Opinion
No. E2000-01545-CCA-R3-CD.
October 15, 2001.
Direct Appeal from the Criminal Court for Knox County Nos. 58152A and 58152B; Richard R. Baumgartner, Judge.
Affirmed in Part and Reversed in Part; Remanded for a New Trial.
Wade V. Davies, Knoxville, Tennessee (on appeal) and Keith E. Haas, Sevierville, Tennessee (at trial) for the appellant, Linnell Richmond; Julie A. Rice (on appeal) and Timothy E. Irwin (at trial) Knoxville, Tennessee, for the appellant, Shervon Johnson.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Robert L. Jolley, Jr., Assistant District Attorney; for the appellee, State of Tennessee.
Thomas T. Woodall, J., delivered the opinion of the court on all issues except Defendant Richmond's issue regarding a charge of lesser-included offenses; Jerry L. Smith, J., filed an opinion dissenting in part and concurring in part, and the lead opinion regarding Defendant's Richmond's issue on charging lesser-included offenses; and Gary R. Wade, P.J., filed a separate concurring opinion.
OPINION
FACTS
Mose Cuxart testified that, on the night of February 18, 1995, he was standing outside the Magic City Lounge with several others, when four men came around the corner of the club demanding that Cuxart and the others hand over their money. Cuxart had $200 in his back pocket, which he gave to the men, but the others had no money to give the robbers. He explained that the man holding a gun to his face was wearing a "cat mask," but later he saw the man's face, when the mask fell off during a scuffle between the robber and the club's D.J., Leonard Hill. Cuxart identified Defendant Johnson as the man who wore the cat mask and fought with Hill. Cuxart referred to Johnson as "Goldie." He also testified that Defendant Johnson was carrying a .9 millimeter caliber gun, and had ordered his confederates to "cancel" or kill the others, as Hill had Defendant Johnson pinned to the floor. Cuxart further stated that the tallest of the robbers was carrying an uzi machine gun, which the man fired, forcing Cuxart and the others to hide behind the front lounge door. Cuxart said that the tall (6'3") and "stocky" man shot the uzi at Shannon Maurice Brown. Cuxart testified that this man's name was William Fred Underwood.
On cross-examination, Cuxart testified that, on the night of this incident, he was reopening the club, after having closed it for about six months. He explained that he had to close the club due to excessive shooting and gang activity at the club. He stated that, prior to closing down, he would make $3,500 to $4,500 per weekend. Cuxart admitted that the first round of shots fired from the uzi were fired into the ground. Cuxart said that he had to pull Defendant Johnson and Hill apart, and that he was able to take Johnson's gun away from him. He stated that, after the four men ran out of the club, he grabbed his .38 caliber gun, which he kept behind the DJ's booth, and ran after the men. Cuxart testified that the men drove off in a Buick with a white top, but he admitted that, from the back of the club, he only saw Defendant Johnson get into the car. Cuxart testified that later, he and the bartender, Steve Earls, were at the front of the club when he saw Defendant Johnson shoot a machine gun from the passenger-side window of the car. He stated that none of the bullets came close to him, because he fell to the ground and rolled around. Cuxart said that he did not shoot his gun in the parking lot. He also saw a police car chase after the Buick. Cuxart further testified that all four men had masks on during the robbery, but his testimony was impeached by his prior statement, in which he stated that there had been three men, rather than four. Cuxart stated that he did not care about this case, and that if it were up to him, the Defendants would go free. Cuxart also admitted that he was a convicted drug dealer and was serving seven years in a federal prison for distribution and conspiracy to distribute cocaine in Knoxville.
Charles Stephen Earls testified that he worked as a bartender at the Magic City Lounge. Earls stated that, on the night of these offenses, he, Cuxart, and Maurice and Kevin Brown were standing outside the club when four men came running around the building. Later, he testified that two of the men came around the corner first, and then the other two followed at a later point. Earls also testified that two of the men had on cat masks, one had a hood over his face and one did not have on a mask. He further asserted that he did not remember Fred Underwood wearing a mask, because he had grown-up with Underwood and recognized his face. He stated that one of the men wearing a cat mask and an "afro" took some money from Cuxart. Earls testified that he told the robbers that he did not have any money. After this, the man who had taken the money from Cuxart, ran into the club with an uzi and appeared to be shooting at Maurice Brown. Earls explained that he thought the guy was trying to cause confusion and scare someone by firing shots into the ground. He testified that the guy lost his cat mask in the bar, and he was able to identify the man as "Goldie."
