IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

June 4, 2008 Session

STATE OF TENNESSEE V. PHEDREK T. DAVIS

Appeal by permission from the Court of Criminal Appeals

Criminal Court for Davidson County

No. 2003-D-2992 Seth Norman, Judge 

No. M2006-00198-SC-R11-CD - Filed October 17, 2008

We granted the Defendant’s request for permission to appeal to address the propriety of jury

instructions requiring the jury to reach a unanimous decision to acquit of a greater offense before

considering a lesser-included offense. We hold that such jury instructions are proper and do not

violate the Defendant’s right to trial by jury. We also hold that the trial court’s imposition of

consecutive sentences did not violate the Defendant’s federal Sixth Amendment rights. While the

Defendant has raised several other issues, we have determined that the Court of Criminal Appeals

correctly held that they do not entitle the Defendant to relief. Accordingly, we affirm the

Defendant’s convictions and sentences. 

Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Affirmed

CORNELIA A. CLARK,J., delivered the opinion of the court, in which JANICE M. HOLDER, C.J., AND

WILLIAM M.BARKER, andWILLIAM C.KOCH,JR.,JJ., joined. GARY R.WADE,J., filed a concurring

opinion.

Kathleen G. Morris and Anne M. Davenport, Nashville, Tennessee, for the appellant, Phedrek T.

Davis. 

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Rachel

E. Willis, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Renee

Erb, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of the shooting death of Susan Phelps on August 21, 2003, as she stood

inside her apartment in Nashville, Davidson County, Tennessee.
2

Mr. Eula Beasley testified that he had known the victim two to three months prior to her

death and had visited her apartment “a lot.” On the day of the shooting, Mr. Beasley was at the

victim’s apartment along with several other people. Because the electricity was out in the apartment,

the victim had run an extension cord from the Defendant’s apartment to hers. According to Mr.

Beasley, the Defendant (appellant Phedrek T. Davis) saw the victim coming out of his apartment and

accosted her on the sidewalk. Mr. Beasley was standing next to the victim when this occurred. The

Defendant slapped her across her face and said, “bitch, I’m going to get you, don’t be in this house

when I come back.” Mr. Beasley had previously told one of the detectives that the Defendant also

threatened “to kill her when he come [sic] back, he was going to shoot up the house and everything.”

After this altercation, Mr. Beasley and the victim were both in the victim’s living room

“having fun.” Mr. Beasley explained that he had not taken the Defendant’s threats seriously. Within

fifteen minutes, Mr. Beasley saw the Defendant walking fast toward the victim’s apartment. As the

Defendant came abreast of the living room window, which was open, he began shooting into the

apartment through the window. The Defendant continued walking and shooting. Mr. Beasley

described the gun as an automatic which the Defendant was firing with one hand. The victim was

standing “right in front of the window.” When the gunfire began, Mr. Beasley turned and ran to a

back room where he broke a window and jumped out. He did not see the victim get shot. He did,

however, hear “a bunch” of shots. 

After jumping through the window, Mr. Beasley ran up the alleyway, where he hid in some

bushes out of fear. From there, he saw the Defendant drive by. 

On cross-examination, Mr. Beasley admitted that he had been smoking crack cocaine on the

day of the shooting. He also admitted to an aggravated burglary and several theft convictions. 

George Boone testified that he had known the victim several months before her death. On

the day of the shooting, he and several other people were at the victim’s apartment. The victim was

walking outside. Mr. Boone stated that, while he was standing in her living room looking out the

door, he saw an altercation between the Defendant and the victim; he saw no one else present during

the argument. Mr. Boone heard the Defendant call the victim “bitch” and state, “somebody got my

stuff.” He saw the Defendant slap the victim, after which she walked a short distance away. The

Defendant also left. After the victim returned to her apartment, the Defendant “came to the door

after that and said, somebody got my shit, you-all need to get up out of here.” Mr. Boone testified,

“He said I don’t care if it’s your husband or whoever is in there, when I come back I’m going to

shoot this m***** f***** up.” None of the other people in the apartment responded to the

Defendant, but Mr. Boone “told them, they need to come out of there because of what he said.”

Although the others did not take the Defendant’s threat seriously, Mr. Boone did, and he walked out

of the apartment.

Mr. Boone stationed himself a short distance away, in front of the apartment. From his

position, he could look through the living room window; he saw the victim sitting in front of it.

Fifteen to thirty minutes later, he saw the Defendant returning. The Defendant walked over to near

where Mr. Boone was standing, reached down, and “come [sic] up with a pistol.” The Defendant

pointed the gun and “opened fire.” Mr. Boone stated that the Defendant shot through the window
An expert witness explained to the jury that the type of bullets recovered from the scene consisted of an inner

1

lead core surrounded by a copper brass alloy jacket and that the two layers sometimes separated on impact. 

3

and that he shot from right to left. Neither man spoke to the other. When he was done shooting, the

Defendant “just walked on back around the building” where he got in a car and drove away. 

