                    IN THE SUPREME COURT OF TENNESSEE
                                AT KNOXVILLE
                             January 4, 2000 Session

                 STATE OF TENNESSEE v. JOHN C. GARRISON

                  Appeal by permission from the Court of Criminal Appeals
                              Circuit Court for Bledsoe County
                          No. 10436 Thomas W. Graham, Judge



                    No. E1997-00045-SC-R11-CD - Filed November 22, 2000


The defendant, John C. Garrison, was convicted by a jury of solicitation to commit first degree
murder. In this appeal, he raises two issues: (1) whether trial counsel’s failure to communicate a
plea bargain offer from the State is per se prejudicial to the extent necessary to satisfy the prejudice
prong of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); and (2)
whether the trial court committed reversible error when it failed to instruct the jury that the
“request,” as used in the statutory definition of the offense of solicitation, must be intentional. After
a thorough consideration of the record and a full review of the authorities, we conclude that trial
counsel’s failure to communicate a plea bargain offer does not demonstrate, alone, prejudice
sufficient to satisfy the second prong of Strickland. We conclude also that the trial court’s omission
of certain required language from the jury instruction constitutes harmless error. The judgment of
the Court of Criminal Appeals is, therefore, reversed and the case is dismissed.

  Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
                           Reversed and the Case Dismissed

ADOLPHO A. BIRCH, JR., J., delivered the opinion of the court, in which E. RILEY ANDERSON, C.J.,
FRANK F. DROWOTA, III, JANICE M. HOLDER, JJ., and JOHN K. BYERS , S.J., joined.

Michael E. Moore, Solicitor General, Michael J. Fahey, II, Assistant Attorney General, James
Michael Taylor, District Attorney General, and James W. Pope, III, Assistant District Attorney
General, for the appellant, State of Tennessee.

Gregory P. Isaacs, Knoxville, Tennessee, for the appellee, John Clark Garrison.


                                              OPINION
                                         I. Facts and Procedural History

        As a factual prelude to our discussion of the case under submission, John C. Garrison, the
defendant, pleaded guilty and was convicted of two counts of theft over $10,000.1 He was sentenced
to concurrent terms of eight years in the Department of Correction. Garrison was irate that he had
not received probation. Incarcerated during the pendency of the appeal of the eight-year sentence,
he discussed his case with fellow inmates. He specifically mentioned the “unavailability” of one of
the witnesses who had testified against him and the withdrawal of his plea of guilty. He intimated
to them that were the two above-mentioned events to occur, there would be insufficient evidence
to convict him of theft.2 These discussions included references to the possibility of procuring this
witness’s murder.

        During the course of these discussions, Garrison engaged in separate discussions with prison
officials. He told them that he had been approached by other inmates with offers to arrange the
murder of the witness. Also during this period of intrigue, and unbeknownst to Garrison, some of
the discussions were recorded. One taping was done by an agent of the Tennessee Bureau of
Investigation posing as a “killer for hire.” The other taping was accomplished by an inmate
informant. The evidence preserved on the tapes tended to establish that Garrison indeed solicited
the murder of the witness.

        Garrison was indicted for solicitation to commit first degree murder,3 and the trial was set
for May 15, 1995. He believed he would be acquitted and retained Thomas N. DePersio, Esquire.
DePersio’s absence from his office for the full month of March and a week in April 1995 (apparently
because of “depression”), his missed appointments, and his unanswered telephone calls led Garrison
to suspect that DePersio had not properly investigated the case. Garrison asked him directly about
his readiness for trial. DePersio assured him that he was ready. At no point before the completion
of the proof did DePersio reveal that the State had offered a plea agreement of a ten year sentence
as a Range I, standard offender to be served consecutively to the theft sentences.

