# FILED

November 16, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE AT JACKSON

FOR PUBLICA

TION STATE OF TENNESSEE, ) ) Filed: November 16, 1998 Appellee, ) ) ) DYER CRIMINAL Vs. ) ) STEVEN BOLDEN, ) HON. JOE G. RILEY, JU DGE ) ) Appellant. ) No. 02-S-01-9711-CC-001 02 )

For Appellant: For Appellee: Vanedda Prince John Knox Walkup FOWLER, PRINCE & WEBB Attorney General & Repor ter Union City, Tennessee Michael E. Moore Solicitor General Kathy Morante Deputy Attorney General Kenneth W. Rucker Assistant Attorney Gener al Nashville, Tennessee At Trial: C. Phillip Bivens District Attorney General Dyersburg, Tennessee



## O P I N I O N

COURT OF CRIMINAL APPE ALS AFFIRMED ANDERSON, C.J.-2- We granted this appeal to dete rmine two issues: first, whether a co-defendant’s testimony pursuant to a plea agreement with the prosecution violated the def endant’s rights to due process of l aw and a fair trial under the United States and Tennessee Constitutions; and second, w hether the trial court er red in charging the j ury to consider the lesser included offense of second deg ree murder over the defendant’s objection.

In affirming the defendant’s convi ction for second degree murder , the Court of Criminal Appeals held that the co-defendant’s test imony did not violate the defendant’s constitutional rights

because the plea agreement w as disclosed, and the defendant had the opportunity to cross-examine the co-defendant. The appell ate court also concluded that since the evidence supported a conviction for second degree mu rder, the trial court was required by statute to charge the jury on that offense.

We agree with the Court of Criminal Appeals’ conclusion that the co-defendant’s plea agreement did not vio late the defendant’s rights to due process and a fair trial. The plea agreement was disc losed to the defendant and to the jury , and the defendant fully cross-examined the co-defendant with respect to his motives in enteri ng into the agreement. We also agree with the C ourt of Criminal Appeals that the trial judge had a statutory duty to instruct the jury on second degree murder. Thus, we affirm the Court of Criminal Appeals’ judg ment.

BACKGROUND Kabrian Hayes and the defendant, St even Bolden, were char ged with the first degree premeditated murder of Sammy Davidson. Hayes made a plea agreement with the prose cution in which he agr eed to pl ead guilt y to second degree mu rder and r eceive a 25-year sentence in exchange for his testimony against Bolden. At Bolden’s trial, however, Hayes t

estified that he did not recall the events that occurred on the night of the murder. Upon further questioning, he claimed only that unknown persons gave him rides to and from the murder scene.1 Hayes was extensi vely cr oss-examined about the change in hi s testi mony and the ti ming of the more favorable pl ea agreement. Hayes maint ained that

he shot the vi ctim because he was afrai d of Bolden. Hay

es stated t hat he had received lett ers from Bolden asking Hay es to commit perjury , and threa tenin g to h arm him if Haye s tes tified tr uthfu lly. -3- During a recess in the trial, further discussion took place between Hayes, Hayes’ mother, defense counsel, and the prosecution. A second plea agreement was made by which Hayes wo uld plead guilty to s econd degree murder and allow the trial court to determine the sentence from the rang e of 15 to 25 years. In retur n, Hayes agreed to testify truthfully, in accordance with a prio r statement he had given to a law enforcement officer, and as to threats made to him by Bolden. The written agr eement stated:
If Kabrian Hayes testifies t ruthfully as to Steve Bol den’s involvement in the murder of Sammy Davidson and as he stated in his statement to [TBI agent] Roger Hughes o n 3/21/94 at 6:05 p.m. and as to threats made to him by Steve Bolden then I will offer a plea to 2d Deg ree Murder, Range I, judicial senten cing.
After the recess, the trial resumed. Hayes then testified that on March 16, 1994, he and Bolden drove around Tiptonv ille, Tennessee, searching for the victim Davidson for the purpose of collecting for ty dollars ($40) w