Mr. Boone went to the apartment and looked in. He saw the victim lying on the floor. 

Dr. Stacy Turner testified about the victim’s autopsy. According to Dr. Turner, the victim

had suffered a gunshot wound to the face in which the bullet perforated the victim’s right carotid

artery and caused her death. The bullet was recovered from the victim’s body. 

Officer William Kirby, a member of the identification crime scene section of the Metro

Nashville Police Department, testified that he reported to the scene of the crime at about 4:30 in the

afternoon on the day it occurred. He stated that it was a bright and sunny day and that he could see

through the apartment’s living room window (which was open) into the interior. Officer Kirby

confirmed that the apartment had no electricity. He composed an accurate, although not to scale,

drawing of the scene. The drawing depicted an apartment with a front door between two front

windows. The door and window to the right of the door (from the perspective of one approaching

the door from the outside) were along the outside wall of the living area. The window to the left of

the door was along the outside wall of a bedroom. The living room window bore three bullet strikes:

two to the frame and one through the screen. The front door frame bore one bullet strike. The

bedroom window bore four bullet strikes–one to the frame and three through the glassSand the

interior wall of the bedroom (parallel with the outside wall in which the window was located) also

bore four bullet strikes. In the area in front and outside of the bedroom window, six 40 caliber shell

casings were found. In the living room, a lead bullet was found; in the kitchen, near where the

victim fell, a copper jacket was found. In the bathroom, another copper jacket was found and in the

back bedroom, another lead bullet.1

Officer Kirby testified that, although he and other members of the unit searched “front, back

and side” for shell casings, the only ones they found were in the area fronting the bedroom window.

He also opined that “at least five [bullets] made it inside of the apartment.” 

Detective David Achord testified that he was the primary investigator in the case. He

attended the victim’s autopsy. He took custody of the bullet recovered from the victim’s body and

submitted it for ballistics testing. He also submitted for ballistics testing the projectiles and shell

casings recovered from the crime scene. He took out a warrant for the Defendant’s arrest on August

22, 2003, the day after the victim was killed, but the Defendant was not taken into custody until

September 30, 2003. 

Officer Kendall Jaeger testified that he is a “firearm tool mark examiner in the forensics and

firearms section of the identification section” of the Metro Nashville Police Department. He

examined the projectiles and discharged cartridge cases that were recovered during the investigation

of this case. He determined that the six cartridge cases had all been discharged from a single weapon

and that the weapon was a semi-automatic handgun. 
4

Officer Jaeger was unable to identify the bullet that was recovered from the victim’s body

because the metal jacket surrounding the lead core had been stripped away. He identified two

complete bullets recovered from the scene and two bullet jackets recovered from the scene as having

been fired from the same gun. Because the gun that fired the cartridges was not recovered, however,

he was unable to state conclusively that the cartridge cases and the bullets/bullet jackets were fired

from one and the same gun. He acknowledged, however, that it was reasonable to infer that the same

gun fired both the cartridge cases and the bullets. 

Detective Roy Dunaway testified that he assisted in booking the Defendant. Using a

photograph known to be ofthe Defendant, Det. Dunaway asked the Defendant if the photograph was

of him. The Defendant acknowledged that the photograph was of him and inquired, “what’s this

about?” Det. Dunaway told the Defendant that there was a criminal homicide warrant on him but

that he did not know anything about the case. The Defendant stated that he had not killed anyone.

Det. Dunaway said that he did not have any information on the case and that he did not “know

anything about the dude that got killed.” The Defendant then stated, “it wasn’t a dude, it was a

lady.” Det. Dunaway acknowledged that the police department had publicized the murder and its

search for the Defendant prior to his apprehension. 

The defense presented no proof.

In its charge to the jury, the trial court gave the following instruction on first degree

premeditated murder:

First degree premeditated murder. Any person who commits first degree

murder is guilty of a crime.

For you to find the Defendant guilty of this offense, the State must have

proven beyond a reasonable doubt the existence of the following essential elements:

One, that the Defendant unlawfully killed Susan Phelps; and 

Two, that the Defendant acted intentionally. A person acts intentionally when

it is the person’s conscious objective or desire to cause the death of the alleged

victim; and 

Three, that the killing was premeditated.

You may refer to the definition page for definitions previously set out.

If, after considering all the evidence and the Court’s instructions, you find

beyond a reasonable doubt that the Defendant is guilty of first degree premeditated

murder of Susan Phelps, as charged in count two of the indictment, the form of your

verdict would then be: We, the jury, find the Defendant guilty of first degree

premeditated murder of Susan Phelps as charged in count two of the indictment. The

Court will thereafter set the punishment after a separate sentencing hearing.
The trial court’s instruction in this regard was substantially similar to that suggested in Tennessee’s Pattern

2

Jury Instructions: “If you have a reasonable doubt as to the defendant’s guilt of [insert offense charged] as charged in

[count __ of] the indictment, then your verdict must be not guilty as to this offense, and then you shall proceed to

determine whether the defendant is guilty or not guilty of the lesser included offense of [insert lesser included offense].”

