             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE

                          DECEMBER 1994 SESSION           FILED
                                                            June 19, 1997

                                                          Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
STATE OF TENNESSEE,          )
                             )
             Appellee,       )    No. 03C01-9404-CR-00141
                             )
                             )    Blount County
v.                           )
                             )    Honorable Kelly Thomas, Jr., Judge
                             )
FRANK WHITMORE,              )    (First degree murder)
                             )
             Appellant.      )




For the Appellant:                For the Appellee:

Gerald C. Russell                 Charles W. Burson
125 E. Broadway Avenue            Attorney General of Tennessee
Maryville, TN 37804                      and
                                  Sharon S. Selby
                                  Assistant Attorney General of Tennessee
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  Michael L. Flynn
                                  District Attorney General
                                          and
                                  Edward P. Bailey, Jr.
                                  Assistant District Attorney General
                                  Blount County Courthouse
                                  Maryville, TN 37801




OPINION FILED:_______________________


AFFIRMED


Joseph M. Tipton
Judge
                                        OPINION



                The defendant, Frank Whitmore, appeals as of right from a jury conviction

in the Circuit Court of Blount County for first degree murder. 1 Although the state sought

the death penalty, the defendant was sentenced to life imprisonment in the custody of

the Department of Correction. He presents the following issues for review:

                (1) whether the evidence is sufficient to support the conviction
                of first degree murder,

                (2) whether the trial court erred by not requiring the state to
                elect under which theory of first degree murder it would seek
                a conviction,

                (3) whether the trial court erred by instructing the jury relative
                to the elements of felony murder and criminal responsibility for
                felony murder, and

                (4) whether the trial court erred by denying the defendant’s
                special requests for various jury instructions and by improperly
                instructing the jury regarding lesser included and lesser grade
                offenses.

We hold that the evidence is sufficient and that the trial court did not commit reversible

error. Therefore, we affirm the trial court’s judgment of conviction.



                On August 11, 1991, William Pyott, an eighty-year-old neighbor of the

defendant’s grandparents, was found dead in his home. He had been stabbed a total

of thirteen times in the neck and the chest.



                Hazel Chapman, a neighbor of the victim, testified that on the night of the

murder she was awakened at approximately 1:30 a.m. by the growling and the barking

of her dogs. She said that she looked outside the window but could not see the victim’s

house because of the trees. Ms. Chapman stated that she was awakened later by her

dogs because they were barking and running in the direction of the victim’s house.


                1
                  The defendan t was also convicted of aggravated burglary, a Class C felony, and theft
under $500.00, a Class A misdemeanor. As a Range I, standard offender, he received concurrent
sentences of six years and eleven months and twenty-nine days, respectively. He does not raise any
challenges regarding these convictions.

                                                    2
James Long, who lives approximately a half mile from the victim, testified that when he

was driving a friend of his daughter’s to her house around 12:30 a.m., he saw the

defendant walking with a short, stocky man.



             David Maples, a deputy for the Blount County Sheriff’s Department,

responded to a dispatch of a possible burglary at the victim’s house. He testified that

the front door was open and damaged. The screen door was hanging on hinges and

the glass from the screen door was leaning against a wall. After he entered the

residence, he found the victim lying in the hall surrounded by blood. Officer Maples

stated that there was a trail of blood coming from the bedroom to the hallway and that a

closet door at the end of the hallway was open.



             Gary Hamilton, a Blount County Crime Scene Technician and Fingerprint

Examiner, assisted in the investigation. He testified that he discovered fingerprints on

the exterior side of the screen door matching that of the defendant. A blood trail

fourteen feet two inches long extended from the blood-covered bed to the hallway

where the victim was found. Officer Hamilton expressed the belief that the victim got

out of the bed after being stabbed and dragged himself into the hall. The telephone in

the den was off the hook. Officer Hamilton stated that a fingerprint found on the

linoleum underneath the bed came from the defendant. He also said that he found a

trunk in another bedroom that appeared to have been tampered with due to damage to

the lid. Officer Hamilton testified that he found no blood on the defendant’s clothes.



             Detective Randall Mercks of the Blount County Sheriff’s Department

similarly described the scene during his testimony. He added that he discovered one

thousand four hundred dollars between the mattress and box springs of the victim’s bed

and a note indicating that he had given the defendant twenty-five dollars on August 10,

1991. Detective Mercks stated that he and Detective Jim Widener jointly questioned



                                            3
the defendant and Coy Dean Williams2 regarding their involvement in the victim’s

murder.



                  In a joint confession, the defendant and Williams agreed that the following

events occurred. The defendant said that he called the victim around 6:00 p.m. and

asked him to borrow some money. The victim agreed, and the defendant and Williams

drove to the victim’s home. According to the defendant, the victim asked the defendant

to come inside and gave him twenty-five dollars. While the defendant was talking to the

victim, Williams went into a bedroom and took twenty dollars and a gold watch.

Williams told the officers that he opened the trunk and searched for a gun. Finding no

gun, Williams instead took some silver coins and placed them in his pocket. The two

then left the victim’s home and drove to Knoxville to purchase two quails, each

containing a quarter gram of cocaine, with the money.



                  The statement further reflects that later that night, the defendant and

Williams decided to go back to the victim’s home to steal the victim’s guns or money to

purchase more drugs. The defendant told Williams that the victim kept his guns in a

suitcase. Both the defendant and Williams asserted that their plan was not to hurt the

victim but only to scare him. They drove by the victim’s home several times until all of

the lights were turned off. On the first attempt, the defendant and Williams got out of

the car, walked to the back door, but returned to the car after finding the door locked

and hearing the victim talking on the telephone. The defendant told the officers that he

became paranoid when dogs started barking, so they went to a store and waited for

thirty minutes, gathering themselves to go back to the house. Seeing that all of the

lights were out, they parked the car. Before they left the car, Williams reached over to

take the defendant’s knife from the dash near the speedometer where the defendant

kept it and placed it in his pocket. Then, they walked to the house. When the


                  2
                   W illiam s pled guilty to first d egre e m urde r, agg rava ted b urgla ry and mis dem ean or the ft,
receiving an effec tive senten ce of life im prisonm ent.

                                                           4
defendant could not open the screen door to the house, Williams yanked it open and

kicked in the door.



              The defendant and Williams stated that they entered the dark house as

the victim was coming towards the hallway carrying a flashlight. Williams said that he

grabbed the victim and placed his hand over his mouth, intending to put him on the bed

but not to hurt him. Williams stated that the victim grabbed him by the hair and the

pants as they wrestled on the bed. Regarding the exact time that he removed the knife

from his pocket, Williams made contradictory statements. First, he stated that he pulled

the knife from his pocket before the victim grabbed his hair and pants and held it to the

victim’s neck, telling him to be quiet and not to move. Williams later claimed that he

withdrew the knife when the victim grabbed him by the hair. He also stated that

because the victim would not let him leave and because he “had no choice,” he stabbed

the victim.



