1 The defendant was indi cted und er the spelling “ Rhy unia,” bu t all other pleadin gs use the sp elling “ Rh ynu ia,”

incl uding those signe d by the d efen dan t and the rec ord s in this co urt. W e w ill con tinue to utilize th e spe lling “R hyn uia.” 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE April 9, 2002 Session STATE OF TENN ESSEE v. RHYNU IA LAMONT BAR NES 1 Direct Appeal from the Criminal Court for Davidson County

No. 97-D-2542 Walter C. Kurtz, Judge

No. M2001-00631-CCA-R3-CD - Filed June 24, 2002

The defendant was convicted of premeditated f irst degree murder by a Davidson County jury and sentenced to life imprisonment wi t h the possibility of parole. In this appeal, he contends (1) the evidence was insufficient to sustain his conviction; (2) he was denied the oppor

tunity to re

tain his counsel of choic e; (3) the state co mmitted pr

osecutor ial misconduct whe

n it faile d to sua s

ponte redact a portion of an audio tape, and the trial court improperly denied the defendant's request for a mistrial; and (4) the trial court erred when it failed to instruct the jury on facilitation of first degree murder and voluntary manslaug hteras lesser-included offenses of first degree murder. After reviewing the record, we affir m. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OE G. R ILEY , J., delivered the opinion of the court, in which A LAN E. G LENN , J., joined. N ORMA M C G EE O GLE , J., concurred in results only.
David A. Collins ( on appea

l) and Paula

Ogle Blair (at

trial), N ashville, Tenness ee, for the appe llant, Rhynuia La

mont Barne s. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe , Assistant Attorney Genera l; Victor S. Johnson, III, District Attorney General; and Kymberly Haas and Bernard F. McEvoy, Assistant District Attorneys General, for the appellee, State of Te nnessee.

OPINION-2-

Joyce Martin te stified sh

e lived wi th her two sons, 24 year-old Da’Shon Martin, the victim , and 19 year-old Carlton Martin. She stated that on September 2, 1997, at approximately2:00 p.m., Tom Morrell, a neighbor, came to her door and aske d if the victim were home. Martin responded the vict im was sleeping

in his room, and Morr

ell walke d toward

his room a

nd told the

victim someone wanted to see him. Morrell then walked out of the residence and r etu rned to his home. Martin stated she looked o utside he r house a nd saw the

defenda nt, whom she had never met, standing at her gate. The victim exited the residence, stood on t he porch , and in quired what the defendant wanted. Martin sa

id she nex t saw the d

efenda nt brandi sh a pistol, at which t ime the victim ran back inside the house. The defendant then said, “Your son stole my jewelry, and I’m g oing to kill him;” the victim ran to the back of the house; and the defendant ran to her bac kyard with his gun in his hand. Martin explained her back door was secured by a deadbolt key lock which r equired a key to open.
Martin f urther testifi ed she phoned 911 while the victim was hiding in the back of the residence, and the defendant was in the backyard. The defendant then ran back inside her front door holding his gun. The defendant then said twice that he would shoo t the victim’s mother if the vic tim didnot come out of hiding. At that point, the defendant ran toward the bathroom at the rea r of the house, and another man, later identified as James Barnes, the de fendant ’s fathe r, entered the residence and inquired about his son. Martin told James B arnes the defendant went to the rear of the house. Martin testified she then heard one shot and fled from the residence to a neighbor’s home. Martin identified the murder weapon as the gun she saw in the de fendant’s hand. Tommy Morrell, a neighbo r, testif ied that o n Septembe

r 2nd, th e defe ndant arrived at appr oximately

3:0 0 p.m. ridi ng in the f ront sea t of a veh

icle driv en by an o lder man . Morrell testified the defendant

requested he get thevictim. Morrell further stated he went inside the victim’s house and told the vic tim “two guys” wanted to see him, and Morrell exited the house. Whe n Morrell reached the front gate, he saw the victim step onto the porch. Morrell later saw the defendant go inside the gate. Morrell further stated the olde r man was seated in the car.
Morrell explained he knew “something [was] going down,” so he went back to his house and instructed his mother to stay inside. Morrell stated the older ma n exited t he car; the defe

ndant fir st ran in the house but then exited the house telling the older man that “[the victim] might have gone outthe backdoor;” the defendant ran around one side of

the house, while the older man ran around the other; the defendant

ran back around to the

front of the house and entered it brandishing a gun; the older man entered the house; and he hear d a gunshot. Morrell stated he never saw the older man witha gun. On cross-examination, Morrell denied receiving drugs a s compensation for summoning the victim outdoors.
Metro Police Of

ficer Je rry Bottom

testified he ar

rived on the scene within one minute of receiving the di spatch and saw the defendant running across the stre et holding his waistband. Officer Bottom stated his first

priority w as th e victim, and since a second cruiser had ar rived, he en tered the vict im’s residence through the open front door and found the wounde d victim on the floor. Officer

