# FILED

August 14, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON MAY SESSION,

1998

STATE OF TENN ESSEE, ) ) No. 02C01-9708-CR-00309 Appellee ) ) SHELBY COUNTY vs. ) ) Hon. W. Fred Axley, Judge BRIAN J. HUNTER, ) ) (Interlocutory

Appeal) Appellant )

DISSENTING OPINION
Because I find that an instruction on the lesser grade off ense of voluntary manslaughter was not warranted by the proof presented at trial, I am unable to join with the majority’s conclusion. According ly, I would rev erse and remand for dismissal of the indictment. Although the majority c oncludes, absent any lesser offense analysis, that the evidence is sufficient to support a conviction for voluntary manslaughter, I find such a review crucial

in order to resolve the ultimate issue presently before this court. A trial court has the duty, in criminal cases, to fully instruct the jur y on the general principles of law rel evant to the issues rais ed by the evidence. This obligation includes giving instructions on lesser offenses included in the indictment, w ithout any request on the part of the defendant. See Tenn. Code Ann. § 40-18- 110(a)(1990). Nonetheless, it remains a principle well-established in the law of this state that, where there is no proofin the record to support an instruction on a lesser offense, no jury instruction on the same need be submitted. Elder , No. 03C01- 9702-CR-00053 (citing Trusty , 919 S.W.2d at 311). See also Keeble v. United States , 412 U.S. 205, 208, 93 S.Ct. 1993, 1995 (1973) (holding that there is no constitutional right t

o a jury instruction

on a lesser offense in every case). Thus, a proper review of the i ssue before this court inv olves (1) a determinati on of the lesser1 But see State v. Howard , 926 S.W .2d 5 79, 5 86-5 87 (T enn . Crim . App . 199 6 (“re latively scant te stimon y”); State v. Ruane , 912 S.W .2d 766, 7 82 (Te nn. Crim . App. 199 5) (“slight” evidence). 2 offenses of the offense charged in the indictment and (2) whether an instr uction on any of the lesser offenses is w arranted by the evidenc e. State v. Elder , No. 03C01- 9702-CR-00053 (Tenn. Crim. Ap p. at Knoxville, Apr. 23, 1998). See also State v. Trusty , 919 S.W.2d 305, 31 0 (Tenn. 1996). It is without dispute that voluntary manslaug hter is a lesser offense of second degree murder as it is a lesser grade or clas

s of that offense. See Elder , No. 03C01-9702-CR-00053 (citing Tenn. Code Ann. § 39-13-201 et seq . (1991)). Thus, the remaining question is whether such an instruction on voluntary manslaughter is warranted by the proof pr esented in the case sub judice

. The Due Process Clause of the Four teenth Amendment entitles a defendant to an “instruction on a les ser . . . offense if the evidence w ould permit a jury to rationally find him gui lty of the lesser offense and acq uit him of the greater .” Keeble v. United States , 412 U.S. at 208, 93 S.Ct. at 1995 (internal footnote omitted) (emphasis added); see also Trusty , 919 S.W.2d at 311. The court “must determine whether the evidence, w hen viewed in the li ght most favorable to the defendant’s theory of the ca se, would j ustify a ju ry verdict in accord with the def endant’ s theory, and would permit a rational trier of fact to find the defendant guil ty of the lesser offense and not guilty of the greater offe nse.” Elder , No. 03C01-9702-CR00053(citations omitted). 1 Absent this standard, the tr ial judge who charges a lesser offense based upon less than suf ficient evidence would be faced with the absurd necessity, predicated upo n its own invited er ror, of entering a judgment of acquittal following the jury

’s guilty ver

dict on the lesser offense. Elder , No. 03C01-9702-CR00053 (citations omitted). M oreover, to employ a l esser standard in determini ng which lesser offenses need be i nstructed invites the j ury to return a compromis e or otherwise unwarranted verdict. Elder , No. 03C01-9702-CR-00053 ( citations2 I acknowledge the trial court’s dilemma in resolving this issue. Indeed, the trial court observed that

the proper char

ge would be “either murder second or nothing.” However, under the dictate s of a de cision by a p revious p anel of this c ourt, Sum mer all v. State , 926 S.W.2d 278, 279 (Tenn. Crim . App. 1995), the court noted that it had no choice but to instruct on voluntary man slaughte r.