              Meanwhile, the defendant went to the other bedroom and ripped the trunk

open and grabbed a money bag containing forty-two dollars. The defendant told the

officers that he heard the victim moaning when he stepped inside the bedroom to tell

Williams that they were leaving. The defendant said that he went outside but came

back into the bedroom after he noticed that Williams had not followed him. As he

entered the bedroom, the defendant saw a flashlight shining underneath the bed. The

defendant said that he crawled on the floor and reached under the bed to get the

flashlight. As he turned the flashlight off, the defendant saw blood, panicked and ran

out the door. Williams ran outside behind the defendant.



              The defendant asserted in the statement to the police that after getting in

the car, Williams told him that he killed the victim. According to the defendant and

Williams, the defendant became hysterical, and Williams had to scream at the



                                            5
defendant to get him to calm down. They then drove to Old Maryville Pike to dispose of

the flashlight. The defendant said that he gave Williams one of his T-shirts to wipe off

any fingerprints on the flashlight before they threw it out the window. On the way back

to Knoxville, Williams wiped the blood off the knife and threw it out also. Afterwards,

the defendant stated that they counted the money and decided to buy two more quails,

a quarter gram of cocaine apiece, with the forty-two dollars. They wiped the blood off

Williams with a blue wash rag and went to see Williams’ girlfriend. While at her

residence, they burned the money bag. Later, the defendant took his jeans and shirts

to the dumpsters behind the shopping center and threw the blue rag in a ditch as he

was driving away.



              On August 12, 1991, the defendant showed the officers where he hid the

items used during the murder. The officers recovered all of the items except the

flashlight.



              Dr. William Elliot conducted the autopsy of the victim. He testified that the

victim was an extremely slender man who was approximately four feet six inches tall.

Dr. Elliot stated that he found a total of thirteen cuts and stab wounds to the victim’s

neck and chest. Three of the stab wounds perforated the victim’s lungs. Dr. Elliot

expressed the opinion that the neck wounds probably occurred first. According to Dr.

Elliot, the victim did not die quickly and his death was caused by a combination of the

inability to breathe and blood loss from the wounds.



                         I. SUFFICIENCY OF THE EVIDENCE

              The defendant contends that the evidence was insufficient to prove

beyond a reasonable doubt his guilt for the offense of first degree murder. The

defendant was charged with first degree premeditated murder and felony murder in

separate counts of the indictment. The jury returned guilty verdicts on each count, and



                                             6
the trial court merged them into one judgment of conviction for first degree murder. On

appeal, the defendant challenges the sufficiency of the evidence for the jury’s findings

of guilt for both counts. The state argues that the evidence is sufficient to support the

conviction of first degree murder based on either first degree premeditated murder or

felony murder. We agree.



              Our standard of review when the sufficiency of the evidence is questioned

on appeal is "whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979). This means that we may not reweigh the evidence, but must

presume that the jury has resolved all conflicts in the testimony and drawn all

reasonable inferences from the evidence in favor of the state. See State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978).



   A. COUNT 1 - FIRST DEGREE PREMEDITATED AND DELIBERATE MURDER

              In his first issue, the defendant challenges his first degree murder

conviction on the grounds that there is insufficient evidence to show (1) that the

defendant personally committed an intentional, premeditated and deliberate killing of

the victim, (2) that Williams’ conduct constituted an intentional, premeditated, and

deliberate killing of the victim, and (3) that the defendant was criminally responsible for

Williams’ actions. See T.C.A. § 39-13-202(a)(1) (1991), T.C.A. § 39-11-402(2). The

state does not argue that there is sufficient evidence to show that the defendant

committed the offense himself, but instead asserts that the evidence supports the jury’s

determination of guilt beyond a reasonable doubt based on his criminal responsibility

for Williams’ commission of first degree premeditated and deliberate murder.




                                             7
                At the time of the offense, an unlawful, intentional, premeditated and

deliberate killing of another constituted first degree murder. See T.C.A. §§ 39-

13-201(a) and -202(a)(1) (1991)3. Our criminal code defined a deliberate act as “one

performed with a cool purpose,” and a premeditated act as “one done after the exercise

of reflection and judgment.” T.C.A. § 39-13-201(b)(1) and (2) (1991). In State v.

Brown, 836 S.W.2d 530 (Tenn. 1992), our supreme court further defined deliberation as

requiring some period of reflection, without passion or provocation, and concluded that

the “deliberation necessary to establish first degree murder cannot be formed in an

instant.” Id. at 539, 543. Premeditation requires a showing of a previously formed

design or intent to kill. State v. West, 844 S.W.2d 144, 147 (Tenn. 1992). The

existence of the separate and distinct elements of premeditation and deliberation is a

question of fact to be decided by the jury. See State v. Brown, 836 S.W.2d at 541-42.

In this respect, the determination of the state of mind necessary to establish the

elements of first degree murder may be shown by circumstantial evidence. State v.

Brown, 836 S.W.2d at 541; State v. Burlison, 868 S.W.2d 713, 717 (Tenn. Crim. App.

1993).



                The statute dealing with criminal responsibility for another person’s

conduct provides:

                A person is criminally responsible for an offense committed by
                the conduct of another if:

                ...

                (2) Acting with intent to promote or assist the commission of
                the offense, or to benefit in the proceeds or results of the
                offense, the person solicits, directs, aids, or attempts to aid
                another person to commit the offense;

                 ...




                3
                    Pursuant to an amendment effective July 1, 1995, the statutory provision defining first
degree murd er was a men ded, pur portedly de leting the req uirem ent of de liberation. See T.C.A. § 39-13-
202(a)( 1) (Sup p. 1996) .

                                                      8
T.C.A. § 39-11-402(2). Our court has stated that to be criminally responsible for the

acts of another, a defendant must “‘in some way associate himself with the venture, act

with knowledge that an offense is to be committed, and share in the criminal intent of

the principal in the first degree.’” State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim.

App. 1994) (quoting Hembree v. State, 546 S.W.2d 235, 239 (Tenn. Crim. App. 1976)).

In other words, the defendant must “‘knowingly, voluntarily and with common intent

unite with the principal offender[] in the commission of the crime.’” State v. Maxey, 898

S.W.2d at 757 (quoting State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988)).

The requisite criminal intent may be inferred from the defendant’s “presence,

companionship, and conduct before and after the offense . . . .” State v. McBee, 644

S.W.2d 425, 428-29 (Tenn. Crim. App. 1982).



               The proof demonstrates beyond a reasonable doubt all of the elements of

first degree murder as committed by Williams. In the light most favorable to the state,

the evidence reflects that Williams armed himself with the defendant’s knife before

entering the victim’s house. Once inside the house, Williams grabbed the victim, threw

him on the bed, and placed his hand over his mouth. Williams then took the knife from

his pocket and held it to the victim’s neck as he told him not to move. W hen the victim

grabbed Williams by the hair and the leg without releasing him, Williams began

stabbing the victim. The state argues that Williams’ statement that he had no choice

but to stab the victim provided a basis for the jury to infer that Williams weighed the

options available, thus satisfying the element of deliberation. We agree. These

circumstances sufficiently establish that Williams reflected upon his previously formed

decision to kill the victim.