T.P.I.SCrim. 41.01 (11th ed. 2007) (footnote omitted). Although the Pattern Jury Instructions do not have the force of

law, our trial courts “frequently use them as a source for jury instructions.” State v. Rutherford, 876 S.W.2d 118, 120

(Tenn. Crim. App. 1993).

The trial court similarly instructed the jury with respect to the charged offense of the attempted first degree

3

premeditated murder of Eula Beasley and its lesser-included offenses.

5

On the other hand, if you find the Defendant not guilty of first degree

premeditated murder of Susan Phelps, as charged in count two of the indictment, or

if you have a reasonable doubt thereof, then you must acquit him, and your verdict

must be not guilty, as to this offense. You must then consider the lesser included

offense of . . . second degree murder.2

(Emphasis added). Similar instructions were given with respect to the additional lesser-included

offenses of voluntary manslaughter, reckless homicide, and criminally negligent homicide. Later 3

in the charge, the trial court instructed the jury:

The crime charged in each count of the indictment is a separate and distinct

offense. You must decide each charge separately on the evidence and law applicable

to it. The Defendant may be found guilty or not guilty of any or all of the offenses

charged or included. Your finding as to each crime charged must be stated in your

verdict.

The verdict must represent the considered judgment of each juror. In order

to return a verdict, it is necessary that each juror agree thereto. Your verdict must

be unanimous. 

(Emphasis added).

After deliberating, the jury convicted the Defendant of the first degree premeditated murder

of Susan Phelps, the attempted second degree murder of Eula Beasley, and the misdemeanor assault

of Susan Phelps. The trial court subsequently sentenced the Defendant to life imprisonment for the

first degree murder; a consecutive term of fifteen years for the attempted second degree murder; and

a concurrent term of eleven months, twenty-nine days for the misdemeanor assault. The Court of

Criminal Appeals affirmed the Defendant’s convictions and sentences. We accepted this appeal

primarily to address the Defendant’s contention that requiring a jury to reach a unanimous verdict

of not guilty on a greater offense before it may consider lesser-included offenses “is inconsistent with

the Tennessee Constitution and Tennessee case law.” 
Our Court of Criminal Appeals has repeatedly approved of instructions that require a jury to reach a unanimous

4

verdict of acquittal on each greater offense before proceeding to consider the next lesser-included offense, however. See,

e.g., State v. Raines, 882 S.W.2d 376, 381-82 (Tenn. Crim. App.), perm. app. denied (Tenn. 1994); State v. McPherson,

882 S.W.2d 365, 375-76 (Tenn. Crim. App.), perm. app. denied (Tenn. 1994); State v. Rutherford, 876 S.W.2d 118, 119-

20 (Tenn. Crim. App. 1993), perm. app. denied (Tenn. 1994). In State v. Mann, 959 S.W.2d 503 (Tenn. 1997), this

Court adopted without analysis the Court of Criminal Appeals’ holding to that effect. See id. at app. 521. Tennessee’s

Rules of Criminal Procedure also contemplate the use of acquittal-first instructions in cases where lesser-included

offenses are charged. See Tenn. R. Crim. P. 31(d)(2).

This statutory provision has since been superceded. See Tenn. Code Ann. § 40-18-110 (2006). 5

6

STANDARD OF REVIEW

We review issues of constitutional law de novo with no presumption of correctness attaching

to the legal conclusions reached by the courts below. State v. Burns, 205 S.W.3d 412, 414 (Tenn.

2006).

ANALYSIS

I. Tennessee’s Right to Jury Trial

We first address the Defendant’s contention that the trial court’s charge to the jury violated

his right to a jury trial under Tennessee’s constitution. Our state constitution provides that “the right

of trial by jury shall remain inviolate.” Tenn. Const. art. I, § 6. 

In Tennessee, this right dictates that all issues of fact be tried and determined by

twelve jurors. Thus, it follows that a defendant has a right to a correct and complete

charge of the law, so that each issue of fact raised by the evidence will be submitted

to the jury on proper instructions. 

State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000) (citations omitted). This Court has long

recognized that the constitutional right to “a correct and complete charge of the law,” id., includes

the right to jury instructions on each and every lesser-included offense embraced within the charged

offense(s) and supported by the proof, see State v. Ely, 48 S.W.3d 710, 727 (Tenn. 2001); State v.

Staggs, 554 S.W.2d 620, 626 (Tenn. 1977), overruled on other grounds by State v. Williams, 977

S.W.2d 101, 106 n.7 (Tenn. 1998); Strader v. State, 362 S.W.2d 224, 230 (Tenn. 1962). This Court

has not previously addressed, however, whether the order and manner in which a jury considers a

charged offense and its lesser-included offenses implicates the constitutional right to trial by jury.4

A brief review of some of this Court’s recent decisions regarding lesser-included offenses

is helpful to our analysis. In State v. Burns, 6 S.W.3d 453 (Tenn. 1999), this Court conducted a

comprehensive review of Tennessee’s statutory mandate that trial courts charge juries as to the law

of each offense included in an indictment. Id. at 464 (citing Tenn. Code Ann. § 40-18-110 (1997)).

