                 IN THE SUPREME COURT OF TENNESSEE

                            AT JACKSON
                                                   FILED
                                                   November 16, 1998
                                     FOR PUBLICATION
                                               Cecil W. Crowson
STATE OF TENNESSEE,            )              Appellate Court Clerk
                               )   Filed: November 16, 1998
         Appellee,             )
                               )
                               )         DYER CRIMINAL
Vs.                            )
                               )
STEVEN BOLDEN,                 )   HON. JOE G. RILEY, JUDGE
                               )
                               )
         Appellant.            )   No. 02-S-01-9711-CC-00102
                               )




For Appellant:                     For Appellee:
Vanedda Prince                     John Knox Walkup
FOWLER, PRINCE & WEBB              Attorney General & Reporter
Union City, Tennessee
                                   Michael E. Moore
                                   Solicitor General

                                   Kathy Morante
                                   Deputy Attorney General

                                   Kenneth W. Rucker
                                   Assistant Attorney General
                                   Nashville, Tennessee

                                   At Trial:
                                   C. Phillip Bivens
                                   District Attorney General
                                   Dyersburg, Tennessee




                          OPINION




COURT OF CRIMINAL APPEALS
AFFIRMED                                               ANDERSON, C.J.
      We granted this appeal to determine two issues: first, whether a co-defendant’s

testimony pursuant to a plea agreement with the prosecution violated the defendant’s

rights to due process of law and a fair trial under the United States and Tennessee

Constitutions; and second, whether the trial court erred in charging the jury to consider

the lesser included offense of second degree murder over the defendant’s objection.



      In affirming the defendant’s conviction for second degree murder, the Court of

Criminal Appeals held that the co-defendant’s testimony did not violate the defendant’s

constitutional rights because the plea agreement was disclosed, and the defendant had

the opportunity to cross-examine the co-defendant. The appellate court also concluded

that since the evidence supported a conviction for second degree murder, the trial court

was required by statute to charge the jury on that offense.



      We agree with the Court of Criminal Appeals’ conclusion that the co-defendant’s

plea agreement did not violate the defendant’s rights to due process and a fair trial.

The plea agreement was disclosed to the defendant and to the jury, and the defendant

fully cross-examined the co-defendant with respect to his motives in entering into the

agreement. We also agree with the Court of Criminal Appeals that the trial judge had a

statutory duty to instruct the jury on second degree murder. Thus, we affirm the Court

of Criminal Appeals’ judgment.



                                    BACKGROUND

      Kabrian Hayes and the defendant, Steven Bolden, were charged with the first

degree premeditated murder of Sammy Davidson. Hayes made a plea agreement with

the prosecution in which he agreed to plead guilty to second degree murder and receive

a 25-year sentence in exchange for his testimony against Bolden. At Bolden’s trial,

however, Hayes testified that he did not recall the events that occurred on the night of

the murder. Upon further questioning, he claimed only that unknown persons gave him

rides to and from the murder scene.


                                           -2-
        During a recess in the trial, further discussion took place between Hayes, Hayes’

mother, defense counsel, and the prosecution. A second plea agreement was made by

which Hayes would plead guilty to second degree murder and allow the trial court to

determine the sentence from the range of 15 to 25 years. In return, Hayes agreed to

testify truthfully, in accordance with a prior statement he had given to a law enforcement

officer, and as to threats made to him by Bolden. The written agreement stated:


        If Kabrian Hayes testifies truthfully as to Steve Bolden’s involvement in the
        murder of Sammy Davidson and as he stated in his statement to [TBI
        agent] Roger Hughes on 3/21/94 at 6:05 p.m. and as to threats made to
        him by Steve Bolden then I will offer a plea to 2d Degree Murder, Range I,
        judicial sentencing.


