         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                    Remanded by Supreme Court September 10, 2001

          STATE OF TENNESSEE v. REGINALD MERRIWEATHER

                      Appeal from the Circuit Court for Madison County
                       No. 98-549    John Franklin Murchison, Judge



                  No. W1999-02050-CCA-R3-CD - Filed February 11, 2002
                  No. W2001-02206-CCA-RM-CD - Filed February 11, 2002


This case returns to this court after remand by order of the Tennessee Supreme Court. The defendant
appeals his jury convictions of attempted second degree murder, aggravated assault, and especially
aggravated robbery. He raises the following issues: (1) whether the trial judge erred in denying
defendant’s request for a mistrial based on a juror’s response during voir dire; (2) whether the trial
court erred in directing a witness to answer questions on cross-examination; (3) whether the evidence
was sufficient to support his convictions; and (4) whether the trial court erred in failing to instruct
the jury as to certain lesser-included offenses. This court initially reversed the appellant’s
conviction for aggravated assault, based on double jeopardy considerations, and affirmed the
judgment of the trial court on all other issues. See State v. Reginald Merriweather, No. W1999-
2050-CCA-R3-CD, 2001 WL 242570 (Tenn. Crim. App., Jackson, March 6, 2001) (perm. to appeal
granted). On June 5, 2001, the Supreme Court released its decision in the case of State v. Curtis
Jason Ely and State v. Laconia Lamar Bowers, 48 S.W.3d 710 (Tenn. 2001). In Ely and Bowers,
the Court announced new standards regarding the duty to instruct on lesser-included offenses. In
light of the decision in Ely and Bowers, the Supreme Court remanded the case to this court to
determine whether error in not instructing facilitation was harmless. See State v. Reginald
Merriweather, No. W2001-02206-CCA-RM-CD, Madison County (Tenn., September 10, 2001).
After revisiting this issue under the standards announced in Ely and Bowers, we reverse the
defendant’s convictions and remand this matter for a new trial.

Because Ely and Bowers involve the issue of lesser-included offenses only, the remand does not alter
the analyses in our original opinion as to other issues. However, the necessity of a new trial does
render premature our earlier determination to dismiss the conviction for aggravated assault. So as
to avoid confusion, sections I and II from our original opinion will be restated in their entirety.
Sections III and IV, dealing with the conviction for aggravated assault and the issue of lesser-
included offenses, have been changed.

    T. R. A. P. 3 APPEAL AS OF RIGHT; Judgment of the Circuit Court Reversed and
                                   Remanded.
CORNELIA A. CLARK , SP. J., delivered the opinion of the court, in which DAVID H. WELLES and
ALAN E. GLENN, JJ. joined.

J. Colin Morris, for the appellant, Reginald Merriweather.

Paul G. Summers, Attorney General, Mark E. Davidson, Assistant Attorney General, Jerry G.
Woodall, District Attorney General, and Donald H. Allen, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                           OPINION ON REMAND

         On April 17, 1998, James Thomas Wyatt was dating a woman named Elizabeth Smith, who
lived in an apartment on Ridgemont Drive in Madison County. He had used crack cocaine earlier
in the day. According to Wyatt, around 12:30 or 1:00 Miguel Miller and defendant Reginald
Merriweather arrived at the Ridgemont Drive house. He had never met them before. They
attempted to sell Mr. Wyatt some crack cocaine. Wyatt agreed to purchase cocaine, and Miller left
to get it.

         A few minutes later Wyatt and the defendant received a call to come to another residence1
to purchase cocaine. The defendant went with Wyatt to that residence.2 Wyatt waited in the living
room while the two men went into a bedroom. A small boy also was present in the living room,
watching cartoons on television. Wyatt testified that Miguel Miller and the defendant then gestured
to him to come into a back bedroom. Wyatt understood that he was going to be handed cocaine
when he arrived in the bedroom. However, he was instead confronted by Miller, who took a knife
and slit Wyatt’s throat. Wyatt asked why Miller had done this, and he responded, “Because I wanted
to.” Miller then slashed him in the stomach. Wyatt began to fall backward. Defendant
Merriweather pushed him forward so that he would fall on a mattress instead of on the floor. At that
point Mr. Wyatt lapsed into unconsciousness.

        The next thing Wyatt remembered was being placed into the back seat of his own truck by
Miller and Merriweather. While he was riding down the road in the back of the truck he heard one
of the defendants say to the other, “We need to make sure this white m----- f----- is dead”. The other
defendant then slapped him in the head. The victim could not identify which man took which action,
because he did not open his eyes during this time period. He wanted the defendants to think he was
dead. Once again he lost consciousness.



         1
        The residence was located at 121 Hickory Hollow Road, and had been occupied for about six months by
Miguel Miller and the defendan t.
         2
          On direct examination Wyatt testified that he thought Miller left Ridgemont Drive first, and the defendant later
rode with him from Sm ith’s to the Hick ory H ollow a ddress. On cross-examination he admitted that he was not certain
which man left first, and which rode later with him.



