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IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

June 4, 2008 Session

STATE OF TENNESSEE V. PHEDREK T. DAVIS

Appeal by permission from the Court of Criminal Appeals

Criminal Court for Davidson County

No. 2003-D-2992 Seth Norman, Judge 

No. M2006-00198-SC-R11-CD - Filed October 17, 2008

GARY R. WADE, J., concurring.

The specific question presented for our review is whether the acquittal-first jury instruction,

in the context of the right to a complete charge on the count in the indictment as well as any and all

lesser-included offenses supported by the evidence at trial, either is violative of our constitution or

should be overruled for policy reasons. See State v. Ely, 48 S.W.3d 710 (Tenn. 2001); State v.

Burns, 6 S.W.3d 453 (Tenn. 1999). The majority concludes that the instruction meets constitutional

muster, and I am inclined to concur with that assessment; however, an acquittal-first instruction in

Tennessee largely qualifies as legal fiction because the trial judge is required under our constitution

to instruct on the primary charge and the full panoply of lesser-included offenses in advance of

deliberations. That is, the jury, by being provided with the entirety of the instructions as appropriate,

necessarily considers any lesser-included offenses before convening for deliberations. It is my belief,

therefore, that as a matter of practicality and for sound policy reasons, Tennessee should retreat from

acquittal-first and formally adopt an alternative instruction – one which fits within the framework

of a criminal jury trial and which best conforms to specific provisions within our state constitution.

Not surprisingly, our federal and state courts are not unanimous as to how juries should

consider the primary charge in the indictment and the lesser-included offenses. This Court’s

majority identifies the acquittal-first approach as the rule of this state, whereby the jury is instructed

not to consider a lesser offense until it unambiguously acquits on the greater offense. See, e.g.,

People v. Boettcher, 505 N.E.2d 594, 598 (N.Y. 1987). A second approach permits the jury to

consider the primary charge and the lesser offenses simultaneously but requires that verdicts be

reached in a preordained order. See, e.g., Dresnek v. State, 697 P.2d 1059, 1063-64 (Alaska Ct. App.

1985), aff’d per curiam, 718 P.2d 156 (Alaska 1986), cert. denied sub nom. Spierings v. Alaska, 479

U.S. 1021 (1986). A third approach permits a defendant to make an election between two options

as to the nature of the deliberations – either (1) the acquittal-first approach or (2) an approach
 “The jury is, above all, a political institution and it must be regarded in this light in order to be duly 1

appreciated.” Alexis de Tocqueville, 1 Democracy in America 282 (Alfred A. Knopf 1945) (1835).

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permitting consideration of the greater charge and its lesser included offenses at the same time. See,

e.g., U.S. v. Tsanas, 572 F.2d 340, 346 (2d Cir. 1978). It is my opinion, however, that the method

that best fits within our system, best accounts for the nature of juries, and most likely ensures the

economy, consistency, reliability, and thoroughness of the judicial process, is the “reasonable

efforts” approach – the most popular alternative among courts that have addressed the issue and,

in my view, the most logical. See, e.g., State v. LeBlanc, 924 P.2d 441, 442 (Ariz. 1996). For a

variety of reasons, therefore, I would encourage the rejection of the acquittal-first approach and urge

this Court today or at some time in the future to adopt the reasonable efforts instruction – not only

the prevailing rule among the courts that have addressed the issue – but the rule that strikes perfect

harmony with Article I, section 6 of the Tennessee Constitution.

The Arizona Supreme Court described the reasonable efforts approach as follows:

Under this method, jurors may render a verdict on a lesser-included offense if, after

full and careful consideration of the evidence, they are [first] unable to reach

agreement with respect to the charged crime. Thus, the jury may deliberate on a lesser

offense if it either (1) finds the defendant not guilty on the greater charge, or (2) after

reasonable efforts cannot agree whether to acquit or convict on that charge.

State v. LeBlanc, 924 P.2d at 442. The Arizona high court observed that this method protects “the

state’s interest in a full and fair adjudication of the charged offense” by assuring that greater charges

are considered first. Id. at 443. There are other advantages. The instruction also permits a jury the

flexibility to avoid gridlock (and a resultant mistrial), to move deliberations forward when there is

no unanimity, and to revisit the greater offense if developments so require. Finally, the reasonable

efforts approach, at least in my opinion, best reflects the manner in which Tennessee juries actually

perform their duties given the order and content of their instructions.

