition, we must keep in mind that closing argument is subject to the
trial court’s discretionary control. Middlebrooks, 995 S.W.2d at 557.

                 In the case at bar, the district attorney argued that second degree murder was the
knowing killing of another. He asked the jury, “Did Jason Beeler knowingly shoot that gun,
knowing that the likely result could be the killing of Jamie Boane?” The defendant objected to this
definition of second degree murder, claiming that second degree murder requires intent. The trial
court stated that if an intentional killing is shown, a knowing killing is also shown. The trial court
permitted the district attorney to continue; however, it first instructed the jury that the trial court will
instruct the jury as to the law and that if either attorney argues anything that conflicts with those
instructions, then the jury is to disregard the attorney’s description of the law. We see no
prosecutorial misconduct here. First, the district attorney properly stated the law because second
degree murder is a knowing killing of another. Tenn. Code Ann. § 39-13-210(a)(1) (1997). Second,
the trial court gave a curative instruction that the jury is to receive instructions on the law solely from
the trial court. The jury is presumed to follow the instructions of the trial court. State v. Nesbit, 978
S.W.2d 872, 894 (Tenn. 1998).

                  The defendant also argues that the district attorney argued facts not in evidence when
he described the defendant’s actions immediately before the shooting. We disagree. The district
attorney stated, “He had stalked – he had gone up to the house, cased the house, walked around, got
a bucket, . . . looked into the bedroom window . . . observed who was in the house, went around back
and pulled the phone lines and then shot two shots.” The defendant testified that he did not
remember pulling the telephone wires out of the connection box. The evidence showed, however,
that the telephone worked shortly before the shooting and was not working minutes after the
shooting. The evidence also showed that the wires had been pulled out of the telephone connection


                                                   -17-
box. Jeanne Beth testified that the defendant made her run out of the house to his car. A reasonable
inference from this evidence is that the defendant pulled the telephone cables from the box before
the shooting. Accordingly, this portion of the district attorney’s argument was supported by the
evidence and was not improper.

                 Last, the defendant argues that the district attorney made improper comments and
used sarcasm several times in his closing. While discussing the testimony of Dr. Zager, the district
attorney said that Dr. Zager had the information contained in the report by the defendant’s
psychologist, Dr. Monet. The district attorney said, “As you might imagine, Dr. Monet’s opinion
in his report is very long. You’d be surprised if it wasn’t, I would imagine.” In discussing the
defendant’s psychologist’s testimony, the district attorney said, “Dr. Monet testified – and you heard
[defense counsel] go back to the book he was referring to – that he was a level 10 on the GAF scale
– whatever the heck that is – and that on level 10, a person is incapable of functioning, can’t take
care of personal hygiene – doesn’t bathe? – I don’t know.” (Emphasis added). In discussing the
defendant’s conduct after the shooting and arguing that it showed that the defendant appreciated the
wrongfulness of his conduct, the district attorney asked, “Is Dr. Monet saying that he was just a
blithering, incapable idiot for just that one second when he shot the gun through the window, then
after that, all of a sudden he was fine?” (Emphasis added).

                 The standard of review in determining whether counsel was allowed too much
latitude during closing argument is abuse of discretion. Closing arguments must be temperate; they
must be predicated on evidence introduced during the trial of a case, and they must be pertinent to
the issues being tried. State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978). “Based in great measure
upon the role of the prosecutor in the criminal justice system, the most restrictions are placed on the
state.” State v. Hall, 976 S.W.2d 121, 158 (Tenn. 1998). It is the state’s responsibility to “refrain
from argument designed to inflame the jury and should restrict its commentary to matters in evidence
of issues at trial.” Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995).

               Depending on the context, sarcasmous rhetoric may be a legitimate and persuasive
element of closing argument. This court has recognized that attorneys may employ “oratorical
emphasis in arguing their respective positions.” State v. Prince, 713 S.W.2d 914, 918 (Tenn. Crim.
App. 1986). Such oratorical emphasis can “include the use of irony and sarcasm for the purpose of
making relevant points.” State v. Sledge, (Tenn. Crim. App. 1997) (emphasis added).

                We believe that the prosecutor's argument about which the defendant complains in
this case was based upon relevant considerations, and it addressed a pivotal defense theory of the
case. The statements by the district attorney, we also conclude, were not so inflammatory as to rise
to the level required for prosecutorial misconduct. Nevertheless, we do note that the third comment
(“just a blithering, incapable idiot”), while not rising to the level to affect the verdict to the
defendant’s detriment, approaches the limit of temperate argument, and prosecutors would be well
advised to avoid characterizations verging on name calling. See generally State v. Bates, 804
S.W.2d 868, 881 (Tenn. 1991) (name calling by prosecutor is improper).



                                                 -18-
                                        IV. Jury Instructions

a. Lesser Included Offenses for Felony Murder

                             (1) Lesser-included Offense Determination

               The defendant complains that the trial court erred by not instructing the jury on the
lesser-included offenses for felony murder. Tennessee Code Annotated section 40-18-110(a) (1997)
provides that a trial court must charge the jury with all lesser offenses included in the indictment,
without any request on the part of the defendant to do so.

               In this case, the defendant did not request jury instructions on lesser-included offenses
for felony murder. Section 40-18-110(a), however, places an affirmative duty on a trial court
regardless of whether the defendant made the request. Whereas the failure to object at trial to an
omission in the jury charge usually results in waiver of the issue, see Tenn. R. Crim. P. 30(a)(b);
State v. Cravens, 764 S.W.2d 754 (Tenn. 1989), section 40-18-110(a) carves out an exception for
instructions on lesser-included offenses.

                  Nevertheless, Rule 3 of the Tennessee Rules of Appellate Procedure still applies and
is specific that “in all cases tried by a jury, no issue presented for review shall be predicated upon
error in . . . jury instructions granted or refused, . . . unless the same was specifically stated in a
motion for a new trial; otherwise such issues will be treated as waived.” Tenn. R. App. P. 3(e). The
defendant in this case failed to include this issue in his new trial motion, although he has raised it
on appeal. Therefore, as part of our consideration of the issues raised on appeal, we will ultimately
consider whether any error in failing to charge the jury on lesser-included offenses constitutes plain
error. See Tenn. R. Crim. P. 52(b).

                In State v. Burns, 6 S.W.3d 453 (Tenn. 1999), our supreme court revised the
standards for determining lesser-included offenses. In the companion case of State v. Dominy, 6
S.W.3d 472 (Tenn. 1999), the court confirmed that it had overruled portions of the holding in State
v. Trusty, 919 S.W.2d 305 (Tenn. 1996), in which a distinction had been established between lesser
grades or classes of offenses and lesser-included offenses. In Burns, the court adopted the following
test for determining what constitutes a lesser-included offense:

        An offense is a lesser-included offense if:

        (a)    all of its statutory elements are included within the statutory elements of the
               offense charged; or

        (b)    it fails to meet the definition in part (a) only in the respect that it contains a
               statutory element or elements establishing




                                                 -19-
               (1)     a different mental state indicating a lesser kind of culpability;
                       and/or

               (2)     a less serious harm or risk of harm to the same person,
                       property or public interest; or

        (c)    it consists of

               (1)     facilitation of the offense charged or of an offense that
                       otherwise meets the definition of lesser-included offense in
                       part (a) or (b); or

               (2)     an attempt to commit the offense charged or an offense that
                       otherwise meets the definition of lesser included offense in
                       part (a) or (b); or

               (3)     solicitation to commit the offense charged or an offense that
                       otherwise meets the definition of lesser-included offense in
                       part (a) or (b).