                                                           -2-
       Wyatt next remembered waking up in his truck and finding that he was locked in and had no
keys. The truck had been wedged between some trees. His wallet containing $700.00 was missing.
Wyatt finally managed to kick a window out of the truck and exit. He found two jackets in the tool
box. He wrapped them around his wounds and walked toward the sound of a running lawn mower.

       Gregory Allen Jeffries was mowing his lawn when he heard his dogs barking and observed
a man he did not know standing in the middle of a field. He approached the man, Mr. Wyatt, and
discovered that his neck was severely cut. Wyatt was very weak and bloody. Jeffries called for an
ambulance, then placed Wyatt in the back of his own truck and drove him up to the main road to wait
for medical personnel to arrive.

        Deputy Chad Lowery of the Madison County Sheriff’s Department was dispatched to the
Jeffries home in Madison County to investigate a reported stabbing. When Deputy Lowery arrived
he encountered Mr. Wyatt, who had suffered a severe cut on his neck and was bleeding profusely.
Wyatt was holding an army jacket or some article of clothing to his neck to stop the blood flow.
Wyatt appeared to be conscious at that time. Deputy Lowery also noticed another injury to Mr.
Wyatt’s chest. He assisted in placing Wyatt in the ambulance, then drove his car to the hospital.
Doctors there immediately began to work on Mr. Wyatt.

        Wyatt was hospitalized for eight days. He suffered permanent paralysis to the right side of
his face because of the cuts he sustained.

        Sheriff David Woolfork testified that he participated in the investigation, which eventually
led officers to Miguel Miller and the defendant. Woolfork conducted the initial interview of Miguel
Miller. Miller gave his written consent for officers to search the Hickory Hollow residence. Miller
gave a statement admitting his involvement in the stabbing and robbery. As a result, Miller was
charged with attempted first degree murder, aggravated assault, and especially aggravated robbery.
Miller eventually pled guilty to each of those offenses.

        Investigator Anthony Heavner participated in gathering evidence from the crime scene and
the truck. Blood was observed in both locations. Heavner obtained two knives that were hidden
underneath the mattress in the defendant’s bedroom. He also identified cocaine found in that room,
and photographs taken of the crime scene.

        Heavner also interviewed the defendant. The defendant signed a waiver of rights form before
speaking. His statement was recorded and played for the jury at trial. Defendant told Detective
Heavner that he first met the victim with Miguel Miller at a house on Ridgemont. Defendant then
left and returned to the Hickory Hollow Road residence he shared with his girlfriend and Miller. A
short time later Miller returned to the Hickory Hollow residence on foot. He then got a truck, left,
and returned with Wyatt.

       According to defendant’s statement, Miller and Wyatt went into defendant’s bedroom to
“mak[e] some transactions”. Defendant paid no attention to them, but remained in the living room,
waiting for his young son to come in from school. Miller then called to the defendant to come to the

                                                -3-
bedroom. When defendant arrived in the bedroom, he found that Wyatt’s throat had been cut and
he was bleeding profusely. However, Wyatt was still conscious. He was saying his money already
had been taken, and begging for his life. Defendant claimed he had no advance knowledge of
Miller’s actions.

        Defendant stated to Heavner that Miller then asked for his help in disposing of Wyatt.
Defendant acknowledged that he helped load Wyatt into the truck, then drove with him to a deserted
field and hid the truck in some bushes. During that trip Miller gave defendant half of the money.
According to defendant, he then jumped out of the truck and ran to a relative’s trailer.

       Miguel Miller testified for the defendant at trial. He stated that he met Wyatt at Ms. Smith’s
house, and that they got involved in doing drugs together. They smoked a gram of crack cocaine.
According to Miller, defendant Merriweather was not present at the Smith residence.

        Later Miller and Wyatt rode in Wyatt’s truck back to Miller’s house. Defendant was present
there. Wyatt had agreed to buy more crack from Miller. Miller testified that he originally planned
to rob Wyatt, and then decided to cut his throat. He testified that prior to executing it, he discussed
the robbery plan with the defendant, who tried to stop him. Miller, high on cocaine, would not
listen. He stated that he used two different knives in the stabbing. Miller denied that defendant
knew anything about his actions or assisted him in any way in the stabbing.

        Miller testified that he asked Wyatt for his money while he was sitting on the bed
immediately after the stabbing. By this time defendant had returned to the living room, and did not
witness the robbery. Wyatt then passed out. Miller wrapped him in a blanket, carried him outside,
and loaded him into the truck. Defendant again did not participate in this process. He was angry
at Miller, and attempted to convince him to take Wyatt to the hospital. Miller refused. Defendant
rode with Miller into the countryside to leave the victim and his truck. They left the truck and
walked to the home of Miller’s cousin.

        According to Miller, Wyatt had only $100 with him. Miller claimed none of that money was
given to the defendant. Instead, Miller gave defendant fifty dollars of his own money for rent that
was due. The money was transferred at the house, before the robbery occurred. Miller also testified
that defendant Merriweather did not smoke cocaine, although he did drink. Merriweather did not
participate in the crimes in any way. Miller stated he planned the robbery from the beginning.