               The proof also establishes beyond a reasonable doubt that the defendant

is criminally responsible for the first degree murder committed by W illiams. Although

Williams asserted in his statement to the police that they only intended to scare the



                                             9
victim, the elements dealing with mental states may be shown by circumstantial

evidence. State v. Brown, 836 S.W.2d at 541; State v. Burlison, 868 S.W.2d at 717. In

this regard, the defendant’s conduct before the murder supports a determination that

the defendant is criminally responsible for Williams’ conduct. See State v. McBee, 644

S.W.2d at 428-29. The defendant agreed with Williams to burglarize the victim’s home

so they could purchase more drugs. He provided the transportation and drove by the

victim’s house several times, waiting for the victim to turn off the lights. In fact, the

defendant and Williams retreated after the first try because they heard the victim inside

talking on the telephone. Thus, both the defendant and Williams knew that the victim

would be inside the house. The defendant also provided Williams with the murder

weapon. Williams told the officers that although he did not get the knife directly from

the defendant, he did take the defendant’s knife from the dash before they left the car

and placed it in his pocket. From this statement, the jury could properly infer that the

defendant knew that Williams armed himself with a weapon before entering the victim’s

house because Williams had to reach across to the driver’s side to get the knife.

Moreover, the defendant actively participated in the burglary.



              The jury also could have inferred from the defendant’s conduct after the

murder that he shared Williams’ criminal intent. See State v. McBee, 644 S.W.2d at

428-29. First, the defendant heard the victim moaning and observed blood in the

bedroom before leaving the house but did not attempt to assist the victim. Instead, the

defendant left the victim to die and divided the money with Williams for their drug

purchases. Also, he admitted that he gave Williams his shirt to wipe off fingerprints

from the flashlight before they threw it out the car window. The defendant also

conceded to disposing of other evidence.



              Under these circumstances, the jury could reasonably find that the

defendant aided Williams in the murder and shared the intent necessary to establish



                                              10
first degree premeditated and deliberate murder. Therefore, we hold that any rational

trier of fact could have concluded that there was sufficient evidence to support the jury’s

determination of guilt beyond a reasonable doubt that the killing by Williams satisfied

the elements of first degree premeditated and deliberate murder and that the defendant

was criminally responsible for Williams’ actions. See State v. John V. Woodruff, No.

01C01-9507-CR-00217, Davidson County, slip op. at 13 (Tenn. Crim. App. Aug. 1,

1996), app. denied (Tenn. Jan. 27, 1997) (held defendant criminally responsible for first

degree premeditated and deliberate murder when he provided the transportation and

the weapon used in the killing and stopped the vehicle after his codefendant stated, “we

gotta get [the victim]”).



                            B. COUNT 2 - FELONY MURDER

               The defendant also claims that his first degree murder conviction cannot

stand because there is insufficient evidence to establish either (1) that the defendant

recklessly killed the victim during the perpetration of a burglary or (2) that Williams

recklessly killed the victim during the perpetration of a burglary and that the defendant

is criminally responsible for Williams’ conduct. See T.C.A. § 39-13-202(a)(2) (1991),

T.C.A. § 39-11-402(2). Specifically, the defendant argues that he cannot be held

responsible for the conduct of Williams because there is no evidence that he knew of

Williams’ intentions to kill the victim, only discovering that the victim had been killed

after getting in the car to leave. The state does not argue that there is sufficient

evidence to demonstrate that the defendant recklessly killed the victim himself but

contends that the evidence is sufficient to show that the defendant is criminally

responsible for the reckless killing committed by Williams during the perpetration of a

burglary. We agree that the proof is sufficient to establish the defendant’s guilt of

felony murder beyond a reasonable doubt based on his criminal responsibility for the

acts of Williams.




                                             11
                At the time of the offense, felony murder was defined as the unlawful,

“reckless killing of another committed in the perpetration of, or attempt to perpetrate any

first degree murder, arson, rape, robbery, burglary, theft, kidnapping or aircraft piracy.”4

T.C.A. §§ 39-13-201(a) and -202(a)(2) (1991). A person “acts recklessly with respect to

circumstances surrounding the conduct or the result of the conduct when the person is

aware of but consciously disregards a substantial and unjustifiable risk that the

circumstances exist or the result will occur.” T.C.A. § 39-11-302(c).



                In order to hold the defendant criminally responsible for felony murder

based upon the conduct of Williams, the state had the burden of proving that the

defendant directed or aided Williams in the felony murder while acting with the intent to

promote or assist the commission of the felony murder or to benefit in the proceeds or

results of the felony murder. See T.C.A. § 39-11-402(2). A conviction based on

criminal responsibility for another person’s conduct requires that a defendant “‘in some

way associate himself with the venture, act with knowledge that an offense is to be

committed, and share in the criminal intent of the principal in the first degree.’” State v.

Maxey, 898 S.W.2d at 757. “The defendant must ‘knowingly, voluntarily and with

common intent unite with the principal offender[] in the commission of the crime.’” Id.

In this case, the requirement that the defendant share in the criminal intent of the

principal mandated that the state prove that the defendant shared, at least, the reckless

mens rea required for a felony murder conviction against Williams. See T.C.A. § 39-11-

402(2); State v. Maxey, 898 S.W.2d at 757. The defendant’s presence, companionship

and conduct before and after the offense are circumstances from which criminal intent

may be inferred. State v. McBee, 644 S.W.2d at 428-29.




                4
                    Pursuant to an amendment, the reckless mens rea element for felony murder was
deleted, stating that “[n]o culpable mental state is required for conviction under [the felony murder]
subdivision . . . except the intent to commit the enumerated offenses or acts . . . .” T.C.A. § 39-13-202
(Supp . 1995).

                                                     12
              Initially, we note that a conviction for felony murder based upon a

defendant’s criminal responsibility requires that the defendant act with intent to promote

or assist the felony murder, a crime involving reckless conduct. We acknowledge that

the Tennessee Supreme Court recently held in State v. Kimbrough, 924 S.W.2d 888

(Tenn. 1996), that the crime of attempted felony murder does not exist as a crime in

Tennessee. The court stated that an attempt to commit a crime necessarily involves an

intended act or result. 924 S.W.2d at 890. It also noted that felony murder, at the time

of the offense, required that the killing be committed recklessly. It then reasoned that “it

is logically and legally impossible to attempt to perpetrate an unintentional killing,”

stating, as well, “that one cannot intend to accomplish the unintended.” Id. at 892. By

this path, the court concluded that “the offense of attempted felony-murder does not

exist in Tennessee.” Id.



              However, our criminal code expressly provides that the culpable mental

state reflected by an “intentional” act legally suffices to establish the culpable mental

states of criminal negligence and recklessness, as well. That is, T.C.A. § 39-11-

301(a)(2) states:

              When the law provides that criminal negligence suffices to
              establish an element of an offense, that element is also
              established if a person acts intentionally, knowingly, recklessly.
              When recklessness suffices to establish an element, that
              element is also established if a person acts intentionally or
              knowingly. When acting knowingly suffices to establish an
              element, that element is also established if a person acts
              intentionally.