The excellent research performed by the majority confirms that the “reasonable efforts”

approach represents the mainstream of the various alternatives. There is good reason for that.

Typically, state courts, while respectful of the prosecution’s entitlement to full consideration on the

primary charge, are equally sensitive to the singular role played by juries in our criminal justice

system; there exists a general reluctance to divest that body of its autonomy. In my assessment, the 1

reasonable efforts approach strikes the appropriate balance between the interests of the state as the

prosecutorial entity and the ultimate responsibility of the jury to reach a rational verdict. 

The Oregon Supreme Court has also spoken on the subject: 

[B]ecause of the complexity of submitting multiple criminal charges to a jury,

generally jurors are better served if the trial judge gives them some format to follow,

rather than instructing them on all the possible verdicts and leaving them to
 The Oregon Supreme Court’s adoption of the reasonable efforts approach has been superseded by statute.

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No such determinative statute exists in Tennessee.

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deliberate as they see fit. The [reasonable efforts approach] sets forth a more ordered

procedure without creating any coercion.

State v. Allen, 717 P.2d 1178, 1181 (Or. 1986) (emphasis added). Unlike the other, less-popular 2

alternatives employed throughout theUnited States, the reasonable efforts method assures that every

question of law and fact will benefit from thoroughness and structure, on the one hand, and jury

independence, on the other. See State v. Reyes, 706 P.2d 1326, 1330 n.5 (Haw. Ct. App. 1985) (“the

jury must always consider the charged offense” before considering lesser-included offenses). Having

said that, the elimination of the possibility of coercion may qualify as the best feature of the

instruction. It is my belief that each and every juror should be encouraged to consider alternatives,

weigh all potential outcomes, and re-think their initial determinations based upon discussions with

their peers. Such freedom to deliberate fluidly will result in carefully-considered verdicts, rather

than those based upon a forced commitment absent any knowledge of the alternatives. 

The sanctity of a jury’s deliberationsis as crucial to the criminal process as the content of its

verdict. The instructions by Tennessee courts should reflect that precept. The Washington Supreme

Court, while applying the reasonable efforts rule, made the following comment:

The mental processes by which individual jurors reached their respective

conclusions, their motives in arriving at their verdicts, the effect the evidence may

have had upon the jurors or the weight particular jurors may have given to particular

evidence, or the jurors’ intentions and beliefs, are all factors inhering in the jury’s

processes in arriving at its verdict, and, therefore, inhere in the verdict itself.

State v. Linton, 132 P.3d 127, 133 (Wash. 2006)(quotation omitted). The adoption of the reasonable

efforts method should reduce “the risk of compromise verdicts by enabling the finders of fact to

better gauge the fit between the evidence adduced at trial and the offenses being considered” and

minimize the prospect of “hung juries and the significant costs involved with retrial.” Green v. State,

80 P.3d 93, 96 (Nev. 2003). Many states have opted for the reasonable efforts instruction on that

basis: “Retrials, necessitated by hung juries, are burdensome to defendants, victims, witnesses and

the court system itself.” State v. Labanowski, 816 P.2d 26, 34 (Wash. 1991). Even our own courts

have recognized that discouraging retrials helps avoid “the monetary costs, as well as the emotional

and physical costs of again going to trial.” State v. Spears, 780 S.W.2d 776, 777-78 (Tenn. Crim.

App. 1989).

It is my opinion that juries, knowing of lesser charges, as is required under our state

constitution, will unavoidably be influenced by that knowledge. The majority concedes this point

by acknowledging that a jury considering a greater charge “simultaneously considers, albeit not
 In a footnote, the majority suggests that this is true “at least with respect to those lesser-included offenses

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whose statutory elements are included within the statutory offense charged.” I agree that we cannot assume that juries

limit their simultaneous consideration of lesser-included offenses to only lesser-included offenses in that category.

 For an adept fictionalized portrayal of jury deliberations in a murder trial, see Reginald Rose’s play 12 Angry

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Men. In a particularly memorable scene, one of the jurors says:

It’s very hard to keep personal prejudice out of a thing like this. And no matter where you run into

it, prejudice obscures the truth. . . . Nine of us now seem to feel that the defendant is innocent, but

we’re just gambling on probabilities. We may be wrong. We may be trying to return a guilty man to

the community. No one can really know. But we have a reasonable doubt, and this is a safeguard

which has enormous value to our system. No jury can declare a man guilty unless it’s sure. We nine

can’t understand how you three are still so sure. Maybe you can tell us. 