Bottom stated he saw a man standing by a parked car when he initially arrived; he was-3-

unsure if the defendant ran from inside the home; and the interior of the home exhibited no signs of a struggle. Metro Police Officer Marshall James Brown testified he and his par tner, Officer Chris Locke, arrived at the scene immediately after Officer B ottom. Off

icer Brown stated that while he and Officer Locke were walking toward the residenc e, the defendant ran fro m acrossthe street and dove headfirst into the backseat of a parked car. He additionally stated James Barne s walked toward the vehicle’s driver’s side. He and Locke then detained them, and Joyce Martin identified them as the persons in her home. On cross-examination, Officer Brown stated James Barnes wasbleeding from a cut on his hand.
Officer Chris Locke c orrob orated Officer Brown’s testimony. He further testified the defendant made remarks after being arre sted; he activated his pocket audio recorder t o record the defenda nt; and he ma

de notes d

uring the defenda nt’s outbu

rsts. He t estified the defe ndant, wh ile being handcuffed, stated

that the victim should not break in his house and steal his jewelry. At that point, Office

r Locke placed t he defe ndant in the rear se at of the

cruiser , activa

ted his poc

ket audio recorder, and sat in the driver’s seat for approximately one hour a nd fifteen minutes. Officer Locke also wrote down the defendant’s statements verbatim. Offic er Locke testified from his writte n notes, which ind icated th e defendant said :
I went in the

house with

him; Ididn’t shoot him; I threw my dope in the alley; that’s why I ra

n. I ain’ t did nothin g. I ain’ t got no gun; what [ar e] you de taining me for.

. . . He nee ded to quit lying on me . He find

ed [sic] no gun on me . Why am I being det ained? I ran and d umped my do

pe and c ame back. . . No gun, no motive. I ain’t got no lie to tell. I dumped my dope. He stole my jewelry.
At that point, other officers found a gun in the defendant’s line of sight, and the defendant said, “Man, ain’t found no gun on me. Man, ho w do you know it was me; that could have been anybody’s. Whose gun? I know my lawyer will get me off. I got money; I got bigmoney. Take me down so I can make bond.” The defendant a lso stated, “Man, he steals $4,000 worth of jewelry and I’m supposed to let it ride. F**k that s**t, man.”
Metro Police Investigator David Elmore testified he searched the a rea and fo u nd a gun hidden inside a p lastic ba g of cloth

in g in a pile of g arbage across the street from the victim’s residence.
Metro Police Officer Charles Ray “Friday” Blackwood testified he searched the victim’s residence and was unable to find a weapon; he recove

red three live .38 shells fr om James Ba

rnes’ pocket; and the .38 revolver found in the garbage ha d five spent casings in its chambers.
Medical Examiner Dr. Bruce Levy te stified the victim died as a result of three gunshot wounds fired from a distance of “greate r than 18 to 24 inches” from the victim’s body. Although Dr. Levy stated the victim had small abrasions on his chin, arm, back, and abdomen, he opined they were not the result of a struggle.-4-

Danny Morris, a specialist in latent fingerprint analysis with the Metro Police Identification Division, testified a palm print was recovered from the w eapon tha

t did not match the defendant’s print. Morris explained, however, this evidence did not definitivel y establish that the defendant never handled the gun since there are numerous reasons why one could touch a surface

and not leave a latent p rint.
Metro Police Detective Kent McAlister testified he searched the crime scene and was unable to find a gun or spent shell casings. Det. McAlister stated although the defendant and James Barnes wer e initially b oth suspects, the ch arges a gainst Ja mes Barne s were d

ropped a t his p reliminar y hearing. He explained James Barnes was not initially fingerprinted because his hand was bandaged, and after the charges were dropped, it became impossible to obtain his prints.
Metro Police Detective Jeff West testified he assisted in interviewing the de fendant at the police station. He testified that although he could not recall if the defendant and James Barne s were seatedtogether

while awaiting questioni ng, it was u

nlikely because standard procedure dictates they be separa ted. Det. West test

ified the defenda nt confe ssed to the crime and told him to release James Barnes because

he had “ nothing to d

o with it” a

nd had tri ed to stop him

from goin g into the M artin residence with his gun.
TBI firearms expert Steve Scott testified the shell casings and bullet fragments submitted for analysis were fired from the .38 revolver. Scott conc eded th e gun was not tested for the presence of blood or tissue, and it was possible for a person’s hand to become injured if caught between the weapon’s hammer and firing pin.
The defenda

nt testified when he

got in the c ar with hi s father, James Barnes, on September 2 nd , he did so

with the intention of receiving a ride to visit his son. The defendant stated his father requested the defendant direct him to the defendant’s drug supplier, a person by t he name o f “Ricko,” which the