hich he owed Bolden for tw o rocks of cocaine. Bolden was dri ving, and Hayes r

ode in the front passenger seat. Hayes and Bolden f ound the victim, who was ordere d by Bolde n to get int o the car. Bolden dr ove to a remote, unpopulated area near the Mississippi Riv

er where he asked the v ictim to pay him the forty dollar s ($40). When the victim indicated that he did not have any money, Bolden told Hayes to shoot the victim. Hay es, armed with a 9-mm. pist ol given to him by Bolden, shot the v ictim twice in the ch est at point blank range. Bolden and Hayes then threw the victim’s body in the river. 1

Hayes’ testimony was corroborated with other evidence. Terrance Montgomery testified that he saw Hay es and Bolden together on the ev ening of the murder. Bolden told Montgomery that they were looking for the v

ictim, who “had messed [Bol den] out of forty dollars.” Bolden expressed his intent to kill the victim to Montgomery, who also noticed that Hayes was in possession of a 9 mm. pistol.-4- Bolden gave two state ments to the police. After first denying that he was i n the car when the victi m was shot, Bolden admitted that he was in the car w

hen Kabrian Hayes shot

and killed the victi m.

At the conclusion of trial, defendant Bolde n objected to a proposed jury instruction on the lesser included offense of second degree murder seeking to limit the jury's considerati on to first degree murder. Despite the objection, the tri al court charged the jury on first degr

ee premeditated murder and the less er included offense of second degree murder. The jury convicted Bolden of second deg ree murder.

On appeal, the Court of Criminal Appeals affirmed defendant’s convict ion, holding that the co-defendant's pl ea bargain did not viol ate Bolden's right to due process because the jury was aware of the agr

eement and the defendant was permitted to conduct a thorough cross-examination of the c o-defendant. The appellate court also held that the tri al court had a statutory duty to charge the jur y with all less

er grades or classes of firs t degree murder supported by the evidence and did not err by instructing the jury

on second degree murder.

We granted this appeal to review two questions: first , whether the co-defendant Hayes’ plea agreement v iolated defendant’s rights to due process and a fair trial ; and second, whether the trial court erred in charging the jury on the lesser included offense of second degree murder over the defendant's objection.

CO-DEFENDA NT’S PLEA BA RGAIN Bolden argues that he was denied his right to due pr ocess and a fair trial under the Tennessee and United States Cons titutions because the prosecut or’s plea agreeme nt with Kab rian Hayes required H ayes to te stify to sp ecific f acts. Spe cificall y, Bolden contends that requir ing Hayes to testify

“as he stated in his statement s to [TBI agent] Roger Hughes”

was tantamount to requir ing scripted testimony . The State-5-

maintains that the agreement req uired truthful testimony and that disclosure of the agreement to the jury and cross-examination of Hay es preserved the defendant’s r ight to due process and a fair trial.

We begin by observing that the testimony of an accom plice is generally admissible even if it is

obtained through a plea agr eement. See Giglio v. United S tates , 405 U.S. 150, 92 S. Ct. 763, 31 L. E d. 2d 104 (1972). A promise of leni ency or other favorable agreement goes onl y to the credibility

of a witness’s testimony , not to its admissibility. United S tates v . Hoffa , 385 U.S. 293, 87 S. Ct. 408, 17 L.Ed. 2d 374 (1966); see also State v. Garcia , 630 P.2d 665, 673 (Idaho 1981); Kelley v. State , 460 N.E.2d 137, 140 (Ind. 1984); State v. Burchett , 399 N.W.2d 258, 266 (Neb. 1987).