        At trial for solicitation to commit murder, Garrison testified that he had engaged in pretense
when he had discussed hiring a killer with the informant and with the agent. As his reason for the
pretense, he said that he did not want to engender the suspicions of the inmates while he was
gathering information to assist officials in apprehending the would-be murderers. The jury rejected
this testimony and convicted Garrison of solicitation to commit first degree murder. He was
sentenced as a Range II, multiple offender to sixteen years imprisonment to be served consecutively
to the theft sentences.




       1
           Garrison was accuse d of having embez zled money from his bu siness partners.

       2
           Appare ntly, Garrison expected to receive a n ew trial.

       3
           Tenn. Code Ann. §39-12-10 2 (1997).

                                                           -2-
                                              II. Analysis

                                A. Ineffective Assistance of Counsel

         Prior to trial, DePersio approached the assistant district attorney general and asked if
settlement was possible. The assistant district attorney general responded with a sentencing offer
of Range I, ten years, consecutive to certain Knox County sentences. The case, however, proceeded
to trial, and following conviction, the trial court imposed a sentence of sixteen years–six years
greater than the State’s pre-trial offer.

        It is clear that DePersio failed to communicate this offer to Garrison before trial. In fact, at
the hearing on the motion for new trial, an affidavit by DePersio was filed stating the following:

                       Shortly before trial of this cause, I spoke with Assistant
               District Attorney Pope . . . concerning a potential plea agreement in
               this case. Assistant District Attorney Pope communicated to me a
               plea offer of 10 years Range I, standard, if Mr. Garrison pled to all
               counts of the indictment.

                       Although I met with Mr. Garrison prior to the trial of this
               cause, I never related to him the offer given to me by Assistant
               District Attorney Pope.

                         Mr. Garrison never learned of the State’s offer until after the
                trial of the matter had been concluded.

DePersio testified at the hearing on the motion for new trial that after he had informed Garrison of
the offer, Garrison stated that he would not have accepted it. DePersio also testified that he did not
believe his failure to inform Garrison of the offer fell below the standard of competence required of
attorneys because Garrison had clearly and consistently maintained the need to go to trial to avoid
a prolonged incarceration. He testified that he was confident Garrison would not have accepted the
offer.

        In overruling Garrison’s motion for a new trial, the trial court observed:

                        With regard to the failure to communicate the State’s plea
                offer, this Court finds that the Defendant had communicated to his
                attorney early on and throughout his discussions that he would not
                negotiate a plea. The Court would further note that this particular
                Defendant was quite familiar with the plea bargaining process, having
                entered into many pleas over the preceding decade, including four
                felony pleas . . . . It should be noted that there is no reason to believe



                                                   -3-
                    nor proof presented that this Defendant would have accepted the ten
                    (10) year sentence offered by the State a few days before trial.

         Thus, by implication, the trial court found that the offer as described by DePersio had indeed
been made and that DePersio had failed to relate it to Garrison. As expressed above, the trial court
ruled that there was no reason to believe that Garrison would have accepted the offer. It is by reason
of this finding that the trial court concluded that Garrison had failed to demonstrate prejudice. Thus,
the trial court rejected the claim of ineffective assistance of counsel.

       The Sixth Amendment to the United States Constitution and Article I, § 9 of the Tennessee
Constitution guarantee criminal defendants the right to representation by counsel. State v. Burns,
6 S.W.3d 453, 461 (Tenn. 1999). “[T]he right to such representation encompasses the right to
‘reasonably effective’ assistance, that is, within the range of competence demanded of attorneys in
criminal cases.” Id. (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2065, 80 L. Ed. 2d at 693). A
defendant is not entitled to redress for a violation of that right, however, unless the substandard
performance of the attorney negatively affected the ultimate judgment. Strickland, 466 U.S. at 691-
92, 104 S. Ct. at 2067-68, 80 L. Ed. 2d at 696.

        In Strickland, the United States Supreme Court adopted a two-prong test for determining
whether an ineffective assistance of counsel claim merits relief: (1) the defendant must show that
counsel’s performance was deficient because the “representation fell below an objective standard
of reasonableness,” and (2) the defendant must show “that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”4 466
U.S. at 687-88, 694, 104 S. Ct. at 2064-65, 2068, 80 L. Ed. 2d at 693-94, 698.

