State v. Ely

Finally, the claimant must show that he or subjected

she was to an employ- adverse STATE of Tennessee ment action on the protected basis of a v. disability. The claimant can establish cau- sation under either direct evidence meth- Curtis Jason ELY. od or an indirect evidence method. A showing of direct evidence of intentional State Tennessee discrimination entitles the claimant judgment employer unless the shows that impermissible an play motive did not a role Laconia Lamar Bowers. employment decision. If the claim- proffer ant is unable direct evidence of Tennessee, Supreme Court discrimination, the claimant rely can at Knoxville. circumstantial evidence under the indirect 5, June 2001. Burdine

evidence method. adopt We burden-shifting analysis to analyze indirect Order Granting Rehearing evidence cases. July us,

In the case now before Barnes

presented direct evidence of discrimina Goodyear

tion. attempted to establish

that a RIF led to employment decision impermissible that an motive did not

play a employment role decision. therefore,

Goodyear, created a material is

sue of fact as to the element of causation. evidence,

A jury listened to the viewed demeanor,

witness and found that Barnes’

perceived disability was a factor in the

decision lay off Barnes. cannot

supplant jury’s findings and inferences

with those of our own. We hold that the sup

record contains material evidence to

port finding handicap discrimination

under Tenn.Code Ann. 50-8-103 and the

THRA. Appeals

The decision of the Court of jury’s

reversed. The verdict is reinstated.

The case is for remanded consideration of pretermitted by appellate

the issues appeal

court. Costs of this shall taxed defendant,

against Goodyear Tire and Company, for may

Rubber which execution necessary.

issue if Marshall, Clinton, TN,

J. Thomas for appellant, Ely. Curtis Jason Taiman, Knoxville, TN, William C. for appellant, Laconia Lamar Bowers. General, Moore, the other lesser offenses assuming Michael E. Solicitor included, Ap- Smith, Criminal the Court of W. Associate Solicitor Gen- were Gordon TN, eral, Nashville, no error occurred appellee, peals for the State determined that an evidence did not of Tennessee. because the of the other lesser guilt inference of OPINION ar- appeal, In his direct Bowers offenses. not a murder was gued that second BANKER, J., WILLIAM M. delivered Iesser-included offense court, E. opinion in which charged. and should have been ANDERSON, C.J., RILEY and FRANK court held intermediate DROWOTA, III, A. ADOLPHO F. of murder was Iesser-included HOLDER,

BIRCH, JR., and JANICE M. felony properly it murder and that was JJ., joined. in his instructed case. is a from appeal This consolidated in this review consolidated granted We in the Criminal defendants’ convictions (1) appeal to determine several issues: County of Anderson and Knox Courts any are Iesser-included of- Ely whether there County, was respectively. Defendant (2) murder; felony if are no of fenses to there originally charged pre- with one count offenses, con- whether the felony and count of Iesser-included meditated murder one murder; inval- viction in Bowers’s case is therefore charged defendant Bowers was (3) offenses, id; if there are felony with two counts of murder. In Iesser-included case, to failure instruct such offenses Ely’s prossed the State nolle the whether (4) case; Ely’s was error in and whether premeditated upon murder count con- also any of trial error was harmless. We proof, clusion and the court such clarify opportunity to take in this case to refused instruct Iesser-included of- standard, has felony to murder. the harmless error which fenses He was convict- subject since felony as of and been the of some confusion ed murder sen- Williams, State imprisonment. In our decision tenced life defendant (Tenn.1998). case, 101, con- 104-06 Bowers’s the trial court dismissed S.W.2d charges felony clude that the offenses of second of murder at the conclu- and, homicide, criminally objection, murder, and sion of the his reckless proof over of- negligent homicide are Iesser-included instructed the the lesser offenses therefore, murder, felony and of of second reckless homi- fenses cide, criminally offenses in Bowers’s negligent homicide. instruction on these case, Ely’s find case not error. we Bowers was convicted evidence exists reasonable some accept Iesser- minds could several appeal Ap- On to the Court of Criminal offenses, therefore, fail- included Ely peals, argued the offenses of sec- ure such offenses error. to instruct ond conclude that such error was Because we criminally negligent facilitation doubt, beyond harmless reasonable accessory after the Ely’s and remand conviction reverse murder all lesser-in- fact were a new his case for trial. murder and cluded offenses majority A should have been instructed. BACKGROUND court held that acces- intermediate to set- granted cases were review

sory after the fact was not a lesser-inelud- These However, first, are whether there felony murder. tle three issues: ed offense of any lesser-included offenses to felony mur County. within Anderson implication der in State v. of this admission was that as a member of adopted under the test Burns, (Tenn.1999); 466-67 Gangstas, the A-town Mafia Carden was second, if certain offenses are deemed less betray honor-bound not to a fellow mem- charge er-included ber. and the evidence at supports trial questioned When defendant was fol- offenses, on such failure to so arrest, lowing his spending he admitted to subject instruct to a harmless error night night with Carden the analysis; third, whether failure to in murder, but he acknowledge any did not struct on lesser-included offenses is an er stated, involvement in the crimes. He ror of constitutional dimension so as to “Me and Trinidy up went to the Bond apply “beyond a reasonable doubt” stan night. house that We knocked on the dard when performing a harmless error door. No one was home. Take me to analysis. A summary of the facts these jail.”

