1 This analysis may not hold true

where the is sue is a f

ailure t o instruc t the j ury on the offe

nses of sol

icita tion
or facilit at ion of the indicted o ffense. A finding o f guilt on th e indicted c harge d oes not a fortioti mean th at th ere i s suffici ent proof t

o support a convi

ction on t

hese offenses. For exa mple, in t

he instant

case const

ituti onally suf

ficient proof of guilt of aggravated r

obbery necessa

rily means t

here is s uffici ent proof of

simple robber

y and attempte

d robbery, but it does not

necessari

ly foll ow that proof of

aggravated robbery will establ ish that t he defendant solici

ted or facili

tated others in the comm ission of the offense. Presu mably, the qu est ion to be a sked in d etermin ing error w ith respect to solici tation and facil

itati on is whether

there is any evidence t

hat a reas onable juror

could accept as to t

hese offenses to the exclusion of the greater offenses. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE April 24, 2001 Sessi

on STATE OF TENNESSEE v. LINNELL R ICHMOND and SHERVON JOHNSON Direct Appeal from the Criminal Court for Knox County No. 58152A and 58152B Richard R. Baumgartner, Judge

No. E2000-01499-CCA-R3-CD October 15, 2001

Jerry L. Smith, J., concurring in p art and dissenting

in part. I concur fully in the lead opinion with respect to the attemptedmurder convictio ns of both defendants. I also concur

fully with

Judge Woodall’s opinion in all other respects save for the issue concerning the failure of the trial court to

instruct the jury on the

lesser-included offenses of robbery andattemptedrobbery to the aggravated robbe ry indictment and the attempted aggravated robbery indictment. For the reason s stated below I would find this fail

ure to instruct with

respect to these lesser-included

offenses constituted reversible error. A reading of th e recent cases of State v. Bowles , ___ S.W.3d ___(Tenn. 2001); and State v. Ely & Bowers , 48 S.W.3d 710 (Tenn. 2001); leads one to the inescapable conclusion that our high court has mandated that lesser-incl

uded offense instructions be g

iven anytime

the evidence is su

fficient to suppor

t a conviction for the

se offenses. This means that anytime the proof is sufficient for a conviction of the indicted offense, the proof will a fortiori be sufficient

for a conviction of

the lesser-included offenses. See Bowles ___ S.W.3d at

____. As a practical ma

tter, this in turn me

ans that it will almos

t alw ays be error to fail to instruct the jury as to al

l lesser-included offenses of the indicted offense. 1 Thus, the only real inquiry

, in my opinion, in virtually all of the cases raising the lesser-included

offense issue is w

hether the erro

r in failing to instruc

t on the lesser off

enses can be sai

d to be harmless be

yond a rea

sonable doubt.-2-

It should be noted at the outset of this discussion that although defendant Richmond raised on appeal the lesser-inclu ded offense issue

, defendant Johnson

didnot. Neverthele

ss, pursuant to Tenn. R. Crim. P. 52(b) and the case of State v. Smith , 24 S.W.3d 274 (Tenn. 2000); I would find as to Johnson that the failure to instruct the jury on the lesser-included offenses of robbery and attemptedrobbery constitutes plain error. As such I would there fore grant relief on this issue to both defendants. Tenn. R. Crim. P. 52(b

) provides:

An error which

has affected the

substantial rights of an accused may be noticed at any time, even though not raised

in the motion for a new trial or assigned as e

rror on appeal,

in the discretion of

the appellate court where necessary to do substantial justice.

In State v. Smith , supra ., the Tennessee Supreme Court delin

eated a five (5)

part test for determining whether an error is plain

error. All five (5) criteria for establishing plain error must be established by the record. Id . at 282-83. These five (5) criteria are: (1) the record must e

stablish what occu

rred in the trial c

ourt; (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 must not have waived the issue for tactical reasons; and, (5) consideration of the error must be necessary to do substantial justice. Turning to the inst ant case the record reveals that no instructions on the lesser-included offenses of simpl e robbery and attempted robbery were given to the jury for consideration in the panel’s deliberations on the aggravated robbery and attempted aggravated robbery counts in the in dictment. In my view, for the reasons stated infra . the Tennessee Supreme Court has now establishedclear and unequivocal rules of law in this area. Clearly a substantial right of the accused, i.e. the state