As the Sentencing Commission Comments explain, the lesser levels of culpability are

included by law in the greater so that “a person who acts ‘intentionally’ also acts

knowingly, recklessly and with criminal negligence.” See T.C.A. § 39-11-301. Thus,

although a felony murder required only a reckless killing, a conviction may be obtained

even though the proof showed that the killing was intended.




                                             13
             Furthermore, Kimbrough does not deal with the issue of criminal

responsibility for the crime of felony murder, while this court has previously concluded

that “one can be guilty of felony murder based on that person’s criminal responsibility

for the conduct of another.” State v. Lewis, 919 S.W.2d 62, 67 (Tenn. Crim. App.

1995); see also State v. Maxey, 898 S.W.2d at 758 (approving the application of

criminal responsibility for a codefendant’s rape of a child although the offense required

only a reckless mens rea). For these reasons, we also conclude that a felony murder

conviction can be based on criminal responsibility for the acts of another.



             In fact, the evidence of the premeditated and deliberate killing which we

previously discussed sufficiently proves a felony murder when considered with the

commission of the burglary. Aside from an intentional killing, though, the evidence

certainly reflects a reckless killing and sufficient awareness and assistance by the

defendant that would prove his responsibility for Williams’ conduct.



             The record shows that the defendant drove Williams to the victim’s house,

planning to rob the victim of his money or guns. Also, the jury reasonably could have

concluded that the defendant knew that W illiams armed himself with the defendant’s

knife before they left the car because he had to reach across the driver’s side to get the

defendant’s knife. See State v. Timothy D. Harris, No. 02C01-9211-CR-00258, Shelby

County, slip. op. at 11-12 (Tenn. Crim. App. Apr. 13, 1994) (the defendant’s awareness

that codefendants were carrying guns during a robbery was a factor in determining that

the element of recklessness had been satisfied for a felony murder conviction), rev’d.

on other grounds, 919 S.W.2d 323, 327, 330 (Tenn. 1996).



             Knowing that the victim was inside, both the defendant and Williams

entered the home to carry out their plan. The record reflects that when confronted by

the victim, the defendant entered a separate room to look for the money or guns while



                                           14
Williams detained the victim. Williams and the victim struggled, and Williams removed

his knife and stabbed the victim. The record shows that the defendant then walked into

the bedroom to tell Williams it was time to leave. Rather than helping the victim once

he heard the victim moaning and saw blood in the bedroom, the defendant told

Williams that it was time for them to leave, ran to the car, and then drove Williams away

from the scene. The defendant took the victim’s money with him as he ran out of the

house. Once the defendant reached a safe place, they disposed of the knife and the

flashlight after wiping each of them clean. Through their joint statement, the defendant

and Williams admitted their guilt to the crime of burglary, and Williams confessed to

killing the victim. From these facts, the jury could have found beyond a reasonable

doubt that the defendant was criminally responsible for the crime of felony murder as

committed by Williams.



                             II. ELECTION OF OFFENSES

              The defendant next complains that the trial court erred by denying his

motion to require the state to elect to prosecute on either the premeditated and

deliberate murder count or the felony murder count of the indictment. He makes

several arguments regarding the necessity for election. First, he asserts that charging

the jury on both counts of first degree murder violated the rule against multiplicity. He

contends that the two counts were opposite in theory and in elements and claims that

he was unfairly prejudiced because he was forced to defend against two contradictory

theories of first degree murder. Also, the defendant claims that it is impossible to have

the elements of both first degree premeditated and deliberate murder and felony

murder when a single killing occurs. In addition, the defendant argues that election was

necessary because the trial court instructed the jury that it could “convict” the defendant

on each count and the jury in fact “convicted” the defendant of both forms of first

degree murder. In support of his argument, he relies upon the following instruction

given by the trial court:



                                            15
                       The crime charged in each count of each indictment is
                a separate and distinct offense. You must decide each charge
                separately on the evidence and the law applicable to it. The
                defendant may be found guilty or not guilty of any or all of the
                offenses charged. Your finding as to the crime charged in
                each count must be stated in your verdict. In effect you will
                return a separate verdict in each count of [the two indictments5]
                ....

In response, the state asserts that it was proper to include both theories in the

indictment and to present to the jury both counts of first degree murder because the

evidence supported a conviction for each. We agree that election was not required in

this case.



                Multiplicity is the term applied to the improper charging of the same

offense in more than one count of an indictment. The evils that it presents are two-fold.

First, as to the trial itself, multiplicity may carry the potential of unfair prejudice, such as

suggesting to the jury that a defendant is a multiple offender or falsely bolstering the

state’s proof on such issues as the defendant’s motive or knowledge of wrongdoing.

See State v. Desirey, 909 S.W.2d 20, 27 (Tenn. Crim. App. 1995) (citations omitted).

Second, it can lead to multiple convictions and punishment for only one offense. Id.

That is, an indictment violating the rule against multiplicity may lead to a violation of the

Double Jeopardy Clause if it results in the imposition of cumulative punishments for

only one offense. Id.



                Our supreme court has held that the state is “not required to elect upon

separate charges in the same indictment, although the defendant may demand election

between factual occurrences.” State v. Henley, 774 S.W.2d 908, 916 (Tenn. 1989).

Specifically, the court concluded that the state is not required to elect between first

degree premeditated and deliberate murder and felony murder charged in separate

counts of the indictment for a single offense. Id. Also, the practice of submitting both


                5
                 The offenses of aggravated burglary and theft under $500.00 were the subject of an
indictment separate from the indictment for first degree murder. The trial court consolidated the cases for
trial.

                                                    16
theories of first degree murder to the jury has been accepted. See State v. Hurley, 876

S.W.2d 57, 69-70 (Tenn. 1993); State v. Zirkle, 910 S.W.2d 874, 889 (Tenn. Crim. App.

1995); Welch v. State, 836 S.W.2d 586, 589 (Tenn. Crim. App. 1992).



              Similarly, election was not required in this case. There was no danger

that the state’s proof would be bolstered or that the jury would infer that the defendant

was a multiple offender from the charging of alternative theories of first degree murder

in separate counts. The jury was instructed that the defendant was charged with the

crime of first degree murder, and the proof established that only one killing took place.

Pursuant to T.C.A. § 39-13-202 (1991), alternative means by which the offense of first

degree murder can be committed are provided. Premeditated and deliberate murder

and felony murder are both first degree murder. State v. Hurley, 876 S.W.2d at 59-60.

The trial court made clear that the defendant could be found guilty of first degree

murder based on either theory of first degree murder by instructing the jury on the

elements of each count.



              Although the defendant argues that permitting a trial for alternative murder

charges for a single killing permits the jury to convict on one count and then use that

conviction to take for granted that the defendant was guilty of the other count, the

record does not support his claim. First, the trial court instructed the jury that the state

had the burden of proving beyond a reasonable doubt the defendant’s guilt for the

alternative counts of first degree murder. Also, the jury was told that it must decide

each charge separately and that a separate verdict must be returned for each count.

