         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                       August 14, 2001 Session

            STATE OF TENNESSEE v. ERNEST EDWARD WILSON

                 Direct Appeal from the Criminal Court for Davidson County
                                       NO . 98-D-2474



                  NO . M2000-01997-CCA-R3-CD - FILED OCTOBER 17, 2001




James Curwood Witt, Jr., J., concurring and dissenting.


                Although I agree with Judge Welles that it is problematic to use voluntary
manslaughter as the intermediate offense for the purposes of applying the Williams harmless error
rule, I concur with Judge Riley in affirming the conviction, based on the facts of the present case and
the defendant’s use of those facts in formulating a theory of defense. Given the facts, the defendant’s
theory of defense, and the jury’s verdict of second-degree murder, I conclude that the failure to
charge the included offenses lesser than voluntary manslaughter was harmless error.


                                                       ___________________________________
                                                       James Curwood Witt, Jr., Judge