Many courts, however, require that saf eguards be foll owed before ad mitting testimony procured throug h plea bargain agreements. These requirements, the purpose of which is to pre serve the defendant’s rig hts to due process and a fair tr ial, have been held to include the foll owing: (1) full di sclosure of the terms of the agreements struck wi

th the witnesses; (2) the opportunity for full cros s-examination of those witnesses concern ing the agreements and the effect of those agreements on the testimony of the witnesses ; and (3) instructions c autioning the jury to carefully evaluate the weight and credibi lity of the testimony of suc h witnesses who hav

e been induced by agreements with the State to testify against the defendant. See , e.g. , Garcia , 630 P.2d at 673; People v. Lopez , 610 N.E.2d 189 (Ill. Ct. App. 1993); Caldwell v. State , 583 N.E.2d 122 (Ind. 1991); Sheriff, Humboldt County v. Acuna , 819 P.2d 197 (Nev. 1991); State v. Leonard , 328 S.E.2d 593 (N.C. Ct. App . 1985); State v. Nerison , 401 N.W.2d 1 (Wis. 1987).

As the Iowa Supreme Court has explained:
In most instances, any potential for prejudice to a def endant’s case will be avoided by

allowing the wi

tness to testify subject t o searching cross-examination inten ded to develop fully any evidence of bias or-6- motive on the part of the witness, or improper conduct on the part of the State. Every fact that mi ght in some way influen ce the truthfulness and credibility of the witness’s testimony should be laid before the jury. This ensures no unnecessary bar riers will be i mposed on the State’s ability to bargain for truthful testimony, and at the same time ensures the jury will be able to determine what w eight, if any, in lig ht of all the evidence, to give the witn ess’s tes timony.
State v. McGonigle , 401 N.W.2d 39, 42 (Iowa 1987) (citati on omitted).

In addit ion to the se safeg uards, co urts in Neb raska, Ne vada, and Californ ia have emphasized that a plea barga in may not be conditioned on a w itness giving fals

e or scripted testimony. Burchett , 399 N.W.2d at 266; Acuna , 819 P.2d at 201. The California Supreme Court has stated, for instance, that a plea bargain consummated in exchange for testimony is unacceptable where “ the testimony must be confined to a predetermined formulation” or must produce a “given result, that is to say, a conviction.” People v. Garrison , 765 P.2d 419 (Cal. 1989); see also State v. DeWitt , 286 N.W.2d 379, 384 (Iowa 1979) (plea agreement for accomplice’s false or specific testimony is inadmissible).

Although we have not a ddressed this precise is sue in the past, we agr ee with the principles espoused by the majority of other state courts and fin d that these principles are consist

ent with our Tennessee cases addressing related is

sues. For example, the safeguards attendant to allowing testimony induced by a plea agreement -- full disclosure of the ter ms of the plea agreement and cross- examination into the witness’ motives an d bias -- place the respons ibility of weigh ing the testimony and credibility of the w

itness upon the jury. E.g. , State v. Hornsby , 858 S.W.2d 892 (Tenn. 1993) (weighing ev

idence and credibility

is function for trier of fact).

Moreover, the limitati ons expressed in these cas es -- that a plea agreement may not be conditioned upon false, scri pted, predetermined, or specific testimony without regard for the truthfulness of the w itness’ testimony --

are consistent with es

tablished principles of due process w hich prohibit the State from usi ng testimony known to be2 The instruct ion stated: “As juro rs, you hav e the responsi bili ty of j udging the cr edibil ity or believability of the w itnesses and we ighing their tes timony. If the re are co nflicts, you sh ould try to reconc ile them . Do not h astily conclud e that a witne ss testified falsely since the law allow s you to presume that wit nesses are trut hful. I n determining the credibi lit y or bel ievabil ity

of a witne ss, you may consider the

witness’ s appearance, demeanor, moti ve, int erest or l ack of inter

est in t he trial ’s outcome, general charact

er, reput

ation for truth, fairness or

bias, means of knowledge , reasonabl eness of the testimo ny, mate rial contrad ictory statem ents as well as all the o ther evide nce wh ich tends to corrob orate or to con tradict the w itness. . . .” -7- false or later learned to be fals e. Giglio , 405 U.S. at 154, 92 S. Ct. at 76 6; State v. Spurlock , 872 S.W.2d 602, 62 1 (Tenn. Crim. App. 1993).