respective cases is put relevant to these in proper issues context. Several witnesses linked the defendant to the murder Wesley of Bond. Powers STATE v. ELY testified that approximately 3:00 a.m. on During early morning hours of De- morning he received a 3, 1996, cember intruders broke into the phone call from the defendant requesting seventy-year-old home of William Bond Powers to take him and Carden to Knox- and repeatedly struck him over the head ville. The defendant told Powers he had brick, with a killing him. The intruders broken into a house and “knocked some- took pieces several of equipment electronic body Although unconscious.” Powers de- home, from Bond’s including two televi- clined to drive the defendant and Carden sions, VCR, compact and a player. disc time, to Knoxville at that he did take them days, Within a few the victim’s former to Martha day Wine’s residence later that step-grandson, Carden,1 Trinidy was where he saw a television and a VCR. linked to the attempted crime when he residence, While at Wine’s the defendant dispose of some of the victim’s property. told Powers that he hit the victim awith When Carden brought question- was in for brick. ing, he confessed to the impli- crimes and Martha Wine testified that the defen- cated the defendant person as the who had dant, “Wes,” up and Carden showed at her actually killed the victim. house at approximately 5:00 a.m. on the trial, At Carden recanted his statement morning TV, of They the murder. had a police. Instead, to the he claimed full VCR, player, a CD they and and asked her responsibility for the crimes and claimed they could store them at her present. the defendant On time, house. At that Carden told her that cross-examination, the State elicited the he and the defendant had beaten the vic- already fact that Carden had permit- been tim following day, with brick. The Car- plead ted to guilty to a charge reduced of den admitted to that “he” killed the Wine Furthermore, second degree murder. victim. Carden admitted that both he and the Johnson, defendant cousin, were affiliated with the “A-town Jason Carden’s testified Gangstas,” Mafia operated “club” that days that three after the murder the de- previously 1. The victim's son was married to Carden’s mother. cocaine, and rocks of crack chased three him that he had hit the had told

fendant they brick, he no a motel room where and that felt then drove to victim with they day, killing. Although two Later that ingested remorse about the the cocaine. pur- as implicated housing project Johnson defense witnesses to the drove back accomplice of the defen- driving instead Carden’s cocaine. While chase more dant, denied involvement area, Johnson Artis recognized Yessler through the the crime. had she person from whom Bonner as the day. earlier purchased the cocaine proof, the State

At the conclusion of over to the vehicle Bonner Yessler called premeditated of prossed charge nolle co- more inquired purchasing about and solely proceeded on the and Whatmough and caine. Yessler While Ely requested of murder. van, Bonner one in the entered waited jury instructions on the lesser offenses A housing complex. in the apartments later, running Bonner came few minutes facilitation criminally negligent jumped and into the accessory apartment out of after the court, Whatmough, tell- finding that The trial no lesser vehicle Yessler fact. with under out of “hurry up get offenses to murder existed ing them to statute, give these Whatmough the current declined the en- started [here].” As drive, found the defen- instructions. The he gine placed vehicle guilty as dant a man fatally shot head appeal, Appeals of Criminal On Court they were through the driver’s window accessory after the fact was not a held traveled to leave. bullet attempting grade lesser-included or lesser head, Yes- through Whatmough’s grazed felony murder. The court further held arm, ultimately Bonner. sler’s and struck that, assuming requested even the other fol- that During police investigation the were offenses either lesser-included lowed, as Bonner identified the defendant felony lesser-grade offenses of no Anoth- person Whatmough. the shot who error occurred because the evidence did Chatham, scene, Regina er at the witness support guilt any an of of of not inference police had seen the defendant told that she these other offenses.2 running gun. the scene with a from

STATE v. BOWERS trial, At identified the defendant Bonner person he in the driver’s as the whom saw 21, April On the afternoon of vic- Whatmough time was shot. window at the girlfriend his Whatmough tim Peter However, of his portion that he recanted Stacy stopped Yessler Knoxville en that the he had claimed statement in which They from route Florida to Ohio. drove actually person housing project, defendant who Taylor pur- P. was the Walter der, Welles, rec- concurring opinion, was Judge stat- but there some evidence in a finding position second murder the defendant ed his ord to felony murder lesser- killing and facilitation of were knowingly participated felony but that included offenses of victim, de- on second and therefore finding supported because evidence appropriate. gree would have been murder offense, greater guilt on the and the record Instead, opted harm- Judge a strict Wade for permitting any an was devoid evidence that, analysis because less and found error offense, guilt on the lesser inference beyond reasonable harmless error was not dissented, Judge Wade was harmless. error doubt, reversible to instruct was the failure finding only second mur- error. felony offense of mur- der a lesser-included fired the shot that killed the victim. Bon- ed cases during that session consisted of ner testified that because he originally Justices, four including Chief Justice case, with Anderson, the murder in Birch, this he Holder, Justice Justice implicated had the defendant get and Justice Barker. argument, After oral jail. Furthermore, himself out of upon witness further consideration of the rec- Regina Chatham previ- case, also recanted her ord in this requested reargument statement, ous claiming that she previ- had before the full panel of this Court at our ously identified the defendant May as the man 2001 session in Knoxville. In addi- she running saw from the scene with a gun tion to previously the issues designated as because she was mad at him. Stacy being Court, Yes- to this concern we directed sler was identify unable to parties the defendant specifically address whether person as the who shot Whatmough. a failure to instruct a jury on a lesser- included subject offense is to harmless er- The defendant was originally charged analysis, so, ror if whether the harm- with two felony counts of murder: one in lessness of such error is determined perpetration of a robbery and one constitutional, statutory, or other perpetration of a theft. At the conclu standard of analysis. harmless error sion of proof, the State’s the defendant moved for a judgment acquittal on both herein, For the given reasons we con- counts of murder on the grounds clude that the offenses of n that no underlying felony proven. had been reckless and criminally issue, The State conceded the and the trial negligent homicide are lesser-included of- court dismissed both fenses of murder. Accordingly, we presented counts. The proof. defense no affirm the judgment of the Court of Crimi- Over objection, the defendant’s the trial nal Appeals in Ely’s Bowers’s case. court then instructed jury case, on second we find that the failure to instruct degree murder, to second murder was criminally negligent homicide as lesser-in error. Applying a constitutional harmless cluded offenses of standard, murder. The error we cannot conclude that jury found guilty the defendant of second this beyond error is harmless a reasonable appeal, murder. On doubt, the Court of and we judgment reverse the of the Appeals Criminal held that second Ely’s intermediate court in Ely’s case. murder awas lesser-included offense un case is remanded to the Criminal Court of (b) der section of the lesser-included of County Anderson for a new trial. adopted by fense test this Court in State v.

