State v. Whitmore ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
DECEMBER 1994 SESSION FILED
June 19, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. 03C01-9404-CR-00141
)
) Blount County
v. )
) Honorable Kelly Thomas, Jr., Judge
)
FRANK WHITMORE, ) (First degree murder)
)
Appellant. )
For the Appellant: For the Appellee:
Gerald C. Russell Charles W. Burson
125 E. Broadway Avenue Attorney General of Tennessee
Maryville, TN 37804 and
Sharon S. Selby
Assistant Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
Michael L. Flynn
District Attorney General
and
Edward P. Bailey, Jr.
Assistant District Attorney General
Blount County Courthouse
Maryville, TN 37801
OPINION FILED:_______________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, Frank Whitmore, appeals as of right from a jury conviction
in the Circuit Court of Blount County for first degree murder. 1 Although the state sought
the death penalty, the defendant was sentenced to life imprisonment in the custody of
the Department of Correction. He presents the following issues for review:
(1) whether the evidence is sufficient to support the conviction
of first degree murder,
(2) whether the trial court erred by not requiring the state to
elect under which theory of first degree murder it would seek
a conviction,
(3) whether the trial court erred by instructing the jury relative
to the elements of felony murder and criminal responsibility for
felony murder, and
(4) whether the trial court erred by denying the defendant’s
special requests for various jury instructions and by improperly
instructing the jury regarding lesser included and lesser grade
offenses.
We hold that the evidence is sufficient and that the trial court did not commit reversible
error. Therefore, we affirm the trial court’s judgment of conviction.
On August 11, 1991, William Pyott, an eighty-year-old neighbor of the
defendant’s grandparents, was found dead in his home. He had been stabbed a total
of thirteen times in the neck and the chest.
Hazel Chapman, a neighbor of the victim, testified that on the night of the
murder she was awakened at approximately 1:30 a.m. by the growling and the barking
of her dogs. She said that she looked outside the window but could not see the victim’s
house because of the trees. Ms. Chapman stated that she was awakened later by her
dogs because they were barking and running in the direction of the victim’s house.
1
The defendan t was also convicted of aggravated burglary, a Class C felony, and theft
under $500.00, a Class A misdemeanor. As a Range I, standard offender, he received concurrent
sentences of six years and eleven months and twenty-nine days, respectively. He does not raise any
challenges regarding these convictions.
2
James Long, who lives approximately a half mile from the victim, testified that when he
was driving a friend of his daughter’s to her house around 12:30 a.m., he saw the
defendant walking with a short, stocky man.
David Maples, a deputy for the Blount County Sheriff’s Department,
responded to a dispatch of a possible burglary at the victim’s house. He testified that
the front door was open and damaged. The screen door was hanging on hinges and
the glass from the screen door was leaning against a wall. After he entered the
residence, he found the victim lying in the hall surrounded by blood. Officer Maples
stated that there was a trail of blood coming from the bedroom to the hallway and that a
closet door at the end of the hallway was open.
Gary Hamilton, a Blount County Crime Scene Technician and Fingerprint
Examiner, assisted in the investigation. He testified that he discovered fingerprints on
the exterior side of the screen door matching that of the defendant. A blood trail
fourteen feet two inches long extended from the blood-covered bed to the hallway
where the victim was found. Officer Hamilton expressed the belief that the victim got
out of the bed after being stabbed and dragged himself into the hall. The telephone in
the den was off the hook. Officer Hamilton stated that a fingerprint found on the
linoleum underneath the bed came from the defendant. He also said that he found a
trunk in another bedroom that appeared to have been tampered with due to damage to
the lid. Officer Hamilton testified that he found no blood on the defendant’s clothes.
Detective Randall Mercks of the Blount County Sheriff’s Department
similarly described the scene during his testimony. He added that he discovered one
thousand four hundred dollars between the mattress and box springs of the victim’s bed
and a note indicating that he had given the defendant twenty-five dollars on August 10,
1991. Detective Mercks stated that he and Detective Jim Widener jointly questioned
3
the defendant and Coy Dean Williams2 regarding their involvement in the victim’s
murder.
In a joint confession, the defendant and Williams agreed that the following
events occurred. The defendant said that he called the victim around 6:00 p.m. and
asked him to borrow some money. The victim agreed, and the defendant and Williams
drove to the victim’s home. According to the defendant, the victim asked the defendant
to come inside and gave him twenty-five dollars. While the defendant was talking to the
victim, Williams went into a bedroom and took twenty dollars and a gold watch.
Williams told the officers that he opened the trunk and searched for a gun. Finding no
gun, Williams instead took some silver coins and placed them in his pocket. The two
then left the victim’s home and drove to Knoxville to purchase two quails, each
containing a quarter gram of cocaine, with the money.
The statement further reflects that later that night, the defendant and
Williams decided to go back to the victim’s home to steal the victim’s guns or money to
purchase more drugs. The defendant told Williams that the victim kept his guns in a
suitcase. Both the defendant and Williams asserted that their plan was not to hurt the
victim but only to scare him. They drove by the victim’s home several times until all of
the lights were turned off. On the first attempt, the defendant and Williams got out of
the car, walked to the back door, but returned to the car after finding the door locked
and hearing the victim talking on the telephone. The defendant told the officers that he
became paranoid when dogs started barking, so they went to a store and waited for
thirty minutes, gathering themselves to go back to the house. Seeing that all of the
lights were out, they parked the car. Before they left the car, Williams reached over to
take the defendant’s knife from the dash near the speedometer where the defendant
kept it and placed it in his pocket. Then, they walked to the house. When the
2
W illiam s pled guilty to first d egre e m urde r, agg rava ted b urgla ry and mis dem ean or the ft,
receiving an effec tive senten ce of life im prisonm ent.
4
defendant could not open the screen door to the house, Williams yanked it open and
kicked in the door.
The defendant and Williams stated that they entered the dark house as
the victim was coming towards the hallway carrying a flashlight. Williams said that he
grabbed the victim and placed his hand over his mouth, intending to put him on the bed
but not to hurt him. Williams stated that the victim grabbed him by the hair and the
pants as they wrestled on the bed. Regarding the exact time that he removed the knife
from his pocket, Williams made contradictory statements. First, he stated that he pulled
the knife from his pocket before the victim grabbed his hair and pants and held it to the
victim’s neck, telling him to be quiet and not to move. Williams later claimed that he
withdrew the knife when the victim grabbed him by the hair. He also stated that
because the victim would not let him leave and because he “had no choice,” he stabbed
the victim.
Meanwhile, the defendant went to the other bedroom and ripped the trunk
open and grabbed a money bag containing forty-two dollars. The defendant told the
officers that he heard the victim moaning when he stepped inside the bedroom to tell
Williams that they were leaving. The defendant said that he went outside but came
back into the bedroom after he noticed that Williams had not followed him. As he
entered the bedroom, the defendant saw a flashlight shining underneath the bed. The
defendant said that he crawled on the floor and reached under the bed to get the
flashlight. As he turned the flashlight off, the defendant saw blood, panicked and ran
out the door. Williams ran outside behind the defendant.