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explicitly, all applicable lesser-included offenses supported by the proof.” It is preferable, then, to 3

address this reality in a straightforward way that allows the jury, after thoroughly considering a

greater charge, to consider the alternatives supported by the evidence. At the same time, the jury

reserves the right to revisit the primary charge in the indictment as needed, or eventually, if

necessary, retains the ability to consider all of the various options at once. 

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In response to the policyreasons for favoring the adoption of the reasonable efforts approach,

the majority enumerates five policy arguments for permitting acquittal-first instructions. First, the

majority suggests that verdicts rendered pursuant to acquittal-first instruction will satisfy our

constitution’s unanimity requirement. See Tenn. Const. art. 1, § 6; State v. Scarbrough, 181 S.W.3d

650, 658 (Tenn. 2005). The statement is both true and irrelevant. Verdicts satisfy the unanimity

requirement by being unanimous, not by conforming to specific rules governing the structure of

deliberation. See also Cantrell v. State, 469 S.E.2d 660, 662 (Ga. 1996) (unanimity is not required

as to greater-included offenses if verdict is unanimous on lesser-included offense); State v. Sanders,

344 S.E.2d 592, 594 (N.C. Ct. App. 1986), disc. review denied, 349 S.E.2d 604 (N.C. 1986)

(unanimous verdicts on lesser charges meet unanimity requirement even if no unanimity is reached

on greater charges). If uncertainty as to unanimity arises at trial, either party may ask that the jury

be polled. This procedure – not an acquittal-first instruction – insures unanimity. Moreover, there

is no solid ground for believing that an acquittal-first instruction encourages a unanimous verdict.

The majority cites only the conjecture of another court that has also decided to hew to the minority

view. Far more jurisdictions have reached the opposite conclusion, having determined that the

“reasonable efforts” procedure is more effective at reducing the risk of coerced verdicts or false

unanimity. See LeBlanc, 924 P.2d at 442 (citing State v. Fletcher, 717 P.2d 866, 872 (1986)

(Feldman, J., concurring); U.S. v. Jackson, 726 F.2d 1466, 1469 (9th Cir. 1984)). 

Second, the majority indicates a desire to add “structure” to jury deliberations and to protect

the jurors from the “confusing, tedious, and perhaps initially overwhelming” aspects of their duties.

It is indeed possible that some jurors might be aided by the structure provided by acquittal-first

instructions, but that is equally true of the reasonable efforts rule. Other jurors, however, might be

daunted by an ironclad, formalistic restriction on the nature of their deliberations, or might be

hampered by an inability to examine a lesser offense in the context of the primary charge. It is above
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my abilities and, I think, those of the majority to suggest how many jurors will be of the former type

and how many the latter. For this very reason, we should avoid any unnecessary intrusion as to the

nature of jury deliberations. While the judge’s instructions as to duty and boundaries are

indispensable to our criminal justice system, the jury should always be at liberty to exercise its

ultimate responsibilities as prescribed by our constitution.

Third, the majority states that acquittal-first instructions encourage thorough deliberation

because they would make the jury “more likely to focus with the depth of concentration appropriate

to the gravity of its task.” Much like my colleagues, I can only speculate. Nevertheless, I must

disagree with their conclusions. If anything, acquittal-first instructions artificially withdraw relevant

considerations from the jury’s purview and replace fluid deliberation with a process-oriented focus

on forcing a verdict without discussion of the lawful alternatives. While the proverbial “blue plate

special” may be the best choice at the local eatery, the better policy is to review the entire menu

before placing the order.

Fourth, the majority argues that an acquittal-first jury instruction is necessary to prevent

compromise verdicts. I disagree. Juries are presumed by law to follow all of the instructions, State

v. Robinson, 146 S.W.3d 469, 494 (Tenn. 2004), and the acquittal-first charge is merely a

component of a larger text which provides admonitions, implicitly or explicitly, against any

compromise decision.