Burns, 6 S.W.3d at 466-67.

                Once it is determined that an offense is a lesser-included offense, a two-step process
is used to determine if the evidence justifies a jury instruction on the lesser-included offense:

        First, the trial court must determine whether any evidence exists that reasonable
        minds could accept as to the lesser included offense. In making this determination,
        the trial court must view the evidence liberally in the light most favorable to the
        existence of the lesser-included offense without making any judgments on the
        credibility of such evidence. Second, the trial court must determine if the evidence,
        viewed in this light, is legally sufficient to support a conviction for the lesser-
        included offense.

Id. at 469.

               In the case at bar, the defendant was indicted for first degree premeditated murder and
for felony murder in perpetration of a burglary. The trial court dismissed the charge of first degree
premeditated murder, and on that count of the indictment the trial court charged the jury on the
lesser-included offenses of second degree murder, voluntary manslaughter, reckless homicide, and




                                                 -20-
criminally negligent homicide.3 The trial court then instructed the jury on the second count of the
indictment, which charged felony murder. The trial court did not charge the jury on any lesser-
included offenses for felony murder. The jury convicted the defendant of reckless homicide on the
first count and felony murder on the second count.

                 As an initial matter, we note that indictment in this case was returned by the Obion
County grand jury in 1997. Defendant was tried and convicted in 1998, and he appealed his
convictions in early 1999, prior to the release of the supreme court’s opinion on November 8, 1999,
in Burns. We find no impediment to the retroactive application of Burns to cases, such as this one,
that are on direct appeal. This court has too often applied the Burns test retroactively to seriously
question its retroactive nature. See, e.g., State v. Jumbo Kuri, No. M1999-00638-CCA-R3-CD, slip
op. at 5 (Tenn. Crim. App., Nashville, May 25, 2000). Likewise, the supreme court recently
afforded retroactive application to the Burns test in State v. Billy Joe Stokes, No. M1997-00083-SC-
R11-CD (Tenn., Nashville, July 5, 2000), wherein that defendant’s trial and direct appeal were
concluded before Burns was decided. Felony murder, as it is now and as it was at the time of the
defendant’s actions in this case, is defined as follows:

                                       39-13-202. First degree murder. – (a) First
                                       degree murder is:

                                       (1)      ...

                                       (2)     A killing of another committed in the
                                       perpetration of or attempt to perpetrate any
                                       first degree murder, arson, rape, robbery,
                                       burglary, theft, kidnapping, aggravated child
                                       abuse, aggravated child neglect [added by
                                       amendment in 1998] or aircraft piracy; . . .

Pursuant to subsection (b) of the first degree murder statute, “intent to commit the enumerated
offenses or acts in [subdivision (a)(2)]” is required as a culpable mental state for a felony murder
conviction. Tenn. Code Ann. § 39-13-202(b) (1997).

               Tennessee has only a single first degree murder statute. See Tenn. Code Ann. § 39-
13-202 (1997). Premeditated murder, section 39-13-202(a), and felony murder, section 39-13-
202(b), are not designated in our code as separate and distinct offenses but rather as alternative
means by which criminal liability for first degree murder may be imposed. See, e.g., Carter v. State,
958 S.W.2d 620, 624-25 (Tenn. 1997) (holding both premeditated murder and felony murder are

         3
                    W e commend the trial court for instructing the ju ry in this manner, ev en though it failed to comp letely
charge the lesser-included offenses for felony murder. Although charging each count of the indictment individually with
each of its lesser-include d offenses may resu lt in duplicate charges and much longer jury instructions, this method of
charging should result in less confusion for the jury. See State v. Franklin Howard, No. W 1997-0 0047-S C-R11 -CD, slip
op. at 3 n.4 (Tenn., Jackson, July 6, 2000).

                                                            -21-
simply alternate means of committing the single crime of first degree murder); see also Schad v.
Arizona, 501 U.S. 624, 640-41, 111 S. Ct. 2491 (1991) (concluding that most first degree murder
statutes retain premeditated murder and felony murder as alternative means of satisfying the mental
state requirement). This legal-equivalent concept has been explained in the following fashion:

        [I]t is not necessary that the State prove an intention to kill or that it was committed
        willfully, deliberately, premeditatedly and with malice aforethought. The statute
        supplies the elements necessary to a conviction of murder in the first degree. In other
        words, “the premeditated intent to commit a felony or other criminal acts is, by
        implication of law, transferred from that offense to the homicide actually committed,
        so as to make the latter offense a killing with malice aforethought constituting
        murder in the first degree.”

Farmer v. State, 296 S.W.2d, 879, 883 (Tenn. 1956) (emphasis in original). The perpetration of the
felony, during which a homicide occurs, is the “legal equivalent” of the elements of first degree
premeditated murder, State v. Beasley, 699 S.W.2d 565, 567 (Tenn. Crim. App. 1985) (citing
Sullivan v. State, 173 Tenn. 475, 121 S.W.2d 535 (1938) (stating theories were "legal equivalent")),
which is defined pursuant to section 39-13-202(a)(1) as a “premeditated and intentional killing of
another.” Tenn. Code Ann. § 39-13-202(a)(1) (1997). This concept, sometimes referred to as
transferred intent, remains embodied in our current felony murder statute, as evidenced by subsection
(b) of our first degree murder statute, whereby the culpable mental state required for a felony murder
conviction is the intent to commit the underlying felony. Tenn. Code Ann. § 39-13-202(b) (1997).
Felony murder, therefore, requires a culpable mental state of intentional. As a result, it subsumes
all the other recognized mental states. That is, criminal negligence is also established if a person acts
recklessly, knowingly or intentionally; recklessness is also established if a person acts knowingly or
intentionally; knowing is also established if a person acts intentionally. Tenn. Code Ann. § 39-11-
301 (1997).

                Within this framework, second degree murder is a lesser-included offense of felony
murder under the (a) part of the Burns test, which looks to see if all the statutory elements of the
lesser offenses are included with the elements of the charged offense. Second degree murder is a
“knowing killing of another.” Tenn. Code Ann. § 39-13-210 (1997). It differs from felony murder
only in that second degree murder involves a “knowing” killing, a less culpable mental state than
first degree murder. See Tenn. Code Ann. §§ 39-13-202(a)(2), -210(a)(1) (1997). Inasmuch as the
culpable mental state of knowing is also established if a persons acts intentionally, part (a) of the
Burns test is satisfied.

                Voluntary manslaughter embraces “knowing” killings as well as “intentional”
killings. Tenn. Code Ann. § 39-13-211(a) (1977). We believe that voluntary manslaughter meets
part (a) of the Burns test because the better view is that “state of passion produced by adequate
provocation sufficient to lead a reasonable person to act in an irrational manner” is not an element
of voluntary manslaughter. Nevertheless, the supreme court stated in State v. Dominy, 6 S.W.3d 472
(Tenn. 1999), “that the ‘passion’ language in the definition of voluntary manslaughter simply reflects


                                                  -22-
a less culpable mental state than required for first or second degree murder.” 6 S.W.3d at 479 n.9.
Under that view, voluntary manslaughter qualifies as a lesser-included offense under part (b)(1) of
the Burns test, which asks if the lesser offense fails part (a) only “in the respect that it contains a
statutory element or elements establishing . . . a different mental state indicating a lesser kind of
culpability.” The questions whether reckless homicide and/or negligent homicide are lesser-
included offenses of felony murder are easily answered in the affirmative. “Reckless homicide is
a reckless killing of another.” Tenn. Code Ann. § 39-13-215 (1997). It differs from felony murder
only in that it involves a “reckless” killing, a less culpable mental state than first degree murder. See
Tenn. Code Ann. §§ 39-13-215(a), -202(a)(2) (1997). Inasmuch as the culpable mental state of
recklessness is also established if a person acts intentionally, reckless homicide is a lesser-included
offense of felony murder under part (a) of Burns.