defenda nt did. Aft

er their arrival, James Barnes asked Ricko the location of his stolen jewelry, and they drove to the victim’s residence to replevy the jewelry. The defendant stated his father pa

rked his v ehicle on the street near the victim’s residence , handed the defendant the revolver, and told the defendant to pla ce it in his pocket. The defendant testified the gun remained in his shorts until he handed it back to James Barnes. He stated that, under the instruction of James Barnes, he gave Tommy Morrell drugs to summon the victim outside.
The def endant further testified he and James Barnes wa lked toward the residence, and t h e victim exited onto the porch. When the defendant inquired, “w here [is] the jewelry,” the victim ran back inside the home. The defendant stated he then stepped in the front r oom of the house, and the vic tim’s mother t old him to “get out;” he exited and ran around the side of the house, attempting entry through the back doo r ; and sinc e the door was lock ed, he re turned to the fron t of the house where he handed James Barnes the gun. The defenda nt said he “[g]ave [James Barnes] the gunback [and] started out [of] the yard . . . thinking he’s coming behind me . . . thinking it’s over.”-5-

The defendant further stated once he arrived

at the car, he realized his father had not followed him, so he ree

ntered t he resid ence, w ent to the

rear of the home, and saw t

h e vict im run to the bathroom

. He then attempted to open the bathroom door, which was either locked or being held, and as he started to leave the home again, James Barnes fired a shot through the bathroom door. After the shot was fired, the victim exited the bathroom and struggled for the gun with James Barnes. The defendant stated that after

a brief struggle, James Barnes fired shots, handed the defendant the gun, and they ex ited t he home. T he defe ndant sta ted he the

n ran ac ross the s treet and discar ded his “eighty- ball” of “dope” and the gun. He stated that he ran back to the car because he thought he left his beeper in the car and then dove into the car

. The defendant stated he had no intention of killing the victim, and after he was a rrested, he made admissions to Officer Locke because
in [his] ne

ighborhoo d, it’s like, yo u try to make the polices as mad as you can by being as smooth as you can with them. You just smart off to them, just try to smart off t o them, ma

ke them ma

d cause l ike -- tha t’s all I w as doing w as really jus t mouthing off.
The defendant further testified he was sea ted next to his father at police headquarters, and his fathe r intimidated him, so he confessed to the crime. The defendant explained he was fearful of his father, and his father had always said “the worst thing you can be is a snitch.”
The defendant further testified he “probably” threatened to shoot the victim’s mother, but did so to try to scare her out of the house so “no more innocent bystande rs [would get ] hurt;” he got blood on his shor

ts while a ttempting t

o protect the victim by trying to separate James Barnes from him; and James Barnes w iped the gun clean prior to g iving it to him. The defendant further admitted he had contact with James Barnes while awaiting trial on bond, and he conceded he said he was on bond because of the person he killed, but explained it was just “eve ryday neighborhood talk.”
Saunte Lewis Y oung, the defendant’s sister, testified the defendant neve r owned jewelry; James Barnes wore jewelry; James Barnes had pr eviousl y “cut” the defendant; and they had previous ly shot at each other. Sandra Barnes, the def endant’s mother, testified the defendant and James Barnes had a bad relationship, but she had requested the defenda

nt try to ge

t along wit

h him. The jury convicted the defendant of premeditated first degree murder.

I. SUFFICIENCY OF THE EVIDENCE
The defendant contends the evide nce wasinsuffic ient to sust ain his co nviction b ecause the state failed to prove the defendant acted with “de liberat[ion]” as alleg ed in the indictment. We disagree.-6-

A. Standard of Review
Wh en an accused challenges the suff iciency of the

evidence, this court must review the record to determine if the evide nce add uced during the trial was sufficient " to support the finding by the trier of fact of guilt bey ond a r easona ble doubt. " Tenn. R. App. P. 13 (e). Thi s rule is applica ble to fi ndings of g uilt predicated upon direct evidence, circumstantial evide nce or a combination of direct and circumstantial evidence. State v. Brewer , 932 S.W.2d 1,18 (Te nn. Crim. App. 1996).
In determining the sufficiency of the evide nce, thiscourt doe s not rewe igh or r eevalua te the evidence. Stat e v. Ca bbage , 571 S.W.2d 8 32, 835 (Tenn. 1978 ). Nor ma y th is court su

bstitute its inferences for those drawn by the trier of fact from circumstantial evidence