Finally, the majority suggests that we should continue to permit acquittal-first instructions

because of their longstanding use in this state. Indeed, in State v. Mann, 959 S.W.2d 503, 521

(Tenn. 1997), this Court affirmed, in a cursory manner, the acquittal-first instructions similar to those

included in our pattern jury instructions:

If you have a reasonable doubt as to the defendant's guilt of [insert offense charged],

as charged in [count of] the indictment, then your verdict must be not guilty as to this

offense, and then you shall proceed to determine whether the defendant is guilty or

not guilty of [insert offense charged], as charged in [count of] the indictment.

T.P.I.—Crim. 41.02, Multiple counts: Guilt finding limited to one—Order of consideration (8th ed.

2004). While I concede that courts must proceed cautiously before upsetting entrenched practices,

there is no justification for the perpetuation of an unworkable standard. Moreover, in recent years,

development of the law pertaining to lesser-included offenses has become essential to our

applications of the Criminal Sentencing Reform Act of 1989. See Burns, 6 S.W.3d at 465-69

(adopting Model Penal Code definition of “lesser-included offense” and requiring jury instructions

on lesser-included offenses for which evidence in the record supports a charge); State v. Trusty, 919

S.W.2d 305 (1996) (distinguishing between “lesser included offenses,” which include only elements

of the greater offense and for which instructions must be given, and “lesser grades” of the greater

offense, for which instructions should only be given if supported by evidence), overruled by State

v. Dominy, 6 S.W.3d 472, 477 (Tenn. 1999) (eliminating distinction between “lesser grade or class”

and “lesser-included offense”); Ely, 48 S.W.3d at 718-27 (discussing ongoing development of law
 “For a right to remain inviolate, it must not diminish over time and must be protected from all assaults to

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essential guarantees.” 47 Am. Jur. 2d Jury § 6 (1995).

The drafters of the Tennessee Constitution modeled this provision on a similar section of the Pennsylvania 6

Constitution of 1790. Pa. Const. art. I, § 7. Interestingly, the United States Congress also included a similar provision

in the much-maligned Sedition Law passed of 1798. During the debate on the Sedition Law in the House of

Representatives, Congressman William C. C. Claiborne of Tennessee offered the following amendment: “And in all

cases arising under this act, the jury who shall try the cause, shall be judges of the law as well as the fact.” After some

debate on this proposal, the House agreed to similar language from the Pennsylvania Constitution, which is now also

found in the Tennessee Constitution at Article I, section 19. See Mark DeWolfe Howe, Juries as Judges of Criminal Law,

52 Harv. L. Rev. 582, 586-87 (1939). Congressman Claiborne was a former justice on the first Tennessee Supreme

Court, and he was appointed to that position by Governor Sevier in the year that the first Tennessee Constitution was

enacted, 1796. 

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regarding lesser-included offenses). If the acquittal-first instruction was at one time the best among

the various alternatives available for this state, that is no longer so. The right to appropriate jury

consideration of lesser-included offenses is “of constitutional dimension” under our constitution, Ely,

48 S.W.3d at 727, and our constitution guarantees that “the right of trial by jury shall remain

inviolate.” Tenn. Const. art. I, § 6. As Ely confirmed, the contents of that right have not been frozen

to include only the considerations recognized nearly seventy years ago in Willard v. State, 130

S.W.2d 99, 100 (Tenn. 1939), but rather have been applied to the body of law more recently

developed by our General Assembly. In short, the time has come for Tennessee to join the legion

of states which have seen the wisdom of the reasonable efforts approach.

While my advocacy for a change in the nature of the instruction is based on policy grounds,

there are state constitutional considerations which support the reasonable efforts approach. The right

to trial by jury in this state has its origin in the common law and in the Constitution of North

Carolina. Patten v. State, 426 S.W.2d 503 (Tenn. 1968); Garner v. State, 13 Tenn. (5 Yer.) 159

(1833). It is undisputed that this constitutional provision includes the entitlement to have all factual

issues resolved during a trial in both civil and criminal cases. Hurt v. Earnhart, 539 S.W.2d 133

(Tenn. Ct. App. 1976). Our guarantee is that the issues of fact will be determined by twelve jurors

properly instructed by the trial court. State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000); see also

Grooms v. State, 426 S.W.2d 176 (Tenn. 1968). So, even if the guarantee of trial by jury in Article 5