      Miller acknowledged that he had already pled guilty in this case to attempted first degree
murder, especially aggravated robbery, and aggravated assault.

       During cross-examination Miller’s testimony varied significantly from both his own
testimony on direct examination and from defendant’s written statement. He agreed that the
stabbing occurred in defendant’s bedroom rather than Miller’s. He also stated that he obtained
$200.00, rather than $100.00, from Wyatt. Miller reiterated that, when he told the defendant that he
planned to rob Wyatt, defendant tried to talk him out of it.


                                                 -4-
        However, when he was then asked if defendant had taken any steps to warn Wyatt of the
planned robbery, Miller again changed his story. He stated that he did not advise defendant about
the robbery in advance. He then became argumentative, refusing to answer the questions posed to
him, demanding to know whether they had been posed to the defendant. On several occasions the
trial judge instructed him to answer. Miller changed his testimony again, stating that he told
defendant about the robbery in advance, and the defendant tried to stop him. Miller denied that
defendant’s son was present during the events in question. He also denied there were any drugs in
the residence. When shown one of the photographs taken by police in defendant’s bedroom, he first
admitted cocaine was present in the defendant’s room. However, he claimed it was his. Almost
immediately, however, he returned to his position that there was no cocaine in the Hickory Hollow
apartment.

        The defendant testified on his own behalf. Contradicting Miller’s testimony, he
acknowledged first meeting Wyatt at Elizabeth Smith’s house. He admitted drinking three or four
beers while he was there, but denied using drugs. He said that he and Miller left together and
returned to their residence. Miller left and returned to Smith’s house. After ten or fifteen minutes
he returned with Wyatt in a gray truck. Wyatt entered the house with Miller.

       Defendant then testified that Miller called him to the bedroom and told him he planned to
rob Wyatt. Defendant claimed he thought Miller was joking, because he was high on cocaine.
Defendant saw his son approaching outside, so he left the bedroom where he understood the other
two men would conduct a drug transaction. He first said he spoke to his son, then stated that he
merely saw his son walking down the hill outside. Miller then called to him to come to the bedroom.

        Defendant walked into the bedroom and found that Wyatt’s throat had been cut. That sight
made him panic, so he quickly ran outside and sent his son to a friend’s house. Then he returned
inside to the bedroom. He found Wyatt with blood gushing from his neck, conscious and saying,
“I’ve done gave you all my money. Just don’t do that no more.” Miller picked Wyatt up, wrapped
him in a blanket, and indicated he planned to put him in his truck. Defendant testified that he
continued to try to stop Miller. He was standing by the truck when Miller threw Wyatt in. Wyatt’s
head “flopped out”, throwing blood onto the defendant. Defendant pushed his head back in and got
into the truck. Miller then drove off.

        Defendant testified that he continued begging Miller to take Wyatt to the hospital. Miller
was “acting crazy”. They actually passed the hospital, but Miller would not stop. Miller drove to
a field behind his grandparents’ home and left Wyatt and the truck. Although he was scared of
Miller, defendant followed him on foot to another house.

       Concerning the money, defendant testified that Miller gave him $100 for rent, just as he did
every week. He denied seeing Miller take money from Wyatt, or receiving any of Wyatt’s money
himself.

        Defendant admitted that he did not warn Wyatt about the robbery plan because he did not
believe Miller was serious. Defendant denied slapping the victim or saying they needed to be sure

                                                -5-
he was dead. Defendant asserted that both Wyatt and Miller had testified incorrectly about the
events in question, probably because both were high on cocaine at the time. Defendant admitted that
Miller often smoked crack cocaine, but was unaware that he sold it. Defendant admitted that he
often drank beer and smoked marijuana with Miller.

        Defendant denied that he had participated in any way in the crimes. He admitted he had
several prior felony and misdemeanor convictions. He asserted that he had cooperated fully with
law enforcement officers.

       On cross-examination defendant confirmed the details of his prior convictions. He also
admitted using marijuana, but denied using cocaine.

        Defendant reiterated that he and Miller left Elizabeth Smith’s house and returned to their own
residence together. Miller then went back to Smith’s and returned with Wyatt in Wyatt’s truck.
Wyatt sat down in the living room and Miller went back to defendant’s bedroom. Miller then called
defendant back and told him he planned to rob Wyatt. Defendant opposed this plan, then left the
room as Wyatt entered. He did not mention the robbery plan to Wyatt as they passed. When he was
called back in a few minutes later, Wyatt’s throat had been cut. Defendant then went and told his
son not to enter the house. He denied that his son ever entered the house. He testified that Wyatt
watched cartoons alone.

        Defendant testified that he knew Miller kept a knife, but he did not see it prior to the
stabbing. He did not warn Wyatt about the impending robbery because he did not believe it would
happen. He vehemently denied being in the bedroom when the stabbing and robbery occurred. He
also denied touching him or helping carry him to the truck. His only contact with Wyatt was to push
his head back into the truck.

