IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

April 24, 2001 Session

STATE OF TENNESSEE v. LINNELL RICHMOND

and SHERVON JOHNSON

Direct Appeal from the Criminal Court for Knox County

Nos. 58152A and 58152B Richard R. Baumgartner, Judge 

No. E2000-01499-CCA-R3-CD

October 15, 2001

Gary R. Wade, P.J., concurring.

I concur with Judge Woodall's lead opinion as to the defendant Johnson and would affirm

in all respects. I disagree with Judge Smith that this court should reverse Johnson's aggravated

robbery and attempted aggravated robbery convictions on a plain error basis for failure to instruct

on the lesser offenses of robbery and attempted robbery. Johnson did not present the issue on appeal.

Five factors determine whether the failure to charge lesser included offenses qualifies as reversible,

plain error: 

1. The record must clearly establish what happened in the trial court;

2. a clear and unequivocal rule of law must have been breached; 

3. a substantial right of the accused must have been adversely affected; 

4. the accused did not waive the issue for tactical reasons; and

5. consideration of the error is necessary to do substantial justice. 

State v. Adkisson, 89 S.W.2d 626, 639 (Tenn. Crim. App. 1994). Because the proof was so

overwhelming as to Johnson's convictions, I would characterize the error as harmless beyond a

reasonable doubt and cannot, therefore, conclude that considering the error as plain "is necessary to

do substantial justice." Id. 

I concur in part with Judge Woodall's opinion as to the defendant Richmond, who was

granted a new trial on the murder count based upon error in the natural and probable consequences

rule. The defendant Richmond should, however, be granted a new trial on all counts. I concur with

Judge Smith, who concluded that the trial court also erred by the failure to instruct the jury on the

lesser included offenses of robbery and attempted robbery on the aggravated and attempted

aggravated robbery indictments. 

The evidence showed that the victims were standing outside of a nightclub when four men
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wearing masks and hoods came around the corner of the building and demanded that they hand over

their money. There was testimony that the defendant Johnson held a .9 millimeter pistol to one

victim’s head and took $200 from him. There was also proof that when the other victims related that

they had no money, the defendants entered the nightclub and opened fire. The defendant Richmond

was arrested shortly after the incident driving the getaway car. He was not wearing a mask or a

toboggan. Police found no weapons and no money in his possession. By proving aggravated

robbery and attempted aggravated robbery, the state also proved robbery and attempted robbery. See

State v. Bowles, 52 S.W.3d 69 (Tenn. 2001). Under these circumstances, if the defendant Richmond

had been convicted of robbery or attempted robbery, this court would have clearly found that the

evidence supported the convictions. Thus, these lesser offenses should have been charged to the

jury. 

In all criminal cases, the burden of proof is on the state. The defendant had no obligation to

prove that deadly weapons were not used in the offense. The jury has the right to accredit or reject

the testimony of witnesses and, ultimately, to determine the law and the facts. See Tenn. Const. art.

I, § 19. The trial judge has a duty to give a complete charge of the law applicable to the facts of the

case. State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986). There is an obligation "to charge the

jury as to all of the law of each offense included in the indictment, without any request on the part

of the defendant to do so." Tenn. Code Ann. § 40-18-110(a). Pursuant to our statute and case law

interpretations, defendants are entitled to jury instructions on all lesser offenses for which the

evidence would support conviction. Complete instructions allow the jury to determine among each

alternative the appropriate offense, if any, for conviction and to more evenly balance the rights of

the defendant and the state. It is only when the record is devoid of evidence to support an inference

of guilt of the lesser offense that the trial court is relieved of the responsibility to charge the lesser

crime. State v. Stephenson, 878 S.W.2d 530, 549-50 (Tenn. 1994); State v. Boyd, 797 S.W.2d 589,

593 (Tenn. 1990).

A finding that the trial court erred by not instructing the jury, however, does not end the

inquiry. In State v. Williams, 977 S.W.2d 101, 105 (Tenn. 1998), our supreme court appeared to

have rejected a line of cases which had concluded that the right to instructions on lesser offenses was

founded in the Tennessee Constitution and instead ruled that entitlement was based solely upon the

statutory requirement. In consequence, the high court directed that any error in the omission of a

lesser included offense would be subject to the following 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.

