### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE August 14, 2001 Sessio

n

STATE OF TENNESSEE v. ERNEST E DWARD WILSON

Appeal from the Criminal Court for Davidson County No. 98-D-2474 J. Randall Wyatt, Jr., Judge

No. M2000-01997-CCA-R3-CD - Filed October 17, 2001

D AVID H. W ELLES , J., diss enting.

I respectfully dissent from the majority' s holding that the trial court’s er roneo us failure to instruct the jury on reckless homicide and criminally ne gligent homicide as lesser-included offenses of first degre

e murder is harmle

ss beyond a r

easonable doubt.

The majority holds that, under State v. Williams , 977 S.W.2d 101 (Tenn. 19 98), any error in declining to give an instruction on reckless homicide is harmless beyond a re asonable doubt because the jury was instructed regarding voluntary manslaug hter, but convicted the Defendant of secondde gree murder, thereby implicitly rejecting all lesser-included offenses below voluntary manslaughter. In Williams , the defendant was charged with first degree murder, and the jur y was instructed on the lesser included-offense of second degree murder. Id. at 106. The supreme court reasoned that because

the jury rejected the immediately lesse r offense of second degree murder, it “n ecessarily

rejected all other lesser offenses, including voluntary manslaug hter,” which was no t charged by the trial court. Id . Therefore, the failure to instructthe jury on the offense of voluntary manslaughter was harmless error. Id

.
However, because of

the unique nature of

voluntary ma

nslaughter amon

g homicide offe

nses, I cannot agree

that in the presen

t case a strict Williams analysis is applicable, and that the failu re to charge reckless homicide was harmless beyond a reasonable doubt. Voluntary manslaughter is “the intentional or k nowing killing of another in a state of passion produced by adequa te provocation sufficient to lead a reasonable person to act in an irrational manner. ” Tenn. Code Ann. § 39-13- 211(a). The requirement of “adequate provocation” transforms what might otherwise be a first or second degree

murder into

the lesser included offense of voluntary man slaughter. Thus, alth ough voluntary manslaughter has the same statutory mens rea as first or sec ond degree murder — intentional or knowing — the requirement that the killing be done in a “state of passion” produced by adequate provocation takes voluntary manslaug hteroutside of the traditional line of homicide-2-

culpability

categories: intentional, knowing, reckless, and negligent. Therefore, the use of voluntary manslaughter as a “buffer” lesser-included offense in a Williams analysis is unreliable.

Furthermore, in Williams the jury found the de fendant guilty of first degree premeditated murder. See Tenn. Code Ann. § 39-13-202(a)(1). A conviction for first degree premeditated murder requires a finding that the killing was done “after the exercise of reflection and judgment.” Tenn. Code Ann. § 39-13-202( d). A finding of p

remedita tion require s the jury to determine that the defendan t was “s ufficiently free from excitement and passion as to be capable of pre meditation.” Id. Conversely, voluntary manslaughter requires that the al l eged killing take place “in a state of passion produced by adequate provocation sufficient to l ead a reasonable person to act in an irrational manner.” Tenn. Code Ann. § 39-13-211(a). Therefore, because the jury in Williams found the Defendant killed

the victim while su

fficientl y free from passion as to be capable of premeditation, there is no reasonable possibility that the same jury would hav e f ound that the Defendant

killed the victim

while in a state of

passion caused by adequate provocation. A finding of premeditation sufficient to support a conviction for first degree

murder thus clearly leads to the conclusion that the jury would not have found the state of passion required to tran sform the crime
to voluntary manslaughter, and thus solidifies a conclusio n that any error i n failing to charge the jury with voluntary

manslaughter is

harmless bey

ond a reasonable

doubt.

In the present case, the jury convicted the Defendant of a knowing killing but was precluded from consideri ng whether the Defendant acted with the immediately lesser state of mind of recklessness.

The jury was instructed regarding first deg ree murde r , second degree murder, and voluntary manslaughter. The jury returned a verdict for second degree murder.

In a case where li

ttle or no evidenc

e of provocation

exists, the logica

l imm edi ate lesserincluded off

ens e of second degree murder is reckless homicide. What distinguishes voluntary

mans laughter

from an intentional or knowing killing is not a lesser mental state, but rather, th e extenuating circumstance of adequate provocation. In the Defendant’s c ase, failure to charge the jury

as to reckless homicide denied it the opportunity to consider the immediate less

er-included off

ense supported by the fact

s. The Defendant testified that he fired the gun in order to scare the victim, and that he never intended to shoot the victim. He said tha t he wanted to

shoot “close to him” and that the shot that hit the vict

im was “supposed to

be a warning shot.” Viewing this testimony in the light
most favor able t o the finding of the lesser-included offense and without making judgments on cred ibi lit y, I believe that the facts wi thin the record are sufficient to support a conviction, and theref or e, a jury instruction on reckless homicide. Accordingly , the trial court erred in not instructing the jury regarding

reckless homicide, and I cannot say that error was harml

ess beyond a

reasonable doubt.

For

the aforementioned reasons, I would reverse the judgment of the trial court and remand this case for a ne

w trial.

___________________________________ DAVID H. WELLES, JUDGE