Burns, (Tenn.1999). 453 ANALYSIS Court, appeal

On to this both cases case, were in Ely’s State maintains consolidated, and we heard oral argument case, and now concedes in Bowers’s that during September Knoxville our 2000 there are no lesser-included offenses to panel hearing session. The felony the consolidat- points murder.3 It out that the 3. Because the State conceded (Tenn.Ct.App.1996). the issue in being "To avoid dis- Bowers, moot, initially some members of the Court justi- missed as cases or issues must be questioned justiciable whether there was a ciable not a when case is first filed but controversy case or left to decide in that throughout case. ... [also] the entire course of the “A moot litigation, case is one which has lost including appeal." its charac- Despite the Id. concession, present, controversy.” County ter as a live the State's it has not filed a mo- of McWherter, Shelby v. appeal. tion to dismiss the We are mindful taken the Contrary positions cul- to the felony requires of murder no Bowers, argues Ely defendant Ann. State mental See Tenn.Code pable state. that the offenses of second 39-13-202(b) (“No state culpable mental homicide, criminally negligent reckless required for conviction under subdivi- is fact, fa- homicide, accessory after the (a)(2) (a)(3) felony pro- or murder [the sion lesser- felony of murder are all cilitation except intent to the visions] commit of his under facts included offenses or acts in such subdi- enumerated offenses argu- He makes three different case. visions.”). However, each of of- the lesser position that in- support of his ments of second fenses these given on should have been structions criminally homi- negligent First, argues he that the offenses. lesser proof respectively requires cide of either evidence, light most when viewed reckless, knowing, negligent or mental State, finding supports favorable Thus, each lesser state. of the because that he beat the victim death with requires that offenses an element constitutes a know- Such conduct brick. not, can greater does none be a lesser- reckless, least, very or at the criminal- ing, under included offense of murder part. Be- ly negligent mental state his (a) Furthermore, part of the Bums test. finding support would cause the evidence felony mur- the State asserts that because states, of one of these mental the existence state, requires der no mental and because failing trial court to instruct erred proof offenses requires each jury on lesser offenses. these reckless, a knowing, negligent of either or Alternatively, Ely argues that because state, mental not these lesser offenses do culpable required state is no mental (b) requirements part of meet proof any mental prove they not greater, test because evince suffice, intentional, would state lesser, degree culpability than Hence, reckless, knowing, negligent. Finally, argues the State proof in record to adequate there was facilitation of not a less- is mental finding of one these er-included offense because the defendant states, argues he the concomitant responsibili- was not with criminal charged. have lesser offenses should been ty for the another. conduct of argument Ely’s third revolves alternate Bowers, course, agrees Defendant the common law doctrine of trans- around position de- with State’s supplied intent. Under this doc- ferred gree murder of- a lesser-included trine, underlying the intent to commit the Fully adopting fense the mental state re- felony substitutes for concept not that murder does for the commission first quired state, proof culpable require of a mental is, premeditation. that intent additionally argues Bowers that the indict- Therefore, culpability required the mental did charging ment him with murder first felo- prove to place greater him on notice that he is than that ny premeditated, would or knowing killing. required to for either second called on defend a by companion As evidenced its that Bowers still has a conviction for second concession. record, case, Ely, certain of- ripe the issue of whether murder on his one that accept- within a fenses are included for reversal if the State’s concession is subject Finally, very much alive and despite the concession of remains ed. State’s issue, by a decision this Court. this this Court is not bound such to criminally negligent This definition of- lesser-included of- homicide, or Accordingly, facilitation. he expanded fenses Trusty, State v. argues that the latter offenses are included (Tenn.1996), 919 S.W.2d 305 to include (b) within the former under section “grades” lesser or “classes” of A offenses. Bums test. grade lesser or class offense was defined