In applying these pri nciples to the case at hand, it is readily apparent that the requisite safeguards w

ere followed in allow

ing Hayes to testify . The plea agreement, which was wr

itten on a single legal

page, was disclosed to the defendant and to the jury. Counsel for defendant Bol den had ample opportunity to cr oss-examine Kabrian Hayes, and in fact conducted a v igorous examination into Hayes’ motives and conduct. Bolden’s counsel, for instance , elicited (a) the detail s of the first plea agreement; ( b) Hayes’ first statement of the offense, w hich did not implicate Bolden;(c) the details of the second plea agreement; and (d ) the fact that Hayes’ testimony implicated Bolden only after

Hayes agreed to the second plea agreement with its possibility of a more lenient sentence. Finally, the jury was ins tructed that it was re

quired to judge the credibili ty or belie vability of witnesses and to weigh their tes timony. 2

A somewhat more difficult issu e, and the issue to which defendant Bolden devotes much of his argument, i s whether the second plea ag reement required Hayes to testify in a particul ar manner or according to a predetermined script. As Bolden notes, the plea agreement stated that the plea offer would be made by the prosecutor “if” Hayes testified “a

s he stated in his statement to [ agent] Hughes on 3/24/94 at 6:05 p.m. and as to threats made to him by Steve Bolden.” The agreement also stated, however, that Kabrian Hayes was to “test if[y] truthfully as to S teve Bolden’s involv

ement in the murder of Sammy Davidson.”-8- Several state courts hav e concluded that requiri ng specific testimony of a codefendant as a condition of a plea agreement is not a violation of due p rocess so long as the testimony is req uired to be truthful. In a 1987 N ebraska case, Burchett , 399 N.W.2d 258, the defendant argued that his right to a fair trial was v iolated because a co-defendant testified under a plea bar gain agreement which required that he testify to “his last version of the events” leading to the victim’s death and to the satisfaction of the prosecutor before receivi ng the benefit of the agreement.

The Nebraska Supreme Court began its analysis by stating that “it is only where the prosecution has bargai ned for false or specific testimony , or a specific result, th at an accomplice’s testimony is so tainted as to requ ire . . . preclusion.” The court then observed that the plea agr eement required the co-defendant to assist the prosecution by “speaking truthfull

y with a representative of the [state] and testify ing truthfully at any court hearing” regar

ding the events of the murder.Although the record indi cated that the co-defendant had given sev eral different statements, the court said that the “final version” implicati ng the defendant was understood t o be truthful. Id . at 266-67.

A Washington appellate court also rejec ted the claim that a co-defendant’s plea agreement violated the defendant’ s right to due process b y requiring spec

ific testimony. The court noted the plea agreement r equired the co-defendant to “g ive ‘a complete and truthful’ statementconcerning [the vic tim’s] death, confirming that he did not have prior knowledge of the killi ng, did not commit the murder, and did not aid in the commissio n of the murder.” State v. Clark , 743 P.2d 822, 828 (Wa sh. Ct. App. 1987) (emphasis in original). The court concluded as follows:

Under the terms of the immunity agreement, the State’s promis es did not extend to false or mis leading statements or perj ury. Thus, while the agreement provided some incentive for [co-defend ant] to confirm his prior accounts of the kill ing, it provided an eq ual incentive that he not enter the agreement at all unl ess the statement was in fact the truth

. . . . [W]e conclude that the immunity agreement in the instant case was not improperly conditioned on testimony setting forth a particular formulation of the facts or on the achievement of a ce rtain result.3 These cases are easil y dist inguished f rom the few cases in whi ch a viol ation of due process has been found. I n People v. Medi na , 41 Cal. App. 3d 438, 455, 116 Cal. Rptr. 133, 141 (C al. Ct. App. 1974), for exam ple, the effe ct of the ple a agree men t was to pla ce an a ccom plice und er a “stron g com pulsion” to testif y again st the defe nda nt in a p articu lar fas hion t hat a mo unte d to s cripte d tes timo ny. Sim ilarly, in People v. Green , 228 P.2d 867, 868-72 (Cal. Ct. App. 1951) , the agreement was condi tioned upon t he accomplice’s testimony produci ng a specifi c result. Finally, i n Frank lin v. State , 577 P.2d 860 (Nev. 1978), the court r

eversed a convi ction aft er findi ng that a co- defendant’s testimony v iolated the defendant ’s righ t to due process and hol ding that the prosecuti on’s wit hholding of the benefi ts of an agreement unt il aft er an accomplice testi

fies is inconsist

ent with the search for truth. The Nevada Supreme Court, however, has since overru led Fran klin

