# FILED
November 25, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON

STATE OF TENN ESSEE, ) ) NO. 02C01-9608-CR-00280 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. CHRIS CRAFT, ALVIN ROBIN SON, JR., ) JUDGE ) Appellant. ) (First Degree Murder)

UPON REMAND

FROM THE SUPREME C OURT OF TENNESSEE

FOR THE APPELLANT : A. C. WHARTON Shelby County Public

Defender W. MARK WARD BET TY TH OMAS Assistant Public Defenders 201 Poplar Avenue, Ste. 201 Memphis, TN 38103-1947 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter WILLIAM DAVID BRIDGERS Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General JERRY R. KITCHEN Assistant

District Attorney

General 201 Poplar Avenue, Ste. 301 Memphis, TN 38103-1947

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE2 O P I N I O N
This premeditated first degree mur der case is aga in bef ore this Court for reconsideration f o llowing remand from the Supr eme Court of Tennessee in light of State v. Willie Williams , ___ S.W.2d ___ (Tenn. 1998). The sole issue upon remand is whether the failure of the tri al co urt to charge the lesser offense of criminally negligent homicide was harmless er ror. We conclude that Williams is disposi tive and find harmless error. Therefore, we affirm the judgment of the trial court.

PROCEDURAL HISTORY

Defendant, Alvin Robinson, Jr. , was convicted by a Shelby Count

y jury of premeditated first degree murder and sent enced to life imprisonmen t with out the possibility

of parole. In his origi nal appeal to this Court, d efenda nt presen ted two issues for our r eview: (1 ) whether the evidenc e was sufficient to support the conviction, and (2) whether the trial cour t erred in failing t o properl y instruct the jury. This Court concluded the trial court err ed in failing to instruct on the lesser offense of criminally negli gent homicide and remand ed for a new trial. The other issues raised on appeal by the defendant were found t o be without merit. See State v. Alvin Robinson, Jr. , C.C.A. No. 02C01-9608-C R-00280, Shelby County (Tenn. Crim

. App. filed December 3, 1997, at Jackson ). The Supreme Court of Tenn esse e granted permission to appeal and remanded to this Court “for reconsideration in l ight of ... State v. Willie Williams , ___ S.W.2d ___ (Tenn. 1998).” State v. Alvin Robinson, Jr. , No. 02C01-9608-CR-00280, Shelby County (Tenn. filed November 9, 1998, at Jackson)

.

FACTS

The essential facts of the homicide w ere set forth in our orig inal opinion.3 Th e defendant arranged to have the vict im , CharlesMoore, repair his car a t the Overton Crossing Car Center. The defendant originall y sought to have an acq uaintance, John Muse, do the repair w ork but ultimat elyde cided Muse's estimate w as too high. After the repair work had been co mpleted, the defendant complained several times to Muse that he did not

believe the victim had repaire d his car properly, and he suspected the victim had not instal led pa r ts the defendant had purchased from AutoZone for the vehicle. In Februar

y of 1994 , the defe n dant had an argumentwith the victim over the $ 200.00 the defendant had paid to have the car repai red. During this arg ument the defenda nt "slapped around" the victi m with a telephone. Roger M iller , the lessor of the garage, arranged for a meeting betwee n th e defendant and the vict im fo llowing this inc ident so they could resol ve the dispute. Miller testified that after the meeting he thought the two men had reached an agreement. The defendant denies that this altercati on ever took place. At approximately 2:00 p.m. on March 15, 1994, the defendant visited Muse because hi s car had stalled several times that day. Muse informed the defendant that he needed to have the car fixed pr operly. The defendant stated he was either going to get his money and his parts backf rom the victim so Muse coul d repair the car properlyor

"he was going to

kill the S-O-B and ge

t it over with . . . [because] he was ti red of messing with him." Muse observ

ed that the defe ndan t had a pistol in his backpocket. The defendant stated h e always carried a pistol with him for pro tecti on; however, he denied threatening to kill t he victi m if his money was not returned. At approximately4:00 p.m., the defendant arrived at the Overton Crossing Car Center, where both t h e victim and Steve Kuehner, or "Smut," were work ing. The defendant calmly askedthe victim for his $ 200.00.When the victim said he did not h ave the money, the defendant pulled out his gun and shot the victim once in the chest. The d efendant told Kuehner, "when the cops com e tell them some big white guy done it." Witnesses testified the defendant d rove away immediately after the shot was fired. As the defendant left the scene, he told Kuehn e r "you better not say