3 The a utopsy rep ort revea led that the v ictim’s bloo d alcoho l level was .42 per cen t with cocaine and m eperidine also being presen t. 3 omitted). Indeed, this is ex actly what occurr

ed in the present case. 2 After review, I am unabl e to conclude that the evidenc e, in this case, when viewed in the lig ht most favorable to the appellant , is sufficient for a rational t rier of fact to find the elements of voluntary manslaughter. The proof establis hed that both the victim and the appellant were professionals. The appel lant was employed as an investment banker and the v ictim was a medical lab technician. The victim had serious health problems and had been diagnosed with Hepati tis C and mixed connective tissue diseas e. The proof also revealed that the appellant and the victim, neighbors i n an apartment complex, routin ely socialized and it was not unusual for them to visit back and forth, sometime s at unusual hours. The record is absent any indicia of hostil ity or ill wi ll between the two nei ghbors prior to the incidents occu rring immediate ly preceding the sho oting. On the fateful evening of the shooting , the appellant and the victim met on four occasions. On all four occ asions, it was the v

ictim who initiated the

encounters. The testimony established that both had been drinking alcohol. 3 The first meeting occurred as the appellant w as returning to his apar tment from work when he met the victim on the steps of their apartment building. Their exchange was fairly brief and without any notable unpl easantries. The victim t old the appellant that he had been advised by his doctor

that his medical condition h ad worsened and that he only had two and one-half to five y ears to live. The appellant, in passing, told the v ictim that he had seen a mutual friend, a local pharmacist, who said “hello.” Th e victim, in response to this statement, q uestioned the appellant as to w hether their mutual friend had said anything else about him. The appellant assured him that their friend had not said anything further and the conversation ended. The remaining encounters involved an extension of the first conv ersation. In sum, during ensuing4

meetings between the two, the victim expressed, with growing hostility, that he did not think the appellant had show n appropriate compassion for his worsened medical condition and that he believ ed the pharmacist had said more th an the appellant was relating. The record reflects that, although the victim’s frustration intensif ied with each meeting, the appellant remained c alm and, in fact, attempted to calm the v ictim. The last encounter occurred w hen the victim returned to the appellant’s apartment at approxi mately 10:3

0 p.m. Prior

to entering , the victim remarked,“I’d like to come in and apologize for the w ay I acted earlier.” As the appellant opened the door, the victim pushed his w

ay into the apartment and gr abbed the appellant. The appellant retreated to the bedroom wher e the victim continued, i n a “hostile and irate stat e,” to make threats against the appellant’s life. Shortly, thereafte r, the victim “crammed” a pistol into the appellant’s ear and exclaimed, “You’ve got thirty seconds left to live.” The appellant was ultimately able to retrieve the pi stol and, during a final scuffle, shot the vi ctim. Before a defendant can be fo und guilty of voluntary manslaughter, there must be evidence that he acted in a state of passion sufficient to obscur e his reasoning and that the passion was produ ced by reasonable and adequat e provocation. State v. Brown , 836 S.W.2d 530, 553 (Tenn. 1992); see also Tenn. Code Ann. § 39-13- 211. In other words, an i nstruction on voluntary manslaughter is proper on ly if the proof establishes both provocation and passion. Although the proof clearly establishes that the victim was “hostile and ir ate,” there is simply

no evidence that the appellant acted in sudden pass ion as to obscure his judg ment or that the appellant acted in an irrati onal manner and without cool purpose. See Sentencing Commiss ion Comm ents, Te nn. Code Ann. § 39 -13-211 . Indeed , the proo f shows that the appellant shot the vi ctim with “cool purpo se,” believing that the use of deadly force was necess ary under the circumstan ces to prevent his ow n death, i.e. , self-defense. In the absence of proof of passion,I find the trial court’s instruction for voluntary manslaughter improper.5 Additionally, it coul d be argued that the instruc tion on voluntary mansl aughter in the present case abridged the appellant’s constitutional right to present his defense. The appellant chose to proceed o n an “all or nothing” approach, i.e. , either he was guilty of second degree murder or the homicide was justified under a theory of self-defense. Voluntary manslaug hter does not fall squarely under either category. Rather, i

t lies someplace between th e justifiable killing and the unlawful taking of a human life, in other w ords, a so-called imperfect self-defense. Again, voluntary manslaughter differs from homicide which is excusable because committed in self-defen se; in the latter case, there is an apparent necessity to kill the agressor for self-preservation, and in the former, no necessity at all. Usually, voluntary manslaughter is a conseque nce of qu arrels an d combat s. It is com mitted s uddenly, without reflection, and re pels the supposition that it is the result of premediation or a prearranged plan to kill. 40 Am.Jur.2d Homicide § 57. Obviously, i n a homicide case defended upon a theory of self-defense where there is no proof of either passion or prov ocation, an instruction on manslaughter effectively compromises th e defendant’s theory of the

case. Cf

. People v. Strohl , 456 N.E.2d 276, 280 (Ill. App.1983). For the above reasons, I r espectfully dissent.

____________________________________ DAVID G. HAYES, Jud ge