                 Criminally negligent homicide is defined as “criminally negligent conduct which
results in death.” Tenn. Code Ann. § 39-13-212 (1997). It differs from felony murder only in that
it involves a “criminally negligent” killing, a less culpable mental state than first degree murder. See
Tenn. Code Ann. §§ 39-13-212, -202(a)(2) (1997). Inasmuch as the culpable mental state of
criminal negligence is also established if a person acts intentionally, criminally negligent homicide
is a lesser-included offense of felony murder under part (a) of Burns.

                                            (2) Justification Analysis

               Having determined that second degree murder, voluntary manslaughter, reckless
homicide, and criminally negligent homicide are lesser-included offenses of felony-murder, we must
now resolve whether the evidence in this case justified an instruction on any or all of these lesser-
included offenses pursuant to Burns’s two-fold inquiry.

               We conclude that when the evidence is viewed “liberally in the light most favorable
to the existence of [second degree murder, voluntary manslaughter, reckless homicide, and
criminally negligent homicide] without making any judgments on the credibility of such evidence,”
there was evidence that “reasonable minds could accept” as to those lesser-included offenses.4

                More specifically, regarding the lesser-included offense of second degree murder, the
defendant shot the lock off a closed door and then shot through a curtained window. This conduct
resulted in the death of the victim, who was about to open the door. There was evidence that the
house was well lit from the inside. When the evidence is liberally viewed as it relates to second-
degree murder, a jury could reasonably conclude that the defendant either saw the victim through
the partially opened curtain or saw the victim’s shadow on the curtain, but, nevertheless, he
chambered another shell in his pump action shotgun and shot through the window, striking the
victim in the neck. Viewed in this manner, this evidence would be sufficient to show that the


         4
                  Regarding the first count of the indictment, the trial judge dismissed the first degree murder charge
but submitted that count to the jury on second degree murder, reckless homicide, and criminally negligent homicide.
The jury then con victed the d efendan t of reckless h omicid e on the first c ount.

                                                        -23-
defendant was aware that his conduct was reasonably certain to cause the victim’s death. See Tenn.
Code Ann. § 39-11-302 (1997) (definition of knowing); see generally State v. George Blake Kelly,
No. 01C01-9610-CC-00448, slip op. at 7 (Tenn. Crim. App., Nashville, Oct. 13, 1998) (example of
difference between reckless and knowing conduct; person firing from inside windowless building
through open doorway who cannot see if anyone is present acts recklessly, while person who
similarly acts but who is aware people are near open door acts at least knowingly). Accordingly, we
conclude that it was error for the trial court to not instruct the jury on second degree murder as a
lesser-included offense of felony murder.

               Applying the two-step process for determining whether an instruction should have
been given on voluntary manslaughter, we conclude that in this case, there was insufficient evidence
of provocation. The evidence showed that the defendant parked his car away from the house and
using a bucket as support, peered into a window before circling the house and shooting through the
back door. The defendant testified to having a single-minded purpose of entering the house.
Provocation was not shown, and accordingly, we conclude that an instruction on voluntary
manslaughter as a lesser- included offense was not warranted by the facts adduced at trial.

                As with second degree murder, the trial court’s failure to charge reckless homicide
and criminally negligent homicide as lesser-include offenses on the second count was error. The
evidence, viewed liberally, supports the conclusion that the defendant’s “disregard for” or his
“failure to perceive” the risks of firing into the door of a residence, which was known by him at the
very least to be occupied, constituted a “gross deviation from the standard of care that an ordinary
person would exercise,“ such that he committed a reckless homicide or a criminally negligent
homicide.

                                     (3) Harmless Error Analysis

                  The final question is how to assess the effect of the trial court’s error in failing to
instruct on second degree murder, reckless homicide, and criminally negligent homicide as lesser-
included offenses of felony murder. The answer requires that we wade, once again, into the
somewhat rancorous debate whether the error complained of is constitutional or nonconstitutional.
If the error is constitutional, the burden shifts to the state to prove harmlessness beyond a reasonable
doubt. The burden does not shift to the state for nonconstitutional error. See, e.g.,State v. Harris,
989 S.W.2d 307, 314-15 (Tenn. 1999); State v. Nichols, 877 S.W.2d 722, 742 (Tenn. 1994).
Moreover, the standard for assessing the harm resulting from constitutional error is more exacting
than the standard that applies to nonconstitutional error. Constitutional error will result in a reversal
unless the reviewing court is convinced beyond a reasonable doubt that the error did not affect the
outcome of the trial. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). By
contrast, nonconstitutional error is not reversible unless the error affirmatively appears to have
affected the result of the trial on the merits, or unless considering the record as a whole, the error
involves a substantial right which more probably than not affected the judgment or resulted in
prejudice to the judicial process. See, e.g., Harris, 989 S.W.2d at 315; Nichols, 877 S.W.2d at 742;
see also Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).


                                                  -24-
                 We have concluded in the present case that the error is reversible regardless of which
standard of harmless error analysis is used. In other words, we hold that the defendant has
affirmatively shown that the error “affected the result of the trial on the merits,” Tenn. R. Crim. P.
52(a), and that “considering the whole record error involving a substantial right more probably than
not affected the judgment,” Tenn. R. App. P. 36(b). However, we realize that some panels of this
court have taken the view that it is difficult, if not impossible, for a defendant, who is deprived of
a justified instruction on a lesser-included offense, to carry the burden laid upon him by the above-
quoted rules.5 See, e.g., State v. Khanh V. Le, No. W1998-00637-CCA-R3-CD, slip op. at 17 (Tenn.
Crim. App., Jackson, Mar. 9, 2000), perm. app. filed (Tenn. Apr. 13, 2000). Thus, in view of the
possibility of our supreme court determining upon further appeal of this case that harmless error
results from the use of the non-constitutional standard of analysis, we are constrained to explain our
determination that a constitutional issue is at stake and that the Chapman standard for harmless error
analysis applies to render the error reversible. Thus, we will first explain our holding that the non-
constitutional standard results in reversible error, and then we will discuss the constitutional bases
for requiring jury instructions as to applicable lesser-included offenses.

                 We are buttressed in our conclusion that the record reflects that the error, which does
involve a substantial right, “more probably than not affected judgment,” by the expert testimony
concerning the defendant’s mental state prior to and at the time of the shooting. Dr. Monet, the
defense psychiatric expert, testified that at the time of the shooting the defendant was suffering from
a severe major depression and was suicidal. According to Dr. Monet, there was “only room for one
thought in his mind, and that’s to kill himself before his wife, in front of her.” Dr. Zager, who
testified for the state as an expert psychologist, held the opinion that at the time of the shooting the
defendant had a severe mental illness and that he was “in emotional distress and crisis.” Dr. Zager
agreed that the defendant’s conduct in carrying the loaded gun was reckless. However, Dr. Zager
further testified that in his opinion the defendant could understand and appreciate the wrongfulness
of his action. Dr. Patel, the prosecution psychiatric expert, testified that in his opinion the defendant
knew what he was doing; his intention was to get to his wife, and he would get rid of whatever
resistance he might encounter.

