Opinion
Nos. W1998-00637-CCA-R3-CD, W2001-01615-CCA-RM-CD.
Filed January 25, 2002.
Appeal from the Criminal Court for Shelby County; No. 96-01118; W. Fred Axley, Judge.
Reversed and Remanded.
A.C. Wharton, Jr., W. Mark Ward, and Robert W. Jones, Memphis, Tennessee, for the appellant, Khanh V. Le.
Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; John W. Pierotti, District Attorney General; Edgar A. Peterson, IV, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court. David H. Welles and Thomas T. Woodall, JJ., filed concurring opinions.
On November 10, 1997, the appellant, Khanh V. Le, was convicted by a jury in the Shelby County Criminal Court of one count of first degree premeditated murder. The trial court sentenced the appellant to a term of life imprisonment in the Tennessee Department of Correction. The appellant filed an appeal, and this court affirmed the judgment of the trial court on March 9, 2000. Accordingly, the appellant filed an application for permission to appeal to our supreme court pursuant to Tenn.R.App.P. 11. The supreme court granted the appellant's application for the sole purpose of remanding the case to this court for reconsideration in light of the recent case of State v. Ely, 48 S.W.3d 710 (Tenn.), cert. denied, ___ U.S. ___, 122 S.Ct. 408 (2001). Upon reconsideration, we reverse the judgment of the trial court and remand this case for a new trial.
OPINION ON REMAND
The facts underlying the appellant's conviction of first degree premeditated murder are set forth in detail in our original opinion, State v. Khanh V. Le, No. W1998-00637-CCA-R3-CD, 2000 WL 284425, at **1-3 (Tenn.Crim.App. at Jackson, March 9, 2000), and we need not repeat them here. Turning to the precise issue before this court, we are once again called upon to address the trial court's failure at the conclusion of the appellant's trial to instruct the jury on lesser-included offenses of first degree premeditated murder. In these appellate proceedings, the appellant has specifically asserted that the trial court erred in denying his request that the jury be instructed on the offenses of second degree murder and voluntary manslaughter. Id. at *6.
In our original opinion, we applied the test set forth by our supreme court in State v. Burns, 6 S.W.3d 453, 466-467 (Tenn. 1999), for determining the existence of lesser-included offenses and preliminarily concluded that both second degree murder and voluntary manslaughter are in fact lesser-included offenses of first degree premeditated murder.Le, No. W1998-00637-CCA-R3-CD, 2000 WL 284425, at *8. Additionally, we applied the two-step analysis set forth in Burns, 6 S.W.3d at 469, for determining if the evidence adduced at trial warrants jury instructions on lesser-included offenses. Le, No. W1998-00637-CCA-R3-CD, 2000 WL 284425, at *8. In this regard, we concluded that the evidence did not warrant an instruction on voluntary manslaughter, but the trial court should have instructed the jury on second degree murder. Id. at **8-9. Notwithstanding our finding of error, we further held that,
even though the trial court should have charged the jury concerning the lesser included offense of second degree murder, we cannot conclude that the trial court's error affirmatively appears to have affected the result of the trial on the merits. In other words, we cannot conclude that the jury more probably than not would have found the appellant guilty of second degree murder if the jury had been given that option. Therefore, we conclude . . . that the error is harmless and that reversal is not required.
Id. at *9.
In short, we utilized the harmless error analysis applicable when reviewing non-constitutional error. In so doing, we followed language inState v. Williams, 977 S.W.2d 101, 105 (Tenn. 1998), that appeared to suggest that the right to instructions on lesser-included offenses derived from statute, and a trial court's failure to provide such instructions was subject to harmless error analysis under Tenn.R.App.P. 36(b) and Tenn. R. Crim. P. 52(a). Subsequently, however, in State v. Ely, 48 S.W.3d 710, 726 (Tenn.), cert. denied, ___ U.S. ___, 122 S.Ct. 408 (2001), our supreme court clarified that a trial court's "erroneous failure to instruct on lesser-included offenses is a constitutional error for which the State bears the burden of proving its harmlessness beyond a reasonable doubt."
Reconsidering our finding of harmless error in light of Ely, we initially note our supreme court's prior observation that, generally speaking, "the line between harmless and prejudicial error is in direct proportion to the degree of the margin by which the proof exceeds the standard required to convict, beyond a reasonable doubt." Delk v. State, 590 S.W.2d 435, 442 (Tenn. 1979). However, we also note that, with respect to a trial court's failure to instruct a jury on lesser-included offenses, our supreme court has only found harmless error under the circumstances presented in Williams, 977 S.W.2d at 106, i.e., when the jury has been afforded an opportunity to consider the appellant's guilt of intermediate lesser-included offenses. See, e.g., State v. Bowles, 52 S.W.3d 69, 78 79 n. 12 (Tenn. 2001); State v. Swindle, 30 S.W.3d 289, 293-294 (Tenn. 2000). Conversely and more significantly, when the jury has not been afforded this opportunity, our supreme court has declined to find harmless error irrespective of the quantum of proof supporting the appellant's guilt of the greater offense. See, e.g., Bowles, 52 S.W.3d at 79-80; Ely, 48 S.W.3d at 714-715 727. In sum, recent Tennessee Supreme Court precedent compels the conclusion that a failure to instruct a jury on lesser-included offenses will only be found harmless beyond a reasonable doubt under the circumstances presented in Williams, 977 S.W.2d at 106. Because the jury in this case was not afforded an opportunity to consider the appellant's guilt of intermediate lesser-included offenses, we cannot conclude beyond a reasonable doubt that the trial court's error was harmless. Accordingly, the judgment of the trial court is reversed and this case is remanded for a new trial.