        After the recess, the trial resumed. Hayes then testified that on March 16, 1994,

he and Bolden drove around Tiptonville, Tennessee, searching for the victim Davidson

for the purpose of collecting forty dollars ($40) which he owed Bolden for two rocks of

cocaine. Bolden was driving, and Hayes rode in the front passenger seat. Hayes and

Bolden found the victim, who was ordered by Bolden to get into the car. Bolden drove

to a remote, unpopulated area near the Mississippi River where he asked the victim to

pay him the forty dollars ($40). When the victim indicated that he did not have any

money, Bolden told Hayes to shoot the victim. Hayes, armed with a 9-mm. pistol given

to him by Bolden, shot the victim twice in the chest at point blank range. Bolden and

Hayes then threw the victim’s body in the river.1



        Hayes’ testimony was corroborated with other evidence. Terrance Montgomery

testified that he saw Hayes and Bolden together on the evening of the murder. Bolden

told Montgomery that they were looking for the victim, who “had messed [Bolden] out of

forty dollars.” Bolden expressed his intent to kill the victim to Montgomery, who also

noticed that Hayes was in possession of a 9 mm. pistol.



        1
           Hayes was extensively cross-examined about the change in his testimony and the timing of the
more favorable plea agreement. Hayes maintained that he shot the victim because he was afraid of
Bolden. Hayes stated that he had received letters from Bolden asking Hayes to commit perjury, and
threa tenin g to h arm him if Haye s tes tified tr uthfu lly.

                                                  -3-
       Bolden gave two statements to the police. After first denying that he was in the

car when the victim was shot, Bolden admitted that he was in the car when Kabrian

Hayes shot and killed the victim.



       At the conclusion of trial, defendant Bolden objected to a proposed jury

instruction on the lesser included offense of second degree murder seeking to limit the

jury's consideration to first degree murder. Despite the objection, the trial court charged

the jury on first degree premeditated murder and the lesser included offense of second

degree murder. The jury convicted Bolden of second degree murder.



       On appeal, the Court of Criminal Appeals affirmed defendant’s conviction,

holding that the co-defendant's plea bargain did not violate Bolden's right to due

process because the jury was aware of the agreement and the defendant was

permitted to conduct a thorough cross-examination of the co-defendant. The appellate

court also held that the trial court had a statutory duty to charge the jury with all lesser

grades or classes of first degree murder supported by the evidence and did not err by

instructing the jury on second degree murder.



       We granted this appeal to review two questions: first, whether the co-defendant

Hayes’ plea agreement violated defendant’s rights to due process and a fair trial; and

second, whether the trial court erred in charging the jury on the lesser included offense

of second degree murder over the defendant's objection.



                           CO-DEFENDANT’S PLEA BARGAIN

       Bolden argues that he was denied his right to due process and a fair trial under

the Tennessee and United States Constitutions because the prosecutor’s plea

agreement with Kabrian Hayes required Hayes to testify to specific facts. Specifically,

Bolden contends that requiring Hayes to testify “as he stated in his statements to [TBI

agent] Roger Hughes” was tantamount to requiring scripted testimony. The State


                                             -4-
maintains that the agreement required truthful testimony and that disclosure of the

agreement to the jury and cross-examination of Hayes preserved the defendant’s right

to due process and a fair trial.



       We begin by observing that the testimony of an accomplice is generally

admissible even if it is obtained through a plea agreement. See Giglio v. United States,

405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). A promise of leniency or other

favorable agreement goes only to the credibility of a witness’s testimony, not to its

admissibility. United States v. Hoffa, 385 U.S. 293, 87 S. Ct. 408, 17 L. Ed. 2d 374

(1966); see also State v. Garcia, 630 P.2d 665, 673 (Idaho 1981); Kelley v. State, 460

N.E.2d 137, 140 (Ind. 1984); State v. Burchett, 399 N.W.2d 258, 266 (Neb. 1987).