by whether it was located the same statutory chapter part of the Code as HISTORICAL REVIEW OF LESSER- greater offense. See State v. Cleve- INCLUDED OFFENSES IN land, (Tenn.1997). 548, 959 S.W.2d TENNESSEE expanded definition adopted Trusty Tennessee Code Annotated section 40- was based on perception applica- our 18-110 mandates giving an instruction on tion of the Howard definition was too re- every offense “included” in an indictment. and, strictive under the 1989 Criminal Sen- interpreted We have provision this Act, tencing precluded Reform a defendant “ mean that ‘a trial court must instruct the from obtaining instructions offenses jury on all lesser-included if offenses traditionally were considered lesser- legally evidence introduced at trial is suffi included offenses under the common law. cient to support a conviction for the lesser ” Burns, offense.’ (quot at 464 However, expanded this definition soon ing 126, State v. Langford, 994 S.W.2d 128 proved First, unworkable. the structure (Tenn.1999)). The definition of what con of the 1989 Act any particu was such that stitutes an included offense in Tennessee lar chapter part might contain diverse jurisprudence has evolved over time. offenses that were related in general 1979, adopted this Court a definition that quite sense but distinct in character. described an offense as necessarily includ Many grade offenses within the ed in “if great another the elements of the same class of reasonably crime could not offense, er as those elements are set forth be considered as lesser-included under indictment, include, but are not con common sense definition of the term. See with, gruent all the elements of the lesser.” The,fact Burns, 6 State, (Tenn. Howard v. 578 S.W.2d many criminal offenses were scattered 1979). approach, This coined “the statuto Code, throughout and did not neces ry approach,” elements involved a strict sarily fall neatly into a lesser grade comparison statutory between the ele class, complicated further analysis. ments of the charged in the indict Id. ment statutory with the elements Still, we apply were a strict reluctant lesser offense at issue. ap Under this approach elements it per because proach, an offense was not considered nec ceived that such an approach deprive could essarily included in another unless the ele right a defendant in some cases of the ments of the lesser offense were a subset present a defense. We resolved the dilem the elements of the offense. byma first overruling Trusty, see State v. States, See Schmuck v. United 489 U.S. 705, 716, Dominy, (Tenn.1999), S.W.3d 472 109 S.Ct. 103 L.Ed.2d 734 (1989). words, adopting then a other modified Model Penal the lesser offense Burns, require proof approach, could not Code see any of element that at Bums, was not required greater also for the of 466-67. the in adopted Under test fense. an offense is lesser if: included (c) (a) meant to of the test was statutory in- at 466. Part of its elements are all in a defendant statutory apply to situations which the cluded within elements commit, another to to or solicits charged; attempts or of the offense commit, charged or a the crime either (b) part to the in it fails meet definition offense, proof no exists but lesser-included (a) respect in it con- the that (c) completion of the crime. Part of the statutory ele- tains a element or partici- defendant applies also the when establishing ments prin- than as the pates in lesser role some (1) indicating state a different mental cipal actor. culpability; kind of a lesser and/or (2) serious harm or risk of a less BURNS TO DE- APPLICATION OF person, proper- harm to the same TERMINE LESSER-INCLUDED interest; or ty public or FELONY MUR- OF OFFENSES (c) of it consists DER (1) charged facilitation of the offense applying the Bums test to deter- When an offense that or of otherwise reck- mine whether second of meets the definition lesser-in- negligent criminally homi- less (a) (b); part in cluded offense or cide, felony murder and facilitation of are or of lesser-included offenses (2) attempt to commit an the offense comparison necessarily begin with an charged or offense that other- respective the of the offenses. elements wise meets the definition of lesser- law, current the offense of Under (a) (b); part included offense in or following the requires proof murder ele- or ments: (3) commit solicitation to the offense unlawfully 1. That the defendant killed charged or an offense that other- victim; the alleged wise meets the definition of lesser- killing 2. that was committed either the (a) (b). part offense in included or the attempt of or perpetration test, Id. statutory this 467. Under degree mur- perpetrate first inquiry. elements remain focus der, arson, robbery, burglary, rape, Id. theft, aggravated kidnapping, child Bums test formulating Our intent piracy; or abuse or aircraft provide litigants was to trial courts and throwing, plac- result the unlawful predictable simple with more meth ing discharging or of a destructive determining od of a particular bomb; device or greater included offense was 3. intended com- the defendant (a) charged Part test was offense. felony. alleged mit the Howard statu simply re-adoption of the 39-13-202(a)(2), § See Tenn.Code Ann. (b) tory Part approach. elements (b) (a)(3), (1997). designed test to accommodate offenses compare, offense of facilitation of To “logically related were proof requires na in terms of the character and committed injury killing in which ture of the offense but of the felonies perpetration of one injury, damage, culpability or risk of Ann. specified by Tenn.Code 39- required than that [was] of a lesser 13-202(a)(2) Burns, (3); greater for the offense.” 6 S.W.3d 720

2. the defendant that knew another would lesser-included of

person Fowler, intended to commit the un- fense.’” State v. 23 S.W.3d derlying. felony, but he or she did (Tenn.2000); Burns, 288 at 470. promote not have the intent or Although Ely specifically was not charged assist the commission of the offense being criminally as responsible for Car- or to proceeds benefit or re- conduct, den’s we note that he was offense; sults of the charged joint in a indictment with Carden 3. the defendant furnished substantial for the murder of the victim in this person

assistance to that in the com- Thus, case. we find that the failure to mission of felony; him criminally responsible in jointly 4. the defendant stead of liable as a principal furnished such is assis- knowingly. insignificant, tance and we hold that facilitation murder is a lesser-included of 39-13-202, §§ See TenmCode Ann. 39-11- fense in this case. (1997). The offenses of second homicide, criminally reckless (a) Applying part of the Bums test negligent require proof homicide the lesser offenses unlawfully 1. the defendant killed the and criminally victim; alleged negligent we note that all re knowing- defendant acted either quire proof specific state, of a mental (second ly murder), reckless- which is not an element of that felony (reckless homicide), ly or with crimi- Thus, none-of these offenses can nal negligence (criminally negligent be considered lesser-included offenses un homicide). (a). Moreover, part der these offenses do - -212, §§ 39-13-210, See TenmCode Ann. qualify not as lesser-included offenses un (1997). (c) part der they of Bums because obvi argues The State that facilitation of ously do not fall the category within felony murder is not a lesser-included of facilitation, attempt, or solicitation. fense of Ely murder because (b) test, Applying part an offense specifically charged with criminal re may qualify as lesser if “it included fails to sponsibility for the conduct of another. (a) part (c) meet the definition First, disagree. We part we note respect statutory that it contains a element expressly the Bums test states that facili (1) establishing elements a different charged tation of the offense is a lesser- indicating mental state a lesser kind of charged included offense of the offense. (2) culpability; Second, a less serious harm applies the facilitation statute to a and/or person, prop or risk of harm to the same person who has criminal facilitated the Burns, public erty conduct of interest.” furnishing another substan por tial at 466-67. note that the relevant assistance but who also acted without We in, say an tion of promote, intent assist or benefit the Bums test does not “a less state,” rather, from felony. culpable the commission of the mental but “a See dif (1997) Tenn.Code Ann. indicating 39-11-403 Sen mental state a lesser kind ferent added) tencing culpability.” (emphasis Commission comments. This of “ previously has recognized deliberately, recog Court ‘vir made this distinction tually every nizing time one with there are certain offenses in felony by way criminal responsibility for that are related have Code but differ another, neatly the conduct of facilitation of the ent mental states that do not fit into