I concur with the majority opinion that this case must be reversed and remanded for a new trial due to the trial court's failure to instruct on lesser-included offenses. I write separately because I disagree with the statement in the majority opinion that "a failure to instruct a jury on lesser-included offenses will only be found harmless beyond a reasonable doubt under the circumstances presented" in State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998).
For those offenses which are lesser-included of others under part (a) of the Burns test, proof of the greater offense will always provide proof of the lesser offense. See, e.g., State v. Bowles, 52 S.W.3d 69, 80 (Tenn. 2001) (noting that, "[i]n proving robbery, . . . the State also proved [the lesser-included offense of] theft, for all of the elements of theft are included within the elements of robbery.") Thus, under the reasoning of Bowles, it would be error to fail to charge such a lesser-included offense. Where proof of the additional element required for the greater offense is certain and undisputed, however, I would find any error in failing to give the lesser-included offense instruction harmless beyond a reasonable doubt.
In State v. Burns, our supreme court set forth a three-part test for determining lesser-included offenses. Part (a) of the test provides that an offense is a lesser-included offense if "all of its statutory elements are included within the statutory elements of the offense charged." 6 S.W.3d 453, 466-67 (Tenn. 1999).
For instance, the accused commits an aggravated assault with a gun. There is absolutely no question or dispute about the defendant's use of the gun in committing the assault. Clearly, assault is a lesser-included offense of aggravated assault, under part (a) of the Burns test. However, in order to convict the defendant of assault instead of aggravated assault, the jury in this hypothetical would have to ignore the fact that the gun was used. A reasonable jury would not do this, and therefore I believe that any error by the trial court in failing to give an instruction on assault would be harmless beyond a reasonable doubt.
In applying this standard of review, I find helpful the United States Supreme Court's opinion in Chapman v. California, 386 U.S. 18 (1967). In that case, the Supreme Court was called upon to determine whether a trial error violating an accused's federal constitutional rights could be harmless. Id. at 20. The Court concluded that such error could be harmless, and suggested that a reviewing court resolve the issue by determining "`whether there is a reasonable possibility that the [error] complained of might have contributed to the conviction.'" Id. at 24, quoting Fahy v. Connecticut, 375 U.S. 85, 86-7 (1963) (emphasis added). When the reviewing court can declare a belief that the error was harmless beyond a reasonable doubt, reversal is not required. Chapman, 386 U.S. at 24.
Where the evidence adduced at trial is such that there is no reasonable possibility that the jury would have convicted the defendant of the lesser-included offense, other than through its de facto power of nullification, then I believe any error in failing to give the instruction is harmless beyond a reasonable doubt. I do not interpret the decisions of our supreme court to restrict a harmless error analysis solely to the circumstances presented in Williams.
I concur in all other respects with the majority opinion.
DAVID H. WELLES, JUDGE
Consistent with my conclusion when this case was originally before our court, I concur that it was reversible error for the trial court to not charge the jury with the lesser-included offense of second degree murder. Along with Judge Welles, I disagree with the statement in the lead opinion by Judge Ogle that "a failure to instruct a jury on lesser-included offenses will only be found harmless beyond a reasonable doubt under the circumstances presented" in State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998). There may be other circumstances, not presently before our court, where the erroneous failure to charge a lesser-included offense would be harmless error.
However, I write separately in order to distinguish one point, although it may be a matter of form over substance. In Judge Welles' hypothetical described in his concurring opinion, I would conclude that assault should not be charged as a lesser-included offense of aggravated assault because it would not meet the requirement in State v. Burns, 6 S.W.3d 453, 469 (Tenn. 1999) that an instruction on a lesser-included offense should be given. Specifically, in the hypothetical described by Judge Welles, I would conclude that evidence did not exist that reasonable minds could accept as to the lesser-included offense. Therefore, I would conclude that where "nullification" can be the only explanation for a jury finding a person guilty of a Burns "part (a)" lesser-included offense, that failure to charge the offense as a lesser-included offense would not be error, and the issue of whether it was harmless error or reversible error would not have to be reached.
THOMAS T. WOODALL, JUDGE