The defendant asserted in the statement to the police that after getting in
the car, Williams told him that he killed the victim. According to the defendant and
Williams, the defendant became hysterical, and Williams had to scream at the
5
defendant to get him to calm down. They then drove to Old Maryville Pike to dispose of
the flashlight. The defendant said that he gave Williams one of his T-shirts to wipe off
any fingerprints on the flashlight before they threw it out the window. On the way back
to Knoxville, Williams wiped the blood off the knife and threw it out also. Afterwards,
the defendant stated that they counted the money and decided to buy two more quails,
a quarter gram of cocaine apiece, with the forty-two dollars. They wiped the blood off
Williams with a blue wash rag and went to see Williams’ girlfriend. While at her
residence, they burned the money bag. Later, the defendant took his jeans and shirts
to the dumpsters behind the shopping center and threw the blue rag in a ditch as he
was driving away.
On August 12, 1991, the defendant showed the officers where he hid the
items used during the murder. The officers recovered all of the items except the
flashlight.
Dr. William Elliot conducted the autopsy of the victim. He testified that the
victim was an extremely slender man who was approximately four feet six inches tall.
Dr. Elliot stated that he found a total of thirteen cuts and stab wounds to the victim’s
neck and chest. Three of the stab wounds perforated the victim’s lungs. Dr. Elliot
expressed the opinion that the neck wounds probably occurred first. According to Dr.
Elliot, the victim did not die quickly and his death was caused by a combination of the
inability to breathe and blood loss from the wounds.
I. SUFFICIENCY OF THE EVIDENCE
The defendant contends that the evidence was insufficient to prove
beyond a reasonable doubt his guilt for the offense of first degree murder. The
defendant was charged with first degree premeditated murder and felony murder in
separate counts of the indictment. The jury returned guilty verdicts on each count, and
6
the trial court merged them into one judgment of conviction for first degree murder. On
appeal, the defendant challenges the sufficiency of the evidence for the jury’s findings
of guilt for both counts. The state argues that the evidence is sufficient to support the
conviction of first degree murder based on either first degree premeditated murder or
felony murder. We agree.
Our standard of review when the sufficiency of the evidence is questioned
on appeal is "whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789 (1979). This means that we may not reweigh the evidence, but must
presume that the jury has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the state. See State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978).
A. COUNT 1 - FIRST DEGREE PREMEDITATED AND DELIBERATE MURDER
In his first issue, the defendant challenges his first degree murder
conviction on the grounds that there is insufficient evidence to show (1) that the
defendant personally committed an intentional, premeditated and deliberate killing of
the victim, (2) that Williams’ conduct constituted an intentional, premeditated, and
deliberate killing of the victim, and (3) that the defendant was criminally responsible for
Williams’ actions. See T.C.A. § 39-13-202(a)(1) (1991), T.C.A. § 39-11-402(2). The
state does not argue that there is sufficient evidence to show that the defendant
committed the offense himself, but instead asserts that the evidence supports the jury’s
determination of guilt beyond a reasonable doubt based on his criminal responsibility
for Williams’ commission of first degree premeditated and deliberate murder.
7
At the time of the offense, an unlawful, intentional, premeditated and
deliberate killing of another constituted first degree murder. See T.C.A. §§ 39-
13-201(a) and -202(a)(1) (1991)3. Our criminal code defined a deliberate act as “one
performed with a cool purpose,” and a premeditated act as “one done after the exercise
of reflection and judgment.” T.C.A. § 39-13-201(b)(1) and (2) (1991). In State v.
Brown, 836 S.W.2d 530 (Tenn. 1992), our supreme court further defined deliberation as
requiring some period of reflection, without passion or provocation, and concluded that
the “deliberation necessary to establish first degree murder cannot be formed in an
instant.” Id. at 539, 543. Premeditation requires a showing of a previously formed
design or intent to kill. State v. West, 844 S.W.2d 144, 147 (Tenn. 1992). The
existence of the separate and distinct elements of premeditation and deliberation is a
question of fact to be decided by the jury. See State v. Brown, 836 S.W.2d at 541-42.
In this respect, the determination of the state of mind necessary to establish the
elements of first degree murder may be shown by circumstantial evidence. State v.
Brown, 836 S.W.2d at 541; State v. Burlison, 868 S.W.2d 713, 717 (Tenn. Crim. App.
1993).
The statute dealing with criminal responsibility for another person’s
conduct provides:
A person is criminally responsible for an offense committed by
the conduct of another if:
...
(2) Acting with intent to promote or assist the commission of
the offense, or to benefit in the proceeds or results of the
offense, the person solicits, directs, aids, or attempts to aid
another person to commit the offense;
...
3
Pursuant to an amendment effective July 1, 1995, the statutory provision defining first
degree murd er was a men ded, pur portedly de leting the req uirem ent of de liberation. See T.C.A. § 39-13-
202(a)( 1) (Sup p. 1996) .
8
T.C.A. § 39-11-402(2). Our court has stated that to be criminally responsible for the
acts of another, a defendant must “‘in some way associate himself with the venture, act
with knowledge that an offense is to be committed, and share in the criminal intent of
the principal in the first degree.’” State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim.
App. 1994) (quoting Hembree v. State, 546 S.W.2d 235, 239 (Tenn. Crim. App. 1976)).
In other words, the defendant must “‘knowingly, voluntarily and with common intent
unite with the principal offender[] in the commission of the crime.’” State v. Maxey, 898
S.W.2d at 757 (quoting State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988)).
The requisite criminal intent may be inferred from the defendant’s “presence,
companionship, and conduct before and after the offense . . . .” State v. McBee, 644
S.W.2d 425, 428-29 (Tenn. Crim. App. 1982).
The proof demonstrates beyond a reasonable doubt all of the elements of
first degree murder as committed by Williams. In the light most favorable to the state,
the evidence reflects that Williams armed himself with the defendant’s knife before
entering the victim’s house. Once inside the house, Williams grabbed the victim, threw
him on the bed, and placed his hand over his mouth. Williams then took the knife from
his pocket and held it to the victim’s neck as he told him not to move. W hen the victim
grabbed Williams by the hair and the leg without releasing him, Williams began
stabbing the victim. The state argues that Williams’ statement that he had no choice
but to stab the victim provided a basis for the jury to infer that Williams weighed the
options available, thus satisfying the element of deliberation. We agree. These
circumstances sufficiently establish that Williams reflected upon his previously formed
decision to kill the victim.