The jury did not return a general verdict of guilt for the crime of first degree murder, but

instead specifically found the defendant guilty of both premeditated and deliberate

murder and felony murder. By returning separate verdicts of guilt, we may presume

that the jury found that the elements for each charged offense had been proven beyond




                                             17
a reasonable doubt. Under these circumstances, we hold that the jury would not have

been confused regarding the number of offenses committed by the defendant.



              Also, the charging of alternative theories of first degree murder did not

lead to multiple punishment for the same offense. The jury returned guilty verdicts for

both counts, and the trial court entered a single judgment of conviction for first degree

murder, imposing a single sentence of life imprisonment. In a single trial, returning

multiple verdicts for a single offense does not implicate double jeopardy concerns

unless the trial court enters more than one judgment of conviction imposing more than

one punishment for the same offense. See State v. Hurley, 876 S.W.2d at 69-70. The

trial court did not impose multiple punishments in this case, and therefore, the rule

against multiplicity was not violated. Under these circumstances, election was not

required.



                  III. JURY INSTRUCTIONS FOR FELONY MURDER

              The defendant also argues that the trial court erred in its jury instructions

regarding the crime of felony murder in several respects. He claims that the trial court

incorrectly instructed the jury (1) by substituting the word “burglary,” the underlying

felony offense, for the word “offense” in its instruction for criminal responsibility for the

crime of felony murder, (2) by failing to define the mental states “knowingly” and

“intentionally,” and (3) by declining to follow the statutory definition of the term

“recklessly.” The state asserts that the trial court gave a correct statement of the law in

its instruction relating to criminal responsibility for felony murder because the term

“offense” in the criminal responsibility provisions refers to the underlying felony and not

the reckless killing. The state further argues that because the defendant did not make

a special request regarding the jury instructions given for the elements of felony murder,

the claims relating to the definitions of the requisite mental states have been waived.

See Teague v. State, 772 S.W.2d 915, 926 (Tenn. Crim. App. 1988) (stating that the



                                              18
failure to object contemporaneously to the state’s closing argument results in waiver of

the issue pursuant to T.R.A.P. 36(a)). We hold that reversible error did not occur.



              The trial court has a duty to charge the jury on all of the law that applies to

the facts of the case. State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). The jury

instructions should describe and define all of the elements of each offense unless the

terms are of common use and understanding. State v. Cravens, 764 S.W.2d 754, 756

(Tenn. 1989). Anything short of a complete charge denies a defendant his

constitutional right to a jury trial. State v. McAfee, 737 S.W.2d 304, 308 (Tenn. Crim.

App. 1987).



               A. CRIMINAL RESPONSIBILITY FOR FELONY MURDER

              The defendant contends that the trial court improperly instructed the jury

regarding criminal responsibility for felony murder. See T.C.A. § 39-11-402(2). The

trial court gave the following instruction:

                      I instruct you that the defendant is criminally responsible
              for the first degree murder charged in this count committed
              beyond a reasonable doubt by another person if acting with
              intent to promote or assist the commission of the burglary or to
              benefit in the proceeds or results of a burglary; the person
              solicits, directs, aids or attempts to aid another person to
              commit a burglary.

(Emphasis added). Defense counsel objected to the instruction at trial and requested

that the term “first degree murder” be inserted in the place of the underlined portions.



              On appeal, the defendant claims that the substitution of the word burglary

instead of first degree murder required the jury to find the defendant guilty of felony

murder upon a determination that the defendant was guilty of burglary. The state

disagrees and asserts that because the essential question in a felony murder situation

is the extent of the defendant’s involvement in the underlying felony, the words “the

offense” refer to the underlying felony, in this case burglary, and not to first degree



                                              19
murder as argued by the defendant. We disagree. The perpetration of or attempt to

perpetrate the underlying felony is merely one element of the offense of felony murder.

See T.C.A. § 39-13-202(a)(2) (1991). A felony murder conviction also requires that the

state prove beyond a reasonable doubt that a reckless killing of another was committed

in the perpetration or the attempted perpetration of an enumerated felony. Id.



              In essence, the state submits that proof of the underlying felony always

supplies the reckless mens rea required for a conviction of felony murder under T.C.A.

§ 39-13-202(a)(2) (1991). We disagree. The circumstances of the underlying offense

may, but do not necessarily, provide a basis for inferring the recklessness required for a

conviction of felony murder based on criminal responsibility for the acts of another. See

State v. Middlebrooks, 840 S.W.2d 317, 345 (Tenn. 1992). In fact, our court has

concluded that T.C.A. § 39-13-202(a)(2) (1991) does not provide a presumption of

recklessness from the fact that the defendant was engaged in the commission of an

enumerated offense when the killing occurred. State v. Gilliam, 901 S.W.2d 385, 390

(Tenn. Crim. App. 1995).



              Before the 1989 Sentencing Act, felony murder lacked any mens rea

requirement, establishing strict liability for the crime of first degree murder when a

murder was committed during the perpetration of or an attempt to perpetrate an

enumerated offense. See T.C.A. § 39-2-202(a)(1) (Supp. 1988); State v. Middlebrooks,

840 S.W.2d at 336. The legislature added the requirement that the killing be reckless

when it enacted the 1989 Sentencing Act. See T.C.A. § 39-2-202(a)(2) (1991). By

adding the requirement, the legislature intended to eliminate the possibility of a

conviction based on strict liability. State v. Middlebrooks, 840 S.W.2d at 337.

Therefore, the 1989 Sentencing Act required that the state not only prove beyond a

reasonable doubt that a killing occurred during the perpetration or the attempted




                                             20
perpetration of an enumerated offense, but that it also show that the killing was

reckless. See T.C.A. § 39-13-202(a)(2) (1991).



              By instructing the jury that the defendant is criminally responsible for the

crime of first degree murder if he aided another person in committing a burglary while

acting with the intent to promote or assist the burglary or to benefit in the proceeds of

the burglary, the trial court permitted the jury to find the defendant guilty of first degree

murder based on a determination that the defendant was criminally responsible for the

burglary committed by Williams. However, as mentioned, the 1989 Sentencing Act

does not provide for strict liability for the crime of felony murder based on a showing

that a killing occurred during the commission of an enumerated felony. Rather, the

felony murder statute in effect at the time of the offense required that the killing

committed in the perpetration or attempted perpetration of an enumerated felony be

reckless. Thus, the term “offense” contained in the criminal responsibility statute refers

to the crime of felony murder itself and not to the underlying offense. Under these

circumstances, we hold that the trial court erred in its instruction.



              However, a determination of guilt for felony murder is not necessary to

affirm the defendant’s first degree murder conviction because there is sufficient

evidence to support the defendant’s conviction of first degree premeditated and

deliberate murder. Therefore, we hold the error is harmless beyond a reasonable

doubt. See T.R.A.P. 36(b); Tenn. R. Crim. P. 52(a); State v. Carpenter, 773 S.W.2d 1,

7-8 (Tenn. Crim. App. 1989).