        Defendant stated that he was in a panic from the time he first observed the injured Wyatt.
He had gotten his life back together after serving several prison terms. He had a job. He knew he
needed to get help for Wyatt. That is why he got into the truck with Miller. He admitted that he
never phoned for help, even after leaving Miller. He denied receiving any of Wyatt’s money, and
said the reference to “half the money” meant half of the rent that was due. He continued to assert
that he did not stay behind and go for help because he was in shock.

                                                  I.

         Defendant first contends that the trial court erred in denying his motion for a mistrial after
a juror, Mr. Harris, allegedly tainted the entire jury pool with remarks concerning his inability to be
impartial. The specific exchange complained of occurred at the very beginning of the assistant
district attorney’s voir dire of the potential jury panel:

       MR. ALLEN:              All right, let me make sure I have everyone in the right
                               place. Mr. Harris, Mr. Brook and Ms. Cash and Ms.
                               Rowland. I think I got everybody.

                                                 -6-
                Have each of you four been able to hear all of my
                statements and questions of your fellow jurors?
                I assume none of you know any of the people involved in
                this case. Or do you?
                Okay, Mr. Harris, you do.
JUROR HARRIS:   I’ve met him.
MR. ALLEN:      You have met Mr. Merriweather?
JUROR HARRIS:   Yeah, through a friend, you know, over at a house, over at
                somebody else’s house.
MR. ALLEN:      You met him over at a friend’s house?
JUROR HARRIS:   Yeah.
MR. ALLEN:      About how long ago has that been?
JUROR HARRIS:   I don’t remember. A year or so ago.
MR. ALLEN:      Was this a close friend of yours whose house you were at
                when you met him?
JUROR HARRIS:   The lady was.

MR. ALLEN:      And did you, I guess, have a conversation with Mr.
                Merriweather that night or that day?
JUROR HARRIS:   No. I just knew him through another person he was
                visiting with, a conversation with him.
MR. ALLEN:      Have you seen or talked to him since that one occasion?
JUROR HARRIS:   No.
MR. ALLEN:      But you do know Mr. Merriweather. Have you met any
                of his family or any of his associates or friends?
JUROR HARRIS:   I know Mr. Merriweather, but I don’t know any of his
                family.
MR. ALLEN:      But you do know the Defendant.
JUROR HARRIS:   Yeah, I’ve seen him.
MR. ALLEN:      Do you think that might in some way affect your ability to
                make a fair and impartial decision in his case, the fact
                that you know him and met him?
JUROR HARRIS:   I don’t know. The way I know him, being the situation it
                was when I met him.
MR. ALLEN:      All right. Something about the situation or the way that
                you met him that you think might make it difficult for you
                to serve as a fair and impartial juror?
JUROR HARRIS:   Yes, it was.
MR. ALLEN:      Without getting into what the details were, do you think
                it might?
JUROR HARRIS:   It might, because – you know, like I said, because of the
                situation, you know, the way I met him and, you know,
                where the place was.


                                -7-
MR. ALLEN:          Well, the bottom line is whether or not you can make a
                    fair and impartial decision. And the reason we’re asking
                    you these questions is whether or not you think based
                    upon your contact with him sometime in the past, because
                    of the circumstances of that contact, is that going to play
                    a part in that decision?
JUROR HARRIS: I don’t know. It may not, you know.
MR. ALLEN:          But you’re just not sure.
JUROR HARRIS: No, because, like I said, the situation, but I can hear the
                    evidence.
MR. ALLEN:          Okay. Anybody else know the Defendant or have any
                    contact with him before?
                    I believe that’s all.
THE COURT:          Mr. Morris.
MR. MORRIS:         Mr. Harris, are you saying you can’t be impartial? Is that
                    what I’m hearing?
JUROR HARRIS: Well, I’m just saying, you know, I wouldn’t want to, you
                    know, to do nothing to jeopardize, because like I say, I
                    had met him –
THE COURT:          Let’s don’t get into any details about this.
MR. MORRIS:         I just want to know if you can be fair and impartial, that’s
                    all, and objective, and look at the facts in this case in
                    particular, regardless of how you may or may not know
                    Mr. Merriweather or where you were or whatever
                    happened. Can you look at this case objectively and listen
                    to the facts from the witness stand, follow the Judge’s
                    instructions, hold the State to its burden of proving the
                    Defendant guilty beyond a reasonable doubt, go in the
                    jury room and deliberate on this case? Can you do all
                    that?
JUROR HARRIS: Oh, I’m not sure I can do that, you know, honestly,
                    because – like I say, because I knew him.
THE COURT:          I take it that you understand you can’t get into details on
                    the matter, but there is something that’s going to give you
                    problems. I kind of can read that into it, right?
JUROR HARRIS: Yes, sir.
THE COURT:          You’re excused.
                    James C. Volner.
MR. MORRIS:         Your Honor, can we approach?
THE COURT:          Yes.
(There was a conference at the bench, out of the hearing of the prospective
jurors as follows.)
MR. MORRIS:         Your Honor, I’ve never faced a situation like this before,
                    but I think I better make an objection.

