Calvin Eugene BRYANT v. STATE of Tennessee, 460 S.W.3d 513

Calvin Eugene Bryant Jr. sold Ecstasy in three transactions (Mar. 4, Mar. 21, Apr. 23, 2008) to an informant (Knowles) working with Metro Nashville PD; sales occurred within 1,000 feet of a school.
Jury acquitted on the Mar. 4 count but convicted Bryant of sale within a school zone for the Mar. 21 and Apr. 23 transactions; convictions merged and affirmed on direct appeal.
Trial defense was entrapment; trial counsel did not request a jury instruction on facilitation (a recognized lesser-included offense of sale), and the court did not give it.
On post-conviction review Bryant argued counsel was ineffective for failing to request facilitation; trial counsel testified she did not recall requesting it and may have been inexperienced.
The post-conviction court denied relief; the Court of Criminal Appeals affirmed and held (among other things) that a defendant convicted of a greater offense can never show prejudice from omission of a lesser-included instruction.
The Tennessee Supreme Court (lead opinion) held there was no evidentiary basis for a facilitation instruction here (so counsel’s omission was not deficient) but rejected the categorical rule that failure to request a lesser instruction can never be prejudicial when the defendant was convicted of the greater offense.

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Whether trial counsel was ineffective for failing to request a facilitation instruction	Bryant: counsel overlooked the instruction (not strategic); omission was deficient because facilitation was a viable lesser-included offense	State: omission was either strategic (to preserve entrapment theory) or not warranted because evidence showed Bryant was the seller, not a facilitator	Held: No deficient performance — evidence did not support facilitation, and counsel’s omission was not shown by clear and convincing evidence to be deficient
2) Whether a defendant convicted of a greater offense can ever show prejudice from omission of a lesser-included instruction	Bryant: omission can be prejudicial if reasonable probability exists that a properly instructed jury would have convicted of the lesser offense	State / CCA: categorical rule — if convicted of the greater offense, prejudice can never be shown	Held: Rejected the categorical rule; failure to request a lesser instruction can be prejudicial in some cases, but on these facts Bryant failed to show a reasonable probability a juror would have convicted of facilitation instead of sale

Strickland v. Washington, 466 U.S. 668 (1984) (two-pronged ineffective-assistance standard: deficient performance and prejudice)
State v. Davis, 266 S.W.3d 896 (Tenn. 2008) (approving sequential / "acquittal-first" jury instructions and discussing structure for lesser-included offenses)
State v. Burns, 6 S.W.3d 453 (Tenn. 1999) (tests and standards for lesser-included-offense instructions)
State v. Ely, 48 S.W.3d 710 (Tenn. 2001) (constitutional right to jury instructions on all offenses supported by the evidence)
Wiley v. State, 183 S.W.3d 317 (Tenn. 2006) (recognizing counsel’s failure to request a warranted lesser-included instruction may constitute deficient performance)
State v. Dellinger, 79 S.W.3d 458 (Tenn. 2002) (lesser-included instruction required only if record contains any evidence reasonable minds could accept for the lesser offense)