              B. DEFINITIONS OF INTENTIONALLY AND KNOWINGLY

              Next, the defendant contends that the trial court erred by neglecting to

define the terms intentionally and knowingly within its jury instruction regarding the

offense of felony murder. The state maintains that the defendant has waived the claim



                                              21
by failing to object to the instruction at trial. We hold that the trial court correctly

instructed the jury.



              Although the defendant did not submit a requested instruction or object to

the ones given at trial, he raised the issue in his motion for new trial. Pursuant to Rule

30(b), Tenn. R. Crim. P., the failure to object to the content of an instruction given or to

the denial of a requested instruction at trial does not bar raising the failure as error in

support of a motion for new trial.



              In its felony murder instruction, the trial court informed the jury that the

requirement of recklessness is also established by a showing that the defendant acted

knowingly or intentionally. See T.C.A. § 39-11-301(a)(2). Although the trial court

provided a definition for recklessness, it did not define knowingly or intentionally within

the felony murder instruction. However, knowingly and intentionally are not elements of

felony murder. See T.C.A. § 39-13-202(a)(2) (1991). Moreover, our court has

concluded that the terms knowingly and intentionally are commonly used terms for

which an instruction defining the terms need not be given. State v. Raines, 882 S.W.2d

376, 383 (Tenn. Crim. App. 1994) (“knowingly”); State v. Burnette Mize, No. 03C01-

9405-CR-00163, Claiborne County, slip op. at 9-10 (Tenn. Crim. App. Sept. 22, 1995)

(“intentionally”); State v. Roger Gregory, No. 01C01-9003-CR-00066, Sumner County,

slip op. at 7 (Tenn. Crim. App. Dec. 12, 1990). In addition, the trial court correctly

defined intentionally within its first degree premeditated and deliberate murder

instruction and knowingly within its second degree murder instruction. The mere fact

that the trial court could have given a more detailed instruction does not make the

instructions given improper. We hold that the instruction given by the trial court

adequately stated the law applicable to the mens rea required for a conviction of felony

murder.




                                               22
                           C. DEFINITION OF RECKLESSLY

              The defendant also claims that the trial court erroneously defined the term

“recklessly” in its felony murder instruction. Regarding the reckless mental state

required for a conviction of felony murder, the trial court instructed the jury according to

an alternative pattern jury instruction:

              [a] person acts “recklessly” if that person is aware of and
              consciously disregards a substantial and unjustifiable risk
              either (1) that a particular result will occur; or (2) that a
              particular circumstance exists.

              The risk must be of such nature and degree that disregarding
              it constitutes a gross deviation from the standard of care that
              a reasonable person would observe in the situation.

See T.P.I. - Crim. 2.10 (4th ed.). The statute defining the term “reckless” provides:

              “Reckless” refers to a person who acts recklessly with respect
              to circumstances surrounding the conduct or the result of the
              conduct when the person is aware of but consciously
              disregards a substantial and unjustifiable risk that the
              circumstances exist or the result will occur. The risk must be
              of such a nature and degree that its disregard constitutes a
              gross deviation from the standard of care that an ordinary
              person would exercise under all the circumstances as viewed
              from the accused person’s standpoint.

T.C.A. § 39-11-302(c) (emphasis added). The defendant claims that the above

emphasized portions of the statute were either changed or deleted altogether,

completely changing the meaning of the statutory language.



              The state asserts that the defendant also waived this issue by failing to

object contemporaneously to the instruction given by the trial court. Pursuant to Rule

30 (b), Tenn. R. Crim. P., a defendant is permitted to challenge the content of an

instruction or the denial of a requested instruction as error in support of a motion for

new trial despite the failure to object at trial. This rule has been interpreted by our

supreme court as allowing claims of the denial of a requested instruction or of a positive

error in the jury instructions but not of errors of omissions when no objection or special

request was made at trial. See State v. Lynn, 924 S.W.2d 892, 898-99 (Tenn. 1996).

However, alleged omissions in the charge must be raised at trial, or the issue is waived.


                                             23
Id. In addition, the fact that the instructions could have been more detailed does not

render the instructions as given to be improper, and absent a special request for an

additional charge, a trial court will not be held in error. State v. Haynes, 720 S.W.2d 76,

85 (Tenn. Crim. App. 1986).



              At trial, the defendant neither objected to the jury instruction defining

“recklessly” nor made a special request that the trial court define the term as provided

by T.C.A. 39-11-302(c). Rather, he asserted generally in his motion for new trial that

the trial court incorrectly defined the elements of felony murder.



              We disagree with the defendant’s claim that the definition of “recklessly”

given by the trial court and provided by T.P.I.-Crim. 2.10 (4th ed.) is an incorrect

statement of the law. Our court has previously held that the language of the alternative

pattern jury instruction is adequate for the definition of “recklessly.” See State v.

Parker, 887 S.W.2d 825, 828 (Tenn. Crim. App. 1994). We recognize that our court

previously interpreted T.C.A. § 39-11-302(c) as requiring that the jury “view the situation

through the eyes of the suspect” when deciding whether he or she could have

perceived and then chosen to ignore a “substantial and unjustifiable risk.” See State v.

Slater, 841 S.W.2d 841, 842-43 (Tenn. Crim. App. 1992). However, we also note that

Tennessee law does not mandate any particular jury instructions be given so long as

the trial court gives a complete charge on the applicable law. State v. West, 844

S.W.2d at 151.



              We believe that the pattern jury instruction for the definition of “recklessly”

given by the trial court adequately defined the term because “in the situation” implies

that the jury must look at the facts as viewed from the defendant’s standpoint. Also, the

terms “reasonable person” and “would observe” as used by the trial court in its

instruction have essentially the same meaning as the terms “ordinary person” and



                                             24
“would exercise” as provided in the statutory definition. The fact that the jury instruction

could have been more detailed does not render the instruction given to be improper,

and absent a special request, a trial court will not be held in error for not augmenting

otherwise adequate instructions. See State v. Haynes, 720 S.W.2d at 85 (“Mere

meagerness of the charge is not reversible error, in the absence of a special request for

an additional charge.”). Thus, we conclude that the instruction sufficiently informed the

jury of the definition of “recklessly” as it related to felony murder.



                            IV. OTHER JURY INSTRUCTIONS

              The defendant’s last argument is that the trial court erred in instructing the

jury (1) by denying the defendant’s special request relating to the burden of proof for

culpable mental state and the requirement of culpable mental state and (2) by

incorrectly instructing the jury regarding lesser included and lesser grade offenses. The

state asserts that the trial court correctly instructed the jury.



                                  A. BURDEN OF PROOF

              The defendant asserts that the trial court should have granted his request

to instruct the jury regarding the burden of proof for and the requirement of a culpable

mental state. The defendant requested that the following instructions be charged:

                    Burden of Proof of Culpability. -- A Defendant in this
              case may not be convicted of an offense unless the culpable
              mental state of the Defendant is proven.

                      This means that a person commits an offense who acts
              intentionally, knowingly, recklessly, or with criminal negligence.