. Liakas v. State , 19 9 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956) . To the contrary , this court is required to afford the state the strongest legitimate view of the evidenc e contained in the re cord as w ell as all reasona ble and legitimate inferences which may be dr awn from the evidence. State v. Tu ttle , 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995).
The trier of

fact, no t this court, resolves questions concerning the credibi lity

of the wit nesses, the weight and value

to be g iven the evidence as well as all factual issues ra ised by the evidenc e. Id. In State v. Grace , the TennesseeSupreme Court stated, "[a] guilty ve rdict by the jury , approved by the trial judge, accredits the testimony of the witnesses for

the State and reso lves all c onflicts in favor of the theory

of the State." 493 S.W.2d 474, 476 (Tenn. 1973).
Becau se a verdict of guilt removes the presumption of innocence and repl aces it w it h a presumption of guil t, th e accus ed has the bu rden i n thi s cour t of il lust ratin g w hy t he evide nce is insufficient

to support the verdict returned by the trier of f

act. State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1 982); Grace , 493 S.W.2d at 476. B. Analysis
The indictment alleged the defenda nt “int entionally, delibera tely and with premeditation” killed the victim . (Emphas is added). The defendant’s claim of insufficiency of the evidence is based on the indictment’s usage of the term “deliberately.” The present first degree murder statute defines first degree murder as a “preme ditated and intentional killing of a nother” and bec ame effec tive July 1, 1995. See Tenn. Code Ann. § 39-13-202(a) (1) (1997). However, the indictment alleged deliberation -- an element required under the for mer premeditated first degree murder statute. See Tenn. Code Ann. § 39-13-202(a)(1) (1991); see gene rally Statev. Carruthers , 35 S.W.3d 516, 558 (Tenn. 2000) (citations omitted). During the jury charge conferenc e, the state erroneously conceded it bore the burden

of proving deliberation since it was alleged in the indictment. See State v. Hopper ,-7-

695 S.W.2d 530, 535 (Tenn. 1985) (allegation in fel o ny murder indictmen

t of “deliberate

ly” held to be surplusage which did not have to be proved). Regar dless, deliberation was sufficiently established. Deliberation “requires proof of a ‘cool purpose’ that includes some period of reflection during which the mind is free from passion and excitement.” Carruthers , 35 S.W.3d at 558.
W e view the evide

nce in a l ight most f

avorable to the sta

te. The d efenda nt got To mmy Morrell to summon the victim out of his home. The de fe nd an t t he n d em an de d r et ur n o f h is je we lr y, brandishedthe murder weapon, and told the victim’s mother “[y]our son stole my jewelry, and I’m going to kill him.” The defendant entered the residence, was ordered out by the victim’s mother, a nd exited upon her request. He then ran around the side of the hou se and attempted to gain entry through the back door, but since it was locked, returned to the front of the home and ree ntered the residence. The defendant threatened to kill the v

ictim’s mot

her if the victim would not stop hiding, and the victim was shot

three times. The defendant attempted to hide the murder weapon and, when arrested, confessed to the crime. Although the defendan t testified his father shot the victim and coerced him to conf

ess to the crime, th e jury wa s free to

disbelieve hi m. See State v. Sum merall , 926 S.W.2d 272, 275 (Tenn. Crim. App. 1995 ). Having reviewed the evidence in the light most fav or able to the state, we conclude the evidence sufficie

ntly establish ed the defendant deliber

ately kill ed the victim . Wefurther conclude the evidence sufficien tly es tablished that the killing was premeditated and intentional. This issue is without merit.

II. CHOICE O F COUNSEL
The defendant contends he was denied the r ight to retain counsel of his choice. We disagree.
“The right tocounsel includes the qualified right to the [retained] counsel of one 's choice.” Statev. Parrot

t , 919 S.W. 2d 60, 61 (Tenn. Cr im. App. 19 95). An in digent defendant ’s right to appointed counsel, however, “does not include the right to appointment of counsel of choice, or to special rapport, confidence, or even a meaningful relationship with appointed counsel.” Carruthers , 35 S.W.3d at 546.
Counsel had been appointed for the defendant based upon his affidavit of indigency. His first appointed counsel w as allowed to withdraw because of her conflict with the def endant. New counsel was appointed. During a pretrial motion less than a week before the trial was scheduled to begin, counsel moved for a continuance. Counsel explained that due to the defendant’s failure to maintain contact with her, she was unprepared for the sc heduled trial date. The court announced, “[G]iven what you say about your client’s irrespo nsibility in keeping t rack wit h his lawye

r, his [present] bond2 We agai n take this opportunity t o discourage “off -the-r ecord” discus sions concer ning matters of signi ficance in cri minal pr oceedi ngs; other wise, appr op riate ap pellate revie w m ay b e pre clud ed. See Tenn. Code Ann. § 40-14- 307(a) (requiring court report er t o “at tend e very s tage of each crim inal ca se”); see also Stat e v. Hammons , 737 S. W.2d 549, 551 (Ten n. Cr im. A pp. 1 987 ) (con dem ning “off- the-re cord ben ch co nfer enc es”); Stat e v. James Hall Schle gel , No. W2000-02597-CCA-R3-CD, 2002 Tenn. Cr im. App. LEXIS 77, at *14 (Tenn. Crim. App. Jan. 28, 2002, at J ackson) (condemning in-ch am bers c harg e con feren ces); State v. Blai ne M . Wright , CCA No. 03C01-9401-CR-00388, 1995 Tenn. Crim . Ap p. L EX IS 96 0, at *2 8 (T enn . Crim . Ap p. D ec. 11 , 199 5, at K nox ville), perm. t o app. de nied (Tenn. 199 6) (n oting the req uirem ent to prese rve fo r the re cord all ben ch co nfer enc es). -8- is set at $35,00 0, under