. See Acuna , 819 P.2d at 201. -9- Clark , 743 P.2d at 828-29 (emphasis added).

The Nevada Supreme Court has made similar observations in rejecting a claim that a co-defendant’s agreement violated due proce ss principles:
[I]t is not improper for the St ate to require the promisee to testify in a general manner that is cons istent with the information provided to the State as an ind ucement for the bargain, sub ject, of course , to any change mandated by truth if the promisee subsequently admits to fals ifying the information upon which the bargain is based. . . . The testimony condemned by the courts . . . is that which must be pla yed according to a predetermined script and irrespective of its truthfulness . The witness must understand that he is not free t o commit perjury, and that the plea bargain m ay not be b ased upo n false t estimon y.

Acuna , 819 P.2d at 201 (emphasis added); see also DeWitt , 286 N.W.2d at 386 (codefendant required to testify “fully about [his] know ledge of all of the facts . . . do so and truthfully”). 3

In our view, the pre

sent case is consistent w ith these cases. There is no indication that the prosecuti on’s agreement with Kabr ian Hayes required false or perjured testimony, nor that Hayes was req uired to testify in accor dance with a particular script. Although the references to Hay es’ prior statement to Age nt Hughes and the threats made by Bolden appear to refer to imp roper specific testimony, the first provision in the plea ag reement stated that Hayes must “testify truthfully,” a condition which necessarily

engulfed the other provis ions. In sum, the agreement hi nged upon truthful testimony. Accor dingly, we are c

onvinced that Hayes' testimony was not taint ed by the plea agreement. Mor eover, the essential safeg uards were followed: the jury and the defendant were fully appri sed of the agreement; the defendant conducted a full and-10-

vigorous cross-examination of Hayes, w hich revealed that Hay

es had received a new and more limited plea agreement and then changed his story on the stand; and the jury was instructed that it

s function was to weig h the testimony and determine the credibility of the witness. Therefore, w e conclude that the admission of Hay es’ testimony induced by a plea agreement did not violate the defendant’s rights to due process an d a fair trial.

LESSER INCLUDED OFF ENSES Over Bolden’s objectio n, the trial court charg ed the jury on the lesser included offense of second degree murder pu rsuant to Tenn. Code Ann. § 40-18-110(a) (1997), which provides: “ It is the duty of all judg es charging juries in cases of criminal prosecutions for any felony wherein two (2) or more grades or class es of offense may be included in the indictment, to charge the jury as to all of the law of each of fense included in the indictment, without any request on the part of the def endant to do so.” Bolden argues that this st atute is intended to benefit the accus ed and that the accused may, therefore, object to the tr ial court instructions

on lesser offenses. The State maintains, and the Court of Cri minal Appeals held, that the ins truction to the jury w

as mandatory since the evi dence was sufficient to support a charge on second degree murder.

This Court has interpreted Tenn Code Ann. § 40-18-110(a) to mean t hat a trial court must instruct the jury on all lesser offenses if the evidence introduce d at trial is legally sufficient to su pport a conviction for the l esser offense. State v. Cleveland , 959 S.W.2d 548, 553 (Tenn. 1997). An offense is lesser incl uded in another "only if the elements of the greater offense, as those elements are set forth in the indi ctment, include but are not congruent with, all the elements of the lesser." Howard v. State , 578 S.W.2d 83, 85 (Tenn. 1979); see also Cleveland , 959 S.W.2d at 553.-11- We have frequently held that the trial court’s obligation u nder this statute is mandatory, provided ther e is sufficient evidence for a r ational trier of fact to find a defendant guilty of a lesser offense. Strader v. State , 362 S.W.2d 224, 228 (Tenn. 1962). The failure to instruct on a lesser offense, however , may be shown to be harmless beyond a reasonable doubt under some circumstances. State v. Willia ms , ___ S.W.2d ____ (T enn. 1998) (failure to instruct on voluntary manslaughter harmless error where jury

convicted defendant of first degr ee murder despite being ins tructed on other lesser included offenses).

