IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 13, 2003

STATE OF TENNESSEE v. JEFFERY LEE MASON

 Direct Appeal from the Circuit Court for Giles County

No. 10123 Stella Hargrove, Judge

No. M2002-01709-CCA-R3-CD - Filed May 19, 2004

Hayes, David G., Judge, dissenting

I am unable to join with the majority in concluding that the evidence is sufficient to support

the defendant’s conviction for attempted voluntary manslaughter and that an instruction on this

offense was warranted under the facts of this case. I find nothing in the record which establishes

that, at the time of the attempted homicide, the defendant was “in a state of passion produced by

adequate provocation sufficient to lead a reasonable person to act in an irrational manner.” Tenn.

Code Ann. § 39-13-211(a) (2003). Accordingly, I respectfully dissent on the majority’s application

of both the law and facts. 

Preliminarily, I note that the defendant requested that the jury be instructed only on the

indicted offense of attempted first degree murder and misdemeanor reckless endangerment, as the

only lesser included offense established by the evidence. Over the objection of the defendant, the

trial court, in accordance with the State’s request, instructed on attempted voluntary manslaughter.

Thus, this issue is preserved for appeal. Tenn. Code Ann. § 40-18-110 (2003).

Application of Facts

 While conceding that the convicting evidence “is at best only marginally sufficient,” the

majority concludes that “a subtle form of provocation could have been inferred by the jury.” The

majority opines that, by virtue of the defendant’s status as a shackled and handcuffed prisoner, these

facts could permit a finding of provocation by the jury, “at least by a subjective understanding of the

term.” Provocation, however, is statutorily governed by an objective or “reasonable person” standard

not by a subjective one. Tenn. Code Ann. § 39-13-211. Moreover, to reach this conclusion would

require pure speculation because, according to the testimony of Deputy Graves, the defendant was

cooperative throughout the procedure and there was no evidence that he was provoked by being

shackled and handcuffed. Testimony established that the defendant escaped because he did not like

jail conditions, and the majority concludes that this circumstance also supports provocation.
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However, I find that, if anything, this shows that the defendant’s actions were deliberate and

calculated. While the defendant may have been angry, anger to reduce an unlawful homicide to the

degree of voluntary manslaughter, must be anger produced by adequate provocation. Hargrove v.

State, 281 S.W.2d 692, 698 (Tenn. 1955).

If the facts of this case rise to a level of adequate provocation, then provocation would exist

in almost every set of circumstances in every homicide prosecution. To find provocation in this case

would require the finding that the deputy in the performances of his duties as a law enforcement

officer provoked the defendant into attacking him. 

Application of Law

In finding the instruction on attempted voluntarymanslaughter warranted, the majority relies

upon State v. Mellons, 557 S.W.2d 497 (Tenn. 1977), and State v. Davis, 751 S.W.2d 167 (Tenn.

Crim. App. 1988). These cases, as observed by the majority, permit a conviction to stand where

there is NO evidence to support the elements of the lesser included conviction, as long as there is

proof of the greater crime for which the defendant was charged. Davis relies entirely upon the

Mellon’s holding. Mellons predates Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2789

(1979), and Tenn. R. App. P. 13(e), both of which require proof of the essential elements of the

convicted offense beyond a reasonable doubt. Additionally, the rationale of Mellons was expressly

predicated upon then Tennessee Code Annotated § 40-2520, which was repealed in 1979. The

Supreme Court in Jackson v. Virginia denounced the “no evidence” rule, finding that application of

this rule violates a defendant’s due process rights because the rule “is simply inadequate to protect

against misapplications of the constitutional standard of reasonable doubt.” Jackson v. Virginia, 443

U.S. at 320, 99 S. Ct. at 2789. Accordingly, I find that Davis and Mellons were overruled sub

silentio by the holding in Jackson v. Virginia. In this state, provocation is an element of the offense

of voluntary manslaughter, and proof to convict may not be merely marginal but is required beyond

a reasonable doubt. Tenn. Code Ann. § 39-11-201 (2003); see also Mullaney v. Wilbur, 421 U.S.

684, 95 S. Ct. 1881 (1975) (state may not shift burden of proof to the defendant, as due process

requires state to prove elements of the offense beyond a reasonable doubt).

Clearly, the lesser included test of Mellons does not comport with our current test in State

v. Burns, 6 S.W.3d 454 (Tenn. 1999). The majority summarily notes that attempted voluntary

manslaughter is a lesser included offense of attempted first degree murder under the Burns test. This

statement and the analysis which follows leave the clear implication that voluntary manslaughter is

a lesser offense under part (a) of the Burns test and should, therefore, be charged in every case.

However, it is well settled that voluntary manslaughter is a lesser included offense of first degree

murder under part (b) of the Burns test and, therefore, an instruction should be given only if (1)

reasonable minds could accept the offense as a lesser included and (2) the evidence is legally

sufficient to support a conviction for the lesser included offense. Burns, 6 S.W.3d at 469; see also

State v. Dominy, 6 S.W.3d 472, 477 n.9, (Tenn. 1999); State v. Kenneth Anthony Henderson, No.

M1999-00547-CCA-R3-CD (Tenn. Crim. App. at Nashville, Apr. 11, 2002); State v. William

Binkley, No. M2001-00404-CCA-R3-CD (Tenn. Crim. App. at Nashville, Apr. 5, 2002); (each of
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these cases expressly holds that voluntary manslaughter is a lesser included offense of first degree

murder under part (b) of the Burns test). The “alternative means” analysis utilized by the majority

in affirming the conviction applied the Mellons test and found that, although there was little or no

evidence of provocation by the defendant, there was proof of the greater crime of attempted first

degree murder and, therefore, the conviction could stand. This analysis ignores the fact that, under

Mellons, all lesser offenses would fall under part (a) of the Burns test. Mellons had no provision for

(b) or (c) Burns lesser included offenses. Under Mellons proof of the greater offense proved the

lesser, however, under Burns this is not necessarily true for lesser offenses under parts (b) and (c).

The majority notes, “The Tennessee Constitution is unique in that in criminal cases, the jury

is the judge of the law and the facts.” In its complete form, Article I, section 19 states that the “the

jury shall have a right to determine the law and the facts, under the direction of the court[.]” This

does not mean that “the judge should tell the jury that this is the law but you don’t have to pay any

attention to it if you don’t want to.” Wright v. State, 394 S.W.2d 883, 884 (Tenn. 1965). This

section of our constitution places the responsibility for safeguarding the integrity of the jury trial in

the hands of the trial court. This includes withholding lesser offenses from the jury when the

evidence is not legally sufficient to support a conviction for such offense. 

In this case, the majority concludes that the evidence would have supported a conviction for

attempted first degree murder or attempted second degree murder. I fully agree. However, by

striving to uphold this conviction based upon a 1977 decision which totally conflicts with present

day jurisprudence, the majority only invites further confusion at the trial court level. 

In all other respects, I agree. 

______________________________ 

DAVID G. HAYES, JUDGE