                                                                                             11/08/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                    July 17, 2018 Session

              STATE OF TENNESSEE v. STEVE M. JARMAN
                    Appeal from the Circuit Court for Dickson County
                      No. 2015-CR-585, Larry J. Wallace, Judge



                               No. M2017-01313-CCA-R3-CD




JAMES CURWOOD WITT, JR., J., concurring.

               I join in the majority=s disposition of this case. I write separately because it
is my view that the references to passion and provocation by their very nature express
neither elements of voluntary manslaughter that the State is required to prove nor an
absolute defense; instead, they are a type of built-in mitigation to a knowing or
intentional killing.

             Voluntary manslaughter is a form of intentional or a knowing killing, as the
case may be, the difference being that voluntary manslaughter, the lesser offense, is
committed following “a state of passion produced by adequate provocation sufficient to
lead a reasonable person to act in an irrational manner.” T.C.A. § 39-13-211(a). The
term “element” in the context of criminal proscriptive statues, however, denotes a
component of such a statute that the State is required to prove beyond a reasonable doubt.
See T.C.A. § 39-11-201. The State’s burden to prove the crime’s essential elements has
been elevated to the status of a due process mandate. See Jackson v. Virginia, 443 U.S.
307, 319 (1979). The passion and provocation components of the crime of voluntary
manslaughter are exculpatory in nature–a largess in favor of a defendant–and logically
cannot form a component of the State’s burden of proof; yet, the functional status of these
terms has remained somewhat cloudy.

              State v. Williams, is somewhat notable for referring to the passion and
provocation components of voluntary manslaughter as elements. Williams, however, was
an appeal from a conviction of second degree murder. As a defense to the charge of
murder, Williams claimed that the proof showed he had engaged in mutual combat with
the victim, thereby invoking a common law defense to a homicide charge. The Williams
court held that “the trier of fact must consider all facts surrounding a killing, including
the facts giving rise to an agreement to combat, to determine whether the killing resulted
from ‘a state of passion produced by adequate provocation sufficient to lead a reasonable
person to act in an irrational manner.’” State v. Williams, 38 S.W.3d 532, 539 (Tenn.
2001). The court determined that the common law notion of mutual combat was now
subsumed within the framework of the offense of voluntary manslaughter. Id. at 538.
Further, the court, finding that the jury had heard the defendant’s proof, held that, “by its
verdict, the jury obviously rejected” the argument of mutual combat and that the issue
conclusively lay within the province of the finder of fact. Id. The result was that the
evidence was held to be sufficient “to support the jury’s verdict of guilt[y] on the charge
of second degree murder,” id. (emphasis added), despite the defendant’s attempt to show
that his passion and provocation abated his crime to one of manslaughter. The plain
implication is that the court viewed the advancement of passion and provocation as a
defensive function, albeit one that failed given the customary deference to the jury’s
prerogative. Whether passion and provocation are “elements” of the offense of voluntary
manslaughter had no play in the court’s decision, and it certainly did not hold that these
factors are elements. Indeed, the Williams court made the statement about the passion
and provocation terms being elements distinguishing manslaughter from second degree
murder while explaining that malice is no longer the distinguishing factor between
murder and the lesser forms of homicide. Id. It should be clear that Justice Birch in
Williams was not using the term “element” as a term of art–as an essential element in the
way we have defined it above.

                Prior to the enactment of Tennessee Code Annotated section 40-18-
110(g)(2), declaring voluntary manslaughter to be a lesser included offense of first and
second degree murder, some opinions of this court, including one by this author, state
without analysis that voluntary manslaughter is a lesser included offense of first and
second degree murder under part (b) of State v. Burns. Burns part (b) was essentially a
shoehorn device for determining that an offense is a lesser included offense of a greater
offense even though the elements of the lesser offense are not subsumed within the
greater. State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999); see, e.g., State v. Paul
Clifford Moore, Jr., No. E2015-00585-CCA-R3-CD, slip op. at 16 (Tenn. Crim. App.,
Knoxville, May 12, 2016) (“As to Moore’s argument that voluntary manslaughter is an
atypical lesser included offense because it appears to have an additional element that the
greater offense does not, we note that the Tennessee Supreme Court fully addressed this
scenario under subsection (b)(1) of its definition of lesser included offenses in State v.
Burns . . . .”); State v. Mario Ward, No. W2007-00672-CCA-R3-CD, slip op. at 5 (Tenn.
Crim. App., Jackson, Oct. 27, 2008) (“[T]he law is settled that attempted voluntary
manslaughter is a lesser included offense of attempted first degree murder under part (b)
of the Burns test.” (citing State v. Dominy, 6 S.W.3d 472, 477 (Tenn. 1999)); State v.
Hezekiah Cooper, No. W2005-02481-CCA-R3-CD, slip op. at 15 (Tenn. Crim. App.,
Jackson, Dec. 20, 2007) (“In this case, the State concedes that voluntary manslaughter is
a lesser included offense of first and second degree murder.” (citing Dominy, 6 S.W.3d
472, 477 n.9 (Tenn. 1999)); State v. Walter Wilson, No. W2001-01463-CCA-R3-CD, slip
op. at 9 (Tenn. Crim. App., Jackson, Sept. 4, 2002) (inferring that voluntary manslaughter
is a lesser included offense of first degree murder under Burns part (b) because footnote 9
in Dominy “referred . . . to the ‘passion’ language . . . as reflecting a less culpable mental
state than required for first- or second-degree murder”). We have no doubt that voluntary
manslaughter may fall within Burns part (b)’s threshold for offenses the elements of
which indicate a lesser kind of culpability, but to imply that the adoption of Burns part
(b) was the development that made it so was a wide-spread misreading of Dominy.