The proof also establishes beyond a reasonable doubt that the defendant
is criminally responsible for the first degree murder committed by W illiams. Although
Williams asserted in his statement to the police that they only intended to scare the
9
victim, the elements dealing with mental states may be shown by circumstantial
evidence. State v. Brown, 836 S.W.2d at 541; State v. Burlison, 868 S.W.2d at 717. In
this regard, the defendant’s conduct before the murder supports a determination that
the defendant is criminally responsible for Williams’ conduct. See State v. McBee, 644
S.W.2d at 428-29. The defendant agreed with Williams to burglarize the victim’s home
so they could purchase more drugs. He provided the transportation and drove by the
victim’s house several times, waiting for the victim to turn off the lights. In fact, the
defendant and Williams retreated after the first try because they heard the victim inside
talking on the telephone. Thus, both the defendant and Williams knew that the victim
would be inside the house. The defendant also provided Williams with the murder
weapon. Williams told the officers that although he did not get the knife directly from
the defendant, he did take the defendant’s knife from the dash before they left the car
and placed it in his pocket. From this statement, the jury could properly infer that the
defendant knew that Williams armed himself with a weapon before entering the victim’s
house because Williams had to reach across to the driver’s side to get the knife.
Moreover, the defendant actively participated in the burglary.
The jury also could have inferred from the defendant’s conduct after the
murder that he shared Williams’ criminal intent. See State v. McBee, 644 S.W.2d at
428-29. First, the defendant heard the victim moaning and observed blood in the
bedroom before leaving the house but did not attempt to assist the victim. Instead, the
defendant left the victim to die and divided the money with Williams for their drug
purchases. Also, he admitted that he gave Williams his shirt to wipe off fingerprints
from the flashlight before they threw it out the car window. The defendant also
conceded to disposing of other evidence.
Under these circumstances, the jury could reasonably find that the
defendant aided Williams in the murder and shared the intent necessary to establish
10
first degree premeditated and deliberate murder. Therefore, we hold that any rational
trier of fact could have concluded that there was sufficient evidence to support the jury’s
determination of guilt beyond a reasonable doubt that the killing by Williams satisfied
the elements of first degree premeditated and deliberate murder and that the defendant
was criminally responsible for Williams’ actions. See State v. John V. Woodruff, No.
01C01-9507-CR-00217, Davidson County, slip op. at 13 (Tenn. Crim. App. Aug. 1,
1996), app. denied (Tenn. Jan. 27, 1997) (held defendant criminally responsible for first
degree premeditated and deliberate murder when he provided the transportation and
the weapon used in the killing and stopped the vehicle after his codefendant stated, “we
gotta get [the victim]”).
B. COUNT 2 - FELONY MURDER
The defendant also claims that his first degree murder conviction cannot
stand because there is insufficient evidence to establish either (1) that the defendant
recklessly killed the victim during the perpetration of a burglary or (2) that Williams
recklessly killed the victim during the perpetration of a burglary and that the defendant
is criminally responsible for Williams’ conduct. See T.C.A. § 39-13-202(a)(2) (1991),
T.C.A. § 39-11-402(2). Specifically, the defendant argues that he cannot be held
responsible for the conduct of Williams because there is no evidence that he knew of
Williams’ intentions to kill the victim, only discovering that the victim had been killed
after getting in the car to leave. The state does not argue that there is sufficient
evidence to demonstrate that the defendant recklessly killed the victim himself but
contends that the evidence is sufficient to show that the defendant is criminally
responsible for the reckless killing committed by Williams during the perpetration of a
burglary. We agree that the proof is sufficient to establish the defendant’s guilt of
felony murder beyond a reasonable doubt based on his criminal responsibility for the
acts of Williams.
11
At the time of the offense, felony murder was defined as the unlawful,
“reckless killing of another committed in the perpetration of, or attempt to perpetrate any
first degree murder, arson, rape, robbery, burglary, theft, kidnapping or aircraft piracy.”4
T.C.A. §§ 39-13-201(a) and -202(a)(2) (1991). A person “acts recklessly with respect to
circumstances surrounding the conduct or the result of the conduct when the person is
aware of but consciously disregards a substantial and unjustifiable risk that the
circumstances exist or the result will occur.” T.C.A. § 39-11-302(c).
In order to hold the defendant criminally responsible for felony murder
based upon the conduct of Williams, the state had the burden of proving that the
defendant directed or aided Williams in the felony murder while acting with the intent to
promote or assist the commission of the felony murder or to benefit in the proceeds or
results of the felony murder. See T.C.A. § 39-11-402(2). A conviction based on
criminal responsibility for another person’s conduct requires that a defendant “‘in some
way associate himself with the venture, act with knowledge that an offense is to be
committed, and share in the criminal intent of the principal in the first degree.’” State v.
Maxey, 898 S.W.2d at 757. “The defendant must ‘knowingly, voluntarily and with
common intent unite with the principal offender[] in the commission of the crime.’” Id.In this case, the requirement that the defendant share in the criminal intent of the
principal mandated that the state prove that the defendant shared, at least, the reckless
mens rea required for a felony murder conviction against Williams. See T.C.A. § 39-11-
402(2); State v. Maxey, 898 S.W.2d at 757. The defendant’s presence, companionship
and conduct before and after the offense are circumstances from which criminal intent
may be inferred. State v. McBee, 644 S.W.2d at 428-29.
4
Pursuant to an amendment, the reckless mens rea element for felony murder was
deleted, stating that “[n]o culpable mental state is required for conviction under [the felony murder]
subdivision . . . except the intent to commit the enumerated offenses or acts . . . .” T.C.A. § 39-13-202
(Supp . 1995).
12
Initially, we note that a conviction for felony murder based upon a
defendant’s criminal responsibility requires that the defendant act with intent to promote
or assist the felony murder, a crime involving reckless conduct. We acknowledge that
the Tennessee Supreme Court recently held in State v. Kimbrough, 924 S.W.2d 888(Tenn. 1996), that the crime of attempted felony murder does not exist as a crime in
Tennessee. The court stated that an attempt to commit a crime necessarily involves an
intended act or result. 924 S.W.2d at 890. It also noted that felony murder, at the time
of the offense, required that the killing be committed recklessly. It then reasoned that “it
is logically and legally impossible to attempt to perpetrate an unintentional killing,”
stating, as well, “that one cannot intend to accomplish the unintended.” Id. at 892. By
this path, the court concluded that “the offense of attempted felony-murder does not
exist in Tennessee.” Id.However, our criminal code expressly provides that the culpable mental
state reflected by an “intentional” act legally suffices to establish the culpable mental
states of criminal negligence and recklessness, as well. That is, T.C.A. § 39-11-
301(a)(2) states:
When the law provides that criminal negligence suffices to
establish an element of an offense, that element is also
established if a person acts intentionally, knowingly, recklessly.
When recklessness suffices to establish an element, that
element is also established if a person acts intentionally or
knowingly. When acting knowingly suffices to establish an
element, that element is also established if a person acts
intentionally.
As the Sentencing Commission Comments explain, the lesser levels of culpability are
included by law in the greater so that “a person who acts ‘intentionally’ also acts
knowingly, recklessly and with criminal negligence.” See T.C.A. § 39-11-301. Thus,
although a felony murder required only a reckless killing, a conviction may be obtained
even though the proof showed that the killing was intended.