In State v. Bolden, 979 S.W.2d 587 (Tenn. 1998), the defendant, who was charged with

premeditated first degree murder, was willing to gamble on an "all or nothing" verdict by asking the

trial judge not to charge the lesser included offense of second degree murder; the trial judge refused

and the defendant was convicted on that lesser crime. While our supreme court affirmed the second

degree murder conviction, its opinion emphasized the mandate of the statute requiring trial courts
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to "instruct the jury on all lesser offenses if the evidence introduced at trial is legally sufficient to

support a conviction of the lesser offense." Id. at 593. Our supreme court also acknowledged that

a "purpose of the statute is to protect the right to trial by jury by instructing the jury on the elements

of all offenses embraced by the indictment [and to] facilitate[] the overall truth-seeking function of

the process." Id. If the failure to charge a lesser included offense was an error of constitutional

dimension, as Bolden implied, the proper question would have been whether the error was harmless

beyond a reasonable doubt. In State v. Swindle, 30 S.W.3d 289, 293 (Tenn. 2000), however, our

supreme court followed the rationale in Williams and held that reversal was required only "if the

error affirmatively affected the result of the trial, or if the error more probably than not affected the

judgment to the defendant’s prejudice." Our highest state court concluded that the trial court’s

failure to instruct misdemeanor assault as a lesser included offense of the primary charge, aggravated

sexual battery, was harmless error under Tennessee Rule of Criminal Procedure 52(a).

In State v. Ely, however, our supreme court clarified the holding in Williams and confirmed

that the failure to charge a lesser included offense qualifies as an error of constitutional proportions:

[T]he right of trial by jury is of constitutional dimension [as] evidenced by its

embodiment in Article I, section 6 of the Tennessee Constitution, which states, "the

right of trial by jury shall remain inviolate." Accordingly, we hold that this

constitutional right is violated when the jury is not permitted to consider all offenses

supported by the evidence.

48 S.W.3d 710, 727 (Tenn. 2001) (emphasis in original). Our high court directed that in reviewing

error arising from a failure to charge one or more lesser included offenses, "the proper inquiry for

an appellate court is whether the error is harmless beyond a reasonable doubt." Id. That is not, in

my view, a mechanically applied analysis, as Judge Smith suggests, but a fact-specific one, requiring

review of the evidence in the record. For example, a concurring opinion authored by Chief Justice

Rehnquist in Sullivan v. Louisiana accurately describes the duty of the appellate court in

circumstances where there is constitutional error:

[T]he reviewing court is usually left only with the record developed at trial to

determine whether it is possible to say beyond a reasonable doubt that the error did

not contribute to the jury's verdict. . . . [A]ny time an appellate court conducts

harmless-error review it necessarily engages in some speculation as to the jury's

decision making process; for in the end no judge can know for certain what factors

led to the jury's verdict. 

508 U.S. 275, 283 (1993) (Rehnquist, J., concurring). 

In Fahey v. Connecticut, 375 U.S. 85 (1963), our highest court observed that the real question

when there is a constitutional violation is whether there is "a reasonable possibility" that error might

have contributed to the conviction. In Chapman v. California, our Supreme Court approved of that

language and further concluded that when constitutional error has occurred, appellate courts have
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the obligation "to declare a belief that it was harmless beyond a reasonable doubt." 386 U.S. 18, 24

(1967). 

In summary, I concur in the affirmances of each of Johnson's convictions. In my view,

defendant Richmond is entitled to a new trial on all counts. Because there was no direct testimony

that he was armed or that he wore a mask, there is a "reasonable possibility" that the failure to

instruct on robbery and attempted robbery may have contributed to the aggravated robbery and

attempted aggravated robbery convictions. These errors cannot be considered harmless beyond a

reasonable doubt. I therefore concur with Judge Smith that the defendant Richmond is entitled to

new trials on those convictions. 

____________________________________

GARY R. WADE, PRESIDING JUDGE