                                      -8-
       THE COURT:          On what?
       MR. MORRIS:         Or ask the Court to consider a mistrial. Mr. Harris has
                           tainted the whole jury pool.
       THE COURT:          Let’s go out in the hall.
       (There was a discussion off the record; and jury selection continued without
       further objection.)

        A mistrial shall be declared in criminal cases only in the event that a manifest necessity
requires such action. State v. Millbrooks, 819 S.W.2d 441 (Tenn. Crim. App. 1991). In other words,
a mistrial is an appropriate remedy only when a trial cannot continue, or a miscarriage of justice
would result if it did. State v. McPherson, 882 S.W.2d 365, 370 (Tenn. Crim. App. 1994). The
decision to grant a mistrial lies within the sound discretion of the trial court and this court will not
interfere with the exercise of that discretion absent clear abuse appearing on the face of the record.
See State v. Hall, 976 S.W.2d 121, 147 (Tenn. 1998). Moreover, the burden of establishing the
necessity for mistrial lies with the party seeking it. State v. Williams, 929 S.W.2d 385, 388 (Tenn.
Crim. App. 1996).

        Initially, we note that the defendant has not preserved in the record the argument on the
motion for mistrial. It is the appellant’s duty to preserve an adequate record for purposes of appeal.
Tenn. R. App. P. 24(b); State v. Bennett, 798 S.W.2d 783, 790 (Tenn. Crim. App. 1990). Failure to
do so results in waiver of consideration of the issue on appeal, and a presumption that the trial court
ruled correctly. State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993).

        Second, no objection was made by defense counsel to the questions being posed by the
prosecutor. Defense counsel himself asked a similar series of questions in the presence of the entire
jury panel before deciding to present his motion. No request was ever made for individual voir dire.
 This failure to object also normally results in waiver of the issue. See State v. Little, 854 S.W.2d
643, 651 (Tenn. Crim. App. 1992).

        Third, at no time during the course of the proceedings did defense counsel request any
curative instruction to the jury about the possible prejudice that might have occurred. This failure,
too, constitutes waiver of the issue. Tenn. R. App. P. 36(a); State v. Jones, 733 S.W.2d 517, 522
(Tenn. Crim. App.), per. app. denied (Tenn. 1987).

         Fourth, the motion for new trial does not specifically address this issue, asserting only that
“defendant was not tried by an impartial jury”. Since oral argument on the motion is not preserved
in the record, we are unable to determine if this issue was specifically raised to the trial court. This
failure also generally results in waiver of the issue. Tenn. R. App. P. 3(e).

       However, a review by this court of the entire exchange reveals no clear prejudice done to the
defendant during the questioning of the juror. The juror admitted that he had previously met the
defendant at a friend’s house, and had had a single conversation with him. He expressed uncertainty
about his ability to be fair and impartial because of the “situation” when they met. While defense
counsel speculated this was a reference to some improper activity, it might equally have been a

                                                  -9-
simple reference to having met in a social situation and sharing mutual friends. Both trial counsel
and the court asked the prospective juror not to recite any details, and he did not. Absent additional
information, it is pure speculation as to what caused his discomfort, and is even more speculative
to assume that other members of the potential jury panel would be more likely to assume a negative
rationale rather than a positive one.

        Generally, errors committed during the selection, summoning and empaneling of juries do
not affect the validity of a verdict in a criminal case unless prejudice has enured to the accused. See
Helton v. State, 195 Tenn. 36, 51, 255 S.W.2d 694, 700, cert. denied, 346 U.S. 816, 74 S.Ct. 28, 98
L.Ed. 343 (1953); State v. Boyd, 867 S.W.2d 330, 337 (Tenn. Crim. App. 1992), per. app. dismissed
(Tenn. 1993); State v. Elrod, 721 S.W.2d 820, 822 (Tenn. Crim. App.), per. app. denied (Tenn.
1986); State v. Wiseman, 643 S.W.2d 354, 359 (Tenn. Crim. App.), per. app. denied (Tenn. 1982).
The defendant has failed to substantiate his claim beyond mere speculation. He has not
demonstrated that he was prejudiced by any error that was committed during voir dire. Without
more, this court must conclude there was no manifest necessity for a mistrial and that the trial court
did not abuse its discretion by refusing to grant a mistrial. This issue is without merit.

                                                  II.

        Defendant next contends that the trial court erred in its instructions to witness Miguel Miller
during his testimony before the jury. This issue was not raised in defendant’s motion for a new trial.
Therefore, it is waived. Tenn. R. App. P. 3(e). However, defendant asserts that the judge’s remarks
constitute plain error and, as such, are subject to review. See Tenn. R. Crim. P. 52(a).