721 intentional, premeditated for required state than that hierarchy knowing, the of reck- less, negligent. murder, or culpability equates in it terms of required for commis- with intent statutory

Under our scheme the various our premeditated of murder. Under sion offenses, including criminal homicide of- scheme, felony commits statutory one who fenses, according are classified to serious- culpa- level of murder is to the same culpability. ness and level of As we ex- held Bums, plained in bility premeditated as one commits who sense, subject punishment a general [i]n the various criminal murder. are to Both “layers,” can visualized as death, offenses be parole, by prison in without or fife serious, culpable with the most versions imprisonment parole. fife with type top, of of crime at the merit- each felony of comparing the offense When ing punishment. the most severe Cor- offenses, murder to homicide it the lesser respondingly, underneath are the less immediately apparent is that one accused decreasing in of serious versions order felony higher is held to a level of murder culpability seriousness and with is culpability, felony of as murder consid- consequently punishment. less serious ered the more serious offense merits a degree Id. 466. First murder classi- punishment more severe than either sec- homicide, type fied as of the most serious murder, homicide, degree ond reckless or a corresponding punishment with of either criminally negligent homicide.4 other death, imprisonment parole, life without words, from the when a death results com- imprisonment parole. life with Tenn.Code 89-13-202(c). of, commit, §Ann. attempt The lesser forms of mission or the of homicide are fisted order seriousness felony, required for mental state culpability. and levels of commission is deemed more of than culpable knowledge, state mental single Tennessee has a first de recklessness, negligence. gree murder statute that encompasses premeditated both and felony murder mur comparing respective After elements § der. Ann. See Tenn.Code 39-13-202 of second (1997). Premeditated murder and criminally negligent reckless by murder designated are not that statute homicide, it appears that elements of separate as and distinct offenses rath but the lesser offenses are subset of the er alternative means which criminal of greater elements and otherwise dif- liability may for first murder only required. fer mental state State, imposed. See Carter 958 S.W.2d hold that the mental states re- because 620, (Tenn.1997); Hurley, 624-25 State v. quired for offenses differ the lesser 70; 57, see also State v. Dar culpability the level of attached to each in den, (Tenn.2000). 455, of punishment, terms seriousness and mental for required state the commission offenses second murder is intent to commit the criminally negligent homi- alleged felony. Tenn.Code Ann. 39-13- 202(b). of felony this is a mental cide are lesser-included offenses While different 39-13-215, (12) years, §§ One Ann. convicted Tenn.Code (15) 40-35-111(b)(4); possible punishment faces from and one convicted crimi- fifteen (60) (1) nally negligent sixty years, §§ faces from one Tenn.Code Ann. 39—13— homicide 39-13-212, 40-35-111(b)(1) (1997); (6) years, §§ one six Tenn.Code Ann. convicted 40-35-111(b)(5). (2) two reckless homicide faces from to twelve (b) (b) of the Bums test.5 offense, part

murder under included and whether the evi- legally dence is sufficient APPLICATION TO STATE v. BOWERS conviction for the lesser-included offense.