5

This Court recognized the benefits of providing a jury with the option of convicting a defendant of

an offense less serious than the one charged: “‘[P]roviding the jury with the “third option” of

convicting on a lesser included offense ensures that the jury will accord the defendant the full benefit
An offense may also be designated by our legislature to be a lesser-included offense. State v. Elkins, 83 6

S.W.3d 706, 710-11 (Tenn. 2002).

7

of the reasonable-doubt standard.’” Id. (quoting Beck v. Alabama, 447 U.S. 625, 634 (1980)). The

Court also stressed the dangers inherent in failing to provide a jury with the option of convicting of

a lesser-included offense where the prosecution has established some criminal conduct beyond a

reasonable doubt: “Such a scenario forces a jury into an ‘all or nothing’ decision that, unfortunately,

is likely to be resolved against the defendant, who is clearly guilty of ‘something.’” Id. at 466.

Accordingly, this Court held that a trial court must instruct a jury on lesser-included offenses where

the trial court determines that (1) the particular lesser offense is included in the greater offense

charged (using the calculus set forth in Burns ); (2) the record contains evidence that reasonable 6

minds can accept as to the lesser-included offense; and (3) that evidence is legally sufficient to

support a conviction for the lesser-included offense. Id. at 467-69. 

In State v. Ely, this Court recognized that “the right to lesser-included offense instructions

does not derive only from statute,” 48 S.W.3d at 726, but that “the right has both a statutory and a

constitutional basis,” id. at 727, specifically, the Tennessee Constitution’s guarantee that “the right

of trial by jury shall remain inviolate.” We therefore held that “this constitutional right is violated

when the jury is not permitted to consider all offenses supported by the evidence.” Id. It is upon this

statement that the Defendant bases his claim that the trial court’s acquittal-first jury instructions in

this case were unconstitutional.

The Defendant asserts that acquittal-first jury instructions do not permit a jury to consider

all of the offenses supported by the evidence in a given trial because the jury is not permitted to

consider any lesser-included offenses until it has unanimously determined that the defendant is not

guilty of the charged (greater) offense. And, once it decides to convict of a greater offense, it never

considers any remaining lesser-included offenses. The Defendant asserts that prohibiting a jury from

considering lesser-included offenses unless and until it unanimously acquits of all greater offenses

flies in the face of our declaration in Ely. Under the Defendant’s interpretation of Ely, a jury must

be permitted to consider simultaneously all of the offenses included in the charged offense,

eventually arriving upon any verdict of guilt without necessarily reaching unanimous agreement as

to the charged and/or any remaining included offenses. 

The Defendant stretches our language in Ely beyond the framework it was designed to fit.

In Ely, this Court was addressing the appropriate standard of review to be applied in assessing a trial

court’s error in failing to instruct the jury about lesser-included offenses called for by the indictment

and proof in the case. Ely, 48 S.W.3d at 725, 727. The issue was significant because the standard

of review differs depending upon whetherthe error is constitutional error or non-constitutional error.

See State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008) (recognizing structural constitutional

error, non-structural constitutional error, and non-constitutional error as the three categories of error

and that the category into which any alleged error falls defines the standard of appellate review).

Because this Court determined that a defendant’s right to instructions on lesser-included offenses

stemmed not only from statute but also from Tennessee’s Constitution, we held in Ely that “when

determining whether an erroneous failure to instruct on a lesser-included offense requires reversal,

we hold that the proper inquiry for an appellate court is whether the error is harmless beyond a
Juries that are unable to reach a unanimous verdict are commonly described as “hung.” In that event, the 7

defendant is subject to being retried. 

This is the case at least with respect to those lesser-included offenses whose statutory elements are included 8

within the statutory elements of the offense charged, the first of three categories of lesser-included offenses set forth in

Burns. 

8

reasonable doubt.” 48 S.W.3d at 727 (emphasis added). That is, the Ely Court utilized the standard

of review applicable to non-structural constitutional errors. Significantly, the Ely Court did not hold

that a defendant’s constitutional right to a jury trial was violated when the jury did not in fact

consider every single lesser-included offense charged before returning a verdict of guilt on a greater

charge. Indeed, in cases where the jury convicts of the indicted offense after having also been

instructed on the immediate lesser-included offense (e.g. first degree murder and second degree

murder), this Court has found no reversible error where the trial court erroneously failed to give an

instruction on a more remote lesser-included offense. See, e.g., State v. Williams, 977 S.W.2d 101,

106 (Tenn. 1998) (where defendant was convicted of first degree murder after trial court gave

instruction on lesser-included offense of second degree murder but erroneously failed to instruct on

voluntary manslaughter, trial court’s error was harmless beyond a reasonable doubt because “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, including voluntary

manslaughter”). 

Ely does not, therefore, stand for the proposition the Defendant advocates. Cf. State v.