On cross examination, Earls admitted that he was a convicted drug dealer, serving five years for conspiracy to distribute cocaine along with Cuxart. He admitted that, on the night of this incident, he was on drugs and that he was a crack cocaine addict. He told the jury that his memory was better the night of the incident, than it was at the time of trial. Earls admitted that in his prior statement he had said that the man with the uzi was wearing a toboggan mask and that this man was doing all of the talking. He admitted that he had previously stated that Underwood had the uzi. Earls also stated that the bullets that were fired from the car were hitting in a direction about thirty feet away from him and Cuxart. He told the jury that it was common for shots to be fired in the parking lot of that club. He further testified that during Defendant's Johnson fight with Leonard Hill, one of Johnson's confederates fired shots, when Johnson asked them to shoot Hill. On redirect, Earls identified Johnson as the person he knew as Goldie. Earls also stated that a man named Kevin Brown was hit by one of the bullets, but Brown did not know it until the police showed him the hole in his jacket. Earls also testified that Maurice Brown was "probably grazed" by a bullet.
Leonard Maurice Hill, the DJ at the club, testified that he was in the club, when a man with a mask and a silver colored handgun came in and told him to empty his pockets. Hill stated that he ran and grabbed the man and the two fell out the door. The man told one of his confederates to shoot Hill, but Cuxart grabbed him and pulled him back into the club, as another man put a silver gun in Hill's face. Hill explained that the man lost his gun during the struggle. He also admitted that he never saw the man he struggled with, but remembered that the man had an "afro." Hill also acknowledged that he did not hear any shots before the man with the mask entered the club. On cross-examination, Hill admitted that he had been convicted of possession of cocaine, and that bullets had been fired at the club on prior occasions.
Officer Bruce Conkey, of the Knoxville Police Department, testified that he was parked in a lot down the street from the club when he heard several gunshots fired at the same time. Conkey said he looked toward the club, which was approximately a half block away, and saw muzzle flashes coming from the passenger side of a rust-colored car parked in front of the club. As the car sped away, Conkey gave chase, with Officer Jerred Smith following behind him in another car. Conkey followed the car about a mile at a speed of fifty to sixty miles per hour, until the car went the wrong way on a one-way street and "spun-out." The car came to a stop facing Officer Conkey's patrol car. Conkey testified that a black male came out of the front seat of the car wearing a toboggan and ran off. Next, Conkey saw another black male with a "Don King style afro" exit the car and throw down a gun, later identified as an uzi, as he fled away from the car. Conkey determined that the magazine of the uzi was empty. Conkey then took Defendant Richmond out of the driver's seat and arrested him. He stated that Richmond did not have any weapons or money on his person and was not wearing a ski mask or toboggan. Then Conkey went over to where Officer Smith had Underwood on the ground, and he saw a .25 caliber gun lying next to Underwood's head. Officer Conkey further testified that, prior to hearing the shots fired from the automobile in front of the club, he had not heard any shots fired.
Officer Brian Davis testified that he followed behind the first two police cars, and when the fleeing car finally stopped, he arrested Frank Wilburn as he exited from the back seat of the stopped car. Officer James Claiborne testified that, when he heard about the chase on the radio, he pursued the car on a parallel street. Claiborne stated that he saw a black man dressed in black clothing jump a fence and enter the neighboring housing projects. The man talked with a resident of the housing projects. Claiborne went to the apartment where he had seen the man, and knocked on the door. He entered the apartment and found Defendant Johnson. Claiborne searched Johnson and found that he had about $235 on his person. Claiborne also stated that he found a .9mm cobra near a telephone pole at the scene of the stop.
Officer Mark Waggoner, a crime lab officer with the Knoxville Police Department, testified that he tested the bullets, spent shell casings and fragments found at the club. He stated that eight bullets struck the front of the Magic City Lounge at approximately chest level. Waggoner told the jury that a gun, cat mask and loaded magazine were found on the floor inside the lounge. He also found a .380 round outside the club, which he stated had to have come from another weapon or was dropped by someone, because the round did not match either the .9mm or the .25 caliber weapons recovered from the Defendants. Waggoner further identified photos of Shannon Brown's clothing with a bullet hole, a wound on Shannon Brown's side and a picture of Shannon Brown. He also identified photos of Kevin Brown with a gunshot wound to his right side and a photo of Kevin Brown's face. Waggoner testified that he was unable to recover prints from the Smith Wesson gun found in the lounge. Waggoner also testified that none of the bullet fragments were tested for gun comparison and none of the guns were tested to see if they had been recently fired. He also acknowledged that he was not asked to test for fingerprints on either the .9mm uzi or the .25 caliber silver pistol. He acknowledged that he did not find a .380 handgun in the club.