Although we have concluded that Id. 469. The evidence must be viewed murder is a lesser-included liberally in light most favorable to the felony pres offense of murder under our existence of the lesser-included offense scheme, statutory ent that conclusion does any making judgments without as to the question not end our inquiry. The re Id. credibility of such evidence. mains whether evidence these re first, argues Bowers that he did not spective justified jury cases instruction have notice that he would have to defend Bums, on those offenses. we acknowl against charge a lesser of edged that whether a lesser-included of second, that because the State failed to jury fense must be in a instruction present any proof of intent to commit the first, two-part is a inquiry: whether theft, underlying felony robbery of or he greater lesser offense is included in the felony cannot of be convicted the offense of second, adopted, under the test wheth reject claim that Bowers’s he justified by er a the evidence. did not have notice of the lesser homicide Burns, step 6 S.W.3d at 467. The second tried, At offenses. the time his case was in Bums analysis adopted requires Trusty State v. (a) controlling legal a determination of evi authority offenses. Un dence exists reasonable minds could lesser-included Trusty, accept prove the existence of a lesser- der defendants were entitled to Although question jurisdictions, including of whether lesser Other the District of Columbia, Florida, Kansas, Massachusetts, forms of homicide are included offenses of previously Minnesota, murder has been addressed Missouri, Mexico, Michigan, New jurisdictions, the courts of several the au Carolina, and North have held subject split. thorities on this are Courts in degrees may of homicide be considered less Arizona, Illinois, Arkansas, the states of er-included offenses of murder. Most Indiana, Nebraska, Maryland, Washington, apply these cases some of the doctrine of form Virginia and West have all held that the lesser imputed transferred or in which the intent forms of homicide are not lesser-included of underlying felony intent to commit the respective fenses murder under their felony murder case substitutes for the intent statutory universally, schemes. Almost these States, to kill. See Towles v. United 521 A.2d applied statutory courts have a strict elements State, (D.C.1987); Scurry 651 v. 521 So.2d test and have their based decisions on the (Fla. 1988); Rayton, 1077 State v. 268 Kan. rationale that because the lesser homicide of 711, Carter, (2000); People 1 P.3d 854 v. 395 require proof culpable fenses of a mental 434, (1975); Mich. 236 N.W.2d 500 Common state, and the does 349, Donovan, v. 422 Mass. 662 wealth not, the lesser offenses are not included in the State, (1996); N.E.2d 692 Bellcourt v. 390 414, greater. Sharp, See State v. 193 Ariz. Lee, (Minn. 1986); N.W.2d 269 State v. 654 (1999); State, 973 P.2d 1171 v. Brown 325 (Mo. McGruder, 1983); S.W.2d 876 State v. 504, (1996); People Ark. 929 S.W.2d 146 302, (1997); 123 N.M. 940 P.2d 150 State v. Williams, 22, 712, Ill.App.3d 315 247 Ill.Dec. James, 589, (1996). 710 342 N.C. 466 S.E.2d State, (2000); 732 767 N.E.2d Fleener v. 274 depended The results in each of these cases 473, (1980); Ind. 412 N.E.2d 778 West v. upon respective statutory scheme in each State, 147, Md.App. 124 720 A.2d 1253 upon statutory or state for homicide 432, (1998); Bjorklund, State v. 258 Neb. judicial definition of lesser-included offense Tamalini, (2000); N.W.2d 169 State v. Likewise, unique to that state. our determi- 725, (1998); Wash.2d Dennison, 953 P.2d 450 State v. statutory 609, nation must be based on our own 801 P.2d 193 115 Wash.2d Wade, (1990); for homicide and on the definition of scheme State v. 200 W.Va. (1997). adopted S.E.2d 724 lesser-included offense as in Bums. case of knowl- any evidence Bowers’s instructions on both lesser included recklessness, negligence statutory edge, offenses as defined under and whether killing Whatmough, Peter Howard, on all approach elements support a is sufficient to this evidence class grade offenses that were a lesser of- respective the lesser conviction for offense, assuming the suf- requiring these mental states. fenses supporting existed a find- ficient evidence de- ing of those offenses. Because second “Knowing” conduct results “when the remaining gree murder and the con- person of the nature of the is aware clearly lesser homicide offenses were A duct or that the circumstances exist. Chapter under 13 of the grade offenses respect to a person knowingly acts with code, clearly on criminal the defendant was person’s conduct when the result of the might notice that he have to defend person is aware that the conduct is reason- such lesser offenses. against Tenn. ably certain to cause the result.” 39-ll-302(b) (1997). §Ann. “Reck- Code for his contention that he cannot be As less” conduct is defined as a convicted of lesser homicide con- person the is aware of but when proof there lacks of his intent when un- sciously disregards a substantial and underlying felony, think commit the justifiable risk that the circumstances procedure Bowers misconstrues the out occur. The risk exist or the result will determining lined in Bums for a when a nature and must be of such lesser-included offense instruction should disregard gross its constitutes a given. two-part pro Bums outlined a deviation from the standard of care that first, apply cedure: the trial court must ordinary person an exercise under would adopted par the a test decide whether the all the circumstances as viewed from ticular offense is lesser-included within the person’s standpoint. accused Burns, greater. at 466-67. This 11—302(c). § Ann. “Crimi- Tenn.Code statutory test focuses elements of 39— negligence” nal is defined as respective greater and lesser offenses legally to determine whether the lesser is of a person ought when the to be aware greater included in unjustifiable and not on the risk that substantial proof actually presented at trial. Id. the circumstances exist or result will a na- 467. “If a lesser offense is not included occur. The risk must be of such per- that the failure to charged, the offense then an instruction ture and gross deviation given, regardless ceive it constitutes should not be of whether an ordi- from the standard of care that supports evidence it.” Id. this deter Once made, nary person would exercise under all the part mination is the second circumstances as viewed from the ac- inquiry is whether there is evidence person’s standpoint. cused accept that reasonable minds could as to the existence of the lesser-included offense 39-ll-302(d). § Ann. The Tenn.Code so, and, legally if whether that evidence is criminal mental states recklessness and for sufficient to a conviction within the negligence encompassed are offense. lesser-included Ann. “knowing.” definition of Tenn.Code 39-ll-301(a)(2). Because we deem second offense of in lesser-included The evidence in this ease compelled testimony by to sustain the trial Artis Bonner we are cludes at the finding regard. court’s in that face he saw in the window of the van was shot was that of questions remaining are there is time the victim witnesses, joint defendant Bowers. A careful review of several this was enter likely prise. question shows that the motive there was some evidence While Ely shooting for in this stemmed from to whether it was Carden or who case bad, victim, likely actually the evidence drug gone deal and that the killed the Bonner, that the of the un target shooting of this not was clear commission Nevertheless, derlying felony robbery joint un Whatmough. the law is well liability dertaking. Ely’s defense was that he was settled that criminal is the same therefore, regardless third-party present; vic- not he was either of whether State, Millen v. is unintended. See guilty tim of some of homicide or (Tenn.1999). wholly any wrongdoing. Ap The evi- innocent of the Bums analysis plying dence that the defendant aimed and to the evidence shows facili handgun general a direction of in this case to determine whether fired containing people. a van three con- tation of murder should have been Such instructed, ju clearly falls the definition of we find that no reasonable duct within Ely that knowing although conduct because Bowers had to ror could have believed reasonably present, aware that he certain to was knew that Carden intended was robbery, kill and furnished people. strike and one of those to commit in the commission therefore conclude that the evidence was substantial assistance robbery, a for he nevertheless did not sufficient to conviction sec- entirely prop- promote “to or assist the commis degree ond It was intend jury to benefit in er for the trial court to instruct the on sion of the offense or proceeds that offense and on the lesser results of the offense.” offenses Therefore, criminally negligent reckless homicide and no instruction on the lesser- principles proce- and included offense of facilitation was war homicide under the Burns, Bums. Bowers’s See espoused in con- ranted. 6 at 470-71 dures S.W.3d suscep viction for second murder is there- that the facts were (stating where interpretations, neither fore affirmed. tible to two facili encompassed theory of which TO STATE v. ELY APPLICATION tation, no instruction on the lesser-includ warranted). ed offense of facilitation was Having concluded that facilitation of fel murder, ony reck Our review of the record leads us homicide, criminally negligent less was, however, to conclude that there suffi homicide are all lesser-included offenses of ju cient evidence from which reasonable must determine wheth Ely rors could have convicted of second of the Bums er, part the second under homicide, or crim reckless analysis, Ely’s in case war the evidence jury If be inally negligent homicide. jury offenses. ranted instruction such may it Ely present, was have lieved Burns, so, If 6 at 467. the failure that his actions in reasonably concluded in error. to instruct such offenses was striking the victim over repeatedly either brick, summarized, assisting co- the head with a previously

