IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 17, 2018 Session

STATE OF TENNESSEE v. STEVE M. JARMAN

Appeal from the Circuit Court for Dickson County

No. 2015-CR-585, Larry J. Wallace, Judge

No. M2017-01313-CCA-R3-CD

JAMES CURWOOD WITT, JR., J., concurring.

I join in the majority=s disposition of this case. I write separately because it 

is my view that the references to passion and provocation by their very nature express 

neither elements of voluntary manslaughter that the State is required to prove nor an 

absolute defense; instead, they are a type of built-in mitigation to a knowing or 

intentional killing.

Voluntary manslaughter is a form of intentional or a knowing killing, as the 

case may be, the difference being that voluntary manslaughter, the lesser offense, is 

committed following “a state of passion produced by adequate provocation sufficient to 

lead a reasonable person to act in an irrational manner.” T.C.A. § 39-13-211(a). The 

term “element” in the context of criminal proscriptive statues, however, denotes a 

component of such a statute that the State is required to prove beyond a reasonable doubt. 

See T.C.A. § 39-11-201. The State’s burden to prove the crime’s essential elements has 

been elevated to the status of a due process mandate. See Jackson v. Virginia, 443 U.S. 

307, 319 (1979). The passion and provocation components of the crime of voluntary 

manslaughter are exculpatory in nature–a largess in favor of a defendant–and logically 

cannot form a component of the State’s burden of proof; yet, the functional status of these 

terms has remained somewhat cloudy.

State v. Williams, is somewhat notable for referring to the passion and 

provocation components of voluntary manslaughter as elements. Williams, however, was 

an appeal from a conviction of second degree murder. As a defense to the charge of 

murder, Williams claimed that the proof showed he had engaged in mutual combat with 

the victim, thereby invoking a common law defense to a homicide charge. The Williams

court held that “the trier of fact must consider all facts surrounding a killing, including 

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the facts giving rise to an agreement to combat, to determine whether the killing resulted 

from ‘a state of passion produced by adequate provocation sufficient to lead a reasonable 

person to act in an irrational manner.’” State v. Williams, 38 S.W.3d 532, 539 (Tenn. 

2001). The court determined that the common law notion of mutual combat was now 

subsumed within the framework of the offense of voluntary manslaughter. Id. at 538. 

Further, the court, finding that the jury had heard the defendant’s proof, held that, “by its 

verdict, the jury obviously rejected” the argument of mutual combat and that the issue 

conclusively lay within the province of the finder of fact. Id. The result was that the 

evidence was held to be sufficient “to support the jury’s verdict of guilt[y] on the charge 

of second degree murder,” id. (emphasis added), despite the defendant’s attempt to show 

that his passion and provocation abated his crime to one of manslaughter. The plain 

implication is that the court viewed the advancement of passion and provocation as a 

defensive function, albeit one that failed given the customary deference to the jury’s 

prerogative. Whether passion and provocation are “elements” of the offense of voluntary 

manslaughter had no play in the court’s decision, and it certainly did not hold that these 

factors are elements. Indeed, the Williams court made the statement about the passion 

and provocation terms being elements distinguishing manslaughter from second degree 

murder while explaining that malice is no longer the distinguishing factor between 

murder and the lesser forms of homicide. Id. It should be clear that Justice Birch in 

Williams was not using the term “element” as a term of art–as an essential element in the 

way we have defined it above.

Prior to the enactment of Tennessee Code Annotated section 40-18-

110(g)(2), declaring voluntary manslaughter to be a lesser included offense of first and 

second degree murder, some opinions of this court, including one by this author, state 

without analysis that voluntary manslaughter is a lesser included offense of first and 

second degree murder under part (b) of State v. Burns. Burns part (b) was essentially a 

shoehorn device for determining that an offense is a lesser included offense of a greater 

offense even though the elements of the lesser offense are not subsumed within the 

greater. State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999); see, e.g., State v. Paul 

Clifford Moore, Jr., No. E2015-00585-CCA-R3-CD, slip op. at 16 (Tenn. Crim. App., 

Knoxville, May 12, 2016) (“As to Moore’s argument that voluntary manslaughter is an 

atypical lesser included offense because it appears to have an additional element that the 

greater offense does not, we note that the Tennessee Supreme Court fully addressed this 

scenario under subsection (b)(1) of its definition of lesser included offenses in State v. 

Burns . . . .”); State v. Mario Ward, No. W2007-00672-CCA-R3-CD, slip op. at 5 (Tenn. 

Crim. App., Jackson, Oct. 27, 2008) (“[T]he law is settled that attempted voluntary 

manslaughter is a lesser included offense of attempted first degree murder under part (b) 

of the Burns test.” (citing State v. Dominy, 6 S.W.3d 472, 477 (Tenn. 1999)); State v. 

Hezekiah Cooper, No. W2005-02481-CCA-R3-CD, slip op. at 15 (Tenn. Crim. App., 

Jackson, Dec. 20, 2007) (“In this case, the State concedes that voluntary manslaughter is 

a lesser included offense of first and second degree murder.” (citing Dominy, 6 S.W.3d 

472, 477 n.9 (Tenn. 1999)); State v. Walter Wilson, No. W2001-01463-CCA-R3-CD, slip 
op. at 9 (Tenn. Crim. App., Jackson, Sept. 4, 2002) (inferring that voluntary manslaughter 

is a lesser included offense of first degree murder under Burns part (b) because footnote 9 

in Dominy “referred . . . to the ‘passion’ language . . . as reflecting a less culpable mental 

state than required for first- or second-degree murder”). We have no doubt that voluntary 

manslaughter may fall within Burns part (b)’s threshold for offenses the elements of 

which indicate a lesser kind of culpability, but to imply that the adoption of Burns part 

(b) was the development that made it so was a wide-spread misreading of Dominy.