Sawyer, 630 A.2d 1064, 1070 (Conn. 1993) (observing that “the lesser included offense doctrine . . .

does not imply that the jury should be allowed to consider the charged offense and lesser included

offenses in any order and with whatever degree of dedication it chooses”).

We also deem it significant to our analysis that the Tennessee Constitution’s right to trial by

jury under article 1, section 6 includes the right to a unanimous jury verdict. State v. Scarbrough,

181 S.W.3d 650, 658 (Tenn. 2005); State v. Cleveland, 959 S.W.2d 548, 551 (Tenn. 1997); see also

Allen v. United States, 164 U.S. 492, 501 (1896) (“The very object of the jury system is to secure

unanimity by a comparison of views and by arguments among the jurors themselves.”). A jury

cannot convict a defendant unless and until it reaches a unanimous verdict of guilt. By the same

token, a jury cannot acquit a defendant unless and until it reaches a unanimous verdict of not-guilty.

Thus, the unanimity requirement works to benefit both the defendant and the prosecution. An 7

acquittal-first jury instruction regarding the proper order in which the jury is to consider the charged

and lesser-included offenses is consistent with this unanimity requirement.

We also point out that a jury considering a greater offense, by necessity, simultaneously

considers, albeit not explicitly, all applicable lesser-included offenses supported by the proof. See 8

Dresnek v. State, 697 P.2d 1059, 1062 (Alaska Ct. App. 1985) (“[A] jury cannot consider the

elements of the greater offense without simultaneously considering the elements of the lesserincluded offense.”). Forinstance, a jury considering first degree premeditated murder must consider

whether the defendant (1) unlawfully killed the victim; (2) did so intentionally; and (3) did so with

premeditation. See Tenn. Code Ann. § 39-13-202(a)(1) (2003). By comparison, when considering
Indeed, the Defendant was charged in this case with the attempted first degree murder of Eula Beasley. The 9

jury unanimously acquitted the Defendant of this offense and convicted him instead of the lesser-included offense of the

attempted second degree murder of Eula Beasley.

The Defendant also contends in his brief to this Court that “requiring the jury to first reach an acquittal on the 10

offense charged in the indictment before considering the next lesser-included offense impermissibly intrudes upon the

independence of jury deliberations.” The Defendant cites to no case so holding and we reject the notion that instructing

a jury on the order and manner in which it is to consider the offenses of which it may convict a defendant is any sort of

impermissible intrusion. Additionally, the Defendant makes a reference to Sullivan v. Louisiana, 508 U.S. 275 (1993),

as supporting the notion that an acquittal-first jury instruction offends the federal constitution’s Sixth Amendment right

to trial by jury. The Sullivan case does not stand for the proposition that acquittal-first jury instructions violate the

United States Constitution and we have found no United States Supreme Court decision that contains such a holding.

We therefore reject the Defendant’s argument to this effect.

9

second degree murder, the jurymust consider whether the defendant (1) unlawfully killed the victim;

and (2) did so knowingly. See id. § 39-13-210(a)(1) (2003). Of course, when the jury is considering

the second element of the greater offenseSwhether the defendant killed the victim intentionallySit

is necessarily and simultaneously considering whether the defendant acted knowingly: “When the

law provides that . . . acting knowingly suffices to establish an element, that element is also

established if a person acts intentionally.” Id. § 39-11-301(a)(2) (2003). When considering whether

a defendant intentionally killed the victim, then, the jury is simultaneously considering whether the

defendant knowingly killed the victim. A defendant is therefore not “cheated” out of a jury’s

consideration of lesser-included offenses simply because the jury is required to deliberate, and may

convict, on the greater offense, first.9

We hold, therefore, that, while a defendant is entitled by our constitution to have the jury

charged on all offenses encompassed within the indictment and supported by the proof, our

constitution does not go so far as to mandate the order in which those offenses are considered. Our

constitution also does not prohibit the requirement that a jury first reach a unanimous verdict of

acquittal with respect to a greater offense before it proceeds to consider a defendant’s guilt of a

lesser-included offense. We therefore reject the Defendant’s contention that the trial court’s

acquittal-first instructions in this case violated his state constitutional right to trial by jury. 

10

II. Policy Considerations

Having concluded that the trial court’s acquittal-first instruction did not offend the

Defendant’s right to a jury trial under Tennessee’s Constitution, we also consider the public policy

concerns inherent in what some courts refer to as the “transitional instruction.” See, e.g., State v.

Daulton, 518 N.W.2d 719, 720 (N.D. 1994). As noted in the concurring opinion, there is “a wide

divergence of opinion” on the issue of the order and manner in which a trial court instructs a jury to

consider an indicted offense together with any appropriate lesser-included offenses, id. at 721, and

jurisdictions have devised at least four alternatives for its resolution, see State v. LeBlanc, 924 P.2d

441, 444 (Ariz. 1996) (Martone, J., concurring). Like Tennessee, several other jurisdictions use an

acquittal-first charge. See, e.g., United States v. Moccia, 681 F.2d 61, 64 (1st Cir. 1982); Sawyer,

630 A.2d at 1075; State v. Raudebaugh, 864 P.2d 596, 598-601 (Idaho 1993); Walker v. State, 671

So.2d 581, 607-08 (Miss. 1995); State v. Taylor, 677 A.2d 1093, 1097 (N.H. 1996); People v.

