FILED

March 9, 2000

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JUNE 1999 SESSION 

STATE OF TENNESSEE, ) C.C.A. NO. W1998-00637-CCA-R3-CD

)

Appellee, )

) SHELBY COUNTY

V. ) 

)

) HON. W. FRED AXLEY, JUDGE 

KHANH V. LE, ) 

)

Appellant. ) (FIRST DEGREE MURDER) 

SEPARATE OPINION CONCURRING

IN PART AND DISSENTING IN PART

I concur with Judge Ogle’s opinion concerning the issue of sufficiency

of the evidence to sustain the conviction for first degree murder and the issue

regarding the suppression of identification testimony. I concur that the trial court did

not err by refusing to charge voluntary manslaughter as a lesser-included offense.

I also concur that the trial court erred by failing to charge second degree murder as

a lesser-included offense. However, I dissent from the majority opinion’s conclusion

that this error was not reversible error. 

In State v. Williams, 977 S.W.2d 101 (Tenn. 1998), the defendant was

convicted of first degree premeditated m urder. The trial court charged the jury with

the lesser-included offenses of second degree murder and reckless homicide. The

court of criminal appeals reversed and remanded for a new trial on the basis it was

reversible error for the trial court to not charge voluntary manslaughter as a lesser-
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included offense. The supreme court agreed that it was error to not charge voluntary

manslaughter, but held that it was harmless, and not reversible error. Id. at 106.

Specifically, the supreme court stated:

Accordingly, we conclude that a trial court’s erroneous failure to instruct

on voluntary manslaughter is subject to harmless error analysis.

Reversal is required if the error affirmatively appears to have affected

the result of the trial on the merits, or in other words, reversal is

required if the error more probably than not affected the judgment to the

defendant’s prejudice. See, e.g., State v. Hamm, 611 S.W.2d 826

(Tenn. 1981) (applying harmless error analysis and concluding that the

trial court’s failure to instruct upon the lesser offense constituted

prejudicial error). 

Id. at 105

In Williams, the supreme court also held, 

. . . by finding the defendant guilty of the highest offense to the

exclusion of the immediately lesser offense, second degree murder, the

jury necessarily rejected all other lesser offenses, included voluntary

manslaughter. Accordingly, the trial court’s erroneous failure to charge

voluntary manslaughter is harmless beyond a reasonable doubt

because the jury’s verdict of guilt on the greater offense of first degree

murder and its disinclination to consider the lesser-included offense of

second degree murder clearly demonstrates that it certainly would not

have returned a verdict on voluntary m anslaughter.

Id. at 106 (emphasis added).

Under State v. Burns, 6 S.W.3d 453 (Tenn. 1999), I am constrained to

note that it is somewhat unclear to me whether failure to properly charge a lesserincluded offense is a constitutional (affecting the constitutional right to trial by jury)

error or only a non-constitutional statutory error. 
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This is an important distinction because of the difference in the tests for

harmlessness of constitutional errors and non-constitutional errors. Recently, the

supreme court set forth the difference as follows:

For example, in Tennessee, non-constitutional errors will not result in

reversal unless the error affirmatively appears to have affected the

result of the trial on the merits, or considering the whole record, the

error involves a substantial right which more probably than not, affected

the judgment or would result in prejudice to the judicial process. Tenn.

R. Crim. P. 52(a); Tenn. R. App. P. 36(b); State v. Cook, 816 S.W.2d

322, 326 (Tenn. 1991); State v. Williams, 977 S.W.2d 101, 105 (Tenn.

1998). In contrast, a constitutional error will result in reversal unless

the reviewing court is convinced “beyond a reasonable doubt” that the

error did not affect the trial outcome. Chapman v. California, 386 U.S.

18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Howell, 868 S.W.2d at 260;

Cook, 816 S.W.2d at 326; Tenn. R. Crim. P. 52(a).

State v. Harris, 989 S.W.2d 307, 315 (Tenn. 1999).

In Williams, the majority opinion stated, as quoted above, that reversal

was required when the trial court erroneously failed to instruct on voluntary

manslaughter, “. . . if the error affirmatively appears to have affected the result of the

trial on the merits, or in other words, reversal is required if the error more probably

than not affected the judgment to the defendant’s prejudice.” Williams, 977 S.W.2d

at 105.

However, as also noted above, the majority opinion held that the trial

court’s erroneous failure to charge the lesser-included offense of voluntary

manslaughter was “harmless beyond a reasonable doubt.” Id. at 106.

In addition, while specifically noting that Strader v. State, 210 Tenn.

669, 362 S.W.2d 224 (1962), discusses the denial of the right to a jury trial which
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results when the trial court erroneously fails to charge a lesser-included offense,

Williams, 977 S.W.2d at 104 n. 4, and distinguishing Strader on other grounds, Id.

15 106 n. 6, the supreme court did not list Strader among cases specifically

overruled by Williams, Id. at 106 n. 7. 

Strader specifically holds that, 

[The defendant] had the right to have all the law as to these different

grades of offenses explained to the jury, in order that they might apply

the law in determining whether he was guilty of any one or more of such

offenses. [Defendant] had this right because the statute (T.C.A. § 40-

2518) gave it to him, and because it was a part of his constitutional right

of trial by jury to have every issue made by the evidence tried and

determined by the jury under a correct and complete charge of the law

given by the Judge. 

Strader, 210 Tenn. at 682-83, 362 S.W.2d at 230 (emphasis added).

In State v. Bolden, 979 S.W.2d 587 (Tenn. 1998), filed approximately

two months after Williams was filed, a unanimous supreme court cited Strader in

holding, 

We have frequently held that the trial court’s obligation under this

statute is mandatory, provided there is sufficient evidence for a rational

trier of fact to find the defendant guilty of a lesser offense. Strader v.

State, 210 Tenn. 669, 362 S.W.2d 224, 228 (Tenn. 1962). The failure

to instruct on a lesser offense, however, may be shown to be harmless

beyond a reasonable doubt under some circumstances. State v.

Williams, 977 S.W.2d 101 (Tenn. 1998).

* * *

One purpose of the statute [requiring the trial court to charge lesser

offense] is to protect the right to trial by jury by instructing the jury on

the elements of all offenses embraced by the indictment. 

Bolden, 979 S.W.2d at 593 (emphasis added).
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In spite of the uncertainty of whether error by failing to charge a lesserincluded offense is a constitutional error, a non-constitutional error, or a nonconstitutional statutory error where reversal is necessary unless the appellate court

concludes beyond a reasonable doubt that the error did not affect the outcome of the

trial, I feel that Williams requires a finding of reversible error in this case. 

In Williams, the majority opinion distinguishes the cases relied upon in

the dissenting opinion. Specifically it is stated:

In other cases, cited by the dissent, the jury was not instructed as to

any lesser-included offenses, though the record contained evidence 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.

Crim. App. 1994). Since the jury was given only one option, and the

proof would have supported another, those cases also are clearly

distinguishable from the circumstances of this case.

Williams, 977 S.W.2d at 105-06 n. 6 (emphasis added).

Therefore, pursuant to Williams’ reliance on Strader, Vance, and

McKnight, under circumstances where the trial court does not charge any lesserincluded offenses, and there is error to fail to charge at least one lesser-included

offense, I am compelled to find that it is reversible error in this case for the trial court

to not charge the lesser-included offense of second degree murder.

For the above-stated reasons, I respectfully dissent, and would reverse

the conviction and remand for a new trial. 

____________________________________

THOMAS T. W OODALL, Judge