13
Furthermore, Kimbrough does not deal with the issue of criminal
responsibility for the crime of felony murder, while this court has previously concluded
that “one can be guilty of felony murder based on that person’s criminal responsibility
for the conduct of another.” State v. Lewis, 919 S.W.2d 62, 67 (Tenn. Crim. App.
1995); see also State v. Maxey, 898 S.W.2d at 758 (approving the application of
criminal responsibility for a codefendant’s rape of a child although the offense required
only a reckless mens rea). For these reasons, we also conclude that a felony murder
conviction can be based on criminal responsibility for the acts of another.
In fact, the evidence of the premeditated and deliberate killing which we
previously discussed sufficiently proves a felony murder when considered with the
commission of the burglary. Aside from an intentional killing, though, the evidence
certainly reflects a reckless killing and sufficient awareness and assistance by the
defendant that would prove his responsibility for Williams’ conduct.
The record shows that the defendant drove Williams to the victim’s house,
planning to rob the victim of his money or guns. Also, the jury reasonably could have
concluded that the defendant knew that W illiams armed himself with the defendant’s
knife before they left the car because he had to reach across the driver’s side to get the
defendant’s knife. See State v. Timothy D. Harris, No. 02C01-9211-CR-00258, Shelby
County, slip. op. at 11-12 (Tenn. Crim. App. Apr. 13, 1994) (the defendant’s awareness
that codefendants were carrying guns during a robbery was a factor in determining that
the element of recklessness had been satisfied for a felony murder conviction), rev’d.
on other grounds, 919 S.W.2d 323, 327, 330 (Tenn. 1996).
Knowing that the victim was inside, both the defendant and Williams
entered the home to carry out their plan. The record reflects that when confronted by
the victim, the defendant entered a separate room to look for the money or guns while
14
Williams detained the victim. Williams and the victim struggled, and Williams removed
his knife and stabbed the victim. The record shows that the defendant then walked into
the bedroom to tell Williams it was time to leave. Rather than helping the victim once
he heard the victim moaning and saw blood in the bedroom, the defendant told
Williams that it was time for them to leave, ran to the car, and then drove Williams away
from the scene. The defendant took the victim’s money with him as he ran out of the
house. Once the defendant reached a safe place, they disposed of the knife and the
flashlight after wiping each of them clean. Through their joint statement, the defendant
and Williams admitted their guilt to the crime of burglary, and Williams confessed to
killing the victim. From these facts, the jury could have found beyond a reasonable
doubt that the defendant was criminally responsible for the crime of felony murder as
committed by Williams.
II. ELECTION OF OFFENSES
The defendant next complains that the trial court erred by denying his
motion to require the state to elect to prosecute on either the premeditated and
deliberate murder count or the felony murder count of the indictment. He makes
several arguments regarding the necessity for election. First, he asserts that charging
the jury on both counts of first degree murder violated the rule against multiplicity. He
contends that the two counts were opposite in theory and in elements and claims that
he was unfairly prejudiced because he was forced to defend against two contradictory
theories of first degree murder. Also, the defendant claims that it is impossible to have
the elements of both first degree premeditated and deliberate murder and felony
murder when a single killing occurs. In addition, the defendant argues that election was
necessary because the trial court instructed the jury that it could “convict” the defendant
on each count and the jury in fact “convicted” the defendant of both forms of first
degree murder. In support of his argument, he relies upon the following instruction
given by the trial court:
15
The crime charged in each count of each indictment is
a separate and distinct offense. You must decide each charge
separately on the evidence and the law applicable to it. The
defendant may be found guilty or not guilty of any or all of the
offenses charged. Your finding as to the crime charged in
each count must be stated in your verdict. In effect you will
return a separate verdict in each count of [the two indictments5]
....
In response, the state asserts that it was proper to include both theories in the
indictment and to present to the jury both counts of first degree murder because the
evidence supported a conviction for each. We agree that election was not required in
this case.
Multiplicity is the term applied to the improper charging of the same
offense in more than one count of an indictment. The evils that it presents are two-fold.
First, as to the trial itself, multiplicity may carry the potential of unfair prejudice, such as
suggesting to the jury that a defendant is a multiple offender or falsely bolstering the
state’s proof on such issues as the defendant’s motive or knowledge of wrongdoing.
See State v. Desirey, 909 S.W.2d 20, 27 (Tenn. Crim. App. 1995) (citations omitted).
Second, it can lead to multiple convictions and punishment for only one offense. Id.That is, an indictment violating the rule against multiplicity may lead to a violation of the
Double Jeopardy Clause if it results in the imposition of cumulative punishments for
only one offense. Id.Our supreme court has held that the state is “not required to elect upon
separate charges in the same indictment, although the defendant may demand election
between factual occurrences.” State v. Henley, 774 S.W.2d 908, 916 (Tenn. 1989).
Specifically, the court concluded that the state is not required to elect between first
degree premeditated and deliberate murder and felony murder charged in separate
counts of the indictment for a single offense. Id. Also, the practice of submitting both
5
The offenses of aggravated burglary and theft under $500.00 were the subject of an
indictment separate from the indictment for first degree murder. The trial court consolidated the cases for
trial.
16
theories of first degree murder to the jury has been accepted. See State v. Hurley, 876
S.W.2d 57, 69-70 (Tenn. 1993); State v. Zirkle, 910 S.W.2d 874, 889 (Tenn. Crim. App.
1995); Welch v. State, 836 S.W.2d 586, 589 (Tenn. Crim. App. 1992).
Similarly, election was not required in this case. There was no danger
that the state’s proof would be bolstered or that the jury would infer that the defendant
was a multiple offender from the charging of alternative theories of first degree murder
in separate counts. The jury was instructed that the defendant was charged with the
crime of first degree murder, and the proof established that only one killing took place.
Pursuant to T.C.A. § 39-13-202 (1991), alternative means by which the offense of first
degree murder can be committed are provided. Premeditated and deliberate murder
and felony murder are both first degree murder. State v. Hurley, 876 S.W.2d at 59-60.
The trial court made clear that the defendant could be found guilty of first degree
murder based on either theory of first degree murder by instructing the jury on the
elements of each count.
Although the defendant argues that permitting a trial for alternative murder
charges for a single killing permits the jury to convict on one count and then use that
conviction to take for granted that the defendant was guilty of the other count, the
record does not support his claim. First, the trial court instructed the jury that the state
had the burden of proving beyond a reasonable doubt the defendant’s guilt for the
alternative counts of first degree murder. Also, the jury was told that it must decide
each charge separately and that a separate verdict must be returned for each count.
The jury did not return a general verdict of guilt for the crime of first degree murder, but
instead specifically found the defendant guilty of both premeditated and deliberate
murder and felony murder. By returning separate verdicts of guilt, we may presume
that the jury found that the elements for each charged offense had been proven beyond
17
a reasonable doubt. Under these circumstances, we hold that the jury would not have
been confused regarding the number of offenses committed by the defendant.