Boettcher, 505 N.E.2d 594, 598 (N.Y. 1987); Daulton, 518 N.W.2d at 722-23; State v. Wilson, 173
10

P.3d 150, 152 (Or. Ct. App. 2007). At least two states use a modification of the acquittal-first

instruction, allowing the jury to consider lesser-included offenses before acquitting on the greater

offense, but nevertheless requiring the jury to unanimously acquit on the greater offense before

returning a verdict on the lesser-included offense. See Dresnek, 697 P.2d at 1060-64; People v.

Kurtzman, 758 P.2d 572, 576-80 (Cal. 1988).

Several states use a “reasonable efforts” or “unable to agree” instruction which allows the

jury to consider lesser-included offenses if it cannot reach a verdict on the greater offense after

having made reasonable efforts to do so. See, e.g., LeBlanc, 924 P.2d at 442-44; People v.

McGregor, 635 P.2d 912, 914 (Colo. Ct. App. 1981); Cantrell v. State, 469 S.E.2d 660, 662 (Ga.

1996); State v. Ferreira, 791 P.2d 407, 408-09 (Haw. Ct. App. 1990); State v. Korbel, 647 P.2d 1301,

1305 (Kan. 1982); People v. Handley, 329 N.W.2d 710, 712 (Mich. 1982); Tisius v. State, 183

S.W.3d 207, 217 (Mo. 2006) (en banc); Green v. State, 80 P.3d 93, 95-96 (Nev. 2003); State v.

Chamberlain, 819 P.2d 673, 680-81 (N.M. 1991); State v. Thomas, 533 N.E.2d 286, 292-93 (Ohio

1988); Graham v. State, 27 P.3d 1026, 1027 (Okla. 2001); State v. Gardner, 789 P.2d 273, 284 (Utah

1989); State v. Labanowski, 816 P.2d 26, 35-37 (Wash. 1991); State v. Truax, 444 N.W.2d 432, 436

(Wis. Ct. App. 1989). A few other jurisdictions use the “optional approach.” This method allows

the defendant to choose whether the jury is instructed with an “acquittal-first” or a “reasonable

efforts” instruction. See United States v. Tsanas, 572 F.2d 340, 346 (2d Cir. 1978); Catches v.

United States, 582 F.2d 453, 459 (8th Cir. 1978); United States v.Jackson, 726 F.2d 1466, 1469 (9th

Cir. 1984); Jones v. United States, 620 A.2d 249, 252 (D.C. 1993); State v. Powell, 608 A.2d 45,

47 (Vt. 1992). See also Mont. Code Ann. § 46-16-607(3) (2007).

The United States Court of Appeals for the Second Circuit has succinctly stated the

competing policy concerns inherent in a transitional instruction:

[An acquittal-first instruction] has the merit, from the Government’s

standpoint, of tending to avoid the danger that the jury will not adequately discharge

its duties with respect to the greater offense, and instead will move too quickly to the

lesser one. From the defendant’s standpoint, it may prevent any conviction at all; a

jury unable either to convict or acquit on the greater charge will not be able to reach

a lesser charge on which it might have been able to agree. But it entails

disadvantages to both sides as well: By insisting on unanimity with respect to

acquittal on the greater charge before the jury can move to the lesser, it may prevent

the Government from obtaining a conviction on the lesser charge that would

otherwise have been forthcoming and thus require the expense of a retrial. It also

presents dangers to the defendant. If the jury is heavily for conviction on the greater

offense, dissenters favoring the lesser may throw in the sponge rather than cause a

mistrial that would leave the defendant with no conviction at all, although the jury

might have reached sincere and unanimous agreement with respect to the lesser

charge.

An instruction permitting the jury to move on to the lesser offense if after all

reasonable efforts it is unable to reach a verdict on the greater likewise has

advantages and disadvantages to both sidesSthe mirror images of those associated
11

with the [acquittal-first] charge . . . . It facilitates the Government’s chances of

getting a conviction for something, although at the risk of not getting the one that it

prefers. And it relieves the defendant of being convicted on the greater charge just

because the jury wishes to avoid a mistrial, but at the risk of a conviction on the

lesser charge which might not have occurred if the jury, by being unable to agree to

acquit on the greater, had never been able to reach the lesser.

Tsanas, 572 F.2d at 346 (footnote omitted).

Upon our review of the afore-mentioned and other cases, we are persuaded that significant

policy considerations favor the continued use of acquittal-first jury instructions. 

First, as we have already recognized, the acquittal-first approach satisfies the requirement that

the jury render its verdicts unanimously. As a concomitant benefit, a unanimous verdict on each

greater charge “‘helps to assure the reliability of the ultimate verdict.’” Sawyer, 630 A.2d at 1074

(quoting State v. Daniels, 542 A.2d 306, 315 (Conn. 1988)).

