FILED

November 25, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

STATE OF TENNESSEE, )

) NO. 02C01-9608-CR-00280

Appellee, )

) SHELBY COUNTY

VS. )

) HON. CHRIS CRAFT,

ALVIN ROBINSON, JR., ) JUDGE

)

Appellant. ) (First Degree Murder)

UPON REMAND FROM THE SUPREME COURT OF TENNESSEE

FOR THE APPELLANT:

A. C. WHARTON

Shelby County Public Defender

W. MARK WARD

BETTY THOMAS

Assistant Public Defenders

201 Poplar Avenue, Ste. 201

Memphis, TN 38103-1947

FOR THE APPELLEE:

JOHN KNOX WALKUP

Attorney General and Reporter

WILLIAM DAVID BRIDGERS

Assistant Attorney General

Cordell Hull Building, 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 FILED: 

AFFIRMED

JOE G. RILEY,

JUDGE
2

O P I N I O N

This premeditated first degree murder case is again before this Court for

reconsideration following remand from the Supreme 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 trial court to charge the lesser offense of criminally

negligent homicide was harmless error. We conclude that Williams is dispositive and

find harmless error. Therefore, we affirm the judgment of the trial court. 

PROCEDURAL HISTORY

Defendant, Alvin Robinson, Jr., was convicted by a Shelby County jury of

premeditated first degree murder and sentenced to life imprisonment without the

possibility of parole. In his original appeal to this Court, defendant presented two

issues for our review: (1) whether the evidence was sufficient to support the

conviction, and (2) whether the trial court erred in failing to properly instruct the jury.

This Court concluded the trial court erred in failing to instruct on the lesser offense

of criminally negligent homicide and remanded for a new trial. The other issues

raised on appeal by the defendant were found to be without merit. See State v. Alvin

Robinson, Jr., C.C.A. No. 02C01-9608-CR-00280, Shelby County (Tenn. Crim. App.

filed December 3, 1997, at Jackson). 

The Supreme Court of Tennessee granted permission to appeal and

remanded to this Court “for reconsideration in light 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 were set forth in our original opinion. 
3

The defendant arranged to have the victim,

Charles Moore, repair his car at the Overton Crossing

Car Center. The defendant originally sought to have an

acquaintance, John Muse, do the repair work but

ultimately decided Muse's estimate was too high. After

the repair work had been completed, the defendant

complained several times to Muse that he did not believe

the victim had repaired his car properly, and he

suspected the victim had not installed parts the

defendant had purchased from Auto Zone for the vehicle.

In February of 1994, the defendant had an

argument with the victim over the $ 200.00 the defendant

had paid to have the car repaired. During this argument

the defendant "slapped around" the victim with a

telephone. Roger Miller, the lessor of the garage,

arranged for a meeting between the defendant and the

victim following this incident so they could resolve the

dispute. Miller testified that after the meeting he thought

the two men had reached an agreement. The defendant

denies that this altercation ever took place. 

At approximately 2:00 p.m. on March 15, 1994, the

defendant visited Muse because his car had stalled

several times that day. Muse informed the defendant that

he needed to have the car fixed properly. The defendant

stated he was either going to get his money and his parts

back from the victim so Muse could repair the car

properly or "he was going to kill the S-O-B and get it over

with . . . [because] he was tired of messing with him."

Muse observed that the defendant had a pistol in his

back pocket. The defendant stated he always carried a

pistol with him for protection; however, he denied

threatening to kill the victim if his money was not

returned. 

At approximately 4:00 p.m., the defendant arrived

at the Overton Crossing Car Center, where both the

victim and Steve Kuehner, or "Smut," were working. The

defendant calmly asked the victim for his $ 200.00. When

the victim said he did not have the money, the defendant

pulled out his gun and shot the victim once in the chest.

The defendant told Kuehner, "when the cops come tell

them some big white guy done it." Witnesses testified the

defendant drove away immediately after the shot was

fired. As the defendant left the scene, he told Kuehner

"you better not say anything. I'll get my buddies on you."

Several minutes later, the defendant called the

garage and asked Miller "what was up." When Miller

related that the victim had been shot, the defendant

asked "well, is he dead?" When Miller said he believed

the victim was alive, the defendant said "Damn, I thought

I killed the m///--f///--." The victim died within a few

minutes. The cause of death was a gunshot wound to the

chest and abdomen with internal bleeding. The victim

was shot from more than two feet away. Prior to trial, the

defendant called Miller and told him to convince Kuehner

not to testify or "somebody on the outside . . . could take

care of Smut [Kuehner] if he did." 
4

The defendant disputes the other witnesses'

description of the murder. According to the defendant,

when he arrived at the garage and asked the victim for

the $ 200.00, the victim stated another customer would

be arriving shortly to pay him and this money would be

used to reimburse the defendant. The defendant testified

that while he was waiting for the customer to arrive, the

victim asked the defendant if he could borrow some

money. The two men argued, and the defendant stated

the victim asked Kuehner to retrieve a shotgun from a

back room. While retreating from the victim, the

defendant slipped, and, as he was getting up, he

observed Kuehner heading towards the room where the

shotgun was kept. The victim was approaching the

defendant with a monkey wrench in his hand. The

defendant testified he was afraid of the victim because

he had overheard the victim threatening to shoot other

customers and his own wife in the past. The defendant

testified he pulled his gun to scare the victim and it

accidentally discharged. He told Kuehner, "man I didn't

mean to do it [shoot the victim]." After arguing with

Kuehner about what to do next, the defendant testified he

panicked and fled the scene. He felt no one would

believe his version of what occurred because he had shot

a white 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

Miller after the shooting, threatening Kuehner not to

testify, or telling Miller to convince Kuehner not to testify.

Two defense experts testified regarding the

defendant's mental state. Dr. Little testified the defendant

was not retarded or psychotic, he had good contact with

reality, and had good intellectual skills. He also testified

the defendant had significant personality problems, was

aggressive, and was manipulative, particularly when it

placed him in a better light. Dr. Little found the defendant

suffered from depression brought on by severe

psychological stressors, and made a tentative diagnosis

of intermittent explosive disorder. Dr. Little stated he had

no doubt the defendant could have premeditated murder,

although it was possible the murder was committed on

impulse. Dr. Hutson, who also testified for the defense,

stated that the defendant was able to appreciate

wrongfulness and was capable of premeditation. 

 

FAILURE TO CHARGE LESSER OFFENSE

The trial court charged the indicted offense of premeditated first degree

murder as well as the lesser offenses of second degree murder and voluntary

manslaughter. Although the defendant also requested the jury be charged as to 
1

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

criminally negligent homicide, the trial court refused. This Court in the original appeal

held that there was sufficient evidence to justify a jury charge on criminally negligent

homicide; therefore, we reversed and remanded for a new 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 voluntary manslaughter was

harmless error because the jury was instructed as to the lesser offense of second

degree murder but convicted the defendant of the greater charged offense of

premeditated first degree murder. Id. at ____. 

The above holding in Williams is dispositive of this appeal. In the case sub

judice the jury was instructed as to premeditated first degree murder and the lesser

offenses of second degree murder and voluntary manslaughter. The jury convicted

the defendant of premeditated first degree murder in spite of the other charged

offenses. Under the holding of Williams, the failure to charge the lesser offense of

criminally negligent homicide was harmless error. 

CONCLUSION

In light of State v. Williams and after a careful review of the record, the

judgment of the trial court is affirmed.1
6

_____________________________

JOE G. RILEY, JUDGE

CONCUR:

_________________________________

DAVID H. WELLES, JUDGE