these ci rcumstan ces, . . . indicating his irresponsibility, the Court increases his bond to $85,000.”
Defend ant’s c ounsel then announced that the defendant did not desire her c ontinued representation. The defendant then stated, “Your Honor, can I file a mot ion, I don’ t want her

on my case anymore; I don’t want her on my case . . . I need a little tim

e to get me

another lawyer; I would have the money.” After the prosecutor explained to the c ourt the defendant’s first appointed counsel had filed a motion to withdraw due to conflict with the de fendan t, the trial judge ordered the defendant taken into custody based on th e new bond setting, and the trial court requested an inchambers conference. 2 When court resumed, the trial judge reinstated the $35,000 bond and strongly admonished the defendant to keep in contact with his lawyer. The defendant agreed and thanked the judge.
After

the defendant was convicted, differe nt counsel represent ed the defendant. At the motion for new trial, the defendant testified that afte r the judg e incre ased his b ond and or dered him confined, trial counsel met with him within ten minutes and said, “I talked to the judge about your bond. He said you can get back on your bond if you kee

p me on your case.” The defendant testified he “didn’t want to go back to [the] Justice Center,” so he sai d, “Cool.” Although the defendant initially testified he had $5,000 for a retainer fee for private counsel, he

conceded the charge for a n attorney would ac tuallyhave been a lump sum of $15,00 0, for wh

ich he wa s going to se

ll drugs to acquire.
Paula Blair, the defen dant’s appointed trial counsel, testified at the motion for new trial hearing she wa s u nable to c ontact the defendant prio r to the pr

etrial he aring and confro nted him about this. Blair stated the defendant told her that he wanted another lawye r. Blair further testified she informed him they would speak with the judge about it; she attended an off-the-record discussion in chamber s; and upon

leaving c hambers , she met with the defendant and told him his bond w ould remain at $35,000, he wo uld be released, and he was granted a continuance. Blair stated the agreement

did not require she remain as the defendant’scounsel, and the defendant appeared “very happy.” Anthony Finley testified he was present in the holding area where the defenda nt met with h

is trial cou nsel. Finle

y testifie d he over

heard tr ial couns el tell

the defendant he would not be able t o-9-

get back out on bondunless he kept her as his counsel. Finley conceded he was serving a sentenc e for aggravated sexual assault and had a prior armed robbery conviction.

At the con

clusion of the hear ing, the tr ial judge stated:
I don’t see any place in the transcript w here I said that if he moved to have Ms. Blair withdraw, I would revoke his bond. I can say, and I hope it’s clear from the transcr

ipt, my concern was that he was not keeping – he wasn’t communicating withhis lawyer. That led me to bel ieve that he was not a good risk to appear, because he had acted

irrespo nsibly, and I increased his bond because I was not confident that a $35 ,000 bond w ould get him whe

re he ne eded to

be, given what Ms. Blair had just told me. . . . The court doors were open. If he had hired other counsel

. . . new counsel could certainly have made an a ppearance

and then either tried to get ready for the J

uly trial or moved otherwise . In no wa y did I or d

id I mean to indica te that his bond would be revoked if he tried to change a lawye r. The evidenc e does no t prepond erate a gainst the trial cou rt’s fin di ngs. Defendant was not deprived of his right to retain counsel of his choice.

III. PROSECUTORIAL MISCONDUCT
T he defen dant contends the state committed prosecutorial misconduct by failing to sua sponte redact an i nculpat ory hearsay statement contained in an audio tape played to the jury even though defense counsel was afforded a n opportunity to review the tape pretrial. We disagree

. The state played an audio tape recording of the de fendan t’s deten

ti on in the cruiser which included a statement by an unknown officer indicating James Barnessaid the defendant shot the victim. The trial court, sua sponte , alerted the parties to the hearsay statement. Defense c ounsel then moved for a mi strial. Th e tria l court denied the motion for a mistrial and held that a curative instruction was an adequate re me dy, noting, according to the defense’s theory, James Barne s wrongfully accused the defendant of the shooting and coerced him to accept blame. The trial court then gave the jury an appropriate cura tive instruction.
“The test to be applied in reviewing a c laim of prosecutorial misconduct is whether the improper conduct could have affected the ve rdict to the prejud ice of the defendant.” Brimmer v. State , 29 S.W.3d 497, 527 (Tenn. Crim. App. 1998) ( cita tions omitted). Here, the defendant has failedto establi sh prosec utorial mi sconduc t. Fu rthe rmore, a jury is presumed to follow curative instructions given by the trial court. State v. Smith , 893 S.W.2d 908, 914 (Tenn. 1994). The trial court’s usage of a curative instruction was a proper remedy. In addition, we conclude the defendant suffered no prejudice. See Tenn. R. App. P. 36(b). This issue is without merit.-10- IV. LESSER-I

