         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    April 24, 2001 Session

                STATE OF TENNESSEE v. LINNELL RICHMOND
                         and SHERVON JOHNSON

                  Direct Appeal from the Criminal Court for Knox County
                 Nos. 58152A and 58152B Richard R. Baumgartner, Judge


                                  No. E2000-01499-CCA-R3-CD
                                        October 15, 2001


Gary R. Wade, P.J., concurring.


        I concur with Judge Woodall's lead opinion as to the defendant Johnson and would affirm
in all respects. I disagree with Judge Smith that this court should reverse Johnson's aggravated
robbery and attempted aggravated robbery convictions on a plain error basis for failure to instruct
on the lesser offenses of robbery and attempted robbery. Johnson did not present the issue on appeal.
Five factors determine whether the failure to charge lesser included offenses qualifies as reversible,
plain error:

       1.      The record must clearly establish what happened in the trial court;
       2.      a clear and unequivocal rule of law must have been breached;
       3.      a substantial right of the accused must have been adversely affected;
       4.      the accused did not waive the issue for tactical reasons; and
       5.      consideration of the error is necessary to do substantial justice.

State v. Adkisson, 89 S.W.2d 626, 639 (Tenn. Crim. App. 1994). Because the proof was so
overwhelming as to Johnson's convictions, I would characterize the error as harmless beyond a
reasonable doubt and cannot, therefore, conclude that considering the error as plain "is necessary to
do substantial justice." Id.

        I concur in part with Judge Woodall's opinion as to the defendant Richmond, who was
granted a new trial on the murder count based upon error in the natural and probable consequences
rule. The defendant Richmond should, however, be granted a new trial on all counts. I concur with
Judge Smith, who concluded that the trial court also erred by the failure to instruct the jury on the
lesser included offenses of robbery and attempted robbery on the aggravated and attempted
aggravated robbery indictments.

       The evidence showed that the victims were standing outside of a nightclub when four men
wearing masks and hoods came around the corner of the building and demanded that they hand over
their money. There was testimony that the defendant Johnson held a .9 millimeter pistol to one
victim’s head and took $200 from him. There was also proof that when the other victims related that
they had no money, the defendants entered the nightclub and opened fire. The defendant Richmond
was arrested shortly after the incident driving the getaway car. He was not wearing a mask or a
toboggan. Police found no weapons and no money in his possession. By proving aggravated
robbery and attempted aggravated robbery, the state also proved robbery and attempted robbery. See
State v. Bowles, 52 S.W.3d 69 (Tenn. 2001). Under these circumstances, if the defendant Richmond
had been convicted of robbery or attempted robbery, this court would have clearly found that the
evidence supported the convictions. Thus, these lesser offenses should have been charged to the
jury.

         In all criminal cases, the burden of proof is on the state. The defendant had no obligation to
prove that deadly weapons were not used in the offense. The jury has the right to accredit or reject
the testimony of witnesses and, ultimately, to determine the law and the facts. See Tenn. Const. art.
I, § 19. The trial judge has a duty to give a complete charge of the law applicable to the facts of the
case. State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986). There is an obligation "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." Tenn. Code Ann. § 40-18-110(a). Pursuant to our statute and case law
interpretations, defendants are entitled to jury instructions on all lesser offenses for which the
evidence would support conviction. Complete instructions allow the jury to determine among each
alternative the appropriate offense, if any, for conviction and to more evenly balance the rights of
the defendant and the state. It is only when the record is devoid of evidence to support an inference
of guilt of the lesser offense that the trial court is relieved of the responsibility to charge the lesser
crime. State v. Stephenson, 878 S.W.2d 530, 549-50 (Tenn. 1994); State v. Boyd, 797 S.W.2d 589,
593 (Tenn. 1990).

        A finding that the trial court erred by not instructing the jury, however, does not end the
inquiry. In State v. Williams, 977 S.W.2d 101, 105 (Tenn. 1998), our supreme court appeared to
have rejected a line of cases which had concluded that the right to instructions on lesser offenses was
founded in the Tennessee Constitution and instead ruled that entitlement was based solely upon the
statutory requirement. In consequence, the high court directed that any error in the omission of a
lesser included offense would be subject to the following harmless error analysis:

        Reversal is required if the error affirmatively appears 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.