       Many courts, however, require that safeguards be followed before admitting

testimony procured through plea bargain agreements. These requirements, the

purpose of which is to preserve the defendant’s rights to due process and a fair trial,

have been held to include the following: (1) full disclosure of the terms of the

agreements struck with the witnesses; (2) the opportunity for full cross-examination of

those witnesses concerning the agreements and the effect of those agreements on the

testimony of the witnesses; and (3) instructions cautioning the jury to carefully evaluate

the weight and credibility of the testimony of such witnesses who have been induced by

agreements with the State to testify against the defendant. See, e.g., Garcia, 630 P.2d

at 673; People v. Lopez, 610 N.E.2d 189 (Ill. Ct. App. 1993); Caldwell v. State, 583

N.E.2d 122 (Ind. 1991); Sheriff, Humboldt County v. Acuna, 819 P.2d 197 (Nev. 1991);

State v. Leonard, 328 S.E.2d 593 (N.C. Ct. App. 1985); State v. Nerison, 401 N.W.2d 1

(Wis. 1987).



       As the Iowa Supreme Court has explained:


               In most instances, any potential for prejudice to a defendant’s case
       will be avoided by allowing the witness to testify subject to searching
       cross-examination intended to develop fully any evidence of bias or

                                            -5-
       motive on the part of the witness, or improper conduct on the part of the
       State. Every fact that might in some way influence the truthfulness and
       credibility of the witness’s testimony should be laid before the jury. This
       ensures no unnecessary barriers will be imposed on the State’s ability to
       bargain for truthful testimony, and at the same time ensures the jury will
       be able to determine what weight, if any, in light of all the evidence, to
       give the witness’s testimony.


State v. McGonigle, 401 N.W.2d 39, 42 (Iowa 1987) (citation omitted).



       In addition to these safeguards, courts in Nebraska, Nevada, and California have

emphasized that a plea bargain may not be conditioned on a witness giving false or

scripted testimony. Burchett, 399 N.W.2d at 266; Acuna, 819 P.2d at 201. The

California Supreme Court has stated, for instance, that a plea bargain consummated in

exchange for testimony is unacceptable where “the testimony must be confined to a

predetermined formulation” or must produce a “given result, that is to say, a conviction.”

People v. Garrison, 765 P.2d 419 (Cal. 1989); see also State v. DeWitt, 286 N.W.2d

379, 384 (Iowa 1979) (plea agreement for accomplice’s false or specific testimony is

inadmissible).



       Although we have not addressed this precise issue in the past, we agree with

the principles espoused by the majority of other state courts and find that these

principles are consistent with our Tennessee cases addressing related issues. For

example, the safeguards attendant to allowing testimony induced by a plea agreement

-- full disclosure of the terms of the plea agreement and cross-examination into the

witness’ motives and bias -- place the responsibility of weighing the testimony and

credibility of the witness upon the jury. E.g., State v. Hornsby, 858 S.W.2d 892 (Tenn.

1993) (weighing evidence and credibility is function for trier of fact).



       Moreover, the limitations expressed in these cases -- that a plea agreement may

not be conditioned upon false, scripted, predetermined, or specific testimony without

regard for the truthfulness of the witness’ testimony -- are consistent with established

principles of due process which prohibit the State from using testimony known to be

                                             -6-
false or later learned to be false. Giglio, 405 U.S. at 154, 92 S. Ct. at 766; State v.

Spurlock, 872 S.W.2d 602, 621 (Tenn. Crim. App. 1993).



        In applying these principles to the case at hand, it is readily apparent that the

requisite safeguards were followed in allowing Hayes to testify. The plea agreement,

which was written on a single legal page, was disclosed to the defendant and to the

jury. Counsel for defendant Bolden had ample opportunity to cross-examine Kabrian

Hayes, and in fact conducted a vigorous examination into Hayes’ motives and conduct.

