IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

February 13, 2001 Session

STATE OF TENNESSEE v. MARCUS W. KEENER

Direct Appeal from the Circuit Court for Lawrence County

No. 20403 Robert L. Jones, Judge

No. M2000-00177-CCA-R3-CD - Filed April 26, 2001

GARY R. WADE, P.J., concurring.

While I concur in the result, I write separately because I believe that the trial court erred

by failing to instruct the jury on the lesser included offenses of criminally negligent homicide

and reckless homicide.

The trial court, of course, 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, a defendant is 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 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). The

guiding principle is that if there is evidence in the record from which the jury could have

concluded that a lesser included offense was committed, there must be an instruction for the

lesser offense. See Johnson v. State, 531 S.W.2d 558, 559 (Tenn. 1975). In State v. Burns, 6

S.W.3d 453 (Tenn. 1999), our supreme court confirmed that trial judges should consider all

possible lesser included offenses so as to properly confer upon the jury its fact-finding

prerogatives: 

First, the trial court must determine whether any evidence exists that reasonable

minds could accept as to the lesser-included offense. In making this

determination, the trial court must view the evidence liberally in the light most
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favorable to the existence of the lesser-included offense without making any

judgments on the credibility of such evidence. Second, the trial court must

determine if the evidence, viewed in this light, is legally sufficient to support a

conviction for the lesser-included offense. This two-step analysis is practical,

can be easily applied by the trial courts, and remains broad enough to preserve

both the State's and defendant's rights to consider any lesser-included offenses

fairly raised by the proof. 

Id. at 469. 

In this case, there was evidence from which the jury could have concluded that the

defendant was guilty of criminally negligent homicide. Criminal negligence occurs when a

person acts under conditions such that he "ought to be aware of a substantial and unjustifiable

risk that the circumstances exist or the result will occur. The risk must be of such a nature and

degree that the failure to perceive it constitutes a gross deviation from the standard of care that

an ordinary person would exercise under all the circumstances as viewed from the accused's

person's standpoint." Tenn. Code Ann. § 39-11-106(a)(4). Here, the defendant testified that

he returned to the victim's property in order to ensure that the defendant was not overly angry

at him and was not going to continue beating his girlfriend. Regarding his shooting of the

victim, he testified: "I didn't mean to kill him. I swear I didn't. I was just trying to keep him

off of me." The jury should have been given the option to conclude that the defendant's killing

of the victim was accidental and, thus, that the defendant was guilty of criminally negligent

homicide. Had there been such a conviction, as unlikely as it may have been, this court surely

would not have reversed and dismissed for insufficiency of supporting evidence. 

In my view, there was also evidence from which the jury could have concluded that the

defendant was guilty of reckless homicide. A person acts recklessly when he "is aware of but

consciously disregards a substantial and unjustifiable risk that the circumstances exist or the

result will occur. The risk must be of such a nature and degree that its disregard constitutes a

gross deviation from the standard of care that an ordinary person would exercise under all the

circumstances as viewed from the accused person's standpoint." Tenn. Code Ann. § 39-11-

106(a)(31). On cross-examination, the defendant admitted that he did not believe that someone

shot by a rifle like the one he used to shoot the victim would "be going far." The jury should

have been given the option to conclude that the defendant was aware of the substantial and

unjustifiable risk to human life posed by firing the rifle at or towards someone. There was at

least some proof that the defendant behaved recklessly by returning to the victim's property and

by shooting the victim "to keep [the victim] off of him." Had the jury chosen to convict of

reckless homicide, this court would have surely upheld the conviction. 

Nevertheless, by application of the standard contained in State v. Bolden, 979 S.W.2d

587 (Tenn. 1998), it is my view that the error was harmless beyond a reasonable doubt. The

convictions would also be upheld under the standard utilized in State v. Williams, 977 S.W.2d

101 (Tenn. 1998). As to the harmlessness of the error, I concur fully in the majority's analysis.
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GARY R. WADE, PRESIDING JUDGE