As so, Ely defendant Carden as he did constituted the evidence this case shows least criminally negligent and co-defendant Carden entered the Bond, mur or second repeatedly home of beat William brick, participates in Certainly one over the head with a der. who Bond beating person over the head with pieces of electronic another then stole several “ought to be aware of substantial equipment. By Ely’s own admission brick failure that the trial court’s erroneous occur.” held unjustifiable risk -will [death] theory voluntary manslaughter jury If the believed this offense, Ely of it could have convicted harmless.

criminally negligent homicide. TenmCode 11—302(d). Alternatively, §Ann. an or- has some confusion There been 39— Williams, however, as to whether dinary engaging in such conduct person since would be aware of the “substantial a lesser-included of right to receive unjustifiable risk that will occur.” [death] is constitutional or non- fense instruction of, jury Ely If the believed that was aware in nature. The distinction is constitutional risk, it consciously disregarded, such but right if the is constitu significant, because could convicted him of reckless homi- have nature, State bears the bur tional 39-ll-S02(c). § Ann. cide. Tenn.Code deprivation that a of this showing den of participation beating a victim Similarly, beyond a reasonable right is harmless head is conduct over the with brick California, v. Chapman 386 U.S. doubt. “reasonably [death].” certain to cause (1967); 18, 24, 824, 17 87 S.Ct. L.Ed.2d 11—02(b). If TenmCode Ann. 39— Scott, State v. cf. Ely .that believed “aware.. State, Momon (Tenn.2000); 18 S.W.3d reasonably to [was] conduct certain [his] (Tenn.1999). However, 152, if 164 the i.e., [death],” knowing killing, cause a it nature, right constitutional in the is not may degree him of have convicted showing the the defendant bears burden that a conviction for murder. We believe Moreover, deprivation. of its harmfulness any of three offenses these lesser-included of a assessing the standard for the effect evidence, supported by the and that was higher error is than that for constitutional failure to instruct these offenses was error. assessing effect of a non-constitutional the affecting An error a constitutional error. Analysis Harmless Error reversible, right presumed to be is Because we have concluded that the trial of the such error will result in reversal instructing court erred on some of proves beyond the State conviction unless offenses, the must determine we that the error did not reasonable doubt that error was harmless. We State trial. affect the outcome of the to have held the erroneous failure (Tenn.1999). Harris 989 S.W.2d 307, 315 may instruct on lesser-included offenses be error, A non-constitutional on the other under harmless certain circumstances. reversible, hand, presumed is not to be Williams, 977 at 105. In judgment of conviction will be re and no Williams, we held trial court’s failure affirmatively ap versed unless the error voluntary to instruct on man- of the pears to have affected result slaughter offenses was harmless where the merits, considering trial on the unless premeditated first sec- whole, the record as a the error involves ond and reckless homicide probably right which more substantial reasoning all instructed. Our was were judgment than not affected the or resulted by convicting the based on the fact that Id,.; prejudice judicial process. to the high- of first defendant 36(b), see also Tenn. R.App. P. Tenn. jury necessarily charged, est offense 52(a). P. R.Crim. proof was sufficient to determined Williams acknowledged in This Court all the elements of that offense establish offenses doubt, that instruction lesser-included beyond a reasonable to the exclu- prior Tennessee Accordingly, had described of all lesser offenses. we been sion 726 submitting the right.

cases as a constitutional 977 S.W.2d trial court’s instructions fact, offense of second recognized at 105. that “under lesser-included we circumstances,” jury. upheld in right certain to to We charge, holding struction on lesser-included offenses that the trial court’s obli- right. gation charge should deemed a constitutional to lesser-included offenses Arizona, section (citing Id. at 104 Schad v. 501 under Tennessee Code Annotated 40-18-110(a) 624, 646, 2491, mandatory if the evi- 115 L.Ed.2d U.S. S.Ct. (1991), Alabama, legally trial suffi- and Beck v. 447 U.S. dence introduced at (1980)). 625, 100 a conviction for the lesser S.Ct. 65 L.Ed.2d 392 cient Williams, applied Citing we Despite recognition our of the constitution offense. standard, right, stating that implications al we character constitutional circum- from a failure to instruct under such right “derive[d] ized the as one Williams, beyond at 105 stances could be “harmless rea- statute.” 977 S.W.2d 40-18-110(a) (citing Ann. sonable doubt.” Id. Tenn.Code (1997)). purported apply then however, recently, in State v. More non-constitutional standard for determin Swindle, (Tenn.2000), error, ing stating, harmless applied non-constitutional harmless error

Accordingly, we conclude that a trial in- analysis addressing the failure to court’s erroneous failure to instruct on Ad- struct on lesser-included offenses. voluntary manslaughter subject dressing the trial court’s failure to analysis. harmless error Reversal is re- misdemeanor assault as a lesser-included quired affirmatively appears if the error battery, we aggravated offense of sexual trial on to have affected the result of the and held that reversal was cited Williams merits, words, in the other reversal is affirmatively required only “if error probably if than required the error more trial, or if the affected the result judgment to the defen- not affected the probably than not affected the error more prejudice. dant’s Id. judgment prejudice.” to the defendant’s in our at made no reference Swindle articulating holding Id. at 105. In 293. We however, analyzing standard for opinion, applied Chapman later in the we to the standard, constitutional errors. stating, constitutional error Accordingly, the trial court’s erroneous opportu an presents This case manslaugh- charge voluntary failure to nity clarify any confusion as to the to beyond harmless a reasonable ter A applied in this context. standard to be jury’s guilt doubt because the verdict of law demonstrates that review of our case degree greater offense of first on the failure to instruct on lesser- an erroneous to consider murder and its disinclination error included offenses is a constitutional de- the lesser-included offense of second the burden of for which the State bears clearly gree murder demonstrates beyond a reason proving its harmlessness certainly it would not have returned our statement Although doubt. able voluntary manslaughter. verdict on right that the to lesser-included Williams added) (citations (emphasis Id. at 106 omit- “derives from statute” offense instructions ted). admittedly equivocal, right to less Williams, instructions does not released er-included offense