Also, the charging of alternative theories of first degree murder did not
lead to multiple punishment for the same offense. The jury returned guilty verdicts for
both counts, and the trial court entered a single judgment of conviction for first degree
murder, imposing a single sentence of life imprisonment. In a single trial, returning
multiple verdicts for a single offense does not implicate double jeopardy concerns
unless the trial court enters more than one judgment of conviction imposing more than
one punishment for the same offense. See State v. Hurley, 876 S.W.2d at 69-70. The
trial court did not impose multiple punishments in this case, and therefore, the rule
against multiplicity was not violated. Under these circumstances, election was not
required.
III. JURY INSTRUCTIONS FOR FELONY MURDER
The defendant also argues that the trial court erred in its jury instructions
regarding the crime of felony murder in several respects. He claims that the trial court
incorrectly instructed the jury (1) by substituting the word “burglary,” the underlying
felony offense, for the word “offense” in its instruction for criminal responsibility for the
crime of felony murder, (2) by failing to define the mental states “knowingly” and
“intentionally,” and (3) by declining to follow the statutory definition of the term
“recklessly.” The state asserts that the trial court gave a correct statement of the law in
its instruction relating to criminal responsibility for felony murder because the term
“offense” in the criminal responsibility provisions refers to the underlying felony and not
the reckless killing. The state further argues that because the defendant did not make
a special request regarding the jury instructions given for the elements of felony murder,
the claims relating to the definitions of the requisite mental states have been waived.
See Teague v. State, 772 S.W.2d 915, 926 (Tenn. Crim. App. 1988) (stating that the
18
failure to object contemporaneously to the state’s closing argument results in waiver of
the issue pursuant to T.R.A.P. 36(a)). We hold that reversible error did not occur.
The trial court has a duty to charge the jury on all of the law that applies to
the facts of the case. State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). The jury
instructions should describe and define all of the elements of each offense unless the
terms are of common use and understanding. State v. Cravens, 764 S.W.2d 754, 756
(Tenn. 1989). Anything short of a complete charge denies a defendant his
constitutional right to a jury trial. State v. McAfee, 737 S.W.2d 304, 308 (Tenn. Crim.
App. 1987).
A. CRIMINAL RESPONSIBILITY FOR FELONY MURDER
The defendant contends that the trial court improperly instructed the jury
regarding criminal responsibility for felony murder. See T.C.A. § 39-11-402(2). The
trial court gave the following instruction:
I instruct you that the defendant is criminally responsible
for the first degree murder charged in this count committed
beyond a reasonable doubt by another person if acting with
intent to promote or assist the commission of the burglary or to
benefit in the proceeds or results of a burglary; the person
solicits, directs, aids or attempts to aid another person to
commit a burglary.
(Emphasis added). Defense counsel objected to the instruction at trial and requested
that the term “first degree murder” be inserted in the place of the underlined portions.
On appeal, the defendant claims that the substitution of the word burglary
instead of first degree murder required the jury to find the defendant guilty of felony
murder upon a determination that the defendant was guilty of burglary. The state
disagrees and asserts that because the essential question in a felony murder situation
is the extent of the defendant’s involvement in the underlying felony, the words “the
offense” refer to the underlying felony, in this case burglary, and not to first degree
19
murder as argued by the defendant. We disagree. The perpetration of or attempt to
perpetrate the underlying felony is merely one element of the offense of felony murder.
See T.C.A. § 39-13-202(a)(2) (1991). A felony murder conviction also requires that the
state prove beyond a reasonable doubt that a reckless killing of another was committed
in the perpetration or the attempted perpetration of an enumerated felony. Id.
In essence, the state submits that proof of the underlying felony always
supplies the reckless mens rea required for a conviction of felony murder under T.C.A.
§ 39-13-202(a)(2) (1991). We disagree. The circumstances of the underlying offense
may, but do not necessarily, provide a basis for inferring the recklessness required for a
conviction of felony murder based on criminal responsibility for the acts of another. See
State v. Middlebrooks, 840 S.W.2d 317, 345 (Tenn. 1992). In fact, our court has
concluded that T.C.A. § 39-13-202(a)(2) (1991) does not provide a presumption of
recklessness from the fact that the defendant was engaged in the commission of an
enumerated offense when the killing occurred. State v. Gilliam, 901 S.W.2d 385, 390
(Tenn. Crim. App. 1995).
Before the 1989 Sentencing Act, felony murder lacked any mens rea
requirement, establishing strict liability for the crime of first degree murder when a
murder was committed during the perpetration of or an attempt to perpetrate an
enumerated offense. See T.C.A. § 39-2-202(a)(1) (Supp. 1988); State v. Middlebrooks,
840 S.W.2d at 336. The legislature added the requirement that the killing be reckless
when it enacted the 1989 Sentencing Act. See T.C.A. § 39-2-202(a)(2) (1991). By
adding the requirement, the legislature intended to eliminate the possibility of a
conviction based on strict liability. State v. Middlebrooks, 840 S.W.2d at 337.
Therefore, the 1989 Sentencing Act required that the state not only prove beyond a
reasonable doubt that a killing occurred during the perpetration or the attempted
20
perpetration of an enumerated offense, but that it also show that the killing was
reckless. See T.C.A. § 39-13-202(a)(2) (1991).
By instructing the jury that the defendant is criminally responsible for the
crime of first degree murder if he aided another person in committing a burglary while
acting with the intent to promote or assist the burglary or to benefit in the proceeds of
the burglary, the trial court permitted the jury to find the defendant guilty of first degree
murder based on a determination that the defendant was criminally responsible for the
burglary committed by Williams. However, as mentioned, the 1989 Sentencing Act
does not provide for strict liability for the crime of felony murder based on a showing
that a killing occurred during the commission of an enumerated felony. Rather, the
felony murder statute in effect at the time of the offense required that the killing
committed in the perpetration or attempted perpetration of an enumerated felony be
reckless. Thus, the term “offense” contained in the criminal responsibility statute refers
to the crime of felony murder itself and not to the underlying offense. Under these
circumstances, we hold that the trial court erred in its instruction.
However, a determination of guilt for felony murder is not necessary to
affirm the defendant’s first degree murder conviction because there is sufficient
evidence to support the defendant’s conviction of first degree premeditated and
deliberate murder. Therefore, we hold the error is harmless beyond a reasonable
doubt. See T.R.A.P. 36(b); Tenn. R. Crim. P. 52(a); State v. Carpenter, 773 S.W.2d 1,
7-8 (Tenn. Crim. App. 1989).
B. DEFINITIONS OF INTENTIONALLY AND KNOWINGLY
Next, the defendant contends that the trial court erred by neglecting to
define the terms intentionally and knowingly within its jury instruction regarding the
offense of felony murder. The state maintains that the defendant has waived the claim
21
by failing to object to the instruction at trial. We hold that the trial court correctly
instructed the jury.