        The legal premise that counsel’s failure to relate a plea offer to a defendant renders counsel’s
representation deficient5 was established by this Court in Harris v. State, 875 S.W.2d 662 (Tenn.
1994). Therefore, because the State does not contest the finding implicitly made by the trial court
and expressly approved by the Court of Criminal Appeals that DePersio failed to communicate the
plea offer to Garrison, we find that Strickland’s first prong is satisfied, and we focus on the second


         4
          It is the defendant’s burden to establish both pro ngs of the test by c lear and co nvincing evid ence. Burns, 6
S.W.3 d at 461 ; see also Goad v. State, 938 S.W.2d 363 , 370 (Tenn. 1996).

         5
             As stated in the Standards for Criminal Justice of the American Bar Association:

                    Because plea discussions are usually held without the accused being present, the
                    lawyer has the duty to c ommunic ate fully to the client the substance of the
                    discussions. . . . [T]he client should be given sufficient informatio n to participa te
                    intelligently in the decision whether to accept or reject a plea proposal. It is
                    important that the accused be informed both of the existence and the content of
                    propo sals made by the prosecutor; the accused, not the law yer, has the right to
                    decide w hether to acc ept or reje ct a prosec ution prop osal . . . .

ABA Standards for Criminal Justice: Prosecution Function and Defense Function, std. 4-6.2 commentary (3d ed. 1993).

                                                             -4-
prong. As to the second prong of the analysis, which requires a finding of prejudice, Harris is not
dispositive.

        Under Strickland’s second prong, a petitioner must demonstrate that counsel’s omission
caused prejudice to his or her cause. Typically, the petitioner must show that counsel’s errors were
so serious as to deprive the petitioner of a fair trial, a trial whose results are reliable. Id.; Henley v.
State, 960 S.W.2d 572, 579-80 (Tenn. 1997).

         In cases where counsel did not convey a plea bargain offer to a defendant, however, the fair
trial standard described above is not applicable. This inapplicability is obvious–the defendant may
have received a fair trial, yet may have been prevented, by below-standard conduct of counsel, from
avoiding trial altogether. Thus, a fair trial provides no remedy for counsel’s pre-trial failures in this
regard.

        In lieu of the “fair trial” test for prejudice arising out of claims of ineffective assistance in
the plea stage, the United States Supreme Court has established a different standard. When a
petitioner asserts that he or she entered a plea as a result of ineffective assistance, he or she must
demonstrate “that there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 58, 106 S.
Ct. 366, 370, 88 L. Ed. 2d 203 (1985). In the context of a petitioner who seeks to reinstate (rather
than withdraw) a plea offer, the petitioner must show that there is a reasonable probability that he
or she would have accepted the plea had it been properly communicated to him or her. Such a
“reasonable probability” is defined as a “probability sufficient to undermine confidence in the
outcome” of the proceedings. Henley, 960 S.W.2d at 579 (quoting Strickland, 466 U.S. at 694, 104
S. Ct. at 2068, 80 L. Ed. 2d at 698); see also Goad, 938 S.W.2d at 370.

        In Harris, trial counsel failed to communicate to the defendant the offer made by the State.
875 S.W.2d at 663. The defendant went to trial ignorant of the State’s offer and was convicted. He
was sentenced to a prison term far in excess of the uncommunicated plea offer. Id. The State,
conceding deficient representation, contended that no prejudice was shown because the record
established that the trial judge would not have accepted the plea bargain if submitted. Id. at 664.

        In Harris, we affirmed the finding of deficient representation and held that the defendant’s
ignorance of the plea offer so undermined confidence in the outcome of the prosecution as to
demonstrate sufficient prejudice to satisfy the second prong of Strickland. Id. at 665-66. In the case
under submission, however, the record includes testimony that when Garrison learned of the offer
during jury deliberations, he indicated that he would not have accepted it, and the trial court
apparently accredited that testimony. Thus, there is no reasonable probability that DePersio’s failure
to convey the State’s offer affected the outcome of the plea process. Under such facts, this Court
cannot find that the prejudice prong has been satisfied, despite DePersio’s initial failure to
communicate the offer. Accordingly, the Court of Criminal Appeals’s judgment remanding the case
for the resumption of the plea negotiations is reversed.