To explain, we begin by noting that the typical precedential basis for saying 

that voluntary manslaughter is a lesser included offense of first and second degree murder 

via Burns part (b) is the oft-mentioned footnote 9 in Dominy, 6 S.W.3d at 477 n.9, the 

companion case to Burns. See, e.g., State v. Jeffery Lee Mason, No. M2002-01709-CCAR3-CD, slip op. at 6 (Tenn. Crim. App., Nashville, May 19, 2004) (addressing Mason’s 

conviction of attempted voluntary manslaughter as a lesser included offense of attempted 

first degree murder and stating that “[a]ttempted voluntary manslaughter is a lesser 

included offense of attempted first degree murder under the Burns test”). In Dominy, 

however, the supreme court was reflecting upon jurisprudential history when it observed 

that State v. Trusty, 919 S.W.2d 305 (Tenn. 1996), the erstwhile regimen for determining 

lesser included offenses, had failed to recognize that voluntary manslaughter was already 

a lesser included offense of first and second degree murder even without the high court’s 

machinations in Trusty. The prevailing regimen for determining lesser included offenses 

prior to Trusty was the so-called “Blockburger” test for lesser included offenses as 

espoused by the earlier decision of Howard v. State, 578 S.W.2d 83 (Tenn. 1979). Under 

this test, an offense was a lesser included offense of a greater offense when all of its 

essential elements were included with the greater offense. The historical time period 

being referenced was the time between the enactment of the present criminal code in 

1989 and the filing of Trusty in 1996, a time when the Howard rule prevailed vis-a-vis 

the terms of the new code. In Dominy, Justice Drowota said, “Trusty failed to recognize 

that the ‘passion’ language in the definition of voluntary manslaughter simply reflects a 

less culpable mental state than required for first or second degree murder.” Dominy, 6 

S.W.3d at 477 n.9 (emphasis added). Hence, the court was saying that, during this 

foregoing time period, voluntary manslaughter’s elements were included within the 

elements of first and second degree murder, making it a lesser included offense of those 

greater offenses; the passion and provocation components of voluntary manslaughter 

were not essential elements of the crime but “simply reflect[ed] a less culpable mental 

state than required for first or second degree murder.” In foot note 9, the Dominy court 

then stated, “Therefore, voluntary manslaughter is a lesser included offense of first and 

second degree murder.” The reliance of progeny upon footnote 9 as “holding” that 

voluntary manslaughter became a lesser included offense of first and second degree 

murder via Burns part (b) probably stems from the Dominy court’s citing, immediately 

after the above statement, the Burns test, emphasizing the language of the (b) part. Close 

inspection of the citation, however, reveals that Justice Drowota used the analogous “see” 

citation for this purpose. The import of this mechanism, combined with the preceding 
statement, is that Burns part (b) afforded analogous or conducive support, not 

determinative authority, for the statement. The more precise interpretation of Dominy, 

therefore, is that the passion and provocation components of voluntary manslaughter are 

defensive considerations and not essential elements of that offense.

Furthermore, this treatment of this offense is accommodated by statute. 

The passion and provocation components of voluntary manslaughter do not negate the 

mens rea elements of intentional and knowing that underlie the murder offenses (in the 

same way that the passion and provocation construct negated the existence of malice at 

common law); however, Code section 39-11-203 provides, “A ground of defense, other 

than one (1) negating an element of the offense or an affirmative defense, that is not 

plainly labeled in accordance with this part has the procedural and evidentiary 

consequences of a defense.” T.C.A. § 39-11-203(e)(1) (emphasis added). The ambit of 

this provision embraces the passion and provocation components of the voluntary 

manslaughter statute. Recognizing these components as having defensive import does 

not mean that one must be able to label them collectively as a particular type of defense. 

It just “is what it is.”

Determining, therefore, that the law at least does not affirmatively provide 

that these components of voluntary manslaughter are true elements of the offense–and 

further that the law does not preclude the contrary proposition–the issue is one of 

common sense and logic. On this point, the notion that passion and provocation in the 

manslaughter statute are essential elements of that offense is nothing short of nonsensical. 

For example, when voluntary manslaughter is the conviction offense, would not 

classifying passion and provocation as elements of that offense mean that the State’s 

failure to prove those “elements,” exculpatory though they may be, result in a reduction 

of the charge or an absolute acquittal? In that circumstance, it should be obvious that all 

the State should be required to show is a knowing killing. That showing should entitle it 

to a conviction of the charged offense of voluntary manslaughter. 

Requiring the State to prove what is essentially an exculpatory 

circumstance is akin to a house divided unto itself. If in a given case there is a concern 

about the adequacy of the evidence of passion or provocation, courts should comprehend 

that the concern is really for the evidentiary justification of a jury instruction on voluntary 

manslaughter; it is not an issue of the “sufficiency” of the evidence establishing essential 

elements of the crime. See Burns, 6 S.W.3d at 467-69 (explaining the process for 

determining when the evidence justifies a jury instruction on a lesser included offense). 

Once the proper determination about instructing the jury is made, the jury’s decision 

resolves, if necessary, all other issues about the terms of voluntary manslaughter. 

 

 

JAMES CURWOOD WITT, JR., JUDGE