        Miguel Miller, the original co-defendant in this case, was called by the defense during its
case in chief. During cross-examination by the assistant district attorney, Miller engaged in a pattern
of responding to the prosecutor’s questions with questions of his own. His answers were
unresponsive and contradictory on a number of occasions. On four separate occasions the trial judge
asked the witness to answer questions specifically. The witness continued his unresponsive answers.
The last exchange, challenged by defendant in his brief, was as follows:

              Q.        You took his wallet? You got a problem there, Mr. Miller?
              A.        Do you have a problem?
              Q.        You got how much money out of his pocket?
              A.        I already told you that.
              Q.        Tell me again. I don’t remember.
              A.        Yeah, you remember.
              THE COURT:       He asked how much money. Come on, Mr. Miller.
       How much money did you get from him?
              THE WITNESS:     He already know that. I ain’t going to answer that
       again.
              THE COURT:       You’re not?
              THE WITNESS:     He already knows the answer.


                                                 -10-
               THE COURT:             If you don’t answer these questions, I’m going to
       tell those ladies and gentlemen to disregard every statement you’ve made. And
       if you want me to do that, that’s what I’m going to do, every word that you say.
       A witness cannot get on the stand, give the testimony they want to and refuse to
       give it -- all of the testimony. So please –
                A.              What was the question again?
                THE COURT:            Please cooperate with us, Mr. Miller. I wish you
       would. If you don’t, your testimony and you are both going out of here.
                Q.              How much money did you get from Mr. Wyatt?
                A.              $200.
                Q.              Okay. And you say you turned around and give him $50.
                A.              Of my check.


        Tenn. R. Evid. 611(a) provides that “a court shall exercise appropriate control over the
presentation of evidence. . .” The propriety, scope, manner, and control of examination of witnesses
is entrusted to the sound discretion of the trial court and will not be interfered with absent an abuse
of that discretion. State v. Hutchison, 898 S.W.2d 161, 172 (Tenn. 1994). The defendant never
objected to the judge’s statement to the witness, never asked for the jury to be excused, never asked
for a curative instruction, and did not include this matter in his motion for new trial.

        A trial court may admonish a witness suspected of untruthfulness of the significance of lying
under oath. State v. Schafer, 973 S.W.2d 269, 278 (Tenn. Crim. App. 1997). However, a trial court
may not declare its belief the witness is being untruthful and threaten the witness with prosecution
for perjury to such a degree that the witness changes his testimony to the detriment of the defendant.
Id. at 278. When the trial court’s actions exceed the bounds of an appropriate warning, “the
defendant’s right to a fair trial is compromised and the outcome of the trial brought into question”.
Id.

       The witness in this case clearly evidenced, through his actions, that he did not intend to
cooperate with the prosecutor’s attempt to conduct cross-examination. He had to be admonished
more than once. The trial judge merely attempted to require him to be more responsive. He did not
exceed the bounds of an appropriate warning. No abuse of discretion occurred. There is no plain
error. This issue is without merit.

                                                 III.

       Defendant next contends that the evidence is insufficient to sustain his convictions of
attempted second degree murder, aggravated assault, and especially aggravated robbery. When an
accused challenges the sufficiency of the convicting evidence, the standard is whether, after
reviewing 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, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Questions concerning the credibility of the
witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the

                                                 -11-
evidence, are resolved by the trier of fact, not this court. State v. Morris, 24 S.W.3d 788, 795 (Tenn.
2000). Nor may this court reweigh or reevaluate the evidence. State v. Evans, 838 S.W.2d 185, 191
(Tenn. 1992). A verdict of guilty by the jury, approved by the trial judge, accredits the testimony
of the state’s witnesses and resolves all conflicts in the testimony in favor of the state. See State v.
Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).

       The defendant was charged with attempt to commit first degree murder, aggravated assault,
and especially aggravated robbery. He was convicted of attempt to commit second degree murder,
aggravated assault, and especially aggravated robbery.

       To obtain a conviction for attempted second degree murder, the state must prove that
defendant knowingly attempted to kill the victim. See Tenn. Code Ann. §§39-12-101, 39-13-210.

       To obtain a conviction for especially aggravated robbery, the state must prove (1) the
defendant perpetrated an intentional or knowing theft of property from the person of another by
violence or putting the person in fear; (2) the defendant accomplished the theft with a deadly
weapon; and (3) the victim suffered serious bodily injury. See Tenn. Code Ann. §§39-13-403(a) and
39-13-401.

        To obtain a conviction for aggravated assault, the state must prove the defendant (1)
intentionally or knowingly committed an assault as defined in Tennessee Code Annotated section
39-13-101 and, (2) caused serious bodily injury to the victim or used or displayed a deadly weapon.
See Tenn. Code Ann. §39-13-102(a).

        A person may be convicted of each of these three offenses under a criminal responsibility
theory. A defendant is criminally responsible as a party to an offense if the offense is committed by
the defendant’s own conduct, by the conduct of another for which the defendant is criminally
responsible, or by both. See Tenn. Code Ann. §39-11-401(a). A defendant is criminally responsible
for an offense committed by the conduct of another if, acting with intent to promote or assist in the
commission of the offense, or to benefit in the proceeds or results of the offense, the defendant
solicits, directs, aids, or attempts to aid another person to commit the offense. See Tenn. Code Ann.
§39-11-402(2).

