         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs June 3, 2003

              STATE OF TENNESSEE v. TERRANCE G. MOTLEY

                      Appeal from the Criminal Court for Shelby County
                         No. 00-01715, 16 Joseph B. Dailey, Judge



                  No. W2002-02079-CCA-R3-CD - Filed November 14, 2003



JOSEPH M. TIPTON, J., concurring.

        I concur in the result reached and most of the reasoning in the majority opinion. However,
I do not believe that we should rely on T.C.A. § 40-18-110 to bar relief in this case relative to a jury
instruction for the lesser included offense of attempted voluntary manslaughter. The state has not
raised the statute to bar the defendant’s jury instruction claim, and, obviously, the defendant has not
had an opportunity to address the validity of the statute. In this respect, I believe that legitimate
questions exist about the constitutionality of, at least, part of T.C.A. § 40-18-110 but that this case
is not the one to answer those questions. The fact that no harm could flow to the defendant under
the circumstances in this case is sufficient, by itself, to warrant affirming the judgments of
conviction. Therefore, I concur in the majority opinion.



                                                       ____________________________________
                                                       JOSEPH M. TIPTON, JUDGE