At this point, the prosecution rested its case.
The Defendants presented the testimony of Van Johnson, Heidi Moore and Doris Collins concerning withdrawals made by Cuxart, on the day of this incident, and Cuxart's lack of a business license and beer permit. At the close of the proof, the jury convicted both Defendants of the aggravated robbery of Cuxart, attempted aggravated robbery of Earls, attempted first degree murder of Cuxart, and the attempted first-degree murder of Shannon Brown. In addition, Defendant Johnson was convicted of the attempted aggravated robbery of Leonard Hill.
ANALYSIS I. Sufficiency Of The Evidence — Richmond and Johnson
When evaluating the sufficiency of the evidence, we must determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Keough, 18 S.W.3d 175, 180-81 (Tenn. 2000) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). We afford the prosecution the strongest legitimate view of the evidence in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. State v. Keough, 18 S.W.3d at 181 (citing State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). Questions regarding the credibility of the witnesses; the weight to be given the evidence; and any factual issues raised by the evidence are resolved by the trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
A. Attempted First Degree Premeditated Murder
The Defendants were charged with and convicted of two counts of attempted first degree murder. At the time of these offenses, Tennessee Code Annotated §§ 39-13-201,-202(a)(1) (1991) defined first degree murder as the unlawful, intentional, premeditated and deliberate killing of another. The Code further 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." Tenn. Code Ann. § 39-13-201(b)(1)-(2) (1991). In addition, the Code stated that "[a] person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense . . . [a]cts with intent to cause a result that is an element of the offense, and believes the conduct will cause the result without further conduct on the person's part." Tenn. Code Ann. § 39-12-101(a)(2) (1991). The Defendants contend that the evidence was insufficient to support their convictions for attempted first degree murder because the State failed to establish the required elements of premeditation, deliberation and intent. We disagree.
Defendant Richmond
Although there was not direct testimony that Defendant Richmond entered the club or that he fired any shots, there is circumstantial evidence that is sufficient to sustain his convictions. "[A] person is criminally responsible for an offense committed by the conduct of another if . . . '[a]cting 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.'" Tenn. Code. Ann. § 39-11-402(2). In other words, the defendant "must knowingly, voluntarily and with common intent unite with the principal offenders in the commission of the crime." State v. Foster, 755 S.W.2d 846, 848 (Tenn.Crim.App. 1988). A defendant is also held criminally responsible for any other crime committed by the principal offender in pursuit of the common purpose or as a natural and probable consequence of the crime originally aided and abetted by the defendant. State v. Carson, 950 S.W.2d 951, 955-56 (Tenn. 1997).
When the evidence is viewed in the light most favorable to the State, the evidence supports the jury's verdict as to both victims, Mose Cuxart and Shannon Brown. The record reflects that four men wearing masks came around the corner of the Magic City Lounge with guns in their hands. While at the club, one of the robbers fired shots at Shannon Brown and Cuxart, at the behest of Defendant Johnson. Earls testified that the robber, who had taken Cuxart's money, ran into the club with an uzi and appeared to be shooting at Shannon Brown. Earls testified that he thought that Shannon Brown was "probably grazed" by a bullet. Officer Waggoner identified photos of Shannon Brown's jacket with a bullet hole, a wound on Shannon Brown's side and a picture of Shannon Brown. The State contends that Richmond is the one who fired the shots, but the record is unclear as to who fired these shots. The evidence further shows that Richmond, along with Defendant Johnson and two other men, were arrested for their participation in the aggravated robbery of Cuxart and the attempted aggravated robbery of Earls. Officer Brian Conkey testified that he took Defendant Richmond out of the driver's seat and arrested him. We conclude that this evidence was sufficient to find Defendant Richmond guilty of the two counts of attempted first degree premeditated murder under a theory of criminal responsibility.