NCLUDED O FFENS ES
The trial court

instructed the jury on the indicted off ense of premeditated first degree murder and the lesser offenses of second deg ree murder

and reckless homicide. The defendant contends the trial court’s failure to instruct the jury on facilitation of premeditated first degree murder and voluntary manslaug

hter constituted error. We disagree.
A. Waiver
Ini ti al ly, we conclude this issue has been waived by the defendant. Our court has stated the follo wing:
We recognize tha t Tenn. Code Ann. § 40-18-110(a) [1997] requires a trial court to charge all lesser-included of fenses even “without any

request on the part of the defens e to do so.” T hus, t he requ ireme nt to charge lesser-included offenses is not contingent

upon a request by

the defendant to do so. State v. Smiley , 38 S.W.3d 521, 524 (Tenn. 2001). Nevertheless, our appellate courts have consistently recog

nized that a pa

rty cannot take advan tage o f errors which he or she committed, invited or induced the trial court to commit. Adkins v. St ate , 911 S.W.2d 334, 346 (Tenn. Crim. App. 1994); State v. Banes , 874 S.W.2d 73, 82 (Tenn. Crim. App. 1993). In discus sing the failure of a defendant to object to a mistrial, our supreme court stated:
Ob vi ou sl y, the ratio nale

for req uiring a n objecti on to a mistake is that it gives the trial judge an opportunity to cure a situation that

one o r bothparties p erceiv e to be in e rror. A p arty

ought n ot be p ermitted to stand silently by

while the trial court c ommits an e rror in procedure, and then l ater re ly on that er ror whe n it is to his advan tage to do so. State v. Mounce , 859 S.W.2d 319, 323 (Tenn. 1993).
Statev. Elesa

D. McDan

iels , No. E2000-02790-CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 867, at *14-15 (Tenn. Crim. App. Nov. 1, 2001, at Knoxville). In McDanie ls , we concluded that def

ense counsel’s affirma

ti ve ac quiescence in the failure to charg e a lesser-included offense constituted a waiver of the error. Id . at *15-16. McDanie ls has been cited with approval by this court in other cases. See Yasmond Fenderson v. State , No. E2001-01088-CCA-R3-PC, 2002 Tenn. Crim. App. LEXIS 402, at *16-17 (Tenn. Crim. App. May 2, 2002, at Knoxville); State v. Drini D. Xhaferi , No. M2000-01758-CCA-R3-CD, 2002 Tenn. Crim. App. LEXI S 174, at *7 (Tenn. Crim. App. Mar. 7,-11-

2002, at Nashville); State v. James Hall Schlegel , No. W2000-0 2597-C CA-R3-CD, 2002 Tenn. Crim. App. LEXI S 77, at *16-17 (Tenn. Crim. App. Jan. 28, 2002, at Jackson).
Our su pr em e c ou rt ha s h el d t ha t a tr ia l c ou rt ma y charge a n applica ble lesse r-includ ed offe nse even tho ugh the

defenda nt objectsto the charge. State v. Bolden , 979 S.W.2d 587, 593 (Tenn

. 1998). Nevertheless, we see nothing in Bolden that approve s a defe

ndant af firmativ ely agreeing

to a charge on lesser-included offe nses and then taking a totally inconsistent position after the conviction when it is t

o his adva ntage t o do so. See Drini D. Xhafer , 20 02 T enn . C rim . Ap p. LE XIS 174, at *7 ; see gene rally Mounce , 859 S.W.2d at 323. We now examine what transpired in the trial court. The trial court discussed the proposed jury char ge with counsel prior to final argument. The trial cou rt indica ted its inte

nt to char ge fir st degree murder , second degree murder a nd reckless homicide. The following exchange then occurr ed:
THE COURT: Okay. Now, [defense counsel], w hat d o you sa y ab out the se le sse r- inc lud ed of fe nse s? [DEFENSE