Bolden’s counsel, for instance, elicited (a) the details of the first plea agreement; (b)

Hayes’ first statement of the offense, which did not implicate Bolden; (c) the details of

the second plea agreement; and (d) the fact that Hayes’ testimony implicated Bolden

only after Hayes agreed to the second plea agreement with its possibility of a more

lenient sentence. Finally, the jury was instructed that it was required to judge the

credibility or believability of witnesses and to weigh their testimony. 2



        A somewhat more difficult issue, and the issue to which defendant Bolden

devotes much of his argument, is whether the second plea agreement required Hayes

to testify in a particular manner or according to a predetermined script. As Bolden

notes, the plea agreement stated that the plea offer would be made by the prosecutor

“if” Hayes testified “as he stated in his statement to [agent] Hughes on 3/24/94 at 6:05

p.m. and as to threats made to him by Steve Bolden.” The agreement also stated,

however, that Kabrian Hayes was to “testif[y] truthfully as to Steve Bolden’s involvement

in the murder of Sammy Davidson.”




        2
            The instruction stated: “As jurors, you have the responsibility of judging the credibility or
believability of the w itnesses and we ighing their tes timony. If the re are co nflicts, you sh ould try to
reconc ile them . Do not h astily conclud e that a witne ss testified falsely since the law allow s you to
presume that witnesses are truthful. In determining the credibility or believability of a witness, you may
consider the witness’s appearance, demeanor, motive, interest or lack of interest in the trial’s outcome,
general character, reputation for truth, fairness or bias, means of knowledge, reasonableness of the
testimo ny, mate rial contrad ictory statem ents as well as all the o ther evide nce wh ich tends to corrob orate
or to con tradict the w itness. . . .”

                                                        -7-
       Several state courts have concluded that requiring specific testimony of a co-

defendant as a condition of a plea agreement is not a violation of due process so long

as the testimony is required to be truthful. In a 1987 Nebraska case, Burchett, 399

N.W.2d 258, the defendant argued that his right to a fair trial was violated because a

co-defendant testified under a plea bargain agreement which required that he testify to

“his last version of the events” leading to the victim’s death and to the satisfaction of the

prosecutor before receiving the benefit of the agreement.



       The Nebraska Supreme Court began its analysis by stating that “it is only where

the prosecution has bargained for false or specific testimony, or a specific result, that

an accomplice’s testimony is so tainted as to require . . . preclusion.” The court then

observed that the plea agreement required the co-defendant to assist the prosecution

by “speaking truthfully with a representative of the [state] and testifying truthfully at any

court hearing” regarding the events of the murder. Although the record indicated that

the co-defendant had given several different statements, the court said that the “final

version” implicating the defendant was understood to be truthful. Id. at 266-67.



       A Washington appellate court also rejected the claim that a co-defendant’s plea

agreement violated the defendant’s right to due process by requiring specific testimony.

The court noted the plea agreement required the co-defendant to “give ‘a complete and

truthful’ statement concerning [the victim’s] death, confirming that he did not have prior

knowledge of the killing, did not commit the murder, and did not aid in the commission

of the murder.” State v. Clark, 743 P.2d 822, 828 (Wash. Ct. App. 1987) (emphasis in

original). The court concluded as follows:


               Under the terms of the immunity agreement, the State’s promises
       did not extend to false or misleading statements or perjury. Thus, while
       the agreement provided some incentive for [co-defendant] to confirm his
       prior accounts of the killing, it provided an equal incentive that he not
       enter the agreement at all unless the statement was in fact the truth. . . .
       [W]e conclude that the immunity agreement in the instant case was not
       improperly conditioned on testimony setting forth a particular formulation
       of the facts or on the achievement of a certain result.


                                             -8-
Clark, 743 P.2d at 828-29 (emphasis added).