Shortly after we (Tenn. Bolden, As one of our only derive from statute. 979 S.W.2d 587 State 1998). Bolden, defendant, on the Court of Crim charged colleagues esteemed In noted, recently objected Appeals “[c]onsti- inal has degree with first

727 is harmless statutory recognition tutional and of a court is whether the error right afforded citizens in this state are not beyond a reasonable doubt. should, can, mutually exclusive. Statutes dra The facts of this case differ values, privi- and do reflect constitutional matically from those Williams. Bol- leges rights.”6 recognized in jury in Williams was instructed only den, purpose 40-18- “[o]ne [section premeditated on the offense of 110(a) protect right by is to of trial ] murder, but also on the lesser- first

jury by instructing jury on the ele- included offenses by ments of all offenses embraced fail and reckless homicide. The error in 979 indictment.” S.W.2d 593. That the ing charge voluntary manslaughter right by jury of trial is of constitutional beyond a deemed harmless reasonable dimension is evidenced its embodiment by rejecting doubt the lesser of because I, in Article section 6 the Tennessee jury fense of second Constitution, states, right which “the clearly demonstrated its disinclination to by jury trial shall remain inviolate.” Ac- offenses, including convict on cordingly, we hold that this constitutional Williams, voluntary manslaughter. right jury per- is violated when the is not contrast, jury at 106. mitted to consider all supported offenses given option this case was no to convict of by the evidence. than murder. Al lesser offense holding right Our that the to less though clearly the evidence was sufficient er-included offense instructions is of con a conviction for second stitutional dimension does not announce a criminally Pre-Williams case law principle. new negligent given was not clearly right stated that the to instruction opportunity an to reach a decision on these on lesser included offenses derived not circumstances, offenses. Under these statute, from but also from the consti say cannot failure to instruct on the State v. right by jury. tutional of trial be lesser-included offenses was harmless Staggs, (Tenn.1977); yond a reasonable doubt. State, Strader v. 669, 682, 210 Tenn. 224, (1962). Although 5.W.2d CONCLUSION Williams expressly overruled these cases After careful consideration of the law they to the extent had held that failure to cases, presented and the facts these we instruct lesser-included offense mandated facilitation, degree conclude that reversal, automatic we did not intend to criminally reckless and overrule the statements in those cases negligent homicide are lesser-included of- recognizing the aspects constitutional case, Ely’s In fenses murder. right, or to limit the characterization of supported the evidence instruction on the right only protected one by statute. lesser offenses of second right We conclude that has both a criminally negligent statutory and a constitutional basis. Therefore, Therefore, give when an homicide. the failure to determining whether erroneous failure to on a such lesser-included offense instructions instruct lesser- reversal, requires included offense hold was error. conclude that this error is we doubt, proper inquiry appellate beyond for an not harmless a reasonable Beeler, 22, Jackson, (Tenn.Crim.App. 6. State v. No. W1999-01417-CCA-R3- filed at Nov. CD, 1670945, 2000) (Witt, J.) slip op. 2000 WL at 28-29 opinion statements in the this Court Ely’s and we reverse conviction re- admittedly indicate otherwise. may his case for a new trial. Bowers’s mand case, supports the evidence find- because consideration, Therefore, upon due we ing knowing killing, of a we conclude that Defendant’s Petition to conclude properly the trial court instructed the is well taken and should therefore Rehear offense of second on the lesser-included good and Accordingly, for be GRANTED. Accordingly, affirm degree murder. Court, appearing sufficient reasons to the Bowers’s conviction for second in this case opinion previously entered withdrawn, 5, 2001, hereby June appeal v. Curtis

Costs State hereby of the Court is directed the Clerk Ely paid by appellee, Jason shall be opin- amended and substituted to file the Tennessee, and costs of the the State of accompanying this Order. ion of Court appeal in State v. Laconia Lamar Bowers en- judgment previously The of this Court Laconia paid by appellant, shall unchanged. tered remains Bowers, shall Lamar for which execution petition are associated with this Costs necessary. if issue waived. DEFENDANT’S ORDER GRANTING REHEAR

PETITION TO

PER CURIAM. defendant, Ely, has Curtis Jason

respectfully petition to rehear the filed

opinion of filed on June this Court petition, alleges In his the defendant Harold ANGUS opin- in its particular wording due to used ion, characterized the may the Court have HERITAGE INSURANCE a na- WESTERN of second murder as COMPANY. changed the

ture-of-conduct offense and proof on nature of the State’s burden of Appeals of Tennessee. Court of Court, the Upon request by this retrial. response petition, to the State has filed 13, 2000. Decided Nov. language that some although agrees it Appeal for Permission Application inaccurately character- opinion may Supreme Court Denied it ize the offense of second 7,May 2001. changes that other are unwarrant- believes ed. recognized that sec- previously

haveWe degree murder is a result-of-conduct

ond Ducker,

offense, see State (Tenn.2000), consequently, required for that offense

the mens rea harm, not resulting its

accompanies Al- conduct.

the nature of the defendant’s depart from

though we did not intend case, present some reasoning

this

Case Details

Case Name: State v. Ely

Court Name: Tennessee Supreme Court

Date Published: Jul 13, 2001

Citation: 48 S.W.3d 710

Court Abbreviation: Tenn.