                The jury heard this conflicting expert testimony, and it reached its own determinations
about credibility in this area. Yet, those determinations apparently led to the jury determining with
regard to the first count of the indictment that the defendant is guilty only of the lesser-included
offense of reckless homicide. While consistency in verdicts for multiple count indictments is
unnecessary, e.g., Wiggins v. State, 498 S.W.2d 92, 93-94 (Tenn. 1973); State v. Gennoe, 851
S.W.2d 833, 836 (Tenn. Crim. App. 1992); State v. Hicks, 835 S.W.2d 32, 36 (Tenn. Crim. App.
1992), we cannot conclude with the slightest degree of confidence that had the jury also been

         5
                   Under this view the imperative fo r the lesser-includ ed offense ju ry instructions is me rely statutory.
Section 40-18-1 10(a) of the Tenness ee Cod e Annotate d provid es, “It is the duty of all judges charging juries in cases
of criminal pro secutions for a ny felony where in two (2) or more grad es or classes o f offense may be included in the
indictment, to charge the jury as to all of the law of each offense included in the indictment, without any request on the
part of the defendant to do so.” Tenn. Code Ann. § 40-18-110(a) (1997). This statute was first enacted by the Tennessee
Genera l Assembly o f 1877. See, e.g., Good v. State, 69 Tenn. 293, 294 (187 8).

                                                           -25-
instructed on any or all of the lesser-included offenses, with regard to the second count of the
indictment, it would have eschewed all of the lesser-included offenses and convicted the defendant
of felony-murder.

               The testimony about the defendant’s mental state was more cogent than typically
encountered. Based upon this testimony and the first-count verdict, we conclude that, as to the
second count, had the jury been allowed to consider second degree murder, reckless homicide, and
criminally negligent homicide, as filtered through the expert testimony, the jury probably would have
rejected felony murder in favor of one or more of these lesser-included offenses.

                 Now, we address the effect of the error viewed as a constitutional deprivation.
Disconcert about how to assess the erroneous failure to charge lesser-included offenses derives from
the supreme court’s opinion in State v. Williams, 977 S.W.2d 101 (Tenn. 1998). In that case, the
supreme court granted permission to appeal to consider whether the erroneous failure to instruct the
jury on a lesser-included offense requires automatic reversal or whether it is subject to harmless error
analysis. For our purposes in this case, it is helpful to examine the context in which the question was
posed.

                 The state conceded in Williams that the failure to charge the lesser-included offense
was error. See Williams, 977 S.W.2d at 104. The state argued that the error in failing to charge
voluntary manslaughter, as a lesser-included offense, was “harmless beyond a reasonable doubt”
because the jury convicted the defendant of first degree murder even though the jury was provided
instructions on second degree murder and reckless homicide. See id. The defendant argued that an
automatic reversal was required because the type of constitutional error that occurred could never
be treated as harmless. See id. From these arguments, the parties in Williams were in agreement
first, that error had occurred and second, that the error was constitutional. The positions of the
parties differed only with respect to application of the harmless error analysis of Chapman v.
California, 386 U.S. 18, 24 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

                The Williams court held that a trial court’s erroneous failure to charge on a lesser-
included offense does not automatically result in reversal. That much is certain. Less certain,
though, is how the court in Williams then determined the harmfulness of the error; that is, whether
the error is constitutional or non-constitutional. At one point in its opinion, the court stated,

       Accordingly, 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, reversal is required if the error more
       probably than not affected the judgment to the defendant’s prejudice.

Williams, 977 S.W.2d at 105.

When, however, the Williams court articulated its holding in that case, it stated,


                                                 -26-
         Accordingly, the trial court’s erroneous failure to charge voluntary
         manslaughter is harmless beyond a reasonable doubt because the jury’s
         verdict of guilt 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 manslaughter.

Id. at 106 (emphasis added).6


         6
                   Since Williams , five approaches to harmfulness have emerged.

          First, the error is harmless regardless whether the failure to instruct is scrutinized under the “harmless beyond
a reasonable doubt” standard or under the nonconstitutional standard of affirmatively appearing to have affected the
result of the trial or involving a substantial right which more pro bably than no t affected the judgm ent. See State v.
Robert Rainey, No. W 1999- 00692 -CCA -R3-CD , slip op. at 8 (Tenn. Crim. A pp., Jackso n, Apr. 2 5, 2000 ), perm. app.
filed (Tenn. June 13, 2000) (“Accordingly, we hold that the failure to charge the jury on reckless endangerment was
harmless, whether viewed under Rule 36 (b) of the T ennessee Rules of A ppellate Pr ocedu re, Rule 52(a) of the Tennessee
Rules of Criminal Procedure, or under the cons titutional stand ard of be yond a reasonab le doub t.”); State v. Jerry
Wayman Travis , W1999-01089-CCA-R3-CO, slip op. at 7, (Tenn. Crim. App., Jackson, Mar. 10, 2000) (canno t classify
error as harm less unde r either con stitutional or sta tutory stan dard); State v. Khanh V. Le, No.
W1998-00637-CCA-R3-CD, slip op. at 14 (Tenn. C rim. Ap p., Jackson , Mar. 9, 2 000), perm. app. filed (Tenn. Apr. 13,
2000) (Woodall, J., concurring in part and dissenting in part); State v. Corey Lama r Camp bell, No. 01C01-9805-CR-
00215, slip op. at 12 (Tenn. Crim. App ., Nashville, Sept. 9, 1999).

          Second, the standard for assessing harmfulne ss is not discusse d. See State v. Tambora N. Simmons , No.
03C01-9905-CR-00188, slip op. at 5 (Tenn. Crim. App., Knoxville, Feb. 16, 2000) (“Accordingly, the failure to instruct
on simple po ssession, if found to be erro r, would be harmless.”); Bobb y Kenn eth Nash v . State, No.
01C01-9810-CR-00423, slip op. at 3 (Tenn. Crim. App., Nashville, Jan. 27, 2000) (per curiam order denyin g
rehearing),perm. app. denied (Tenn. Ju ne 5, 20 00); State v. James Tyrone Harbison, No. 03 C01-9 808-C R-002 71, slip
op. at 4 (Ten n. Crim. A pp., Kn oxville, O ct. 6, 1999 ), perm. app. denied (Tenn. April 10, 2000); State v. A ntonio M.
Kendrick, No. 02C01-9708-CR-00319, slip op. at 2 (Tenn. Crim. App., Jackson, Au g. 6, 1999) perm. app. granted
(Tenn. Feb. 7, 2000); State v. Eric Flemming, No. 01C01-9709-CR-00418, slip op. at 12 (Tenn. Crim. App., Nashville,
Jan. 20, 1999), aff’d 19 S.W.3d 195 (Tenn. 2000).

         Third, both standa rds for dete rmining harm less error are stated. See State v. Rog er Dale Bennett , No. 01C01-
9607-C C-0013 9, slip op. at 7 (Tenn. C rim. App., N ashville, Dec . 31, 199 8), perm. app. denied (Tenn. May 13, 1999)
(reversal is required only if error affirmatively appears to have affected trial result; in this case error harmless beyond
a reasonable doubt).