         The Nevada Supreme Court has made similar observations in rejecting a claim

that a co-defendant’s agreement violated due process principles:


         [I]t is not improper for the State to require the promisee to testify in a
         general manner that is consistent with the information provided to the
         State as an inducement for the bargain, subject, of course, to any change
         mandated by truth if the promisee subsequently admits to falsifying the
         information upon which the bargain is based. . . . The testimony
         condemned by the courts . . . is that which must be played according to a
         predetermined script and irrespective of its truthfulness. The witness
         must understand that he is not free to commit perjury, and that the plea
         bargain may not be based upon false testimony.


Acuna, 819 P.2d at 201 (emphasis added); see also DeWitt, 286 N.W.2d at 386 (co-

defendant required to testify “fully about [his] knowledge of all of the facts . . . do so and

truthfully”).3



         In our view, the present case is consistent with these cases. There is no

indication that the prosecution’s agreement with Kabrian Hayes required false or

perjured testimony, nor that Hayes was required to testify in accordance with a

particular script. Although the references to Hayes’ prior statement to Agent Hughes

and the threats made by Bolden appear to refer to improper specific testimony, the first

provision in the plea agreement stated that Hayes must “testify truthfully,” a condition

which necessarily engulfed the other provisions. In sum, the agreement hinged upon

truthful testimony. Accordingly, we are convinced that Hayes' testimony was not tainted

by the plea agreement. Moreover, the essential safeguards were followed: the jury and

the defendant were fully apprised of the agreement; the defendant conducted a full and


         3
             These cases are easily distinguished from the few cases in which a violation of due process has
been found. In People v. Medina, 41 Cal. App. 3d 438, 455, 116 Cal. Rptr. 133, 141 (C al. Ct. App. 1974),
for exam ple, the effe ct of the ple a agree men t was to pla ce an a ccom plice und er a “stron g com pulsion” to
testif y again st the defe nda nt in a p articu lar fas hion t hat a mo unte d to s cripte d tes timo ny. Sim ilarly, in
People v. Green, 228 P.2d 867, 868-72 (Cal. Ct. App. 1951), the agreement was conditioned upon the
accomplice’s testimony producing a specific result. Finally, in Frank lin v. State, 577 P.2d 860 (Nev. 1978),
the court reversed a conviction after finding that a co-defendant’s testimony violated the defendant’s right
to due process and holding that the prosecution’s withholding of the benefits of an agreement until after an
accomplice testifies is inconsistent with the search for truth. The Nevada Supreme Court, however, has
since overruled Fran klin . See Acuna, 819 P.2d at 201.

                                                          -9-
vigorous cross-examination of Hayes, which revealed that Hayes had received a new

and more limited plea agreement and then changed his story on the stand; and the jury

was instructed that its function was to weigh the testimony and determine the credibility

of the witness. Therefore, we conclude that the admission of Hayes’ testimony induced

by a plea agreement did not violate the defendant’s rights to due process and a fair

trial.



                             LESSER INCLUDED OFFENSES

         Over Bolden’s objection, the trial court charged the jury on the lesser included

offense of second degree murder pursuant to Tenn. Code Ann. § 40-18-110(a) (1997),

which provides: “It is the duty of all judges charging juries in cases of criminal

prosecutions for any felony wherein two (2) or more grades or classes of 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.”

Bolden argues that this statute is intended to benefit the accused and that the accused

may, therefore, object to the trial court instructions on lesser offenses. The State

maintains, and the Court of Criminal Appeals held, that the instruction to the jury was

mandatory since the evidence was sufficient to support a charge on second degree

murder.



         This Court has interpreted Tenn Code Ann. § 40-18-110(a) to mean that a trial

court must instruct the jury on all lesser offenses if the evidence introduced at trial is

legally sufficient to support a conviction for the lesser offense. State v. Cleveland, 959

S.W.2d 548, 553 (Tenn. 1997). An offense is lesser included in another "only if the

elements of the greater offense, as those elements are set forth in the indictment,

include but are not congruent with, all the elements of the lesser." Howard v. State, 578

S.W.2d 83, 85 (Tenn. 1979); see also Cleveland, 959 S.W.2d at 553.




