# FILED March 9, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON JUNE 1999

SESSION
STATE OF TE NNE SSE E, ) C. C.A.NO. W1998 -0063 7-CCA-R3- CD ) Appellee, ) ) SHELBY COUNTY V. ) ) ) HON. W. FRED AXLEY,JUDGE KHANH V. LE, ) ) Appe llant. ) (FIRST D EGRE E MU RDER ) 

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TE OPINION CONCURRI NG IN PART AND DISSE NTING IN PART I concurwith Judge Ogle’ s opinion concerning the issue of suffi ciency of the evidence to sustai n the convic tion for first degree m urder and the issue regarding the suppressi on of identification testimony. I con cur that the trial court did not err by

refusing t

o charge voluntar

y manslaughter as

a lesser-i ncluded offense. I also concur that

the tri al court erred byfaili ng to charge second degr ee murder as a lesser-i ncluded offense. However, I di ssent from the majority opini on’s conclusi on that this erro r was no t reversible e rror.

In State v. Williams , 977 S.W.2d 101 (Tenn. 1998), the defendant was convictedof first degre e prem editated m urder. T he trial cou rt charge d the jury w ith the lesser-i ncluded offenses of second degree murder and reckless homicide. The court of crimi nal appeals r eversed and re man ded fo r a new trial on th e bas is it was revers ible error for the trial court to not charge voluntary manslaughter as a lesser--2-

included offense. The suprem e court a greed th at it was erro r to not charge vo luntary mans laughte r, but held th at it was ha rmless , and no t reversible e rror. Id . at 106.

Specifical ly, t he supreme court stated: According ly, we conclude that a trialcourt’s erroneous failure to instruct on voluntary manslaughter i s subject to harmless error analysi s. Reversal i s required if the err or affirmatively appears to have affected the result of

the tri al on the meri ts, or i n other words , revers al is required if theerror more prob ably than not affected the judgment to t he defen dant’s p re judice. See , e.g. , State v . Ha mm , 611 S.W.2d 826 (Tenn. 1981) (apply ing ha rmles s error analys is and concluding that the trialcourt’s failur

e to inst ruct upon the lesser of fense consti tuted prejudicia l error). Id . at 105
In Williams , the supre me co urt also he ld,

. . . by f inding t he defendant gui lty of the highest

of f ense to the exclusion of the i mmedi atel y lesser of fense, second degr

ee murder, the jury necessaril y rejected all ot her lesser offenses, included volunt ary manslau ghter. Accordingly, the tri al court’s erroneous fai lure to cha rge voluntary manslaughter is harmless beyond a re asonable doubt because the jury’s ve rdict of g uilt on the greater offense of

first degree murder and its di sincli nation to consider t he lesser-i ncluded offense of second degree murder clearly demonstrates that i t certai nly would not have returned a verdict on voluntary m anslaughte r. Id . at 106 (emp hasis adde d).

Under State v. Burns , 6 S.W.3d 453 (Tenn. 1999), I am constrain ed to note that

it is somewhat unclear to m e whether failure to p roperly charge a lesserincluded of

fense is a constitut ional (af fectingthe cons titutional right to trial by jury) error or on ly a non-c onstitution al statutory e rror.-3- This is an important dist inction because of the di fference i n the tests for harmlessness of consti tutionalerrors and non-con stitutional err ors. Recently, the supreme court set forth the di fference as foll ows: For exam ple, in T enne ssee , non-c onstitu tional e rrors w ill not result in reversalunless the er ror affirmatively appears to have af

fected the resu lt of the trial on t he merits, o r consideri ng the whole record, th e error involves a substanti al right which more probabl y than not, affected the judgment or woul d result i n prejudice to the j udicialprocess. Tenn. R. Crim. P . 52(a); Te nn. R. A pp. P. 36 (b); St at e v. Cook , 816 S.W.2d 322, 326 (T enn. 19 91); State v. Will iams , 977 S.W.2d 101, 105 (Tenn. 1998). In contrast , a co nstitutional error will result in r eversal unless the reviewi ng court is convin ced “b eyond a reas onab le doubt” that the error did notaffect the trial o utcom e. Chapm an v. Califor nia , 386 U. S. 18, 87 S.C t. 824, 17 L .Ed.2d 7 05 (196 7); How ell , 868 S.W
. 2d at 260; Cook , 816 S.W .2d at 326; Te nn. R. Crim . P. 52(a). State v. Harris , 989 S.W .2d 307, 315 (Tenn. 199 9).