constitutional right

to a jury trial was adversely a ffected. See , State v. Ely & Bowers , 48 S. W.2d at 727, (Tenn. 2001). Nothing in the record suggests Johnson waived this issue for tactical reasons. Finally, since Johnson and Richmond were tried together in this case and presumably

will be in the future trial necessitated by this Court’s opinion, substantial justice requires that consi stent jury in struc tion s be gi ven fo r both defen dants . Thus , I w ouldfind the failure t o instruct as to defendant Johnson on lesser-included offenses to the aggravated robbery and attempted aggravated robbery cha

rges constitutes plain error. Turning to the merits

of the lesser-included offense issue in this case, I am again compelled by recent Tennessee Supreme Court precedent to conclude that an error in failing to instruct the jury-3-

as to lesser-included offenses will be found harmless beyond a reasonable doubt only in the situation presented in the case of Statev. Williams , 977 S.W.2d 101 (Tenn. 1998). In Williams , the defendant was indicted for first degree murder. The jury wa s also instructed on second degree murder, but the trial judge declined

to give instructions on voluntary manslaughter. The defendant was convicted of first degree murder as charged in the indictment. Th e s upreme court held that the error was harmless becaus

e: “[B]y find

ing the defenda

nt guilty of

the highest

offense to the exclusion of the immediately

les ser off ens e, s econ d de gree mur der, the jur y necessarily rejected al l oth er lesser offenses , including voluntary manslaughter.” (Emphasis supplied), Id . at 106. In the case of State v. Ely & Bowers , supra .; the supreme court referred to Wi lliams as a n example of when an error in failing to instruct on l e sser-included offenses is harmless beyond a reasonable doubt. 48 S.W.3d at 727. In State v. Bowles , supra .; Williams was again touted as the paradigm for harmless error analysis in this area.___ S.W.3d at ___. In both State v. Swindle , 30 S.W.3d 289, 293 (Tenn. 2000); and State v. Bolden , 979 s.W.2d 587, 593 (Tenn. 1998) ; the Williams case is held out as an example of when an error in failing to instruct on lesser-include d offenses will be f

ound to be harmless

beyond a re

asonable doubt. In summary, each time our supreme court has performed a harmless error analysis on the failure to instruct on a lesser-included offense, the court has found the error to be harmless beyond a reasonable doubt when the Williams situation is presented. See e.g. Bowles , ___ S.W.3d at ___; Statev. Swindle , 30 S.W.3d at 293. Each time the Williams situation is not pres ent t h e court has found, irrespectiveof the quantum of proof as to the defendant’s guilt of the greater offense, that the failur e t o instruct on lesser-included offenses was reversible error. State v. Ely & Bowers , 48 S.W.3d at 727; State v. Rush , 50 S.W.3d at 424,433 (Tenn. 2001). I am therefore forced to conclude that the only time a failure

to instruct on lesser-included offenses can be considered harmless beyond a reasonable doubt is in the situation presented by the Williams case, i.e., where the jury by rejecting a verdict of guilt on an intermediate lesser-included offense for which they were instructed, in favor of a verdict on the more serious offense, “necessarily ’ rejects all othe r lesser-include

d offenses. Williams , 977 S.W.2d at 106. Although Judge Wade characterizes this approach to this se

emingly intractable

area of the law as “mechanically applied”, such a

n analysis does establish a bright line rulethat will foster co

nsistence and pre

dictability i

n this area of the law and provide guidance to the benchand ba

r. Given the troubled past of lesser-included jurisprudence, this seems to me to be a desirable resul

t. Since the situation in Williams is not that presented in the case sub judice I cannot say the jury “ necessarily

” rejected the lesser-included offenses of robbery and attemptedrobbery. Thus, I cannot find the er

ror to be harmles s beyond a r easonable doubt. I, therefore fee

l compelled by

our supreme cour

t’s precedents t

o reverse this

case as to both defendants

and remand for a new trial wherein the jury is instructed as to all lesser-included offenses of ag grav ate d ro bbe ry and att emp ted aggr avat ed ro bbe ry.

___________________________________ JERRY L. SMITH, JUDGE