Defendant Johnson
In a light most favorable to the State, the evidence clearly showed that, following the commission of the aggravated robbery, Defendant Johnson fired numerous shots at Cuxart, from the passenger side of the "getaway" car. The proof also reflected that Johnson ordered one of his confederates to kill the D.J., Leonard Hill, as they struggled on the club's floor. Defendant also ordered his confederates to shoot Cuxart and Earls. At some point, during the various series of shots that were fired, Shannon Brown was hit by a bullet and slightly wounded. The evidence demonstrates reflection, cool purpose, the use of a deadly weapon and intent by the Defendant. Thus, the evidence was sufficient for a reasonable jury to find beyond a reasonable doubt that the Defendant was guilty of attempted first degree premeditated murder of both Cuxart and Shannon Brown.
B. Aggravated Robbery and Attempted Aggravated Robbery
Tennessee Code Annotated § 39-13-401 defines robbery as "the intentional or knowing theft of property from the person of another by violence or putting the person in fear." Tenn. Code Ann. § 39-13-401(a) (1991). Aggravated robbery is "robbery as defined in § 39-13-401 . . . [a]ccomplished with a deadly weapon or by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon. . . ." Id. § 39-13-402(a)(1). To prove attempted aggravated robbery, the State had to show that the Defendants attempted to commit robbery with a deadly weapon. Id. §§ 39-13-402(a)(1) 39-12-101(a)(2). After a review of the record in the light most favorable to the State, we conclude that the evidence was sufficient to sustain the Defendants' conviction for the aggravated robbery of Cuxart and the attempted aggravated robbery of Earls, and Johnson's conviction for the attempted aggravated robbery of Hill.
The evidence showed that Defendants Richmond and Johnson, along with their other confederates, robbed Cuxart. Cuxart and Earls testified that four men in masks approached them as they were standing outside the Magic City Lounge. One of the men, who Cuxart identified as "Goldie," put a gun in Cuxart's face and made Cuxart relinquish all of his money. Next, the man told Earls to give him all of his money, but Earls had no money. Cuxart and Earls later identified Defendant Johnson as "Goldie." Following the robbery, the Defendants sped away in their getaway car, driven by Defendant Richmond, with the police close behind them. Therefore, the evidence was sufficient for a reasonable trier of fact to find, beyond a reasonable doubt, that both Defendants actively participated in the aggravated robbery and attempted aggravated robbery of Cuxart and Earls.
The same analysis holds true for Defendant Johnson's conviction for the attempted aggravated robbery of Leonard Maurice Hill. The record reflects that Defendant Johnson attempted to rob Hill with a silver colored handgun, but Hill fought with Johnson and prevented Johnson from robbing him. Cuxart testified that, during the fight between Johnson and Hill, Johnson's mask came off and he recognized the Defendant as a man he called "Goldie." Accordingly, we find the evidence is sufficient to support Defendant Johnson's conviction for attempted aggravated robbery beyond a reasonable doubt. Therefore, the Defendants are not entitled to relief on this issue.
C. Improper Admission of Photographs of Shannon Brown and Kevin Brown
In conjunction with their argument that the evidence was insufficient to convict them of attempted murder, the Defendants argue that the trial court erred in allowing the State to admit photographs of Shannon Brown and Kevin Brown. The Defendants also contend that the court erred in admitting photos of Kevin Brown and his gunshot wound, given the fact that the indictment does not name Kevin Brown as the victim of an attempted murder. Defendant Johnson further argues that the photos of both Shannon and Kevin Brown were not admissible, because the photos were not authenticated under Rule 901, Tenn. R. Evid. However, we decline to address the authentication argument, as this was not the ground upon which Defendant Johnson objected to these photos at trial. See State v. Banes, 874 S.W.2d 73, 82 (Tenn.Crim.App. 1993) ("An appellant cannot change theories from the trial court to the appellate court.").
Generally, the admissibility of photographs is a matter left to the sound discretion of the trial court, whose ruling will not be disturbed on appeal absent a clear abuse of discretion. State v. Hall, 8 S.W.3d 593, 602 (Tenn. 1999); State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). Nevertheless, photographs admitted during the guilt phase must be relevant to an issue at trial, and the danger of unfair prejudice must not substantially outweigh their probative value. Tenn. R. Evid. 403;see Banks, 564 S.W.2d at 951.