         Fourth, the erroneous failure to instruct is reviewed to determin e if the error is har mless beyo nd a reaso nable
doubt. See State v. Jumbo Kuri, No. M1999-00 638-CCA-R3-CD , slip op. at 7 (Tenn. Crim. App., Nashville, May 25,
2000) (“[W]e conclude that the general rule is that the erroneous fail ure to instruct o n a lesser-includ ed offense is
reversible error unless it is sho wn to be ha rmless beyo nd a reasonable dou bt.”); State v. Vincent C. Sims, No.
W1998-00634-CCA-R3-DD, slip op. at 14 (Tenn. C rim. App., Jackson, Mar. 14, 2000) (“Accordingly, under William s,
any error in declining to give instructions on voluntary manslaughter and criminally negligent homicide would be
harmless beyond a reasonab le doubt.”); State v. Curtis J . Ely, No. 03C01-9806-CC-00215, slip op. at 10 (Tenn. Crim.
App., Knoxville, N ov. 4, 199 9) (W ade, J., dissen ting), perm. app. granted (Tenn. May 22, 2000) (error was not harmless
beyond a reasonab le doubt; b urden on state to assure no impermissib le invasion of ju ry’s role); State v. Terry Pr offitt;
No. 03C01 -9712-C C-0053 0, slip op. at 4 (Tenn. C rim. App., K noxville, Jun. 2 , 1999); State v. Raymon d Hale ; No.

                                                           -27-
               Our review of the case law and constitutional guarantees persuades us that the
erroneous failure to instruct on lesser-included offenses is constitutional error for which the state
bears the burden of proving harmlessness beyond a reasonable doubt.

                 Fodder for the argument that Code section 40-18-110(a) is the only source for the
right to an instruction on lesser-included offenses stems from an equivocal statement in Williams:
“Moreover, though sometimes described as a constitutional right, in this State the right to
instructions on lesser offenses actually derives from a statute, Tenn. Code Ann. § 40-18-110(a)(1997
Repl.).” Williams, 977 S.W.2d at 105. Also, in State v. Tina Swindle, ___ S.W.3d ___, No.
M1998-00362-SC-R11-CD (Tenn., Nashville, Aug. 25, 2000), a case in which the defendant was
charged with aggravated sexual battery, our supreme court held that the trial court erred when it
failed to instruct the jury as to the lesser-included offense of the Class B misdemeanor assault
defined as “intentional or knowing physical contact .. . . [which] a reasonable person would regard
. . . as extremely offensive or provocative.” Id. at ___, slip op. at 3; see Tenn. Code Ann. § 39-13-
101(a)(3) (1997). The Swindle court initiated its analysis of the lesser-included offense issue by
referring to Code section 40-18-110(a) as the mandate for the lesser-included offense instructions,
and after finding error, it held that “[r]eversal is required [because] the error affirmatively affected
the result of the trial, or . . . the error more probably than not affected the judgment to the defendant’s
prejudice.” Id. at ___, slip op. at 5. The court made no reference to the Chapman standard for
analyzing constitutional errors.

               On the other hand, our supreme court has not unequivocally stated that Code section
40-18-110(a) is the only basis for entitlement to the instruction. Certainly, constitutional recognition




01C01-9712-CR-00564, slip op. at 5 (Tenn. Crim. App., Nashville, May 6, 1999); State v. Charles D. Mullins, No.
01C01-9709-CC -00388, slip op. at 13 (Tenn. Crim. App., Nashville, Apr. 21, 1999).

          The fifth approac h is that entitlement to a lesser-include d instruction is only a statutory righ t, and error w ill not
result in reversal unless it affirmatively appears to have affected the result. See State v. Anto nio Smith ,No.. W1999-
01096-CCA-R3-CD, slip op. at 4 (Tenn. Crim. App., Jackson, Apr. 20, 2000); State v. Harvey Phillip Hester, No.
03C01-9704-CR-00144, slip op. at 5 (Tenn. Crim. App., Knoxville, Mar. 22, 2000); State v. Khanh V. Le, No.
W1998-00637-CCA-R3-CD, slip op. at 17 (Tenn. Crim. App., Jackson, Mar. 9, 2000), perm. app. filed (Tenn. Apr. 13,
2000) (“[W]e cannot conclude that the trial court’s error affirmatively appears to have affected the result of the trial on
the merits.”); State v. Gary Lee Miller, No. M1998-00788-CCA-R3-CD, slip op. at 15 (Tenn. Crim. App., Nashville,
Mar. 6, 2000 ) (Wo odall, J., con curring); State v. Byron M. Edwards, No. 03C01 -9812-C C-0043 6, slip op. at 6 (Tenn.
Crim. App, K noxville, Feb . 2, 2000 ); State v. Timothy M. Reynolds, Nos. 01C01-9809-CC-00365, M1998-00059-CCA-
R3-CD, slip op. at 5 (T enn. Crim. A pp., Nash ville, Jan. 7, 20 00); State v. Lawr ence J. Pe rreault, No. M1998-00492-
CCA-R3-CD, slip op. at 3 (T enn. Crim. A pp., Nash ville, Dec. 17 , 1999); State v. Michael Jason Powers, No. M1998-
00264-CCA-RD-CD, slip op. at 4 (T enn. Crim. A pp., Nash ville, Dec. 7, 1 999); State v. Curtis J. Ely, No. 03C01-9806-
CC-00215, slip op. at 12 (Tenn. Crim. App., Knoxville, Nov. 4, 1999) (Welles, J ., concurring ), perm. app. granted (Tenn.
May 22, 200 0); State v. Guy William R ush, No. 03 C01-98 05-CR -00193 , slip op. at 9 (Tenn. C rim. App. K noxville, Oc t.
13, 1999), perm. app. granted (Tenn. Apr. 24, 2000); State v. Leslie R . Holt, No. 01 C01-98 04-CR -00188 , slip op. at 2
(Tenn. Crim. App. N ashville, Ma r. 11, 199 9); State v. Brandon R. Patrick, No. 03 C01-97 12-CC -00548 , slip op. at 3
(Tenn. Crim. App., Knoxville, Feb. 19, 199 9); State v. Roger Dale B ennett, No. 01C01-9607-CC-00139, slip op. at 10
(Tenn. C rim. App., N ashville, Dec . 31, 199 8) (W ade J., con curring), perm. app. denied (Tenn. May 13, 1999).

                                                              -28-
and statutory recognition of a right afforded citizens in this state are not mutually exclusive. Statutes
should, can, and do reflect constitutional values, privileges and rights.

                 The constitutional underpinning for the right to an instruction on lesser-included
offense is frequently identified simply as the right to trial by jury. Article I, section 6 of the
Tennessee Constitution provides that “the right of trial by jury shall remain inviolate.” Less than
two months after the opinion in Williams was released, the supreme court in State v. Bolden, 979
S.W.2d 587 (Tenn. 1998), expressly recognized that “[o]ne purpose of the statute [§ 40-18-110(a)]
is to protect the right to trial by jury by instructing the jury on the elements of all offenses embraced
by the indictment.” Bolden, 979 S.W.2d at 593. The court in Bolden cited Williams for the
proposition that the “failure to instruct on a lesser offense, however, may be shown to be harmless
beyond a reasonable doubt under some circumstances.” Id.

               Pre-Williams case law exists that recognizes that the failure to charge a lesser-
included offense is a constitutional deprivation. E.g., State v. Curtis J. Ely, No. 03C01-9806-CC-
00215, slip op. at 10 n.3 (Tenn. Crim. App., Knoxville, Nov. 4. 1999) (collecting and citing
numerous cases before Williams that failure to charge lesser offense is a constitutional deprivation).
Indeed, the supreme court previously had recognized the constitutional nature of the right. See e.g.,
Strader v. State, 362 S.W.2d 224, 230-31 (Tenn. 1962) (in capital case, failure to charge lesser-
included offenses deprived defendant of a “fair trial”).

               In addition to the state constitutional right to a jury trial and perhaps the provision
guaranteeing due process of law, see Tenn. Const. Art. I, § 8, serving as bases for instructing on
lesser-included offenses, we are persuaded that there is another Tennessee constitutional source
which has not been discussed in the cases since the disconcert over Williams began, namely Article
VI, section 9 of the Tennessee Constitution.