In Williams , the majorit y opinion stated, as quoted above, that reversal was r equire d when the trial court erroneous ly failed to instruct on voluntary manslau ghter, “. . . if the erro r affirm atively appears to have af fected the result of

the trialon the merits , or in oth er wor ds, rev ersal is require d if the e rror m ore pro bably than not affected the jud gment to the defendan t’s prejudice.” Williams , 977 S.W.2d at 105.
Howeve r, as also noted abov e, the maj ority opinion hel d that the t rial court’s erroneous fai lure to cha rge the les ser-incl uded offense o f vol untary manslau ghter was “ha rmless beyo nd a reaso nable doub t.” Id . at 106.

In add ition, while spe cifically noting that Strade r v. State , 210 Tenn. 669, 362 S .W .2d 22 4 (196 2), disc usse s the d enial of the ri gh t to a jury trialwhich-4-

results when th e trial court e rroneou sly fa ils to ch arge a lesser-included offense, Williams , 977 S.W.2d at 104 n. 4, and dist inguishi ng Strader on other

ground s, Id
. 15 106 n. 6, t he supreme court di d no t list S trader amo ng ca ses sp ecifica lly overruled by Williams , Id . at 106 n. 7
.

Strader specifically h olds that, [The defendant

] had th e right

to have a ll t he law as t o these dif ferent grades of offenses expl ained to t he jury, in order t hat they m ight ap ply the law in dete rmining whethe r he was guilty of any one or more of such offenses. [Defendant] had thi s right because the statu te (T.C.A. § 40- 2518) gave it to him, and because it was a part of hi s constit utional right of trialby jury to have every issue made by the evidence tri ed and determined by the jur

y under a corr

ect and complete ch arge of the l aw given by t he Judge
. Strader , 210 Ten n. at 682-83, 36 2 S.W .2d at 230 (em phasis add ed).

In State v. Bolden , 979 S.W.2d 587 (Tenn. 1998), f iled appro ximate ly two months a fter Williams was filed , a unanimous supreme court cited Strader

in holding, We have frequent ly held t hat the trial cou rt’s oblig ation u nder th is statute is mandatory, pr ovided ther

e is suff icient

evidence for

a rational tri er of fact to find th e defen dant gu ilty of a lesser o ffense. Strader v
. State , 210 Ten n. 669, 362 S .W.2d 224, 228 (T enn. 1962 ). The failure to instruct

on a less er offense, howev er, may beshown to be harmless beyond a reasonab le doubt under some cir cumstances . State v. Williams , 977 S.W .2d 101 (Te nn. 1998). * * * One purpose of t he statute [r equiring t he trialcourt to c harge lesser offense] is to protec t th e right to t rial by jury by instructing t he jury on the elem ents of all offe nses e mbrac ed by the indictme nt. Bolden , 979 S.W .2d at 593 (em phasis add ed).-5- In spite of the unc ertainty of whether error b y failing to charge a less erincluded offens e is a con stit utional erro r, a non-c onstitution al error, or a nonconstit utional statutory error where reversal is necessary unless the appellate co urt concludes beyond a reasonabl e doubt that the erro r did not affec t the outcome of the trial, I feel that Williams requires a finding o f reversible e rror in this ca se.

In Williams , the ma jority opinion di stingui shes the cases rel ied upon in the dissent ing opini on. Specifi cally it is stated: In other cases, cited by t he dissen t, t he jury wa s not instr ucted a s to any lesser-i ncluded offenses, thoug h the record contained evi dence of those offenses
. See , e.g. , Strader , supra ; State v. Vance , 888 S.W.2d 776 (Tenn. Crim. App. 1994); State v. McKnight , 900 S.W.2d 36 (Tenn. Cri m. App. 19 94). Since the j ury was given only one opti on, and the proofwould have supported another, t hose cas es also a re clea rly distinguishable f rom the circumstances of this case
. Williams , 977 S.W .2d at 105-06 n. 6 (emph asis added ).

Therefore, pursuant to Williams ’ reli ance on Strader , Vance , and McKnigh t , under circum stances wh ere the trial court does not charge a ny lesserincluded offenses, and there is e r ror to fail to charge at l east one lesser -included offense, I am compelled to fi nd thatit is reversible error in this case for the trial cou rt to not charge th e lesser-included offense of seco nd degree murder.

For the above-stated reasons, I respectful ly disse nt, and would reverse the con viction and reman d for a ne w trial.

____________________________________ THOMAS T. W OODALL, Judge