                                                   -5-
                                                 B. Jury Instructions

         Under the United States and Tennessee Constitutions, a defendant has a constitutional right
to trial by jury. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall
have been committed . . . .”); Tenn. Const. Art. I, § 6 (“[T]he right of trial by jury shall remain
inviolate, and no religious or political test shall ever be required as a qualification for jurors.”). In
Tennessee, this right dictates that all issues of fact be tried and determined by twelve jurors. See
State v. Bobo, 814 S.W.2d 353, 356 (Tenn. 1991); Willard v. State, 130 S.W.2d 99 (Tenn. 1939).
Thus, it follows that a defendant has a right to a correct and complete charge of the law, so that each
issue of fact raised by the evidence will be submitted to the jury on proper instructions. See State
v. Forbes, 793 S.W.2d 236, 249 (Tenn. 1990).

         Garrison was indicted for solicitation to commit first degree murder.                     By statute:

                    Whoever, by means of oral, written or electronic communication,
                    directly or through another, intentionally commands, requests or
                    hires another to commit a criminal offense, or attempts to command,
                    request or hire another to commit a criminal offense, with the intent
                    that the criminal offense be committed, is guilty of the offense of
                    solicitation.

Tenn. Code Ann. § 39-12-102 (1997) (emphasis added). The trial court elided the jury instruction
by omitting the statutory language which appears above in bold type.6 As elided, the instruction
given to the jury was as follows:

                    That the Defendant . . . requested another to commit the offense of
                    first degree murder . . . with the intent that the offense of first degree
                    murder be committed.

        Relying on State v. Lee,7 the Court of Criminal Appeals construed the statute defining
solicitation to require that for any solicitation charge, whether it be by “command, request or hire,”
the jury must find both an intent that a criminal offense be committed by another and an intentional
communication of that intent to another. It found that the jury charge omitted an instruction that the
request itself be intentional, an essential element of the offense. The intermediate appellate court
found the error particularly egregious in view of the defendant’s theory that his “request” was not
serious and held that the error required a new trial.


         6
          The trial court omitted this language because it found that Garrison never paid the initial $500 fee that had been
agreed upon for the alleged murder-for-hire, and thus there was no completed contract of hire between Garrison and the
Tennes see Bure au of Investiga tion agent.

         7
             618 S.W.2d 3 20, 323-24 (Tenn. Crim. App. 198 1).

                                                            -6-
        We agree with the intermediate appellate court that the clear language of the statute evinces
a legislative intent to require both an intent to solicit and an intent that the crime solicited be
committed.8 This conclusion is supported by the sentencing commission comments, which state that
under this section, “the defendant must intentionally try to enlist another in criminal activity and
must intend that the offense be committed.” Tenn. Code Ann. § 39-12-102, sentencing comm’n
cmts. (1997). This interpretation also furthers the purpose of a “solicitation” statute, which is to
punish those who sincerely enlist others in criminal deeds. Id.

         Having found that Garrison’s rights were violated because the trial court’s charge omitted
an essential element of the offense, the next question is whether the error requires a reversal of the
conviction. The Tennessee Rules of Appellate Procedure provide that a final judgment “shall not
be set aside unless, considering the whole record, error involving a substantial right more probably
than not affected the judgment or would result in prejudice to the judicial process.” Tenn. R. App.
P. 36. The history of this “harmless error doctrine” and its general application to constitutional
errors has been thoroughly documented by this Court. See e.g., Momon v. State, 18 S.W.3d 152
(Tenn. 1999); State v. Williams, 977 S.W.2d 101, 104 (Tenn. 1998). Of note for purposes of this
case is the established principle that “a very limited class of errors have been found to be ‘structural,’
and subject to automatic reversal.”9 Momon v. State, 18 S.W.3d at 152. At issue is whether the