The Defendants assert that Officer Waggoner's testimony that the photographs showed Shannon Brown's clothing and that the individual in the photograph identified himself to Waggoner as Shannon Brown is inadmissible hearsay. The Defendants also argue that this evidence exposed them to unfair prejudice that was substantially greater than the probative value of the evidence, given the State's failure to produce Shannon Brown as a witness.
Under the Tennessee Rules of Evidence, hearsay is any statement, other than one made by the declarant while testifying at trial or in a hearing, that is offered into evidence to prove the truth of the matter asserted. Tenn. R. Evid. 801(c). Hearsay statements are not admissible unless (1) the evidentiary rules create an exception or (2) some other law renders the statement admissible. Tenn. R. Evid. 802, Advisory Commission Comments. In this case, Officer Waggoner testified to an alleged victim's out of court statement during the State's case-in-chief. Waggoner stated that Shannon Brown identified himself and he took a picture of Brown's face, gunshot wounds and a bullet hole in Brown's jacket. Officer Waggoner identified these photographs during his direct examination. Therefore, if the State offered Waggoner's testimony as substantive evidence to prove that Shannon Brown was the man in the picture, then Waggoner's testimony is clearly hearsay and inadmissible. The State advances no hearsay rule exception that would authorize the use of these statements. Thus, the trial court erred by overruling the Defendants' hearsay objection.
Next, we must analyze whether the admission of the hearsay statement identifying Shannon Brown, and the admission of the photographs of Kevin Brown "more probably than not affected the jury's verdict." Concerning the photographs of Kevin Brown, we find that it was harmless error to admit these photos. Kevin Brown was not named in the indictment as an attemtped murder victim, and was not named in the jury instructions as an attempted murder victim. Therefore, the jury should not have given any weight to this evidence. Thus, we find the erroneous admission of these photographs was harmless.
Regarding the admission of the hearsay statement made by Officer Waggoner, we conclude that this error was also harmless. The essence of the Defendants' argument revolves around the identity of the victim. Assuming arguendo that the statement was not admitted into evidence, the other evidence still would have been sufficient to sustain the jury's verdict. Shannon Brown was named in the indictment as one of the victim's of attempted first degree murder. Cuxart and Earls testified to shots being fired in and outside of the club. Cuxart and Earls also testified to Shannon Brown being present on the night of the shooting and robbery. Officer Waggoner testified that, on the night of this incident, he took photographs of the scene, including pictures depicting the injuries of a man who was wounded as a result of the Defendants' conduct. Thus, the photos of Shannon Brown would have been admissible, but without any statement of identification. This evidence, although circumstantial, would have been sufficient to sustain the jury's verdict of guilty. See State v. Pendergrass, 13 S.W.3d 389, 393 (Tenn.Crim.App. 1999) ("a criminal offense may be established exclusively by circumstantial evidence").
Moreover, any variance between the indictment and the proof presented at trial, under these circumstances, would not have been fatal. This court has upheld an indictment, which failed to identify the victim.See State v. Clark, 2 S.W.3d 233, 235 (Tenn.Crim.App. 1998) (". . . the identity of the victim is not an essential element of the crime, and the charging instrument is not defective merely for failing to identify the victim."). Similarly, we conclude that the failure to identify a named victim at trial, is not an essential element of the offense of attempted first degree murder. If, as in this case, the State meets its burden of showing that the defendant attempted to premeditatedly and intentionally kill a victim, through the direct testimony of witnesses that were present and photographs taken by a police officer the night of the incident, then such evidence would be sufficient to convict the defendant of attempted first degree murder. "To satisfy constitutional notice requirements, an indictment or presentment must provide notice of the offense charged, an adequate basis for the entry of a proper judgment, and suitable protection against double jeopardy." State v. Trusty, 919 S.W.2d 305, 309 (Tenn. 1996), overruled on other grounds, State v. Burns, 6 S.W.3d 453 (Tenn. 1999). We find, that absent this hearsay statement or any evidence identifying Shannon Brown's name in association with the photograph, the evidence would have been sufficient to uphold a guilty verdict. Thus, the erroneous admission of this hearsay statement was harmless. The Defendants are not entitled to relief on this issue.