C OU NSEL]: I see r

eckless homicide, Your Honor, but I don’t see voluntary manslaughter, and the facts that [the prosecutor] presented to support voluntary manslaughter, I don’ t remember

those -- that s pecific story. I believe she said that Mr. Barnes sa id in his sta

tement, he shot thr

ough the door, the victim came out, and he shot him in the leg and then a stru ggle en sued. I thought that it was the other way around.
THE CO UR T: So yo u’re sa tisfied with First, Second and Reckless ? [DEFENSE COUNSEL]: Yes, sir. Thus, defense

counsel expressly ag

reed to the charge on lesser -included offenses, and we assume, altho ugh final argument

is not in the record, tailored her argument a ccordingly . Furthermore, there is no indica

tion that th

ere wa s any

objectio n to the jur

y charge . The issue

was firs t r aised in the motion for new trial when defendant had differe nt counsel.
As in McDanie

ls , defend ant aff

irmatively

acqui esced i n the f ailur e to ch arge facilitation of first degree murder and voluntary manslaughter and

took a totally inconsistent position in the motion for new trial and

in this app eal. Reli ef is not a vailable to a part y who is res ponsible f

or, or fa ils to take action to prevent, an error. Tenn. R. App. P. 36(a). We, therefore, consider this issue waived. In the event further appellate review c oncludes otherwise, we now address the issue on the merits. B. Duty to Instruct on Lessers-12-

The trial court has a duty to instruct the jur y on any lesser- included offenses of the charged offense when such instruction is supported by the e vidence, regardless of whe ther the defendant has requested such an instruction. State v. Bowles , 52 S.W.3d 69, 74 (Tenn. 20 01); Stat e v. Burns , 6 S.W.3d 453, 464 (Te nn. 1999). The standard for an appellate cour t’s review of the trial court’s charge to the jury

regar ding les ser-inc luded off

enses is de novo with no pre sumption of correctness. Bowles , 52 S.W.3d at 74.
If an offe nse is fou nd to be a lesser-included offense, the court must next ascertain whether the evidence justifies a jury instruction on the lesser-included offense. Id . at 75. To do so, the court must first determine whether there

is evidence that “reasonable minds” could acc ept to establish the lesser-included

offense. Burns , 6 S.W.3d at 469. The court must view the evidence liberally in a light most favorable to the existenceof th e l es se r- in cl ud ed of

fe ns e w it ho ut ju dg in g i ts cr ed ib il it y. Statev. Ely , 48 S.W.3d 71 0, 722 (Te nn. 2001) ; Bur ns , 6 S.W.3d at 4 69. Fina lly, the cour

t must determine if th e evidence is “legally sufficient” to support a conviction for the lesser-included offense. Burns , 6 S.W.3d at 469.
The evidence, not the theories of the pa rties, determines whether an instruction on a lesserincluded offense should be given. State v. Allen , 69 S.W.3d 181, 188 (Tenn. 2002). Furthermore, the decision to convict on a lesser-included offense should not be taken from the jury

simply because the element d

istinguis hing the

great er offe nse from the lesser offense is “uncontroverted.” Id . at 189. If the evidence justifies an instruction, the failure to charge the offense is error even though the evidence was also sufficient to support the gre ater offense. Burns , 6 S.W.3d at 472. C. Voluntary Manslaughter Voluntary manslaughter, a Class C felony, “is the intentional or knowing killing of another in a state of

passion pr

oduced b y adequa

te provoc ation suf

ficient t o lead a reasonable person to act in an irra tional manner .” Tenn. Code Ann. § 39-13-211(a). Voluntary manslaughter is alesserincluded offense of premeditated first degree m urder. State v. W

illiams , 977 S.W.2d 101, 106 (Tenn. 1998).
It is questionable whether a charge on voluntary m anslaughter was justified in light of the evidence presented at trial. Nevertheless, in the event the trial court erred by not charging voluntary man slaughter, it was clearly harmless beyond a reasonable doubt. Ha rmless error may beshow n where the jury convicts on the highest offense charged to the exc lusion of the immed ia tely lesser offense, thereby rejecting other lesser offense s. Id . Here the trial court charged premeditated fir st degree murder, second d

egree m urder a nd reckl ess homicide. By finding the defendant guilty of f irst degree murder and rejecting second degree murder, the jury would have rejected voluntary manslaughter. See id . (holding a guilty verdicton first degree murder and rejection of second degree murder r

enders t he failu re to charge voluntar

y manslau ghter ha

rmless be yond a re asonable doubt). Thus, if th

e trial c ourt err

ed in failing t o charge

voluntar y manslau ghter, it w as harmle ss beyond a reasonable doubt.-13-

D. Facilitation of First Degree Murder
“A person iscriminally responsible for the facilitation of a felony if, knowing that another intends to commit a

specific felony, but without the intent required for criminal responsibility under § 39-11-402(2), the person knowingly furnishes substantial assistance in t he commiss i on of the felony.” Tenn. Code Ann. § 39- 11-403(a ). Facilit ation of f irst degr ee murde r is a Clas s A felony. See Tenn. Code Ann. § § 39-11-117(a)(1), -403(b) . Facilita tion of fir st degree murder is alesserincluded offense of premeditated first degree murder. Burns , 6 S.W.3d at 470.
This court has held:
Before an accused can be convicted of the facilitation of

a felony, t he state must prove be yond a re asonable

doubt that the accused (a) knew another person was going to commit a specified felony and (b) k nowingly furnished substantial assistance in the commission of the fe lony although the ac cused did not possess the requisite intent to be guilty of the felony.
State v. Parker , 932 S.W.2d 935, 950-51 (Tenn. Crim. App. 1996).
In order for reasonable minds to find the defenda nt guilty of

