             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
                     No. 58152A and 58152B     Richard R. Baumgartner, Judge



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


Jerry L. Smith, J., concurring in part and dissenting in part.

        I concur fully in the lead opinion with respect to the attempted murder convictions of both
defendants. I also concur fully with Judge Woodall’s opinion in all other respects save for the issue
concerning the failure of the trial court to instruct the jury on the lesser-included offenses of robbery
and attempted robbery to the aggravated robbery indictment and the attempted aggravated robbery
indictment. For the reasons stated below I would find this failure to instruct with respect to these
lesser-included offenses constituted reversible error. A reading of the recent cases of State v.
Bowles, ___ S.W.3d ___(Tenn. 2001); and State v. Ely & Bowers, 48 S.W.3d 710 (Tenn. 2001);
leads one to the inescapable conclusion that our high court has mandated that lesser-included offense
instructions be given anytime the evidence is sufficient to support a conviction for these offenses.
This means that anytime the proof is sufficient for a conviction of the indicted offense, the proof will
a fortiori be sufficient for a conviction of the lesser-included offenses. See Bowles ___ S.W.3d at
____. As a practical matter, this in turn means that it will almost always be error to fail to instruct
the jury as to all lesser-included offenses of the indicted offense.1 Thus, the only real inquiry, in my
opinion, in virtually all of the cases raising the lesser-included offense issue is whether the error in
failing to instruct on the lesser offenses can be said to be harmless beyond a reasonable doubt.




         1
           This analysis may not hold true where the issue is a failure to instruct the jury on the offenses of solicitation
or facilitation of the indicted o ffense. A finding o f guilt on th e indicted c harge d oes not a fortioti mean th at there is
sufficient proof to support a conviction on these offenses. For example, in the instant case constitutionally sufficient
proof of guilt of aggravated robbery necessarily means there is sufficient proof of simple robbery and attempted robbery,
but it does not necessarily follow that proof of aggravated robbery will establish that the defendant solicited or facilitated
others in the comm ission of the offense. Presu mably, the qu estion to be a sked in d etermin ing error w ith respect to
solicitation and facilitation is whether there is any evidence that a reasonable juror could accept as to these offenses to
the exclusion of the greater offenses.
        It should be noted at the outset of this discussion that although defendant Richmond raised
on appeal the lesser-included offense issue, defendant Johnson did not. Nevertheless, pursuant to
Tenn. R. Crim. P. 52(b) and the case of State v. Smith, 24 S.W.3d 274 (Tenn. 2000); I would find
as to Johnson that the failure to instruct the jury on the lesser-included offenses of robbery and
attempted robbery constitutes plain error. As such I would therefore grant relief on this issue to both
defendants.

        Tenn. R. Crim. P. 52(b) provides:

                An error which has affected the substantial rights of an accused may
                be noticed at any time, even though not raised in the motion for a new
                trial or assigned as error on appeal, in the discretion of the appellate
                court where necessary to do substantial justice.

In State v. Smith, supra., the Tennessee Supreme Court delineated a five (5) part test for determining
whether an error is plain error. All five (5) criteria for establishing plain error must be established
by the record. Id. at 282-83. These five (5) criteria are:

        (1)     the record must establish what occurred 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 must not have waived the issue for tactical reasons; and,

        (5)     consideration of the error must be necessary to do substantial justice.

         Turning to the instant case the record reveals that no instructions on the lesser-included
offenses of simple robbery and attempted robbery were given to the jury for consideration in the
panel’s deliberations on the aggravated robbery and attempted aggravated robbery counts in the
indictment. In my view, for the reasons stated infra. the Tennessee Supreme Court has now
established clear and unequivocal rules of law in this area. Clearly a substantial right of the accused,
i.e. the state constitutional right to a jury trial was adversely affected. See, State v. Ely & Bowers,
48 S.W.2d at 727, (Tenn. 2001). Nothing in the record suggests Johnson waived this issue for
tactical reasons. Finally, since Johnson and Richmond were tried together in this case and
presumably will be in the future trial necessitated by this Court’s opinion, substantial justice requires
that consistent jury instructions be given for both defendants. Thus, I would find the failure to
instruct as to defendant Johnson on lesser-included offenses to the aggravated robbery and attempted
aggravated robbery charges constitutes plain error.

       Turning to the merits of the lesser-included offense issue in this case, I am again compelled
by recent Tennessee Supreme Court precedent to conclude that an error in failing to instruct the jury


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as to lesser-included offenses will be found harmless beyond a reasonable doubt only in the situation
presented in the case of State v. Williams, 977 S.W.2d 101 (Tenn. 1998). In Williams, the defendant
was indicted for first degree murder. The jury was also instructed on second degree murder, but the
trial judge declined to give instructions on voluntary manslaughter. The defendant was convicted
of first degree murder as charged in the indictment. The supreme court held that the error was
harmless because: “[B]y finding the defendant guilty of the highest offense to the exclusion of the
immediately lesser offense, second degree murder, the jury necessarily rejected all other lesser
offenses, including voluntary manslaughter.” (Emphasis supplied), Id. at 106.
         In the case of State v. Ely & Bowers, supra.; the supreme court referred to Williams as an
example of when an error in failing to instruct on lesser-included offenses is harmless beyond a
reasonable doubt. 48 S.W.3d at 727. In State v. Bowles, supra.; Williams was again touted as the
paradigm for harmless error analysis in this area. ___ S.W.3d at ___. In both State v. Swindle, 30
S.W.3d 289, 293 (Tenn. 2000); and State v. Bolden, 979 s.W.2d 587, 593 (Tenn. 1998); the
Williams case is held out as an example of when an error in failing to instruct on lesser-included
offenses will be found to be harmless beyond a reasonable doubt.
         In summary, each time our supreme court has performed a harmless error analysis on the
failure to instruct on a lesser-included offense, the court has found the error to be harmless beyond
a reasonable doubt when the Williams situation is presented. See e.g. Bowles, ___ S.W.3d at ___;
State v. Swindle, 30 S.W.3d at 293. Each time the Williams situation is not present the court has
found, irrespective of the quantum of proof as to the defendant’s guilt of the greater offense, that the
failure to instruct on lesser-included offenses was reversible error. State v. Ely & Bowers, 48
S.W.3d at 727; State v. Rush, 50 S.W.3d at 424,433 (Tenn. 2001). I am therefore forced to conclude
that the only time a failure to instruct on lesser-included offenses can be considered harmless beyond
a reasonable doubt is in the situation presented by the Williams case, i.e., where the jury by rejecting
a verdict of guilt on an intermediate lesser-included offense for which they were instructed, in favor
of a verdict on the more serious offense, “necessarily’ rejects all other lesser-included offenses.
Williams, 977 S.W.2d at 106. Although Judge Wade characterizes this approach to this seemingly
intractable area of the law as “mechanically applied”, such an analysis does establish a bright line
rule that will foster consistence and predictability in this area of the law and provide guidance to the
bench and bar. Given the troubled past of lesser-included jurisprudence, this seems to me to be a
desirable result.
         Since the situation in Williams is not that presented in the case sub judice I cannot say the
jury “necessarily” rejected the lesser-included offenses of robbery and attempted robbery. Thus, I
cannot find the error to be harmless beyond a reasonable doubt.
         I, therefore feel compelled by our supreme court’s precedents to reverse this case as to both
defendants and remand for a new trial wherein the jury is instructed as to all lesser-included offenses
of aggravated robbery and attempted aggravated robbery.




                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE


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