        Both Miguel Miller and the defendant testified that Miller advised defendant in advance
about his plan to rob the victim. The victim testified that the two men were together alone in the
bedroom before he entered and that, immediately upon his entry, Miller attacked him with two
different knifes, seriously injuring him, and took his money. He testified that the defendant assisted
by directing his body to fall in a location where blood would not be spilled across the room. Both
men then assisted in placing him in his truck, driving him to a deserted location, locking him in the
truck, and leaving him there without assistance. One of the men commented to the other during the
drive that they needed to be sure he was dead. Defendant also acknowledged receiving money from
Miller shortly after Miller took money from the victim. He never warned the victim, called the
police, or sought to get the victim any assistance. The victim was hospitalized for eight days and
suffered partial paralysis to his face as a result of his injuries.

                                                 -12-
        A verdict of guilty accredits the theory of the state and removes the presumption of
innocence. While the testimony in this case was contradictory, the jury could have concluded, taking
all evidence in the light most favorable to the state, that the defendant was criminally responsible
for the attempted murder, aggravated assault, and especially aggravated robbery of the victim. The
jury needed only to find that the defendant, acting with the intent to promote or assist the
commission of the offenses, or to benefit in the proceeds of the offense, aided Miller in committing
the offenses. See Tenn. Code Ann. §39-11-402(2). The proof is sufficient to support the convictions
on all three counts. This issue is without merit.

        In our original opinion we dismissed the defendant’s conviction for aggravated assault based
on double jeopardy issues. The Tennessee Constitution protects defendants from multiple
punishments for the same offense. See Tenn. Const. Art.1, §10; State v. Denton, 938 S.W.2d 373,
378 (Tenn. 1996). Because this case is being remanded for a new trial, it is premature to address this
issue. However, our analysis of that issue is still valid. Should the defendant after retrial be
convicted of both attempted homicide and aggravated assault arising out of a single attack on a
single victim, the trial court should apply the three prongs of the Denton test to determine if a double
jeopardy violation has occurred.

                                                  IV.

         The defendant finally contends that the trial court erred by failing to instruct the jury about
the possible lesser-included offenses of criminal responsibility for facilitation of a felony and
accessory after the fact. See Tenn. Code Ann. §§39-11-403, 39-11-411. This issue was not raised
at trial or in the motion for new trial. Therefore, generally it is deemed waived. Tenn. R. App. P.
3(e).

       Additionally, defendant in his brief does not cite any case law in support of his argument.
His entire argument on this issue is:

        IV. WHETHER THE COURT COMMITTED PLAIN ERROR BY NOT
        INSTRUCTION (sic) THE JURY OF THE LESSER INCLUDED OFFENSES
        OF CRIMINAL RESPONSIBILITY FOR FACILITATION OF A FELONY
        AND ACCESSORY AFTER THE FACT.

               It is the Defendant’s position that the Court committed Plain Error by
        not instructing the lessor (sic) included offenses of Criminal Responsibility for
        Facilitation of a Felony and Accessory after the Fact. It is the Defendant’s
        position that after all of the proof in this case, both of these instructions should
        have been submitted to the jury for their consideration. The Defendant argues
        that this is Plain Error under Rule 52(b) of the Tennessee Rules of Criminal
        Procedure.



                                                 -13-
This failure, too, generally acts as a waiver of the issue. Tenn. Crim. App. R. 10(b). However, the
defendant argues that the trial court’s failure to properly instruct on lesser-included offenses is plain
error under Rule 52(b), Tennessee Rules of Criminal Procedure. We agree that a trial court’s failure
to instruct the jury on a lesser-included offense, where that instruction is warranted by the evidence
adduced at trial, may properly be reviewed by this court as plain error. See State v. Brooks, 909
S.W.2d 854, 860 (Tenn. Crim. App. 1995).

                                          A. Accessory After the Fact

         Defendant first claims the trial court should have instructed the jury about the offense of
accessory after the fact. “A person is an accessory after the fact who, after the commission of a
felony, with knowledge or reasonable ground to believe that the offender has committed the felony,
and with the intent to hinder the arrest, trial, conviction or punishment of the offender: (1) [h]arbors
or conceals the offender; (2) [p]rovides or aids in providing the offender with any means of avoiding
arrest, trial, conviction or punishment; or (3) [w]arns the offender of impending apprehension or
discovery.” Tenn. Code Ann. §39-11-411(a).

        In State v. Hodgkinson, 778 S.W.2d 54, 63 (Tenn. Crim. App.), perm. app. denied (Tenn.
1989), this court held that accessory after the fact is a separate offense, rather than a lesser-included
offense of a felony committed by the perpetrator of a crime. See Monts v. State, 214 Tenn. 171, 379
S.W.2d 34, 43 (1964); State v. Hoosier, 631 S.W.2d 474, 476 (Tenn. Crim. App.) perm. app. denied
(Tenn. 1982). Since the defendant was not charged separately with this offense, the trial court was
under no duty to instruct the jury about it. This assertion is without merit.