                 “Tennessee is one of the states admitted to the Union early in the history of this
country, and at a time when memories of colonial abuses were fresh in the minds of the citizenry.”
Farris v. State, 535 S.W.2d 608, 617 (Tenn. 1976)(Harbison, J., dissenting). Article VI, Section 9
of the Tennessee Constitution targets one such abuse. It commands, “The Judges shall not charge
juries with respect to matter of fact, but may state the testimony and declare the law.” This provision
was part of the original Tennessee Constitution of 1796. Tenn. Const. of 1796, art. V, § V. Simply
stated, this constitutional imperative means that the trial judge decides the law and that the jury
decides the facts. The reason for the constitutional division of labor between the trial court and the
jury was to counteract the practice of trial judges intimating their views of what the verdict of the
jury should be.

        It was permissible at the common law for trial judges to express an opinion
        as to the credibility of a witness or as to the weight of certain evidence.
        Particularly did judges claim the right to sum up the evidence as a whole and
        express an opinion thereon. It was the intent of the framers of the
        constitution that this power which had been shamefully abused should be
        taken away from the judges. Hence the readiness of appellate courts to

                                                  -29-
        reverse the judgment where the trial judge has disregarded this constitutional
        prohibition against charging, guiding, or instructing the jury regarding matter
        of fact.

J. Higgins & A. Crownover, Jr., Tennessee Procedure in Law Cases (A Treatise Setting Forth the
Principles, Pleadings, Practice and Procedure in Lawsuits), § 1424, at 534-35 (1937).

               In Ivey v. Hodges, 23 Tenn. 154 (1843), the impetus for this constitutional right was
described in the following fashion:

        This provision arose out of the jealousy, with which our ancestors always
        looked upon any attempt on the part of the courts to interfere with the
        peculiar province of the jury, the right to determine what facts are proved in
        a cause, and to put a stop to the practice of “summing up,” which was
        considered a dangerous infraction of the trial by jury, and an invasion of their
        province, which is prohibited by express terms in this section of the
        Constitution.

23 Tenn. at 155-56. See Hooper v. State, 325 S.W.2d 561, 563 (Tenn. 1959)(“[T]his Section was
put in our Constitution to prohibit a practice of ‘summing up’ as was practiced in Great Britain.”);
Tyrus v. Kansas City, Ft. S. & M.R. Co., 114 Tenn. 579, 86 S.W. 1074, 1075 (1905); Warren v.
State, 44 Tenn. 130, 135 (1867) (“This is a wise and sacred provision, placed in the fundamental
law to guard and protect the right of trial by jury, and the courts cannot transcend it or disregard it.”).

                 One of the earlier and better expositions of how this constitutional right is to be
observed and is to be implemented is found in Poole v. State, 61 Tenn. 289 (1872). “It is also the
duty of the [trial judge],” writes the supreme court in Poole, “to define in his charge all the offenses
embraced in an indictment for this crime.” The supreme court continued,

        The jury is the exclusive judge of the facts, the Court is a witness to it of the
        law. When the jury has heard the facts, it is for it to say what offense, if any,
        has been committed against the law. However plain it may be to the mind of
        the Court that one certain offense has been committed and none other, he
        must not confine himself in his charge to that offense. When he does so he
        invades the province of the jury, whose peculiar duty it is to ascertain the
        grade of offense. However clear it may be, the Court should never decide the
        facts, but must leave them unembarrassed to the jury.

Poole, 61 Tenn. at 294. See State v. Odom, 928 S.W.2d 18, 32 (Tenn. 1996) (purpose of Article VI,
§ 9 is to preserve the jury’s role as a finder of fact); Cleckner v. Dale, 719 S.W.2d 535, 542 (Tenn.
Ct. App. 1986) (trial court’s comments ran afoul of Article VI, § 9).




                                                   -30-
                 The significance of Article VI, Section 9 is further highlighted by its inclusion in the
Tennessee Constitution in addition to the constitutional guarantee of Article I, Section 6 that “the
right of trial by jury shall remain inviolate,” the constitutional guarantee of Article I, Section 9 that
“in all criminal prosecutions, the accused hath the right . . . in prosecutions by indictment or
presentment, [to] a speedy public trial, by an impartial jury,” and the constitutional guarantee of
Article I, Section 19 that “the jury shall have a right to determine the law and the facts, under the
direction of the court.” Article VI, Section 9 is much more than constitutional overkill; the framers
of the Tennessee Constitution correctly and prudently recognized that the right to trial by jury would
be a hollow guarantee without the further constitutional protection against trial courts invading the
jury’s domain to determine what facts are proved.

                 When a lesser-included offense instruction is erroneously omitted, the jury’s fact-
finding role is usurped. In Stevenson v. United States, 162 U.S. 313, 323, 16 S.Ct. 839, 843 (1896),
the Supreme Court explained,

        A judge may be entirely satisfied from the whole evidence in the case, that
        the person doing the killing was actuated by malice; that he was not in any
        such passion as to lower the grade of the crime from murder to manslaughter
        by reason of any absence of malice; and yet if there be any evidence fairly
        tending to bear upon the issue of manslaughter, it is the province of the jury
        to determine from all the evidence what the condition of mind was, and to say
        whether the crime was murder or manslaughter.

See Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382 (1980) (sentence of death may not be
constitutionally imposed when the jury was not permitted to consider a verdict of guilt of a lesser-
included noncapital offense and the evidence would have supported such a verdict); see also Schad
v. Arizona, 501 U.S. 624, 647-48, 111 S.Ct. 2491, 2505 (1991) (aim of rule in Beck v. Alabama was
“to eliminate the distortion of the fact-finding process that is created when the jury is forced into an
all-or-nothing choice”); see also Little v. State, 65 Tenn. 491, 496 (1873) (declining to instruct jury
as to manslaughter held to be equivalent of telling jury that the defendant was guilty, if at all, of
nothing less than second degree murder and was an invasion of the jury’s “province”).

                We perceive no valid distinction between telling the jury that it is not receiving an
instruction on lesser-included offenses and simply not giving a lesser-included offense instruction.
In either event, the message to the jury is clear; in the trial court’s opinion if the defendant is guilty,
the crime cannot fall below whatever offense that is defined in the charge to the jury.

               We are not suggesting that a violation of Article VI, Section 9 requires an automatic
reversal of a defendant’s conviction. Tennessee courts have applied the Chapman constitutional
harmless error analysis to both state and federal constitutional errors. See, e.g., State v.
Middlebrooks, 840 S.W.2d 317, 347 (Tenn. 1992); State v. Cook, 816 S.W.2d 322, 326 (Tenn.1991).
For a violation of Article VI, section 9, we believe that the error is reversible unless the state can
demonstrate beyond a reasonable doubt that the error did not affect the outcome of the trial. We do


                                                   -31-
not perceive that our supreme court intended to diminish the earlier courts’ use of Article VI, section
9. In our view, it mandates jury instructions as to lesser-included offense.

                Regardless of the precise nature or number of constitutional provisions which
establish the right, we believe the right has a constitutional basis, and we are persuaded that, in this
case, the state has failed to show that the error is harmless beyond a reasonable doubt.