                     Requirement of Culpable Mental State. -- When the law
              provides that criminal negligence suffices to establish an
              element of an offense, that element is also established if a
              person acts intentionally, knowingly or recklessly. When
              recklessness suffices to establish an element, that element is
              also established if a person acts intentionally or knowingly.
              When acting knowingly suffices to establish an element, that
              element is also established if a person acts intentionally.




                                              25
                      If the definition of an offense within this title does not
              plainly dispense with a mental element, intent, knowledge or
              recklessness suffices to establish the culpable mental state.



              The trial court denied the defendant’s request, stating that the charge

adequately covered the areas. The record reflects that the trial court instructed the jury

that the state had the burden of proving all of the elements of the crime charged

beyond a reasonable doubt. Although contained within the individual instructions for

each offense, the charge provided the culpable mental states required for each offense.

Moreover, the trial court instructed the jury in its felony murder instruction that “[t]he

requirement of ‘reckless’ is also established if it is shown that the defendant acted

knowingly or intentionally.” The trial court’s second degree murder instruction similarly

detailed the mental elements.



              The state’s contention is that the trial court correctly determined that the

requested instruction was adequately covered in other areas of the charge. We agree.

In criminal cases, the trial court has a duty to charge the jury on all of the law that

applies to the facts of the case. State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992).

Anything short of a complete charge denies a defendant his constitutional right to trial

by a jury. State v. McAfee, 737 S.W.2d at 308. In our opinion, the instructions given by

the trial court adequately covered the issue of culpable mental state. The state also

argues that the last sentence of the defendant’s special request was not even

applicable to the facts of the case, and thus, the trial court did not err in its instruction.

Once again, we agree. For these reasons, we conclude that the trial court correctly

instructed the jury regarding the state’s burden of proof and the requirement of a

culpable mental state.



                                  B. LESSER OFFENSES




                                              26
                  Next, the defendant asserts that the trial court erroneously charged the

jury regarding lesser included offenses for the crime of first degree murder. The

defendant’s argument is two-fold: (1) the trial court erred by omitting any references to

criminal responsibility in its instructions relating to the lesser included offense of second

degree murder and the lesser grade offense of voluntary manslaughter charged by the

trial court, and (2) the trial court erred by refusing to charge the lesser included offense

of criminally negligent homicide. The state contends that the trial court properly

instructed the jury. We hold that the trial court did not commit reversible error.



                  The defendant has a constitutional right to complete and accurate

instructions of the law. State v. McAfee, 737 S.W.2d at 308. Therefore, the trial court

has a duty to give a complete charge of the law applicable to the facts of a case. State

v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986). The failure to do so deprives the

accused of the right to a jury trial. State v. McAfee, 737 S.W.2d at 308.



                  1. CRIMINAL RESPONSIBILITY FOR LESSER OFFENSES

                  First, the defendant argues that the trial court erred in its instructions

relating to the lesser included offense of second degree murder and the lesser grade of

voluntary manslaughter. The defendant contends that the failure to charge criminal

responsibility in relation to the lesser offenses deprived him of the right to have the jury

consider the lesser included offenses. The state submits that the defendant has

waived the issue by failing to make a special request and by failing to include the issue

in his motion for new trial. We disagree. In his motion for new trial, the defendant

specifically included the issue as grounds for relief.6 Pursuant to Rule 30(b), Tenn. R.

Crim. P., a defendant may challenge an instruction given or the denial of a requested



                  6
                    The d efenda nt asse rted in his m otion for ne w trial that the trial co urt “erred in failing to
charge the jury on criminal responsibility as to the lesser included offenses of second degree murder and
voluntary manslaughter which effectively deprived the jury of considering whether . . . Williams committed
second degree murder or voluntary manslaughter and the Defendant being criminally responsible for the
either of the se two les ser includ ed offen ses.”

                                                         27
instruction in his motion for a new trial although neither an objection nor a special

request was made at trial.



                 The record reflects that the defendant filed a motion requesting that the

trial court instruct the jury on the lesser included and lesser grade offenses of second

degree murder, voluntary manslaughter and involuntary manslaughter7. The jury

instructions given for the lesser offenses do not specifically address criminal

responsibility. Also, the instructions do not contain a criminal responsibility provision

generally applicable to all of the offenses charged. Rather, the criminal responsibility

provisions given by the trial court were incorporated in the instructions for the first

degree murder counts.



                 The record is not clear whether the defendant requested additional

instructions regarding criminal responsibility for the lesser offenses. An off-the-record

conference concerning jury charges was held in chambers at the close of trial. Later,

the defendant objected on the record and out of the presence of the jury to the

instruction given by the trial court in counts one and two as to criminal responsibility for

the conduct of another. A day later, the defendant filed a motion for mistrial. In his

motion, the defendant asserted that a mistrial was necessary because the trial court

failed to charge criminal responsibility for another’s conduct relating to the lesser

offenses of second degree murder and voluntary manslaughter. He claimed that during

the jury instruction conference, he requested that the trial court not change its proposed

instruction8 because tailoring the criminal responsibility provision did not allow it to apply

to all other criminal offenses. The defendant argued that tailoring the criminal

responsibility provision restricted the jury’s consideration of the lesser offenses, thus

                 7
                    The 1989 Sentencing Act replaced involuntary manslaughter with the offense of
crimina lly negligent hom icide. See T.C .A. § 3 9-13 -212 , Sen tenc ing C om mis sion Com me nts. In his
motion for new trial, the defendant argues that the error in failing to instruct the lesser included offense
related to criminally negligent homicide and not involuntary manslaughter.

                 8
                    The record does not reflect what the trial court originally proposed as its instruction
rega rding crim inal re spo nsib ility.

                                                       28
depriving him of the jury’s consideration of whether Williams committed the lesser

offenses for which the defendant should be held criminally responsible.



              Under these circumstances, we agree that it would have been preferable

for the trial court to relate more clearly the criminal responsibility instructions to all of the

offenses. However, although the instructions could have been more detailed, we

believe that the jury was adequately instructed regarding criminal responsibility in the

jury instruction relating to first degree murder. We note that the United States Supreme

Court has made the following observation regarding the evaluation of claims of

erroneous jury instructions:

              Jurors do not sit in solitary isolation booths parsing instructions
              for subtle shades of meaning in the same way lawyers might.
              Differences among them in interpretation of instructions may
              be thrashed out in the deliberative process, with
              commonsense understanding of the instructions in the light of
              all that has taken place at the trial likely to prevail over
              technical hairsplitting.

Boyde v. California, 494 U.S. 370, 380-81, 110 S. Ct. 1190, 1198 (1990); State v. Henry

Eugene Hodges, No. 01S01-9505-CR-00080, Davidson County, slip op. at 12 (Tenn.

Apr. 28, 1997) (for publication); see also State v. Van Tran, 864 S.W.2d 465, 479

(Tenn. 1993). Although a technical argument can be made that the jury was not

advised to consider criminal responsibility of the defendant with respect to the lesser

offenses of second degree murder and voluntary manslaughter, such an interpretation

of the jury’s process in analyzing the charge would not take into account the jury’s

commonsense understanding of the instructions given under the facts showing that the

defendant was not the actual killer. Under these circumstances, we hold that the lesser

included and lesser grade offense instructions given by the trial court were not

erroneous.