         8
           W e find the languag e of the statute to b e unambig uous. The foundation of statutory con struction is to ascertain
and give effect to the intention and purpose of the legislature. Worrall v. Kroger Co., 545 S.W.2d 736 (Tenn. 1977).
 This legislative in tent or purp ose is to be ascertained primarily from the natural and ordinary meaning of the language
used, without forced or subtle construction that would limit or extend the meaning of the language. “Where the language
contained within the four corners of a statute is plain, clear, and unamb iguous and the enac tment is within legislative
compe tency, ‘the duty of the courts is simple and obv ious, namely, to say sic lex scripta, and obey it.’” Carson Creek
Vacation Resorts, Inc . v. State, Dep t. of Revenue, 865 S.W.2d 1, 2 (T enn. 1993) (quoting Miller v. Childress , 21 Tenn.
(2 Hum.) 319, 321-22 (184 1)).

         9
                             Despite the strong interests that support application of the harmless error
                   doctrine, the United States Supreme Court and this Court have consistently held that
                   some errors defy ha rmless error analysis and require reversal. The cases in which
                   the United States Suprem e Court and this Court hav e refused to apply the harmless
                   error doctrine inv olve error s that are “structura l defects in the constitution of the
                   trial mechanism.” These errors have an impact upon “[t]he entire conduct of the
                   trial from beginning to end.” Stated another wa y, “these errors d eprive de fendants
                   of ‘basic prote ctions’ without w hich ‘a crimina l trial cannot reliab ly serve its
                   function as a vehicle for determination of guilt or innocence . . . and no criminal
                   punishmen t may be rega rded as fund amentally fair.’”

Momon v. State, 18 S.W.3d at 165 (Tenn. 1999)(citations omitted). The United States Supreme Court has noted that
structural error analysis is ap propriate only in a “very limited class of cases,” typically where the error has compromised
the integrity of the trial proce ss. See Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544, 137 L. Ed. 2d 718
(1997) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963 ) (complete denial of the
assistance of counsel); Tumey v. Ohio , 273 U.S. 510 , 47 S. Ct. 43 7, 71 L. E d. 749 (1 927) (b iased trial judg e); Vasquez
v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986) (racial discrimination in selection of grand jury);
McK askle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L.Ed. 2d 122 (1984) (denial o f self-representation at trial);
Waller v. Georgia , 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984) (denial of public trial); Sullivan v. Louisiana,
508 U.S. 275, 113 S. Ct. 2078 , 124 L. Ed. 2d 182 (199 3) (defective reasonable-doubt instruction)).

                                                             -7-
trial court’s error in omitting an essential element of an offense from the jury charge is structural.

        Recently, in Neder v. United States, the United States Supreme Court addressed this issue
under the United States Constitution and determined that such omissions are not structural and thus
are subject to harmless error analysis. 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). The
Court stated:

                        [A] jury instruction that omits an element of the offense . . .
                differs markedly from the constitutional violations we have found to
                defy harmless-error review. Those cases, we have explained, contain
                a “defect affecting the framework within which the trial proceeds,
                rather than simply an error in the trial process itself.” Such errors
                “infect the entire trial process” and necessarily render a trial
                fundamentally unfair. Put another way, these errors deprive
                defendants of “basic protections” without which “a criminal trial
                cannot reliably serve its function as a vehicle for determination of
                guilt or innocence . . . and no criminal punishment may be regarded
                as fundamentally fair.

                         Unlike such defects as the complete deprivation of counsel or
                trial before a biased judge, an instruction that omits an element of the
                offense does not necessarily render a criminal trial fundamentally
                unfair or an unreliable vehicle for determining guilt or innocence.

