         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    May 11, 2004 Session

                STATE OF TENNESSEE v. JOHN C. WALKER, III

                 Direct Appeal from the Criminal Court for Putnam County
                           No. 02-0306    Lillie Ann Sells, Judge


                    No. M2003-01732-CCA-R3-CD - Filed August 11, 2004




JOHN EVERETT WILLIAMS, J., concurring in part, dissenting in part


        I join with the majority in affirming the appellant’s conviction and resulting sentence. I
dissent, however, from that portion of the opinion which holds that aggravated assault and assault
are not lesser included offenses of first degree (premeditated) murder. In State v. Paul Graham
Manning, No. M2002-00547-CCA-R3-CD, 203 Tenn. Crim. App. LEXIS 117, at *7 (Tenn. Crim.
App. at Nashville, Feb. 14, 2003), perm. to appeal denied, (Tenn. Dec. 15, 2003), a panel of this
Court reasoned that:
        [f]irst degree premeditated murder is the “premeditated and intentional killing of
        another.” Tenn. Code Ann. § 39-13-202(a)(1). An aggravated assault is committed,
        on the other hand, when the accused intentionally, knowingly, or recklessly causes
        serious bodily injury to another. See id. § 39-13-102(a)(1)(A), (a)(2)(A). Similarly,
        an assault is committed when one “intentionally, knowingly or recklessly causes
        bodily injury to another.” Id. § 39-13-101(a)(1). The mens rea of intentional
        includes the mens rea of knowing and reckless. See id. § 39-11-301(a)(2). A killing
        certainly includes serious bodily injury (as well as bodily injury). Thus, all of the
        statutory elements of these forms of aggravated assault and assault are included
        within the statutory elements of first degree premeditated murder, and they are
        therefore lesser included within the statutory elements of first degree premeditated
        murder, and they are therefore lesser included offenses under Part (a) of the Burns
        test.

        The common rule of thumb if a lesser included offense is found under part (a) of Burns, is
to say that every time the greater offense occurs, the lesser is necessarily committed as well. I
conclude that every time a murder occurs, the victim receives a “bodily injury” and a “serious bodily
injury” as defined in Tennessee Code Annotated section 39-11-106(a)(2), (34). As I have stated in
State v. Perry, 2001 Tenn. Crim. App. LEXIS 514 (Tenn. Crim. App. at Jackson, July 13, 2001):
“The victim here suffered the ultimate serious bodily injury, death.” Given our statutory definition
of aggravated assault and assault, each involving injury, I cannot imagine a person murdered without
being assaulted as well.

        The majority’s line of cases do not involve the offense of first degree premeditated murder,
but the offense of attempted first degree premeditated murder which could result without any bodily
injury to the victim. A key distinction. Also, the majority is concerned with constitutionally
guaranteed notice requirement. Here the notice requirement is fulfilled by the law providing that an
indicted charge carries with it all offenses which are lesser included offenses of the greater charge.
State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001) (citing Hagner v. United States, 285 U.S. 427, 431,
52 S. Ct. 417, 419, 76 L. Ed. 861 (1932)).

        In the instant case, the jury rejected lesser included offenses higher on the hierarchy than
those challenged as omitted, and the error is therefore harmless beyond a reasonable doubt. State
v. Allen, 69 S.W.3d 181, 189 (Tenn. 2002) (citing State v. Williams, 977 S.W.2d 101, 106 (Tenn.
1998)). The appellant is entitled to no relief on this issue due to the error being harmless beyond a
reasonable doubt.




                                                       ___________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE




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