         In State v. Bolden, 979 S.W.2d 587 (Tenn. 1998), the defendant, who was charged with
premeditated first degree murder, was willing to gamble on an "all or nothing" verdict by asking the
trial judge not to charge the lesser included offense of second degree murder; the trial judge refused
and the defendant was convicted on that lesser crime. While our supreme court affirmed the second
degree murder conviction, its opinion emphasized the mandate of the statute requiring trial courts


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to "instruct the jury on all lesser offenses if the evidence introduced at trial is legally sufficient to
support a conviction of the lesser offense." Id. at 593. Our supreme court also acknowledged that
a "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 [and to] facilitate[] the overall truth-seeking function of
the process." Id. If the failure to charge a lesser included offense was an error of constitutional
dimension, as Bolden implied, the proper question would have been whether the error was harmless
beyond a reasonable doubt. In State v. Swindle, 30 S.W.3d 289, 293 (Tenn. 2000), however, our
supreme court followed the rationale in Williams and held that reversal was required only "if the
error affirmatively affected the result of the trial, or if the error more probably than not affected the
judgment to the defendant’s prejudice." Our highest state court concluded that the trial court’s
failure to instruct misdemeanor assault as a lesser included offense of the primary charge, aggravated
sexual battery, was harmless error under Tennessee Rule of Criminal Procedure 52(a).

         In State v. Ely, however, our supreme court clarified the holding in Williams and confirmed
that the failure to charge a lesser included offense qualifies as an error of constitutional proportions:

        [T]he right of trial by jury is of constitutional dimension [as] evidenced by its
        embodiment in Article I, section 6 of the Tennessee Constitution, which states, "the
        right of trial by jury shall remain inviolate." Accordingly, we hold that this
        constitutional right is violated when the jury is not permitted to consider all offenses
        supported by the evidence.

48 S.W.3d 710, 727 (Tenn. 2001) (emphasis in original). Our high court directed that in reviewing
error arising from a failure to charge one or more lesser included offenses, "the proper inquiry for
an appellate court is whether the error is harmless beyond a reasonable doubt." Id. That is not, in
my view, a mechanically applied analysis, as Judge Smith suggests, but a fact-specific one, requiring
review of the evidence in the record. For example, a concurring opinion authored by Chief Justice
Rehnquist in Sullivan v. Louisiana accurately describes the duty of the appellate court in
circumstances where there is constitutional error:

        [T]he reviewing court is usually left only with the record developed at trial to
        determine whether it is possible to say beyond a reasonable doubt that the error did
        not contribute to the jury's verdict. . . . [A]ny time an appellate court conducts
        harmless-error review it necessarily engages in some speculation as to the jury's
        decision making process; for in the end no judge can know for certain what factors
        led to the jury's verdict.

508 U.S. 275, 283 (1993) (Rehnquist, J., concurring).

       In Fahey v. Connecticut, 375 U.S. 85 (1963), our highest court observed that the real question
when there is a constitutional violation is whether there is "a reasonable possibility" that error might
have contributed to the conviction. In Chapman v. California, our Supreme Court approved of that
language and further concluded that when constitutional error has occurred, appellate courts have


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the obligation "to declare a belief that it was harmless beyond a reasonable doubt." 386 U.S. 18, 24
(1967).

        In summary, I concur in the affirmances of each of Johnson's convictions. In my view,
defendant Richmond is entitled to a new trial on all counts. Because there was no direct testimony
that he was armed or that he wore a mask, there is a "reasonable possibility" that the failure to
instruct on robbery and attempted robbery may have contributed to the aggravated robbery and
attempted aggravated robbery convictions. These errors cannot be considered harmless beyond a
reasonable doubt. I therefore concur with Judge Smith that the defendant Richmond is entitled to
new trials on those convictions.



                                                      ____________________________________
                                                      GARY R. WADE, PRESIDING JUDGE




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