I, section 6 does not mandate an outright rejection of the acquittal-first instruction on constitutional

grounds, the reasonable efforts approach, in my judgment, is more closely aligned with the

corresponding provision of Article I, section 19 that “the jury shall have the right to determine the

law and the facts, under the direction of the court . . . in . . . criminal cases”; I would add that the 6

current editions of the Tennessee Pattern Jury Instructions acknowledge the continued vitality of this

particular section:

You [the jury] are the exclusive judges of the facts in this case. Also, you are the

exclusive judges of the law under the direction of the court. You should apply the

law to the facts in deciding this case. You should consider all of the evidence in light

of your own observations and experience in life.
 As Chief Justice Snodgrass observed over one hundred years ago, there has been “much controversy and some

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confusion of decision” as to what extent juries were to judge the law. Ford, 47 S.W. at 705.

In the words of Thomas Jefferson: “Were I called upon to decide whether the people had best be omitted in 8

the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative.” Letter from Thomas

Jefferson to the Abbé Arnoux (July 19, 1789), in 15 The Papers of Thomas Jefferson 282, 283 (Julian P. Boyd ed.,

1958).

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T.P.I.–Crim. 1.08 Jury: Judges of facts and law (8th ed. 2004) (emphasis added). By comparison

(and of significance), a judge’s power is circumscribed by our state constitution. Article VI, section

9 specifically directs that “[j]udges shall not charge juries with respect to matters of fact, but may

state the testimony and declare the law.” 

Since theNineteenthCentury, Tennessee courts have struggled to determine just how Article

1, section 19 defines the balance of responsibilities between judge and jury. See, e.g., McGowan v.

State, 17 Tenn. (9 Yer.) 184 (1836); Nelson v. State, 32 Tenn. (2 Swan) 482 (1852); Poole v. State,

61 Tenn. 288 (1872); Harris v. State, 75 Tenn. 538 (1881); Hannum v. State, 18 S.W. 269 (Tenn.

1891); Ford v. State, 47 S.W. 703 (Tenn. 1898). This Court has observed that with regard to 7

questions of law, jurors are “judges of law as well as facts,” but this “does not diminish the

obligation of the court to explain the law.” McGowan, 17 Tenn. (9 Yer.) at 195. It has also been

said that the jury determines both the law and facts, and the judge is a witness to what the law is.

Ford, 47 S.W. at 704; see also Wright v. State, 394 S.W.2d 883, 885-86 (Tenn. 1965). The powers

of a jury are not unfettered; our Court has authorized judicial intervention in the event a jury should

make up its own idiosyncratic version the law. See Ford, 47 S.W. at 705 (stating that jurors “should

not set up their own supposed knowledge of the law against that of the court”). 

Throughout the plethora of commentary on this subject, two driving principles have remained

constant about the process of obtaining a verdict in a criminal trial under our constitution: (1) the

judge’s role is to instruct the jury on the law; and (2) the jury’s role is to decide, within accepted

boundaries, which of the relevant laws is applicable, decide the facts, and apply the law to the facts.

When an instruction mandates a verdict on the charge in the indictment before consideration of the

permissible alternatives, the judge has departed from the role of an instructor of the law. In sum, the

acquittal-first scheme is that least likely to respect the function of the jury in its determination of the

applicable law and facts. In contrast, the reasonable efforts approach does no violence to the role 8

of the trial judge, who must always present the charged offense and those that qualify as lesser and

included. When juries determine which law fits their assessment of the facts, “under the direction

of the court,” the judge still declares the law. As indicated, that prerogative does not mean that the

jury may “set up their own supposed knowledge of the law against that of the court.” See Ford, 47

S.W. at 705.

Conclusion

Sound policy considerations support the adoption of the reasonable efforts instruction to

jurors to assist in their deliberation of the primary charge and its lesser-included offenses. Because
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this Court has traditionally adhered to the acquittal-first instruction, I can ascribe no fault to the trial

judge in this particular case. Nevertheless, I would classify the instruction as erroneous, and as far

less compatible with the provisions of our state constitution than the reasonable efforts alternative.

Because, however, the record of the trial demonstrates that acquittal instruction had no effect on the

verdict in this particular case, the error was harmless. See State v. Rodriguez, 254 S.W.3d 361, 366

(Tenn. 2008); Tenn. R. App. P. 36(b). Given the overwhelming evidence against the Defendant, I

can concur in the result. On all other issues, I join with the majority.

___________________________________ 

GARY R. WADE, JUSTICE