                                               29
                        2. CRIMINALLY NEGLIGENT HOMICIDE

              Next, the defendant contends that the trial court should have instructed

the jury regarding criminally negligent homicide because the proof at trial supported

such an instruction. The state argues that the record does not permit an inference of

guilt for criminally negligent homicide, a lesser included and lesser grade offense of first

degree murder, but instead clearly shows that the defendant is guilty of the greater

offense of first degree murder. W e hold that the trial court did not commit reversible

error by failing to provide a criminally negligent homicide instruction.



              Under T.C.A. § 39-13-212, “[c]riminally negligent conduct which results in

death constitutes criminally negligent homicide.” The definition of criminally negligent

conduct is contained in T.C.A. § 39-11-302(d):

              “Criminal negligence” refers to a person who acts with criminal
              negligence with respect to the circumstances surrounding that
              person’s conduct or the result of that conduct when the person
              ought to be aware of a substantial and unjustifiable risk that
              the circumstances exist or the result will occur. The risk must
              be of such a nature and degree that the failure to perceive it
              constitutes a gross deviation from the standard of care that an
              ordinary person would exercise under all the circumstances as
              viewed from the accused person’s standpoint.


              Pursuant to T.C.A. § 40-18-110(a), a trial court is required “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.” When the evidence, introduced by either the

state or the defendant, is susceptible of inferring guilt of either a lesser grade or class of

the charged offense or a lesser included offense, there is a mandatory duty upon the

trial court to charge such lesser offense. See T.C.A. § 40-18-110(a); State v. Trusty,

919 S.W.2d 305, 310 (Tenn. 1996); Johnson v. State, 531 S.W.2d 558, 559 (Tenn.

1975); State v. Howard, 926 S.W.2d 579, 585-86 (Tenn. Crim. App. 1996). However,

the instruction is not required if there is no proof in the record to support a conviction for

the lesser offense. State v. Trusty, 919 S.W.2d at 311.




                                             30
              Our supreme court recently held that defendants are entitled to jury

instructions on all lesser included offenses and on all lesser grades or classes of the

offense charged if the evidence would support a conviction for the offense. State v.

Trusty, 919 S.W.2d at 311. The instructions must be given to allow the jury “to consider

all relevant offenses in determining the appropriate offense, if any, for conviction.” Id.

In its explanation of the entitlement to a jury instruction on lesser included and lesser

grade offenses, the court described the difference between an offense of a “lesser

grade or class” and one that is “lesser included.” See State v. Trusty, 919 S.W.2d at

310-11. The statutory scheme determines whether an offense is a lesser grade or

class. Id. at 311 (explaining that voluntary manslaughter is a lesser grade but not a

lesser included offense of first degree murder). For instruction purposes, an offense is

a lesser included offense “if the elements of the included offense are a subset of the

elements of the charged offense and only if the greater offense cannot be committed

without also committing the lesser offense.” Id. at 310 (reaffirming the test set forth in

Howard v. State, 578 S.W.2d 83, 85 (Tenn. 1979) for determining whether an offense is

a lesser included offense). Relative to the facts of this case, criminally negligent

homicide is a lesser grade or class and a lesser included offense of first degree murder.

See State v. Trusty, 919 S.W.2d at 311; State v. Lynn, 924 S.W.2d at 899.



              In Strader v. State, 210 Tenn. 669, 362 S.W.2d 224, 228-29 (1962), our

supreme court explained how the trial court should determine the need for a lesser

included offense instruction. It stated that “where the evidence, upon any view the jury

may take of it, permits an inference of guilt as to such lesser included offenses, it is the

mandatory duty of the Trial Judge to charge all the law as to each of the offenses, and

a failure to do so requires a reversal and a new trial.” Id.; see also State v. Boyce, 920

S.W.2d 224, 226 (Tenn. Crim. App. 1995). Thus, in effect, the trial court must consider

the evidence in the light most favorable to the existence of the lesser included offense

and if the evidence so considered permits an inference of guilt of the lesser included



                                             31
offense, the trial court must give instructions as to that lesser offense. Otherwise, the

trial court’s consideration of the evidence runs the risk of invading the province of the

jury relative to witness credibility, the weight and sufficiency of the evidence and the

degree of the offense, if any, to be sustained.



              The evidence viewed in the light most favorable to the existence of the

lesser included offense reflects that before the defendant and W illiams left the car,

Williams reached across the driver’s side to get the defendant’s knife and placed it in

his pocket. The defendant and Williams then entered the victim’s house. Both the

defendant and Williams told the officers that they intended to scare the victim but not to

harm him. The evidence shows that Williams removed the knife from his pocket after

the victim grabbed his hair and leg. The proof was that Williams then stabbed the

victim because he would not let him go and because “he had no choice.”



              This evidence supports a criminally negligent homicide instruction based

upon the defendant’s criminal responsibility for the conduct of Williams. It would permit

an inference that Williams acted with criminal negligence by taking a knife with him to

burglarize the victim’s home. Both the defendant and Williams knew that the victim was

inside when they entered the victim’s home. Although Williams stated that he planned

to steal the victim’s money or guns and only wanted to scare the victim, he ought to

have been aware of a substantial and unjustifiable risk that he would be confronted by

the victim and be in a situation where the knife might be used against the victim,

causing the victim’s death. Moreover, as mentioned earlier, the evidence permits an

inference that the defendant is criminally responsible for the conduct of Williams. In

addition to providing the transportation and the weapon used in the killing, the

defendant was aware that the victim was inside when he and Williams entered the

victim’s home to rob the victim.




                                            32
              The evidence is also susceptible of inferring the defendant’s guilt for

criminally negligent homicide based on the defendant’s own criminally negligent

conduct. Specifically, the defendant acted with criminal negligence because he knew

that Williams armed himself with his knife before entering the victim’s home. Further,

the defendant and Williams planned to steal either money or guns from the victim.

Therefore, the defendant should have been aware of a substantial and unjustifiable risk

that the circumstances were such that Williams could either use his knife or obtain a

gun and either stab or shoot the victim during the commission of the burglary. Under

these circumstances, the trial court should have instructed the jury regarding the lesser

included offense of criminally negligent homicide.



              However, error associated with the trial court’s failure to instruct a lesser

included offense has been held to be harmless when the jury finds the defendant guilty

of the greater offense and rejects other lesser included offenses that are greater

offenses than the one requested and were included in the instructions. See State v.

Atkins, 681 S.W.2d 571, 577 (Tenn. Crim. App. 1984). Here, the jury found the

defendant guilty of both premeditated and deliberate murder and felony murder,

declining to return guilty verdicts for the lesser offenses of second degree murder and

voluntary manslaughter. We hold that the trial court’s denial of the defendant’s request

for a criminally negligent homicide instruction was harmless beyond a reasonable

doubt.



              In consideration of the foregoing and the record as a whole, the judgment

of conviction is affirmed.



                                                  Joseph M. Tipton, Judge




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CONCUR:



Gary R. Wade, Judge



Robert E. Burch, Special Judge




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