Second, the acquittal-first approach facilitates a trial court’s duty “to structure the jurors’

deliberations in a manner that permits them to perform in an orderly fashion their factfinding

function in relation to the charged crime and any lesser included offenses.” Id. at 1071. The duty

every juror undertakes in determining whether a criminal defendant has been proven guilty of

committing an offense is one of our most hallowed rites of citizenship. The persons who perform

this rite and decide whether to encroach upon a fellow citizen’s liberty are usually untrained in the

law and unfamiliar with its myriad intricacies. They make their decision on the basis of a set of

instructions issued by the trial judge. We fully recognize that jury instructions can be confusing,

tedious, and perhaps initially overwhelming to a juror. Presenting the jury with a structure to follow

in its deliberations is, we are convinced, beneficial to all parties involved. It alleviates any internal

struggles the jury may experience in setting its agenda, it requires the jury to focus and concentrate

on one offense at a time, and it prevents the potential confusion arising from some jurors deliberating

on one offense while other jurors deliberate upon another. We reject as both unwieldy and unsound

the Defendant’s suggestion in his brief to this Court that the jury be instead instructed “to consider

the charged offense and all lesser included offenses in any order it deems appropriate, [and] that it

must consider all lesser included offenses during its deliberations.” 

Third, and related to our second consideration, an acquittal-first instruction encourages

thorough deliberation. See Sawyer, 630 A.2d at 1074. “[A] jury deliberating under a reasonable

efforts instruction can too easily reach a compromise verdict based on sympathy or on a desire to end

jury service. In doing so, it might ignore evidence that would support a guilty verdict on a more

serious charge.” Taylor, 677 A.2d at 1097 (citations omitted). Of course, the jury’s primary

responsibility is to determine whether the State has proved the facts necessary to convict the

defendant. A jury that is required to reach unanimity as to each set of facts applicable to the greater

offense before it may consider a lesser offense (if ever) is, we are convinced, more likely to focus

with the depth of concentration appropriate to the gravity of its task.

Fourth, as alluded to above, an acquittal-first approach reduces the risk of a compromise
12

verdict. As aptly noted by the Connecticut Supreme Court:

Although the jury may initially be instructed concerning lesser included

offenses, and may eventually turn to these lesser included offenses to reach a verdict,

it should not be given an instruction that could encourage it to give the charged

offense short shrift and to turn to lesser included offenses in order to reach a

compromise verdict virtually at the outset of its deliberations. Only after it has

confronted and unanimously completed the difficult task of deciding the guilt or

innocence of the accused as to the charged offense should the jury consider lesser

included offenses. Anything less dilutes the right of the state and the defendant to

have the jury give its undivided attention and most serious deliberations to the

offense with which the defendant is charged and flies in the face of the unanimity

requirement . . . . 

Sawyer, 630 A.2d at 1073 (footnote omitted). See also Daulton, 518 N.W.2d at 722 (“The primary

difficulty with the unable to agree instruction is it dilutes the requirement of unanimity and

encourages the jury to bypass the charged offense on its way to a compromise verdict.”); Boettcher,

505 N.E.2d at 597 (“[I]t is the duty of the jury not to reach compromise verdicts based on sympathy

for the defendant or to appease holdouts, but to render a just verdict by applying the facts it finds to

the law it is charged.”). 

Finally, while we recognize that requiring a jury to reach a unanimous verdict of not guilty

on each greater offense before allowing it to consider a lesser-included offense may, on occasion,

result in a mistrial, we agree with the Supreme Court of Connecticut about this concern: “The fact

that a jury may occasionally be unable to reach a unanimous verdict by following the acquittal first

instruction does not warrant the precipitous abandonment of precedent by tinkering with an

instruction for which the necessity of repair has not been convincingly established.” Sawyer, 630

A.2d at 1074. Tennessee has utilized acquittal-first instructions for a long time. The Defendant in

this case has presented us with no evidence that the acquittal-first instruction results in more

mistrials than would an alternative approach. Cf. id. (rejecting defendant’s challenge to acquittalfirst instruction in part on basis that defendant had not “lent substance to the specter of large numbers

of mistrials resulting from the instructions presently employed by citing compelling empirical,

statistical or other pertinent studies” and noting also that the defendant had not “demonstrated that

mistrials are now the source of an inordinate burden on the public purse or unfairly abridge a

defendant’s right to bring his or her trial to a conclusion before a single tribunal”). Nor has he

demonstrated that Tennessee or its criminal defendants are suffering in any way from the acquittalfirst instruction. 

We agree with the concurrence that the sanctity of a jury’s deliberations is as crucial to the

criminal process as the content of its verdict. We also agree that sound policy arguments exist for

the reasonable efforts instruction, just as they do for the acquittal-first approach. We do not agree,

however, that we should require such a significant change to our traditional method of jury

instruction when there is neither constitutional need nor demonstrated practical need to do so. 