II. Failure to Charge Natural and Probable Consequences Rule — Richmond
Defendant Richmond argues that the trial court's failure to instruct the jury on the natural and probable consequences rule was error, given the State's reliance upon a theory of criminal responsibility for the acts of another. The Defendant further contends that this case closely parallels the recent case of State v. Howard, 30 S.W.3d 271, 277 (Tenn. 2000) (finding that the natural and probable consequences rule is an "an essential element that the State must prove beyond a reasonable doubt," when relying upon a theory of criminal responsibility), and therefore his convictions for attempted first degree premeditated murder must be reversed and remanded for a new trial. We agree, even though we found the evidence sufficient to sustain Defendant's convictions.
In Howard, the defendant was convicted of first degree premeditated murder, aggravated robbery, and conspiracy to commit aggravated robbery. The proof showed that Howard conspired to rob T.G.I. Friday's restaurant with three other persons. Howard stayed near the rear of the restaurant, as the others went in to rob the restaurant. When Howard heard gunshots, he ran to the car followed by his co-defendants. Our Supreme Court found that, because the jury had not been instructed on the natural and probable consequences rule, an essential element of premeditated murder based upon criminal responsibility, the defendant's conviction for premeditated murder had to be reversed and remanded for a new trial.
Here, the trial court instructed the jury that it had the option to find Richmond criminally responsible for the attempted murders of Cuxart and Shannon Brown. The trial court gave the jury an instruction on criminal responsibility, but did not instruct the jury on the natural and probable consequences rule. The evidence presented at trial did not suggest that Richmond fired either of the weapons used against the attempted murder victims. However, Richmond does not dispute the applicability of the criminal responsibility theory, only that the natural and probable consequences rule should have been charged also.
The "natural and probable consequences" rule underlies the doctrine of criminal responsibility and is based on the recognition that aiders and abettors should be responsible for the criminal harms they have naturally, probably and foreseeably put into motion. State v. Carson, 950 S.W.2d 951, 954-55 (Tenn. 1997). The rule extends criminal liability to the crime intended by a defendant, and also to other crimes committed by a co-defendant that were the natural and probable consequences of the commission of the original crime. See id. In order for the State to impose criminal liability based on the natural and probable consequences rule, the State must prove beyond a reasonable doubt and the jury must find: (1) the elements of the crime or crimes that accompanied the target crime; (2) that the defendant was criminally responsible under Tenn. Code Ann. § 39-11-402; and (3) that the other crimes that were committed were natural and probable consequences of the target crime. Id.
We find that, as to Defendant Richmond, the natural and probable consequences should have been charged in relation to the charges for attempted first degree murder. The evidence showed that Richmond and his co-defendants stormed the Magic City Lounge with weapons and the intent to rob the occupants. During and after the robbery, Richmond's confederates fired several shots at the occupants of the lounge. Two occupants were grazed by the bullets. The evidence was sufficient to support the elements of the various robbery charges and the attempted murders committed by Richmond's co-defendants. The jury also had sufficient evidence to find Richmond criminally responsible for the acts of his confederates. However, the jury was not given the opportunity to consider whether the third element of the State's case, as required byHoward and Carson, had been proven beyond a reasonable doubt. The jury did not consider whether the attempted murders, committed by Richmond's co-defendants, were the natural and probable consequence of the robbery. We find that it was error not to instruct the jury on the natural and probable consequences rule, conclude that it was not harmless error, reverse Defendant Richmond's convictions for attempted first degree premeditated murder, and remand for a new trial on the counts charging attempted first degree premeditated murder.
III. Errors in the Indictment — Richmond and Johnson A. Failure to Charge Criminal Responsibility — Richmond
Defendant Richmond argues that the indictment was improper, since it did not charge him with criminal responsibility for the acts of his co-defendants. We disagree.
The Defendant relies on State v. Barnes, 954 S.W.2d 760 (Tenn.Crim.App. 1997) to argue that the indictment should have given him notice that the State was imputing the conduct of his co-defendants to him. In Barnes, the defendant attacked her husband. The husband was able to pin the defendant to the floor, and the defendant began crying for help. When one of the defendant's friends heard the defendant crying for help, he came and hit the husband with a baseball bat. The defendant was convicted of a single count of aggravated assault based upon her own acts and those of her friend. A panel of this court found that the State does not have to charge in the indictment, its theory of the defendant's responsibility for the crime. Id. at 764. However, the court held that under the specific facts of that case, which involved two assaults by two separate defendants, the indictment charging a single aggravated assault was insufficient and did not give the defendant proper notice of which assault the defendant was charged with committing. Id.