                                           B. Facilitation of a Felony

        Trial courts are under a duty to ‘“instruct the jury on all lesser-included offenses if the
evidence introduced at trial is legally sufficient to support a conviction for the lesser offense.”’ State
v. Burns, 6 S.W.3d 453, 464 (Tenn. 1999) (quoting State v. Langford, 994 S.W.2d 126, 128 (Tenn.
1999)). This duty exists even absent a request from the defendant. The trial judge did, over the
objection of the defendant, instruct the jury on criminal responsibility for the conduct of another.3
He was not requested to, and did not, charge facilitation of any of the felonies.

       In Burns, our Supreme Court adopted a new three-part test for determining whether an
offense is a lesser-included offense. See 6 S.W.3d at 466-67. Under this test, facilitation of the
offense charged is, by definition, a lesser-included offense. Id. This general statement, however,
does not end our analysis.




         3
            W e note that this is a theory of criminal liability, which m ay result in a conviction of the charged offense.
It is not a lesser-included offense.

                                                          -14-
        Our Supreme Court has recognized that, “[t]he mere existence of a lesser offense to a charged
offense is not sufficient alone to warrant a charge on that offense.” Id. at 468. Rather, the trial
court’s obligation to charge the jury on lesser-included offenses depends on a two-part inquiry:

       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 this case, the evidence was sufficient to support convictions of facilitation of each of
the charged felonies. The trial court therefore erred in failing to give this instruction.

        In State v. Ely and Bowers, 48 S.W.3d 710 (Tenn. 2001), our Supreme Court held that the
right to lesser-included offense instructions is a right of constitutional dimension and derives not
merely from statute. As the Supreme Court noted:

       The distinction is significant, because if the right is constitutional in nature, the State
       bears the burden of showing that a deprivation of this right is harmless beyond a
       reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967); cf. State v. Scott,
       33 S.W.3d 746, 755 (Tenn. 2000); Momon v. State, 18 S.W.3d 152, 164 (Tenn.
       1999). However, if the right is not constitutional in nature, the defendant bears the
       burden of showing the harmfulness of its deprivation. Moreover, the standard for
       assessing the effect of a constitutional error is higher than that for assessing the effect
       of a non-constitutional error. An error affecting a constitutional right is presumed to
       be reversible, and any such error will result in reversal of the conviction unless the
       State proves beyond a reasonable doubt that the error did not affect the outcome of
       the trial. State v. Harris, 989 S.W.2d 307, 315 (Tenn. 1999). A non-constitutional
       error, on the other hand, is presumed not to be reversible, and no judgment of
       conviction will be reversed 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. Id.; see also Tenn. R. App. P. 36(b),
       Tenn. R. Crim. P. 52(a).

48 S.W.3d at 725. In our view, the application of the higher standard of review controls the outcome
of this case.

       Here, the trial judge instructed the jury on (1) attempted first degree murder and the lesser-
included offense of attempted second degree murder; (2) aggravated assault; and (3) especially
aggravated robbery and the lesser-included offenses of aggravated robbery and robbery. The trial
judge did not charge the jury concerning the defendant’s possible criminal responsibility for the

                                                  -15-
facilitation of each of these felonies. Although we earlier held that we could not say the jury more
probably than not would have found the defendant guilty of criminal responsibility for the
facilitation of any of the charged offenses, the application of the standard of review set forth in Ely
and Bowers changes the outcome of our analysis. We do not believe the state has proven beyond
a reasonable doubt that the failure to charge these lesser offenses did not affect the outcome of the
trial on the charges of attempted murder and aggravated assault.

         With respect to the especially aggravated robbery, the record in this case reflects that, after
charging the jury about the offense of especially aggravated robbery, the trial judge also charged the
jury with the lesser-included crimes of aggravated robbery and robbery. At first glance, the jury’s
rejection of these lesser offenses in favor of the greater one would appear to render harmless the trial
court’s failure to instruct on the additional lesser offense of facilitation. See State v. Williams, 977
S.W.2d 101, 106 (Tenn. 1998). In Williams, our Supreme Court held that, “by finding the defendant
guilty of the highest offense to the exclusion of the immediately lesser offense, . . . the jury
necessarily rejected all other lesser offenses . . . .” Id. (emphasis added). However, since facilitation
of a felony is a lesser degree of criminal responsibility for the commission of the felony, see Burns,
6 S.W.3d at 470, the immediately lesser offense of especially aggravated robbery is facilitation of
especially aggravated robbery, not aggravated robbery. Thus, the trial court did not charge the jury
on the immediately lesser offense of especially aggravated robbery, and the error was therefore not
harmless under the Williams analysis.

        Accordingly, because the trial court committed plain error in failing to instruct the jury on
the lesser-included offenses supported by the evidence adduced at trial, we must reverse the
defendant’s convictions for attempted second degree murder, aggravated assault, and especially
aggravated robbery, and remand this case for a new trial on those counts.


                                                         ____________________________________
                                                         CORNELIA A. CLARK, SPECIAL JUDGE




                                                  -16-