Id. at 8-9 (citations omitted). Key to the Supreme Court’s conclusion that harmless error analysis
was appropriate was its observation that “Neder was tried before an impartial judge, under the
correct standard of proof and with the assistance of counsel; [and] a fairly selected, impartial jury
was instructed to consider all of the evidence and argument in respect to Neder’s defense . . .” Id.
at 9.

         Our Court has applied a similar analysis when interpreting the Tennessee Constitution. In
State v. Teel, a defendant convicted of felony murder asserted that the trial court’s failure to instruct
the jury on the definition of rape–the felony supporting the felony murder conviction–constituted
reversible error. 793 S.W.2d 236, 249 (Tenn. 1990). Although we noted at that time that “[t]he law
is unsettled as to whether harmless error analysis is available when a trial court fails to instruct on
an essential element of an offense,” we concluded that harmless error analysis does apply to the
failure to define a separate felony that is an essential element of the felony with which the defendant
is charged. Id. On the other hand, in State v. Bobo, we concluded that the trial court’s decision to
substitute a juror with an alternate after the alternate jurors had been discharged, the case had been
submitted, and deliberations had begun, without instructions to the jury to begin deliberations anew,




                                                  -8-
was a “[defect] in the structure of the trial mechanism and thus [defies] analysis by harmless error
standards.” 814 S.W.2d 353, 356-58 (Tenn. 1991).

        In this case, unlike Bobo, the integrity of the jury as a fact-finding body was not disturbed.
Rather, as in Neder and Teel, an impartial jury was required to make its findings pursuant to
imperfect instructions by the trial court. We do not find this type of error to be a defect in the
structure of the trial mechanism that would “necessarily render a criminal trial fundamentally unfair
or an unreliable vehicle for determining guilt or innocence.” Thus, we hold that harmless error
analysis is appropriate when evaluating omissions of an essential element of an offense from the jury
charge.

        Applying that analysis in this case, we find that the trial court’s error was harmless beyond
a reasonable doubt. The Court of Criminal Appeals found the error to be reversible in light of
Garrison’s defense that he was not sincere when he requested that the witness be murdered. The
court found that the question whether Garrison intentionally engaged in solicitation was an issue
fundamental to his defense, and the trial court’s failure to instruct the jury on this intent element thus
undermined the reliability of the jury’s verdict. However, the decision of the Court of Criminal
Appeals misconstrues the statute’s two-pronged intent requirement. Garrison’s defense actually
focuses upon the second prong, the intent that the crime solicited actually be committed. By
contending that he engaged in the conversations as a pretext, Garrison was in essence asserting that
although he requested that the witness be murdered, he never intended that the murder actually be
committed. Garrison never argued that he lacked the requisite intent to engage in a conversation
with the undercover agent, and so the first intent requirement, the intent to solicit, effectively has
been conceded. Although the second intent requirement, the intent that the crime actually be
committed, was contested at trial, the jury found against Garrison on this point. Because the omitted
intent requirement was not contested at trial and essentially has been conceded by Garrison, we find
that the trial court’s failure to instruct on the first intent requirement had no impact on the jury’s
verdict. Therefore, the error was harmless beyond a reasonable doubt, and the judgment of
conviction must be affirmed.

                                            III. Conclusion

       As to trial counsel’s failure to inform the defendant of the plea offer made by the State, we
agree with the Court of Criminal Appeals that such conduct satisfied the first prong of Strickland.
We do not conclude, however, that such failure, alone, demonstrates prejudice to the extent
necessary to satisfy the second (prejudice) prong of Strickland. Accordingly, we hold that the
defendant has not proven ineffective assistance of counsel under the requirements of Strickland.

       With regard to the issue concerning the jury instructions, we conclude that the trial court’s
omission of the statutory language constitutes harmless error. Thus, the judgment of the Court of
Criminal Appeals is reversed, and the case is dismissed.




                                                   -9-
Costs are taxed to John C. Garrison.



                                              ___________________________________
                                              ADOLPHO A. BIRCH, JR., JUSTICE




                                       -10-