One purpose of the statute is to pr otect the right to trial

by jury by ins

tructing the jury on the elements of all offenses embraced by the indictment. Although it often benefits the defendant to have a jury consider lesser offenses, the mandat ory nature of the statute indicates that it facilitates the overall truth-seeking function of the pr ocess. In addressing a similar

issue, the California Supr eme Court observed:
[T]he eviden ce may show that the defend ant is guil ty of some intermediate offense included within, but lesser than, the cr ime charged. A trial court’s failur

e to inform the jury of its opt ion to find the defendant guilty of the lesser offense w ould impair the jury’ s truth-ascertainment function. Consequently, neither the prosecution nor the def ense should be allowed, based on their trial strategy, t o preclude the jury from considerin g guilt of a

lesser offens

e included i n the crime c harged. To permit this would force the jury to make an ‘all or nothing’ choice betw een conviction of the crime char ged or complete acquital , thereby denying the jury the opportunity

to decide whether the defendant i s guilty of a lesser included offense established by th e evidence.
People v. Barton , 906 P.2d 531, 536 (Cal. 1995) ( trial court properly

instructed jury on lesser offense of involuntary manslaughter over the defendant’ s objection).

In view of the foregoing , the only remaining ar gument and the only questi on for review is w

hether the evidence was sufficient to sustain a convi ction for the lesser included offense of second degree murder.Here, defendant Bolden was cha rged with the offense of first degree murder, w hich is "[a] premeditated and i ntentional killing of another." Tenn. Code Ann. § 39-13-202( 1) (1997 & Supp. 1998). Second deg ree-12-

murder, which requires "[a] knowing killing of another," Tenn. Code Ann. § 39-13-210(1) (1997), is a lesser included offense. At trial, Bolden’s guilt was predicated on his criminal responsibili

ty for the conduct of Hayes. A person is criminall y responsible for the conduct of another when the per son "[a]cting with i ntent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, . .

. solicits, directs, ai ds, or attempts to aid another per son to commit the offense." Tenn. Code Ann. § 39-11-402(2) (1997)

.

The jury was presented with evidence that Bol den and Hayes drove arou nd looking for the victim, who owed Bolden money. Bolden had expressed his intent to kill the victim. He and Hay es, after finding the victi m, drove to a deserted dir t road on the banks of the Mississippi. When the victim said he did not have any money, Bolden ordered Hayes to shoot the victim with a w eapon Bolden had given Hay es. After Hayes shot the victim twi ce in the chest, Bolden helped dump the victim's body i nto the water.

We agree with the lower courts’ determinations that there w as sufficient evidence presente d to warran t a convict ion of se cond degr ee murde r. Accordi ngly, we conclude that the trial court did not err in complying with its mandatory statutory obligation of instructing the jury on the offense.

CONCLUSION After our review of the r ecord and the applicable authori ty, we conclude that the admission of the co-defendant’s testi mony induced by a plea ag reement did not violate the defendant’s rights to due pr ocess and a fair trial under the United States and Tennessee Constitutions. W e further conclude that the trial court did not err in instructing the jury

on the lesser included offense of second degree murder over the defendant’s objection. Accordin gly, we affirm the Cour t of Criminal Appeals’ judg ment.-13- Costs of appeal are taxed to th e appellant, Steven Bolden, for w hich execution may issue if neces sary.

________________________________ RILEY ANDERSON, CHIEF JUSTICE

CONCUR: Drowota, Birch, and Holder, JJ.