anything. I'll g et my buddies on you." Several minutes lat er, the defendant called the garage and asked Miller "wh a t was up." When Miller related that the victim had been shot, the def endant asked "well, is he dead?" When Miller said he believed the victim was alive, the defendant said "Damn, I thought I kill ed the m///--f///--." The vic tim died within a few minutes. The cause ofdeath was a gunshot w ound to the chest and abdomen with internal bl eeding. The victim was shot from more than two feet away. Pri or to trial, the defendant called Miller and tol d him to convince Kuehner not to testify or "somebody on the outside . . . could take care of Smut [Kuehner] if he did."4 Th e defendant disputes the other witnesses' d escription of the murder. According to the defendan t , when he arrived at the gar age and asked the victim for the $ 200.00, the victim stated another customer would be arri vin g shortly to pay him and this money would be used to reimburse the

defendant. The defendant testified that while he was w

aiting for thecus tomer to arrive, the v ictim asked the defendant if he could borrow so m e mo ney . The two men argued, and the defendant s tated t he victim asked Kuehner to r etrieve a shotgun f rom a backroom. While retreating fro m the victim, the de fe ndant slipped, and, as he was getting up, he observed Kuehner heading towards the room where the shotgun was kept. The victim was approac hing the defendant with a monkey wr ench in his hand. The defendant tes tified he was afraid of the victim because he had overheard the vic tim threateni n g to shoot other customers and hi s own wife in the past. The defendant test ified he pulled his gun to scar e the victim andi t accidentally discharged. He told Kuehner, "man I didn't mean to do it [shoot the victim]." After a rguing with Kuehner about what to do next, the defendant testified he panicked and fled t h e scene. He felt no one would believe his version of what occur red because he had shot a w h ite man. The defendant stated he fled from the garage about ten minutes after the shooting. He denied telling Kuehner to give the police false information, calling Mi ller after the shooting, threatening Kuehner not t o testify, or tellingMiller to convince K uehner n ot to test ify. Two defense experts testified regarding the defendant's mental state. Dr. Little testified the defendant was not retarded or psychoti c, he had good contact with reality, and had good intellectualskills. He also testified the defendant had significant personality problems, was aggressi ve , and was manipulative, particularly when it placed him in abetter light. Dr. Li ttle found the defendant suffered from depr ession brought on by severe psychologicalstressors, and made a tentat ive diagnosis of intermittent

explosive disorder. Dr. Little stated he had no doubt the defendantcould have premeditated murder, although it was pos

sible the mur

der was co mm itted on impulse. Dr. Hutson, who also testified for the defense, stated that the defendant was able to a ppreciate wrongfulness and was capable of premeditation.

FAILURE TO C HARGE LESSER O FFENSE

The trial court charged the i ndicte d offense of premeditated first degree murder as well as the lesser offenses of second d egree murder and voluntary manslaughter. Although the defendant also requested the jury be charged as to1 Presiding Judge Joe B. Jones authored this Court’s original opinion. Judge Jones is

now deceased; therefore, only two judges participated in this opinion. 5 criminallynegligent homicide, the trial court refused. This Court in the original appeal held that there was

sufficient evidence to justi fy a jury charge on criminally negli gent homicide; therefore, we reversed and remanded for a ne w trial.

STATE V. WILLIAMS

The Supreme Court in Williams concluded that the erroneous failure to instruct
on a lesser offense is subject to harmless error analysis. ___ S.W.2d at _____. The Court further concluded that the failure to instruct as to voluntarymanslaughter was harmless error because t he jury w as instructed as to the les ser offense of second degree murder but convicted the defendant of the greater charged offense o f premeditated first degree murder

. Id. at ____. The above holding in Williams is dispositive of this a ppeal. In the case sub judice the jurywas instructed as to p remeditated first degree murder and the lesser offenses of second degree murder and voluntary manslaughter. The jury convicted the def endant of premeditated first degree mur der in spite of the other char ge d offenses. Under the holding of Williams , the failure tocharge the lesser offense of criminally negli gent homicide was harml ess error.

CONCLUSION

I n light of State v. Williams and after a careful review of the record, th e judgment of the trial court i s affirmed. 16 _______ ____________________ _ _ JOE G. RILEY, JUDGE

CONCUR:

_________________________________ DAVID H. WELL ES, JUDGE