                 Having determined that prejudicial error occurred, we must now determine whether
we should notice the error as plain error. Our test for analyzing plain error was developed in State
v. Adkisson, 899 S.W.2d 626, 641-41 (Tenn. Crim. App. 1994). The supreme court in State v.
Donald Ray Smith, — S.W.3d —, No. W1998-00156-SC-R11-CD (Tenn. 2000), adopted this test
as providing “a clear and meaningful standard for considering whether a trial error rises to the level
of plain error in the absence of an objection.” Id. Five factors are considered in evaluating plain
error, they are:

        (a) the record must clearly establish what occurred in the trial court; (b) a clear and
        unequivocal rule of law must have been breached; (c) a substantial right of the
        accused must have been adversely affected; (d) the accused did not waive the issue
        for tactical reasons; and (e) consideration of the error is “necessary to do substantial
        justice.”

Adkisson, 899 S.W.2d at 641-42.

               Based upon the concerns we expressed above in determining that the error was not
harmless, we conclude that it is also plain error. Above we have reached conclusions which support
the application of the first four Adkisson factors. We conclude, as well, that the fifth factor, that
consideration of the error is necessary to do substantial justice, is equally applicable.

               Accordingly, we consider the trial court’s error in failing to instruct the jury as to the
lesser-included offenses of felony murder, despite the omission of the issue from the motion for a
new trial. The defendant’s felony murder conviction on the second count of the indictment,
therefore, must be reversed, and the case is remanded for a new trial on the second count.

b. Instruction on Diminished Capacity

              The defendant complains that the trial court erred by not using his special instruction
on diminished capacity. The requested instruction provided,

             In Tennessee, no person may be convicted of a criminal offense unless
        the culpable mental state required is proven beyond a reasonable doubt.
        Evidence which tends to prove or disprove the required mental state is
        relevant and generally admissible under Tennessee law. The defendant has
        introduced psychiatric testimony aimed at negating the requisite culpable


                                                  -32-
        mental state. This psychiatric testimony must demonstrate that the
        defendant’s inability to form the requisite culpable mental state was the
        product of a mental disease or defect and not just a particular emotional state
        or mental condition. You shall consider the expert’s psychiatric evidence
        solely for the purpose of negating the existence of the culpable mental state
        required to establish the criminal offense for which the defendant is being
        tried.

                 A trial court is not required to give special instructions when jury instructions are full,
fair, and accurate statements of the law. State v. Mann, 959 S.W.2d 503, 521 (Tenn. 1997). The
trial court’s denial of a special request is not error where the trial court's instructions on a matter are
proper. State v. Vann, 976 S.W.2d 93, 114 (Tenn. 1998). The question becomes whether the
instructions given the jury were proper, in light of the diminished capacity evidence raised by the
defendant.

                Our supreme court recognized that “diminished capacity is not an enumerated defense
under the 1989 revision of the criminal code.” State v. Hall, 958 S.W.2d 679, 689 (Tenn. 1997).
However, the court also observed “that the negation of an element of a criminal offense is recognized
as a defense in Tennessee.” Id. (citing Tenn. Code Ann. § 39-11-203). Further, the court agreed
with the conclusion “that a defendant's capacity to form the requisite mental state to commit an
offense is an issue in criminal prosecutions because the general criminal law in Tennessee provides
that ‘[n]o person may be convicted of an offense unless . . . [t]he culpable mental state required is
proven beyond a reasonable doubt.’” Id. (quoting Tenn. Code Ann. § 39-11-201(a)(2)).
Additionally, this court has often stated the rule that “diminished capacity is not a defense capable
of excusing or defeating a criminal charge in Tennessee.” State v. Grose, 982 S.W.2d 349, 353
(Tenn. Crim. App. 1997).

                 In Grose, the defendant was convicted of first degree murder, and he alleged that the
state failed to prove that he had the requisite mental state because he introduced proof that he had
consumed alcohol and drugs before shooting the victim. Id. at 352. This court found the evidence
sufficient to support the conviction. Id. at 353. The state presented evidence showing the
defendant’s intent, and the jury resolved the question in favor of the state. Id. The defendant in
Grose also complained that the trial court erred by not instructing the jury on diminished capacity.
Id. Grose introduced evidence of his diminished mental abilities through both expert and nonexpert
witnesses. Id. at 354. The trial court instructed the jury on the proper mens rea necessary to find
Grose guilty of first degree murder. Id. This court held that the trial court did not have a duty to
instruct the jury that the defendant's diminished capacity could be considered in determining whether
he was capable of forming the necessary mental intent for first degree murder. Id.

              This court held similarly in State v. Rutherford, 876 S.W.2d 118 (Tenn. Crim. App.
1993). Rutherford was mentally retarded, and this court determined that the effect that the
“defendant’s mental retardation would have on his ability to form the culpable mental state was just
another circumstance for the jury to consider in determining if the defendant in fact possessed the


                                                   -33-
required mental state.” Id. at 121. The trial court instructed the jury on the mens rea for second
degree murder by charging it with the legal description of “knowing.” Id. at 120. This court held
that this instruction was proper and no further special instructions were necessary because of the
defendant’s mental condition. Id. at 121.

                In the case at bar, the trial court essentially followed Tennessee Criminal Pattern Jury
Instruction 42.22 in instructing the jury on considering evidence of mental state. The instruction
given to the jury reads,

        The state must prove beyond a reasonable doubt the culpable mental state of
        the accused. Culpable mental state means the state of mind of the accused at
        the time of the offense. This means that you must consider all of the
        evidence to determine the state of mind of the accused at the time of the
        commission of the offense. The state of mind which the state must prove is
        contained in the elements of the offense(s) as outlined in these instructions
        [above][below].

        In this case, you have heard evidence that the defendant might have suffered
        from a mental [disease][defect][condition] which could have affected his
        capacity to form the culpable mental state required to commit a particular
        offense.

        If you find from the evidence that the defendant’s capacity to form a culpable
        mental state may have been affected, then you must determine beyond a
        reasonable doubt what the mental state of the defendant was at the time of the
        commission of the offense to determine of which, if any, offense he is guilty.

                The jury heard evidence of diminished capacity presented by the defendant, and it
found that the defendant possessed the mens rea required to convict for each offense. Just as in
Grose and Rutherford, the trial court in this case did not provide any special instructions regarding
diminished capacity. Moreover, the special instruction that the defendant requested did not refer to
“diminished capacity.” The defendant never identifies in what respects the jury charge actually given
was inferior to the special request. Accordingly, we conclude that the trial court's instruction of the
law in this case was sufficient to incorporate the defendant’s request. This issue is without merit.

c. Mental Disease or Defect

               The defendant complains that the trial court erred by instructing the jury that a mental
disease or defect by itself is not a defense. He argues that it would be a defense if the mental disease
or defect caused him to not understand what he was doing or to not understand that what he was
doing was wrong.




                                                 -34-
               A trial court has a duty to give a complete charge of the law applicable to the facts
of the case. Tenn. Code Ann. § 40-18-110(a); State v. Thompson, 519 S.W.2d 789, 792 (Tenn.
1975). We must review the entire charge and only invalidate it if, when read as a whole, it fails to
fairly submit the legal issues or misleads the jury as to the applicable law. State v. Forbes, 918
S.W.2d 431, 447 (Tenn. Crim. App. 1995); State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App.
1994).

               In the case at bar, the defendant complains of the trial court’s instruction on the
affirmative defense for insanity. The instruction essentially followed Tennessee Criminal Pattern
Jury Instruction 40.16(b). The instruction given to the jury reads,

       The Defendant has raised the defense that he was insane at the time of the
       commission of the offense.

       A person is not responsible for criminal conduct if, at the time of the
       commission of the acts constituting the offense, the person, as a result of a
       severe mental disease or defect, was unable to appreciate the wrongfulness
       of such person’s acts. A mental disease or defect by itself is not a defense.
       The terms “mental disease or defect” do not include any abnormality
       manifested only by repeated criminal or otherwise anti-social behavior.

