# FILED November 4, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THECOURT OF CRI MINALAPPEA LS OF

TENNESSEE AT KNOXVILLE JULY SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9806- CC-00215 ) Appellee, ) ) ANDERSON COUNTY VS ) ) HON. JAMES B. SCOTT, CURTIS J. E LY, ) JUDGE ) Appe llant. ) (Felony Murder-Life Sentence)



### CONCURRING OP INI ON

I write separ

ately becaus e I beli eve the trialjudge erred by faili ng to instruct the jury as to the lesser o ffen ses of second degree murder and facil itati on of felony murder. Because I find the error to be harmless, however, I co ncur in affirming the Defendant’ s convict ion.

In State v. Cleveland , 959 S.W.2d 548 (Ten n. 1997), our su preme co urt stated, [T]he trial court

must instruct

the jury on all l essergrades or cl asses of offenses and a ll lesser includ ed offe nses if the evid ence will supp ort a conviction for the offen ses. The ins tructions preserve a def endant ’s right to fair and r easonable noti ce of the char ges and allowthe jur

y to co nsider al l relev ant offenses

in determin ing the appropriate offense for conviction. Finally, “allowi ng considerat ion of the lesser

included of

fenses and the o ffenses of lesser grad es and classes, if the evidence supports guilt on those offenses, mo re evenly bal ances the rights of the defe nse and the prosecut ion and serves the interes ts of justice.” Id. at 553 (citation om itted).
In State v. Bolden , 979 S.W.2d 587 (Tenn. 1998), t he Defendant had been tried for theoffense of prem editate d first de gree m urder . Over th e Def enda nt’s objecti on, the tri al judge charged the jury concerning t he lesser included offense of second d egree m urder. The jury convi cted the Defendant of second degree murder. On appeal, the Defendant argued that the tri al judgeerred by al lowing the jury to consider second d egree murder as a n option. In affi rming the Defendant’s conv iction for second degree murder, the supr eme court stated,-2- This Court has interpreted Tenn. Code Ann. § 40-18-110(a)to mean thata trial court mus t in struct t he jury on al l lesser offenses i f the evid en ce introduce d at trial is lega lly sufficient to su pport a convicti on for the l esser offens e.

. . . We have freque ntly he ld that th e trial co urt’s ob ligation unde r this statute isma ndatory, provided there is su fficient evidence for a rationaltrier

of fact to find a defendant gui lty of a lesser of

fense.

. . . One purpo se of th e statu te is to p rotect th e right to trial by jury b y instruct ing the jury on the elements of all of fenses embraced by

the indictme nt. Although it often benefits the defend ant to have a jury consider

lesser of

fenses, t he mand atory n ature of the statute indicates that it facilitates the overa ll tr ut h-seeking f unction of the proces s.

. . . In view of t he foregoing, the only r emaining argum ent an d the o nly question for revi ew is whether t he evidence wassufficie nt to su stain a convicti on for the l esser incl uded offense of second deg re e murder. Id. at 593.
As Judge Riley poi nts out i n his opini on, our supreme court has fre quen tly held that failu re to ins truct on a le sser offense is not error w here the reco rd clearly shows that t he Defenda nt is guilty of the greater offense and the reco rd is devoid of any

evidenc e perm itting an infere nce of gu ilt of the lesse r offense

. See State v. Langford , 994 S.W.2d 126, 128 (Tenn. 19 99). In L ang ford , however, our

sup remecourt rei terated t hat “a trial court must instr uct the j ury on-3-

all lesser i ncluded offens es if the eviden ce intro duce d at trial is legall y suffi cient to support a co nviction for the lesser offen se.” Id.

In the case at bar, th e te sti mo ny heard by t he jury concerning the Defe ndan t’s invo lvement in the killing of th e victim wa s incons istent, contradictory, and at least somewhat confusing. While I agree that the evidence presented is sufficie nt to su pport th e Def enda nt’s convicti on of fir st degree felony murder, I also co nclud e that th e evide nce p resen ted wo uld ha ve bee n lega lly suffic ientto support a

convicti on of second degree murder or facil itati on of felony murder. If the t rial judge had c harged the jury conc erning these offens es, an d if the jury had f ound the Defendant gui lty of either one, I beli eve the convi ction would withstand a challenge to the suff iciency of the evidence. For this r eason, I believe t he trialjudge erred by faili ng to inst ruct the j ury as to t he lesse r offenses.

Howeve r, our supreme court has recentl y held that the failure to instruct

on a lesser offe nse may be s hown to be harm less error. State v . Wil li ams , 977 S.W.2d 101, 105 (Tenn. 1998). In Williams , our sup reme c ourt stated , Reversal is required if the error aff i rmatively appea rs to have affected the result

of the trial on t he m erits, or i n other words, reversal is required if the error more probably t han not affected the judgment to t he defendant’ s prejudi ce. Id. at 105. (emphasi s added)
In the cas e at ba r, the only options bef ore the jur

y were to f ind the Defendant guilty

of first degree murder or to find hi m guilty of nothing at

all. Even th ough I beli eve the tr ial j udge should have char ged the jury

concerning t h e lesser offenses, I certainly can not say that the trial court’s err or af firmativ ely appears to have a ffected the result of t he trial on th e merits . In other wo rds, I cannot say that the jury more probably t han not would have found the Defendant guilty of a lesser

offense i f the jur

y had been given thatoption. Therefore, under Williams , I concl ude that the error i s harmless and reversal is not requir

ed.-4- In all other respects, I fully c oncur in the excell ent opini on authored by Judge Jo e G. Riley.

______________________ DAVID H. WELLES , JUD GE