      IN THE COURT OF CRIMINAL APPEALS OF
                  TENNESSEE
                                                                         FILED
                       AT KNOXVILLE                                    November 4, 1999

                                                                       Cecil Crowson, Jr.
                     JULY SESSION, 1999                               Appellate Court Clerk



STATE OF TENNESSEE,                )      C.C.A. NO. 03C01-9806-CC-00215
                                   )
       Appellee,                   )
                                   )      ANDERSON COUNTY
VS                                 )
                                   )      HON. JAMES B. SCOTT,
CURTIS J. ELY,                     )      JUDGE
                                   )
       Appe llant.                 )      (Felony Murder-Life Sentence)


                          CONCURRING OPINION


       I write separately because I believe the trial judge erred by failing to instruct

the jury as to the lesser o ffenses of second degree murder and facilitation of

felony murder. Because I find the error to be harmless, however, I concur in

affirming the Defendant’s conviction.



       In State v. Cleveland, 959 S.W.2d 548 (Ten n. 1997), our su preme co urt

stated,

       [T]he trial court must instruct the jury on all lesser grades or classes
       of offenses and all lesser includ ed offe nses if the evid ence will
       support a conviction for the offen ses. The ins tructions preserve a
       defendant’s right to fair and reasonable notice of the charges and
       allow the jury to consider all relevant offenses in determining the
       appropriate offense for conviction. Finally, “allowing consideration
       of the lesser included offenses and the offenses of lesser grades
       and classes, if the evidence supports guilt on those offenses, mo re
       evenly balances the rights of the defense and the prosecution and
       serves the interes ts of justice.”

Id. at 553 (citation om itted).


       In State v. Bolden, 979 S.W.2d 587 (Tenn. 1998), the Defendant had been

tried for the offense of prem editate d first de gree m urder . Over th e Def enda nt’s

objection, the trial judge charged the jury concerning the lesser included offense

of second d egree m urder. The jury convicted the Defendant of second degree

murder. On appeal, the Defendant argued that the trial judge erred by allowing

the jury to consider second degree murder as an option.               In affirming the

Defendant’s conviction for second degree murder, the supreme court stated,
       This Court has interpreted Tenn. Code Ann. § 40-18-110(a) to mean
       that a trial court mus t instruct the jury on all lesser offenses if the
       evidence introduce d at trial is lega lly sufficient to su pport a
       conviction for the lesser offense.
       ...

       W e have frequently held that th e trial co urt’s ob ligation unde r this
       statute is mandatory, provided there is su fficient evidence for a
       rational trier of fact to find a defendant guilty of a lesser offense.
       ...

       One purpo se of th e statu te is to p rotect th e right to trial by jury by
       instructing the jury on the elements of all offenses embraced by the
       indictme nt. Although it often benefits the defendant to have a jury
       consider lesser offenses, the mandatory nature of the statute
       indicates that it facilitates the overall truth-seeking function of the
       proces s.
       ...

       In view of the foregoing, the only remaining argum ent an d the o nly
       question for review is whether the evidence was sufficie nt to su stain
       a conviction for the lesser included offense of second degree
       murder.

Id. at 593.


       As Judge Riley points out in his opinion, our supreme court has fre quen tly

held that failu re to ins truct on a lesser offense is not error w here the reco rd

clearly shows that the Defendant is guilty of the greater offense and the reco rd

is devoid of any evidenc e perm itting an infere nce of gu ilt of the lesse r offense .

See State v. Langford , 994 S.W.2d 126, 128 (Tenn. 1999).                 In Langford,

however, our supreme court reiterated that “a trial court must instruct the jury on




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all lesser included offens es if the eviden ce intro duce d at trial is legally sufficient

to support a co nviction for the lesser offen se.” Id.



       In the case at bar, the testimony heard by the jury concerning the

Defe ndan t’s involvement in the killing of th e victim wa s incons istent,

contradictory, and at least somewhat confusing. While I agree that the evidence

presented is sufficie nt to su pport th e Def enda nt’s conviction of first degree felony

murder, I also co nclud e that th e evide nce p resen ted wo uld ha ve bee n lega lly

sufficient to support a conviction of second degree murder or facilitation of felony

murder. If the trial judge had c harged the jury conc erning these offens es, an d if

the jury had found the Defendant guilty of either one, I believe the conviction

would withstand a challenge to the sufficiency of the evidence. For this reason,

I believe the trial judge erred by failing to instruct the jury as to the lesser

offenses.



       Howeve r, our supreme court has recently held that the failure to instruct on

a lesser offe nse may be shown to be harm less error. State v. Williams, 977

S.W.2d 101, 105 (Tenn. 1998). In Williams, our sup reme c ourt stated ,

       Reversal is required if the error affirmatively appea rs 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.

Id. at 105. (emphasis added)


       In the case at bar, the only options before the jury were to find the

Defendant guilty of first degree murder or to find him guilty of nothing at all. Even

though I believe the trial judge should have charged the jury concerning the

lesser offenses, I certainly can not say that the trial court’s error affirmativ ely

appears to have a ffected the result of the trial on th e merits . In other wo rds, I

cannot say that the jury more probably than not would have found the Defendant

guilty of a lesser offense if the jury had been given that option. Therefore, under

Williams, I conclude that the error is harmless and reversal is not required.




                                           -3-
      In all other respects, I fully concur in the excellent opinion authored by

Judge Jo e G. Riley.




                               ______________________
                               DAVID H. WELLES, JUDGE




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