Unlike the concurrence, we do not view our long-standing practice of using the acquittal-first
The Defendant was sentenced as a Range II multiple offender. See Tenn. Code Ann. § 40-35-106 (2003). 11

The Range II sentence for attempted second degree murder, a Class B felony, is twelve to twenty years. See id. § 40-35-

112(b)(2) (2003). The Defendant does not challenge his Range II status.

Not counting the two C felonies relied upon to sentence the Defendant as a Range II offender, the Defendant’s 12

criminal history includes a significant number of misdemeanor offenses.

13

instruction as unworkable. Moreover, jettisoning our historical approach has significant implications

for the trial judges who are taxed with this duty. In the absence of any documented problems with

the current practice, requiring such a change would create problems where none now exist. In short,

as the saying goes, “If it ain’t broke, don’t fix it.” 

 Accordingly, we hold that the trial court committed no error in issuing the acquittal-first

jury instructions in this case. The Defendant is therefore entitled to no relief on this basis.

III. Sentencing

The Defendant was sentenced to life imprisonment for his first degree murder conviction;

fifteen years for his attempted second degree murder conviction; and eleven months, twenty-nine

days for his misdemeanor assault conviction. The sentence for the attempted second degree murder

conviction was enhanced from twelve years to fifteen years on the basis of his prior criminal 11

convictions and his previous failure to comply with the conditions of a sentence involving release

into the community. See Tenn. Code Ann. § 40-35-114(2), (9) (2003). The trial court ordered the

murder and assault sentences to run concurrently and the attempted second degree murder sentence

to run consecutively, for an effective sentence of life plus fifteen years.

The Defendant contends that the trial court committed constitutional error when it enhanced

his sentence for attempted second degree murder on the basis of facts not found by a jury. See

Blakely v. Washington, 542 U.S. 296, 303 (2004); State v. Gomez, 239 S.W.3d 733, 740 (Tenn.

2007). We agree that the trial court erred when it relied on the Defendant’s alleged previous

unwillingness to comply with the conditions of a sentence involving release into the community

because this contention was not put before the jury or admitted by the Defendant. Nevertheless, we

agree with the Court of Criminal Appeals that the Defendant’s prior criminal convictions are

sufficient in and of themselves to support the Defendant’s moderately enhanced sentence for

attempted second degree murder. The Defendant is therefore entitled to no relief as to this issue. 12

The Defendant also contends that the trial court’s imposition of consecutive sentences

violates his federal constitutional rights pursuant to the United States Supreme Court’s holdings in

Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny. This Court has recently determined

that Tennessee’s statutory method for a trial court’s imposition of consecutive sentences does not

offend the federal constitution. See State v. Allen, 259 S.W.3d 671, 688 (Tenn. 2008). In this case,

the trial court determined that theDefendant should serve consecutivelyhis attempted second degree

murder sentence on two bases: (1) that he is “a professional criminal who has knowingly devoted

[his] life to criminal acts as a major source of livelihood,” Tenn. Code Ann. § 40-35-115(b)(1)

(2003); and (2) that he is “an offender whose record of criminal activity is extensive,” id. at (b)(2).
14

The trial court did not abuse its discretion in finding that the Defendant met these two criteria.

Moreover, upon our review of the entire record in this case, we agree with the Court of Criminal

Appeals that the length of the Defendant’s effective sentence is “justly deserved in relation to the

seriousness of the offense[s],” id. § 40-35-102(1), and is “no greater than that deserved for the

offense[s] committed,” id. § 40-35-103(2) (2003). See State v. Imfeld, 70 S.W.3d 698, 708 (Tenn.

2002). Accordingly, the trial court did not err in imposing a consecutive sentence in this case and

the Defendant is not entitled to relief on this basis.

IV. Remaining Issues

The Defendant has raised several otherissues, including challenges to the trial court’s rulings

on pretrial motions; evidentiary rulings; sufficiency of the evidence; and prosecutorial misconduct.

We have reviewed these issues and have determined that the Court of Criminal Appeals reached the

correct result with respect to each of them. Accordingly, the Defendant is entitled to no relief on the

basis of any of the remaining issues that he has raised.

CONCLUSION

We hold that, where a criminal defendant is entitled to jury instructions on lesser-included

offenses, the trial court shall instruct the jury to consider the offenses in order from greatest to least

within each count of the indictment and that it shall not proceed to consider any lesser-included

offense until it has first made a unanimous determination that the defendant is not guilty of the

immediately-preceding greater offense. The trial court in this case issued proper “acquittal-first” jury

instructions. The Defendant is therefore entitled to no relief on this basis. The Defendant is also not

entitled to relief on any of the other issues raised in his appeals to the Court of Criminal Appeals

and/or this Court. The Defendant’s convictions and sentences are therefore affirmed. It appearing

that the Defendant is indigent, the costs of this cause are taxed to the State of Tennessee. 

________________________________

CORNELIA A. CLARK, JUSTICE