Although the defendant did not submit a requested instruction or object to
the ones given at trial, he raised the issue in his motion for new trial. Pursuant to Rule
30(b), Tenn. R. Crim. P., the failure to object to the content of an instruction given or to
the denial of a requested instruction at trial does not bar raising the failure as error in
support of a motion for new trial.
In its felony murder instruction, the trial court informed the jury that the
requirement of recklessness is also established by a showing that the defendant acted
knowingly or intentionally. See T.C.A. § 39-11-301(a)(2). Although the trial court
provided a definition for recklessness, it did not define knowingly or intentionally within
the felony murder instruction. However, knowingly and intentionally are not elements of
felony murder. See T.C.A. § 39-13-202(a)(2) (1991). Moreover, our court has
concluded that the terms knowingly and intentionally are commonly used terms for
which an instruction defining the terms need not be given. State v. Raines, 882 S.W.2d
376, 383 (Tenn. Crim. App. 1994) (“knowingly”); State v. Burnette Mize, No. 03C01-
9405-CR-00163, Claiborne County, slip op. at 9-10 (Tenn. Crim. App. Sept. 22, 1995)
(“intentionally”); State v. Roger Gregory, No. 01C01-9003-CR-00066, Sumner County,
slip op. at 7 (Tenn. Crim. App. Dec. 12, 1990). In addition, the trial court correctly
defined intentionally within its first degree premeditated and deliberate murder
instruction and knowingly within its second degree murder instruction. The mere fact
that the trial court could have given a more detailed instruction does not make the
instructions given improper. We hold that the instruction given by the trial court
adequately stated the law applicable to the mens rea required for a conviction of felony
murder.
22
C. DEFINITION OF RECKLESSLY
The defendant also claims that the trial court erroneously defined the term
“recklessly” in its felony murder instruction. Regarding the reckless mental state
required for a conviction of felony murder, the trial court instructed the jury according to
an alternative pattern jury instruction:
[a] person acts “recklessly” if that person is aware of and
consciously disregards a substantial and unjustifiable risk
either (1) that a particular result will occur; or (2) that a
particular circumstance exists.
The risk must be of such nature and degree that disregarding
it constitutes a gross deviation from the standard of care that
a reasonable person would observe in the situation.
See T.P.I. - Crim. 2.10 (4th ed.). The statute defining the term “reckless” provides:
“Reckless” refers to a person who acts recklessly with respect
to circumstances surrounding the conduct or the result of the
conduct when the person is aware of but consciously
disregards a substantial and unjustifiable risk that the
circumstances exist or the result will occur. The risk must be
of such a nature and degree that its disregard constitutes a
gross deviation from the standard of care that an ordinary
person would exercise under all the circumstances as viewed
from the accused person’s standpoint.
T.C.A. § 39-11-302(c) (emphasis added). The defendant claims that the above
emphasized portions of the statute were either changed or deleted altogether,
completely changing the meaning of the statutory language.
The state asserts that the defendant also waived this issue by failing to
object contemporaneously to the instruction given by the trial court. Pursuant to Rule
30 (b), Tenn. R. Crim. P., a defendant is permitted to challenge the content of an
instruction or the denial of a requested instruction as error in support of a motion for
new trial despite the failure to object at trial. This rule has been interpreted by our
supreme court as allowing claims of the denial of a requested instruction or of a positive
error in the jury instructions but not of errors of omissions when no objection or special
request was made at trial. See State v. Lynn, 924 S.W.2d 892, 898-99 (Tenn. 1996).
However, alleged omissions in the charge must be raised at trial, or the issue is waived.
23
Id. In addition, the fact that the instructions could have been more detailed does not
render the instructions as given to be improper, and absent a special request for an
additional charge, a trial court will not be held in error. State v. Haynes, 720 S.W.2d 76,
85 (Tenn. Crim. App. 1986).
At trial, the defendant neither objected to the jury instruction defining
“recklessly” nor made a special request that the trial court define the term as provided
by T.C.A. 39-11-302(c). Rather, he asserted generally in his motion for new trial that
the trial court incorrectly defined the elements of felony murder.
We disagree with the defendant’s claim that the definition of “recklessly”
given by the trial court and provided by T.P.I.-Crim. 2.10 (4th ed.) is an incorrect
statement of the law. Our court has previously held that the language of the alternative
pattern jury instruction is adequate for the definition of “recklessly.” See State v.
Parker, 887 S.W.2d 825, 828 (Tenn. Crim. App. 1994). We recognize that our court
previously interpreted T.C.A. § 39-11-302(c) as requiring that the jury “view the situation
through the eyes of the suspect” when deciding whether he or she could have
perceived and then chosen to ignore a “substantial and unjustifiable risk.” See State v.
Slater, 841 S.W.2d 841, 842-43 (Tenn. Crim. App. 1992). However, we also note that
Tennessee law does not mandate any particular jury instructions be given so long as
the trial court gives a complete charge on the applicable law. State v. West, 844
S.W.2d at 151.
We believe that the pattern jury instruction for the definition of “recklessly”
given by the trial court adequately defined the term because “in the situation” implies
that the jury must look at the facts as viewed from the defendant’s standpoint. Also, the
terms “reasonable person” and “would observe” as used by the trial court in its
instruction have essentially the same meaning as the terms “ordinary person” and
24
“would exercise” as provided in the statutory definition. The fact that the jury instruction
could have been more detailed does not render the instruction given to be improper,
and absent a special request, a trial court will not be held in error for not augmenting
otherwise adequate instructions. See State v. Haynes, 720 S.W.2d at 85 (“Mere
meagerness of the charge is not reversible error, in the absence of a special request for
an additional charge.”). Thus, we conclude that the instruction sufficiently informed the
jury of the definition of “recklessly” as it related to felony murder.
IV. OTHER JURY INSTRUCTIONS
The defendant’s last argument is that the trial court erred in instructing the
jury (1) by denying the defendant’s special request relating to the burden of proof for
culpable mental state and the requirement of culpable mental state and (2) by
incorrectly instructing the jury regarding lesser included and lesser grade offenses. The
state asserts that the trial court correctly instructed the jury.
A. BURDEN OF PROOF
The defendant asserts that the trial court should have granted his request
to instruct the jury regarding the burden of proof for and the requirement of a culpable
mental state. The defendant requested that the following instructions be charged:
Burden of Proof of Culpability. -- A Defendant in this
case may not be convicted of an offense unless the culpable
mental state of the Defendant is proven.
This means that a person commits an offense who acts
intentionally, knowingly, recklessly, or with criminal negligence.
Requirement of Culpable Mental State. -- When the law
provides that criminal negligence suffices to establish an
element of an offense, that element is also established if a
person acts intentionally, knowingly or recklessly. When
recklessness suffices to establish an element, that element is
also established if a person acts intentionally or knowingly.
When acting knowingly suffices to establish an element, that
element is also established if a person acts intentionally.