facilitation of preme ditated f irst degree murder, the jury w ould have to conclude in this case that the defendant, although not acting withthe inten

t to promote

premeditated murder nor benefit in the results, gave this fathe r the pistol or otherwis e furnis hed substa ntial assi stance t

o his father “knowing that [h is father ] inten[d ed] to commit [premeditated first degree murder].” See Tenn. Code Ann. § 39-11-403(a). This was not the state’s theory nor was it the defense theory; however , the evid ence, n ot the the ories of

the part ies, controls whether a lesser-included offense should be charged. Allen , 69 S.W.3d at 188. In Allen , the court concluded the failure to charge f acilitation of robbery was error, even though the use of a deadly weapon was uncontroverted, since it was controve rted whether the accomplice defe ndant shared the intent of his principal. Id

. We are re quired to

view the e

vidence in a light most favorable to the existence of thelesserincluded offense without judging credibility. Ely , 48 S.W.2d at 722. Although it is indeed a close question, we believe that rea sonable minds could have found the defendant guilty of facilitation of premeditated

first degree murder. We

further believe the evidence waslegally sufficient to support such a conviction. Nevertheless, this does not end our inquiry. Having concluded a jury charge on facilitation of first degree murder was justified, we now examine whether the failu re to cha rge it was har mless error. Harmless error relating to the fa ilure to charge lesser-included of fenses must be shown “beyond a reasonable doubt.” Ely , 48 S.W.3d at 727. Harmles s error

may be shown w

here the jury convictson the hig

hest offense to the exclusion of the immediately lesser

offense, necessarily

rejecting other lesser offense s. Williams , 977 S.W.2d at 106. However, harmless error is not limited to the Williams rejection of an intermediate lesser offense; the proper inquiry is “ whether it appears beyond a re asonable doubt that the error did not-14-

affect the outcome of the trial.” Allen , 69 S.W .3d at 191. In making the har mless error determin atio n, this court must “ conduct a thorough examination of the record, including the evidence presented at trial, the defendant’s theory of defense, and the verdict returne d by the jury .” Id

. We first exa

mine the e

vidence at trial. The state ’s proof established the following. The defendant entered the victim’s home b randishing the murder we apon, de manded hi s jewelr

y, and told the victim’s mother he intended to kill the victim. The def endant went arou nd to the back of the residence seeking the victim and, not being abl e to unlock the back door, reentered through the fr ont door. He threatened

to kill the victim’s mot

her. The victim wa s shot three times at close range; the defendant discarded t he weapon outside; and the defendant confesse d to the crime at the police station, stating his father had “nothing to do with it.” It was not the state’s theory that the defendant was criminally respon sible for the condu ct of his father, nor w as criminal responsibility even charged to the jury. The state never waivered from its theory that the de fendant was the triggerman.
The defenda

nt testified he gave

his father the pistol prior to the shooting, “thinking it’s over,” and thinking his father was following him to the car. The defendant did not indica te he knew h

is father intended to commit premeditated murder. It was the defense theor y the defendant was not

the triggerman and did no t know his f ather in tended to kill the victim. His testimony was inconsistent with facilitation to commit premeditated first degree murder. Such a charge was never

requested.
The jury’s verdict

reflec ts it flatly rejected defendant’s testimony and theory of de fense and fully accredited the state’s theory that the defe ndant was the triggerman. Facil itation to c ommit premeditated

first degree murder is a Class A felony as is second degree murder ; therefore, the Williams harmlesserror s cenari o is inapplicable because there was no intermediate lesser-included offen se. Nevertheless, unlike Allen where th e jury pa ssed over

the grea ter offe nse in favor of a lesser offense and the c ourt did

not find harmless error, see Allen , 69 S.W.3d at 189, the ju

ry in this case did not pas s over the

greate r charg e of pre

meditate d first de gree mur der in favor of secon d degree murder. Considering the evidence at trial, the defendant’s theory of defense, a nd the verdict rendered by the jury, we conc lude the f ailure to instruct o n facilit

ation to c ommit prem

e di tated first degree murder was harmless beyond a reasonable doubt and did not affect the outcome of the trial.

CONCLUSION
Based on the evidence, we affirm and conclude: (1) the evidence was suff icient to sustain the conviction; (2) the d

efenda nt was not d

eprived of the opp ortunity

to secur e retain ed couns el of his choice; (3) the defendant has failed to establish prosecutoria l misconduct; and (4) the trial court’s failure to charge fa

cil itation of first degree murder and voluntary manslaughter as lesser-included offenses was waiv ed as a n appella te issue and, further, was harmless bey ond a reasonable doubt.-15- ___________________________________ JOE G. RILEY, JUDGE