       The defendant has the burden of proving the defense of insanity. For you to
       return a verdict of not guilty by reason of insanity, the defendant must prove
       both of the following things by clear and convincing evidence:

       (1) [he][she] had a severe mental disease or defect at the time that the acts
       constituting the crime were committed; and

       (2) that as a result of this severe mental disease or defect he was not able to
       understand what he was doing, or to understand that what he was doing was
       wrong.

               Section 39-11-501 of the Tennessee Code Annotated describes the “insanity” defense
and provides that a defendant has an affirmative defense if,

       at the time of the commission of the acts constituting the offense, the
       defendant, as a result of a severe mental disease or defect, was unable to
       appreciate the nature or wrongfulness of such defendant's acts. Mental
       disease or defect does not otherwise constitute a defense. The defendant has
       the burden of proving the defense of insanity by clear and convincing
       evidence.




                                                -35-
Tenn. Code Ann. § 39-11-501(a) (1997).           In the case at bar, the defendant argues that the
statement, “a mental disease or defect by itself is not a defense,” is incorrect and misleading as
compared to the language in section 39-11-501(a) that a “[m]ental disease or defect does not
otherwise constitute a defense.” We disagree. Taken in context, this statement, in conjunction with
the remainder of the instruction, is a proper statement of the law as specified in Code section 39-11-
501(a) and is not misleading. Accordingly, this issue has no merit.

d. Written Instructions Given to the Jury had Portions Crossed Out

               The defendant complains that the written instructions given to the jury were totally
confusing to the jury and prejudicial because, rather than retyping the instructions, the trial court
crossed out inapplicable passages and sections. The defendant argues that it would have been
impossible, despite curative instructions, for the jury to ignore the marked through and crossed out
passages. In support of this argument, the defendant relies upon Rule 30(c) of the Tennessee Rules
of Criminal Procedure.

                 Rule 30(c) provides, "[E]very word of the judge's instructions shall be reduced to
writing before being given to the jury." Tenn. R. Crim. P. 30(c). Failure to follow this rule, while
error, is not reversible unless it more probably than not affected the judgment. Tenn. R. App. P.
36(b); State v. Gorman, 628 S.W.2d 739, 740 (Tenn. 1982). The form of the instructions is not as
important as their content. It is not error for part of the charge to be handwritten while the remainder
is typewritten. State v. Tyson, 603 S.W.2d 748, 754-55 (Tenn. Crim. App. 1980). Our supreme
court recognized in State v. Cravens, 764 S.W.2d 754 (Tenn. 1989), that the reversal in State v.
Martin, 702 S.W.2d 560 (Tenn. 1985), was for the content of the instructions, not the form. Cravens,
764 S.W.2d at 756 (holding that the form of the instructions, although not as clear as directed by
Martin, did not warrant reversal).

                 Furthermore, the defendant did not object to the form of the instruction and agreed
that a curative instruction should be given. Without an objection or a special request tendered, issues
regarding the form or fullness of jury instructions are ordinarily waived unless there is plain error.
State v. Cravens, 764 S.W.2d 754, 756-57 (Tenn. 1989).

                 We have reviewed the written instructions that were provided to the jury in this case.
This jury charge consists of a series of printed, pattern instructions that reference various sections
of the Tennessee Criminal Pattern Jury Instructions. On ten of the printed pages, the trial court
crossed out certain language that consisted mostly of definitions and elements of the offenses that
did not apply. The trial court instructed the jury to ignore the crossed out sections. The presumption
is that the jury followed instructions given by the trial court. See, e.g., Spicer v. State, 12 S.W.3d
438, 449 n.14 (Tenn. 2000); State v. Nesbit, 978 S.W.2d 872, 885 (Tenn. 1998).

              There is no indication that the jurors in this case did not follow the instructions, and
we see no prejudicial error. We would, however, caution against such a practice in the future.
Providing written instructions to the jury with blackened out portions is “risky” at best because


                                                 -36-
prejudicial material might be sent to the jury. See Santana v. State, 548 So.2d 293 (Fla. App. 4 Dist.
1989).

                                    V. Writ of Error Coram Nobis

                The defendant complains that the trial court erred by denying his petition for error
coram nobis based on the recanted testimony of his former wife. A writ of error coram nobis is
available to a defendant in a criminal prosecution. See Tenn. Code Ann. § 40-26-105 (1997);
Newsome v. State, 995 S.W.2d 129, 133 (Tenn. Crim. App. 1998); State v. Hart, 911 S.W.2d 371,
374 (Tenn. Crim. App. 1995). However, the writ is an exceedingly narrow remedy which is
appropriate only when the defendant was not at fault for not presenting “newly discovered evidence
relating to matters which were litigated at the trial if the judge determines that such evidence may
have resulted in a different judgment, had it been presented at the trial.” Tenn. Code Ann. §
40-26-105; Hart, 911 S.W.2d at 374.

                In State v. Mixon, 983 S.W.2d 661 (Tenn. 1999), our supreme court addressed the
writ of error coram nobis. The court agreed with this court’s rule

        that a new trial should be granted upon the basis of newly discovered
        recanted testimony only if: (1) the trial court is reasonably well satisfied that
        the testimony given by the material witness was false and the new testimony
        is true; (2) the defendant was reasonably diligent in discovering the new
        evidence, or was surprised by the false testimony, or was unable to know of
        the falsity of the testimony until after the trial; and (3) the jury might have
        reached a different conclusion had the truth been told.

Mixon, 983 S.W.2d at 672-73 and n.17. On appeal, the judgment of the trial court will not be set
aside absent an abuse of discretion. See Tenn. Code Ann. § 40-26-105; State v. Hart, 911 S.W.2d
371, 375 (Tenn. Crim. App. 1995).

                 In the case at bar, Jeanne Beth recanted her trial testimony at a post-trial evidentiary
hearing. Her new testimony was that the homicide victim was going to the door to let the defendant
into the house, that the defendant never threatened her or her daughter after he entered the house, and
that she left the house with him voluntarily and freely. She said that the homicide victim’s family
exerted pressure on her to testify as she did during the trial. She denied that the defendant’s family
exerted pressure on her to recant her testimony.

                The trial court, in a thoughtful, detailed order denying the writ, found that Jeanne
Beth’s testimony at the evidentiary hearing was not credible. The trial court relied upon the
witness’s statement made to the police hours after the incident and another statement made on the
Tuesday following the Friday night incident. Both of these statements were found to be consistent
with the witness’s trial testimony and contradictory to her new testimony. The trial court surmised
that the witness was asking the court to ignore the fact that “her husband had just killed a man in her


                                                  -37-
presence, that she was divorcing him, and that he was armed.” Accordingly, we conclude that the
trial court did not abuse its discretion in finding that the witness was not credible in her testimony
at the evidentiary hearing or in denying the defendant’s writ of error coram nobis.

                                          CONCLUSION

                In summary, in this case it was reversible error on the felony murder charge to not
instruct the jury as to the lesser-included offenses of second degree murder, reckless homicide, and
criminally negligent homicide. We reverse the defendant’s felony murder conviction and remand
for a new trial on the felony murder count. In all other respects, we affirm the defendant’s reckless
homicide, aggravated burglary, and especially aggravated kidnapping convictions, for which the
defendant is serving an effective, combined sentence of 20 years. Upon retrial of the felony murder
count, any resulting conviction of felony murder or of a lesser-included offense will merge with the
defendant’s reckless homicide conviction.

                                               _____________________________________

                                               JAMES CURWOOD WITT, JR., JUDGE




                                                -38-