25
If the definition of an offense within this title does not
plainly dispense with a mental element, intent, knowledge or
recklessness suffices to establish the culpable mental state.
The trial court denied the defendant’s request, stating that the charge
adequately covered the areas. The record reflects that the trial court instructed the jury
that the state had the burden of proving all of the elements of the crime charged
beyond a reasonable doubt. Although contained within the individual instructions for
each offense, the charge provided the culpable mental states required for each offense.
Moreover, the trial court instructed the jury in its felony murder instruction that “[t]he
requirement of ‘reckless’ is also established if it is shown that the defendant acted
knowingly or intentionally.” The trial court’s second degree murder instruction similarly
detailed the mental elements.
The state’s contention is that the trial court correctly determined that the
requested instruction was adequately covered in other areas of the charge. We agree.
In criminal cases, the trial court has a duty to charge the jury on all of the law that
applies to the facts of the case. State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992).
Anything short of a complete charge denies a defendant his constitutional right to trial
by a jury. State v. McAfee, 737 S.W.2d at 308. In our opinion, the instructions given by
the trial court adequately covered the issue of culpable mental state. The state also
argues that the last sentence of the defendant’s special request was not even
applicable to the facts of the case, and thus, the trial court did not err in its instruction.
Once again, we agree. For these reasons, we conclude that the trial court correctly
instructed the jury regarding the state’s burden of proof and the requirement of a
culpable mental state.
B. LESSER OFFENSES
26
Next, the defendant asserts that the trial court erroneously charged the
jury regarding lesser included offenses for the crime of first degree murder. The
defendant’s argument is two-fold: (1) the trial court erred by omitting any references to
criminal responsibility in its instructions relating to the lesser included offense of second
degree murder and the lesser grade offense of voluntary manslaughter charged by the
trial court, and (2) the trial court erred by refusing to charge the lesser included offense
of criminally negligent homicide. The state contends that the trial court properly
instructed the jury. We hold that the trial court did not commit reversible error.
The defendant has a constitutional right to complete and accurate
instructions of the law. State v. McAfee, 737 S.W.2d at 308. Therefore, the trial court
has a duty to give a complete charge of the law applicable to the facts of a case. State
v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986). The failure to do so deprives the
accused of the right to a jury trial. State v. McAfee, 737 S.W.2d at 308.
1. CRIMINAL RESPONSIBILITY FOR LESSER OFFENSES
First, the defendant argues that the trial court erred in its instructions
relating to the lesser included offense of second degree murder and the lesser grade of
voluntary manslaughter. The defendant contends that the failure to charge criminal
responsibility in relation to the lesser offenses deprived him of the right to have the jury
consider the lesser included offenses. The state submits that the defendant has
waived the issue by failing to make a special request and by failing to include the issue
in his motion for new trial. We disagree. In his motion for new trial, the defendant
specifically included the issue as grounds for relief.6 Pursuant to Rule 30(b), Tenn. R.
Crim. P., a defendant may challenge an instruction given or the denial of a requested
6
The d efenda nt asse rted in his m otion for ne w trial that the trial co urt “erred in failing to
charge the jury on criminal responsibility as to the lesser included offenses of second degree murder and
voluntary manslaughter which effectively deprived the jury of considering whether . . . Williams committed
second degree murder or voluntary manslaughter and the Defendant being criminally responsible for the
either of the se two les ser includ ed offen ses.”
27
instruction in his motion for a new trial although neither an objection nor a special
request was made at trial.
The record reflects that the defendant filed a motion requesting that the
trial court instruct the jury on the lesser included and lesser grade offenses of second
degree murder, voluntary manslaughter and involuntary manslaughter7. The jury
instructions given for the lesser offenses do not specifically address criminal
responsibility. Also, the instructions do not contain a criminal responsibility provision
generally applicable to all of the offenses charged. Rather, the criminal responsibility
provisions given by the trial court were incorporated in the instructions for the first
degree murder counts.
The record is not clear whether the defendant requested additional
instructions regarding criminal responsibility for the lesser offenses. An off-the-record
conference concerning jury charges was held in chambers at the close of trial. Later,
the defendant objected on the record and out of the presence of the jury to the
instruction given by the trial court in counts one and two as to criminal responsibility for
the conduct of another. A day later, the defendant filed a motion for mistrial. In his
motion, the defendant asserted that a mistrial was necessary because the trial court
failed to charge criminal responsibility for another’s conduct relating to the lesser
offenses of second degree murder and voluntary manslaughter. He claimed that during
the jury instruction conference, he requested that the trial court not change its proposed
instruction8 because tailoring the criminal responsibility provision did not allow it to apply
to all other criminal offenses. The defendant argued that tailoring the criminal
responsibility provision restricted the jury’s consideration of the lesser offenses, thus
7
The 1989 Sentencing Act replaced involuntary manslaughter with the offense of
crimina lly negligent hom icide. See T.C .A. § 3 9-13 -212 , Sen tenc ing C om mis sion Com me nts. In his
motion for new trial, the defendant argues that the error in failing to instruct the lesser included offense
related to criminally negligent homicide and not involuntary manslaughter.
8
The record does not reflect what the trial court originally proposed as its instruction
rega rding crim inal re spo nsib ility.
28
depriving him of the jury’s consideration of whether Williams committed the lesser
offenses for which the defendant should be held criminally responsible.
Under these circumstances, we agree that it would have been preferable
for the trial court to relate more clearly the criminal responsibility instructions to all of the
offenses. However, although the instructions could have been more detailed, we
believe that the jury was adequately instructed regarding criminal responsibility in the
jury instruction relating to first degree murder. We note that the United States Supreme
Court has made the following observation regarding the evaluation of claims of
erroneous jury instructions:
Jurors do not sit in solitary isolation booths parsing instructions
for subtle shades of meaning in the same way lawyers might.
Differences among them in interpretation of instructions may
be thrashed out in the deliberative process, with
commonsense understanding of the instructions in the light of
all that has taken place at the trial likely to prevail over
technical hairsplitting.
Boyde v. California, 494 U.S. 370, 380-81, 110 S. Ct. 1190, 1198 (1990); State v. Henry
Eugene Hodges, No. 01S01-9505-CR-00080, Davidson County, slip op. at 12 (Tenn.
Apr. 28, 1997) (for publication); see also State v. Van Tran, 864 S.W.2d 465, 479
(Tenn. 1993). Although a technical argument can be made that the jury was not
advised to consider criminal responsibility of the defendant with respect to the lesser
offenses of second degree murder and voluntary manslaughter, such an interpretation
of the jury’s process in analyzing the charge would not take into account the jury’s
commonsense understanding of the instructions given under the facts showing that the
defendant was not the actual killer. Under these circumstances, we hold that the lesser
included and lesser grade offense instructions given by the trial court were not
erroneous.