               To explain, we begin by noting that the typical precedential basis for saying
that voluntary manslaughter is a lesser included offense of first and second degree murder
via Burns part (b) is the oft-mentioned footnote 9 in Dominy, 6 S.W.3d at 477 n.9, the
companion case to Burns. See, e.g., State v. Jeffery Lee Mason, No. M2002-01709-CCA-
R3-CD, slip op. at 6 (Tenn. Crim. App., Nashville, May 19, 2004) (addressing Mason’s
conviction of attempted voluntary manslaughter as a lesser included offense of attempted
first degree murder and stating that “[a]ttempted voluntary manslaughter is a lesser
included offense of attempted first degree murder under the Burns test”). In Dominy,
however, the supreme court was reflecting upon jurisprudential history when it observed
that State v. Trusty, 919 S.W.2d 305 (Tenn. 1996), the erstwhile regimen for determining
lesser included offenses, had failed to recognize that voluntary manslaughter was already
a lesser included offense of first and second degree murder even without the high court’s
machinations in Trusty. The prevailing regimen for determining lesser included offenses
prior to Trusty was the so-called “Blockburger” test for lesser included offenses as
espoused by the earlier decision of Howard v. State, 578 S.W.2d 83 (Tenn. 1979). Under
this test, an offense was a lesser included offense of a greater offense when all of its
essential elements were included with the greater offense. The historical time period
being referenced was the time between the enactment of the present criminal code in
1989 and the filing of Trusty in 1996, a time when the Howard rule prevailed vis-a-vis
the terms of the new code. In Dominy, Justice Drowota said, “Trusty failed to recognize
that the ‘passion’ language in the definition of voluntary manslaughter simply reflects a
less culpable mental state than required for first or second degree murder.” Dominy, 6
S.W.3d at 477 n.9 (emphasis added). Hence, the court was saying that, during this
foregoing time period, voluntary manslaughter’s elements were included within the
elements of first and second degree murder, making it a lesser included offense of those
greater offenses; the passion and provocation components of voluntary manslaughter
were not essential elements of the crime but “simply reflect[ed] a less culpable mental
state than required for first or second degree murder.” In foot note 9, the Dominy court
then stated, “Therefore, voluntary manslaughter is a lesser included offense of first and
second degree murder.” The reliance of progeny upon footnote 9 as “holding” that
voluntary manslaughter became a lesser included offense of first and second degree
murder via Burns part (b) probably stems from the Dominy court’s citing, immediately
after the above statement, the Burns test, emphasizing the language of the (b) part. Close
inspection of the citation, however, reveals that Justice Drowota used the analogous “see”
citation for this purpose. The import of this mechanism, combined with the preceding
statement, is that Burns part (b) afforded analogous or conducive support, not
determinative authority, for the statement. The more precise interpretation of Dominy,
therefore, is that the passion and provocation components of voluntary manslaughter are
defensive considerations and not essential elements of that offense.

               Furthermore, this treatment of this offense is accommodated by statute.
The passion and provocation components of voluntary manslaughter do not negate the
mens rea elements of intentional and knowing that underlie the murder offenses (in the
same way that the passion and provocation construct negated the existence of malice at
common law); however, Code section 39-11-203 provides, “A ground of defense, other
than one (1) negating an element of the offense or an affirmative defense, that is not
plainly labeled in accordance with this part has the procedural and evidentiary
consequences of a defense.” T.C.A. § 39-11-203(e)(1) (emphasis added). The ambit of
this provision embraces the passion and provocation components of the voluntary
manslaughter statute. Recognizing these components as having defensive import does
not mean that one must be able to label them collectively as a particular type of defense.
It just “is what it is.”

              Determining, therefore, that the law at least does not affirmatively provide
that these components of voluntary manslaughter are true elements of the offense–and
further that the law does not preclude the contrary proposition–the issue is one of
common sense and logic. On this point, the notion that passion and provocation in the
manslaughter statute are essential elements of that offense is nothing short of nonsensical.
For example, when voluntary manslaughter is the conviction offense, would not
classifying passion and provocation as elements of that offense mean that the State’s
failure to prove those “elements,” exculpatory though they may be, result in a reduction
of the charge or an absolute acquittal? In that circumstance, it should be obvious that all
the State should be required to show is a knowing killing. That showing should entitle it
to a conviction of the charged offense of voluntary manslaughter.

               Requiring the State to prove what is essentially an exculpatory
circumstance is akin to a house divided unto itself. If in a given case there is a concern
about the adequacy of the evidence of passion or provocation, courts should comprehend
that the concern is really for the evidentiary justification of a jury instruction on voluntary
manslaughter; it is not an issue of the “sufficiency” of the evidence establishing essential
elements of the crime. See Burns, 6 S.W.3d at 467-69 (explaining the process for
determining when the evidence justifies a jury instruction on a lesser included offense).
Once the proper determination about instructing the jury is made, the jury’s decision
resolves, if necessary, all other issues about the terms of voluntary manslaughter.



                                           JAMES CURWOOD WITT, JR., JUDGE