                                             -10-
       We have frequently held that the trial court’s obligation under this statute is

mandatory, provided there is sufficient evidence for a rational trier of fact to find a

defendant guilty of a lesser offense. Strader v. State, 362 S.W.2d 224, 228 (Tenn.

1962). The failure to instruct on a lesser offense, however, may be shown to be

harmless beyond a reasonable doubt under some circumstances. State v. Williams,

___ S.W.2d ____ (Tenn. 1998) (failure to instruct on voluntary manslaughter harmless

error where jury convicted defendant of first degree murder despite being instructed on

other lesser included offenses).



       One purpose of the statute is to protect the right to trial by jury by instructing the

jury on the elements of all offenses embraced by the indictment. 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 process.

In addressing a similar issue, the California Supreme Court observed:


       [T]he evidence may show that the defendant is guilty of some
       intermediate offense included within, but lesser than, the crime charged.
       A trial court’s failure to inform the jury of its option to find the defendant
       guilty of the lesser offense would impair the jury’s truth-ascertainment
       function. Consequently, neither the prosecution nor the defense should
       be allowed, based on their trial strategy, to preclude the jury from
       considering guilt of a lesser offense included in the crime charged. To
       permit this would force the jury to make an ‘all or nothing’ choice between
       conviction of the crime charged or complete acquital, thereby denying the
       jury the opportunity to decide whether the defendant is guilty of a lesser
       included offense established by the evidence.


People v. Barton, 906 P.2d 531, 536 (Cal. 1995) (trial court properly instructed jury on

lesser offense of involuntary manslaughter over the defendant’s objection).



       In view of the foregoing, the only remaining argument and the only question for

review is whether the evidence was sufficient to sustain a conviction for the lesser

included offense of second degree murder. Here, defendant Bolden was charged with

the offense of first degree murder, which is "[a] premeditated and intentional killing of

another." Tenn. Code Ann. § 39-13-202(1) (1997 & Supp. 1998). Second degree


                                             -11-
murder, which requires "[a] knowing killing of another," Tenn. Code Ann. § 39-13-210(1)

(1997), is a lesser included offense. At trial, Bolden’s guilt was predicated on his

criminal responsibility for the conduct of Hayes. A person is criminally responsible for

the conduct of another when the person "[a]cting with intent to promote or assist the

commission of the offense, or to benefit in the proceeds or results of the offense, . . .

solicits, directs, aids, or attempts to aid another person to commit the offense." Tenn.

Code Ann. § 39-11-402(2) (1997).



       The jury was presented with evidence that Bolden and Hayes drove around

looking for the victim, who owed Bolden money. Bolden had expressed his intent to kill

the victim. He and Hayes, after finding the victim, drove to a deserted dirt road on the

banks of the Mississippi. When the victim said he did not have any money, Bolden

ordered Hayes to shoot the victim with a weapon Bolden had given Hayes. After Hayes

shot the victim twice in the chest, Bolden helped dump the victim's body into the water.



       We agree with the lower courts’ determinations that there was sufficient

evidence presented to warrant a conviction of second degree murder. Accordingly, we

conclude that the trial court did not err in complying with its mandatory statutory

obligation of instructing the jury on the offense.



                                      CONCLUSION

       After our review of the record and the applicable authority, we conclude that the

admission of the co-defendant’s testimony induced by a plea agreement did not violate

the defendant’s rights to due process and a fair trial under the United States and

Tennessee Constitutions. We further conclude that the trial court did not err in

instructing the jury on the lesser included offense of second degree murder over the

defendant’s objection. Accordingly, we affirm the Court of Criminal Appeals’ judgment.




                                            -12-
      Costs of appeal are taxed to the appellant, Steven Bolden, for which execution

may issue if necessary.



                                               ________________________________
                                               RILEY ANDERSON, CHIEF JUSTICE




CONCUR:

Drowota, Birch, and Holder, JJ.




                                        -13-