29
2. CRIMINALLY NEGLIGENT HOMICIDE
Next, the defendant contends that the trial court should have instructed
the jury regarding criminally negligent homicide because the proof at trial supported
such an instruction. The state argues that the record does not permit an inference of
guilt for criminally negligent homicide, a lesser included and lesser grade offense of first
degree murder, but instead clearly shows that the defendant is guilty of the greater
offense of first degree murder. W e hold that the trial court did not commit reversible
error by failing to provide a criminally negligent homicide instruction.
Under T.C.A. § 39-13-212, “[c]riminally negligent conduct which results in
death constitutes criminally negligent homicide.” The definition of criminally negligent
conduct is contained in T.C.A. § 39-11-302(d):
“Criminal negligence” refers to a person who acts with criminal
negligence with respect to the circumstances surrounding that
person’s conduct or the result of that conduct when the person
ought to be aware of a substantial and unjustifiable risk that
the circumstances exist or the result will occur. The risk must
be of such a nature and degree that the failure to perceive it
constitutes a gross deviation from the standard of care that an
ordinary person would exercise under all the circumstances as
viewed from the accused person’s standpoint.
Pursuant to T.C.A. § 40-18-110(a), a trial court is required “to charge the
jury as to all of the law of each offense included in the indictment, without any request
on the part of the defendant to do so.” When the evidence, introduced by either the
state or the defendant, is susceptible of inferring guilt of either a lesser grade or class of
the charged offense or a lesser included offense, there is a mandatory duty upon the
trial court to charge such lesser offense. See T.C.A. § 40-18-110(a); State v. Trusty,
919 S.W.2d 305, 310 (Tenn. 1996); Johnson v. State, 531 S.W.2d 558, 559 (Tenn.
1975); State v. Howard, 926 S.W.2d 579, 585-86 (Tenn. Crim. App. 1996). However,
the instruction is not required if there is no proof in the record to support a conviction for
the lesser offense. State v. Trusty, 919 S.W.2d at 311.
30
Our supreme court recently held that defendants are entitled to jury
instructions on all lesser included offenses and on all lesser grades or classes of the
offense charged if the evidence would support a conviction for the offense. State v.
Trusty, 919 S.W.2d at 311. The instructions must be given to allow the jury “to consider
all relevant offenses in determining the appropriate offense, if any, for conviction.” Id.In its explanation of the entitlement to a jury instruction on lesser included and lesser
grade offenses, the court described the difference between an offense of a “lesser
grade or class” and one that is “lesser included.” See State v. Trusty, 919 S.W.2d at
310-11. The statutory scheme determines whether an offense is a lesser grade or
class. Id. at 311 (explaining that voluntary manslaughter is a lesser grade but not a
lesser included offense of first degree murder). For instruction purposes, an offense is
a lesser included offense “if the elements of the included offense are a subset of the
elements of the charged offense and only if the greater offense cannot be committed
without also committing the lesser offense.” Id. at 310 (reaffirming the test set forth in
Howard v. State, 578 S.W.2d 83, 85 (Tenn. 1979) for determining whether an offense is
a lesser included offense). Relative to the facts of this case, criminally negligent
homicide is a lesser grade or class and a lesser included offense of first degree murder.
See State v. Trusty, 919 S.W.2d at 311; State v. Lynn, 924 S.W.2d at 899.
In Strader v. State, 210 Tenn. 669, 362 S.W.2d 224, 228-29 (1962), our
supreme court explained how the trial court should determine the need for a lesser
included offense instruction. It stated that “where the evidence, upon any view the jury
may take of it, permits an inference of guilt as to such lesser included offenses, it is the
mandatory duty of the Trial Judge to charge all the law as to each of the offenses, and
a failure to do so requires a reversal and a new trial.” Id.; see also State v. Boyce, 920
S.W.2d 224, 226 (Tenn. Crim. App. 1995). Thus, in effect, the trial court must consider
the evidence in the light most favorable to the existence of the lesser included offense
and if the evidence so considered permits an inference of guilt of the lesser included
31
offense, the trial court must give instructions as to that lesser offense. Otherwise, the
trial court’s consideration of the evidence runs the risk of invading the province of the
jury relative to witness credibility, the weight and sufficiency of the evidence and the
degree of the offense, if any, to be sustained.
The evidence viewed in the light most favorable to the existence of the
lesser included offense reflects that before the defendant and W illiams left the car,
Williams reached across the driver’s side to get the defendant’s knife and placed it in
his pocket. The defendant and Williams then entered the victim’s house. Both the
defendant and Williams told the officers that they intended to scare the victim but not to
harm him. The evidence shows that Williams removed the knife from his pocket after
the victim grabbed his hair and leg. The proof was that Williams then stabbed the
victim because he would not let him go and because “he had no choice.”
This evidence supports a criminally negligent homicide instruction based
upon the defendant’s criminal responsibility for the conduct of Williams. It would permit
an inference that Williams acted with criminal negligence by taking a knife with him to
burglarize the victim’s home. Both the defendant and Williams knew that the victim was
inside when they entered the victim’s home. Although Williams stated that he planned
to steal the victim’s money or guns and only wanted to scare the victim, he ought to
have been aware of a substantial and unjustifiable risk that he would be confronted by
the victim and be in a situation where the knife might be used against the victim,
causing the victim’s death. Moreover, as mentioned earlier, the evidence permits an
inference that the defendant is criminally responsible for the conduct of Williams. In
addition to providing the transportation and the weapon used in the killing, the
defendant was aware that the victim was inside when he and Williams entered the
victim’s home to rob the victim.
32
The evidence is also susceptible of inferring the defendant’s guilt for
criminally negligent homicide based on the defendant’s own criminally negligent
conduct. Specifically, the defendant acted with criminal negligence because he knew
that Williams armed himself with his knife before entering the victim’s home. Further,
the defendant and Williams planned to steal either money or guns from the victim.
Therefore, the defendant should have been aware of a substantial and unjustifiable risk
that the circumstances were such that Williams could either use his knife or obtain a
gun and either stab or shoot the victim during the commission of the burglary. Under
these circumstances, the trial court should have instructed the jury regarding the lesser
included offense of criminally negligent homicide.
However, error associated with the trial court’s failure to instruct a lesser
included offense has been held to be harmless when the jury finds the defendant guilty
of the greater offense and rejects other lesser included offenses that are greater
offenses than the one requested and were included in the instructions. See State v.
Atkins, 681 S.W.2d 571, 577 (Tenn. Crim. App. 1984). Here, the jury found the
defendant guilty of both premeditated and deliberate murder and felony murder,
declining to return guilty verdicts for the lesser offenses of second degree murder and
voluntary manslaughter. We hold that the trial court’s denial of the defendant’s request
for a criminally negligent homicide instruction was harmless beyond a reasonable
doubt.
In consideration of the foregoing and the record as a whole, the judgment
of conviction is affirmed.
Joseph M. Tipton, Judge
33
CONCUR:
Gary R. Wade, Judge
Robert E. Burch, Special Judge
34