We find that the exception applied in Barnes is distinct from the present case. Barnes involved two assaults to a single victim; however, the indictment charged only one assault. Here a single criminal episode resulted in four separate victims of crimes including: attempted murder, attempted aggravated robbery and aggravated robbery. The indictment charged Richmond with two counts of attempted first degree murder, one count of attempted aggravated robbery, and one count of aggravated robbery arising from this single episode. Unlike the indictment inBarnes, the indictment in the instant case was not ambiguous. The indictment in this case charged a single crime for each separate victim.Cf. State v. John R. Farner, Jr., E1999-00491-CCA-R3-CD, 2000 WL 872488, at *10, Sullivan County (Tenn.Crim.App., Knoxville, June 30, 2000),perm. to appeal granted (Tenn. Feb. 12, 2001) (finding Barnes was not applicable where "a single accident resulted in two deaths and two victims with injuries," and the presentment charged two vehicular homicides and two aggravated assaults).
A proper indictment must: (1) enable the defendant to know the accusation to which answer is required; (2) enable a trial court upon conviction to enter an appropriate judgment and sentence; and (3) protect the defendant against double jeopardy. State v. Hammonds, 30 S.W.3d 294, 299 (Tenn. 2000); State v. Lemacks, 996 S.W.2d 166 (Tenn. 1999); State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). In State v. Hammonds, our supreme court stated that "indictments which achieve the overriding purpose of notice to the accused will be considered sufficient to satisfy both constitutional and statutory requirements." Id., at 300. InLemacks, the Court held that an indictment need not include the theories available to support a conviction. 996 S.W.2d at 172-73. The court further held that criminal responsibility is not a separate and distinct crime, but merely a theory by which the State may prove a defendant is guilty for an offense committed by someone else. Id. at 173. An indictment or presentment charging the defendant with an offense necessarily includes the defendant's criminal responsibility for the offense. Id. Furthermore, Tenn. Code Ann. § 39-11-401 puts every defendant on notice that his responsibility for another's conduct is covered by an indictment alleging that he committed a crime. Accordingly, we find that the requirements and due process guarantees noted in Hill, Lemacks and Hammond were met by the indictment in this case. Thus, the State was not required to charge criminal responsibility in the indictment. Lemacks, 996 S.W.2d at 173.
Each count of the indictment clearly charged Defendant Richmond as a principal for all crimes charged. The indictment properly tracked the language of the statutes, upon which the State was relying, and cited to the statutes. If the Defendant needed more information than that provided in the indictment, then he should have sought a bill of particulars. See State v. Hensley, 656 S.W.2d 410, 413 (Tenn.Crim.App. 1983). The State was not required to provide surplus language, informing the Defendant of various theories the State may or may not have relied upon at trial. We find that the indictment is sufficient, and that the Defendant is not entitled to relief on this issue.
B. Improper Amendment of the Indictment
Defendant Johnson argues that the trial court erred in allowing the State to amend the indictment at the conclusion of all of the proof. Specifically, the Defendant asserts that the trial court erred in deleting that part of the indictment alleging that the Defendant stole a gun from Cuxart, during the aggravated robbery. The Defendant contends that the trial court should have granted his motion for judgment of acquittal as to count one charging him with the aggravated robbery of Cuxart, because the proof showed that no gun had been stolen. In response, the State argues that any variance between the indictment and the proof was immaterial and not prejudicial.
Count one of the indictment read as follows:
The Grand Jurors for the State of Tennessee, upon their oaths, present that SHEVRON JOHNSON, ALIAS AND LINNELL RICHMOND, ALIAS AND FRANK FLOYD WILBURN, ALIAS and WILLIAM FRED UNDERWOOD, ALIAS, heretofore, to-wit: On or about the 18th day of February, 1995, in the County and State aforesaid, and before the finding of this Indictment, did unlawfully, intentionally and knowingly, by violence and putting Mose Cuxart in fear, by use of a deadly weapon, take from the person of Mose Cuxart a gun and a quantity of good and lawful money of the United State of America, — the further kinds, types, descriptions and denominations thereof to the Grand Juror unknown, in violation of T.C.A. 39-13-402, and against the peace and dignity of the State of Tennessee.
(emphasis added.)
Rule 7(b) of the Rules of Criminal Procedure states that "[a]n indictment, presentment or information may be amended in all cases with the consent of the defendant. If no additional or different offense is thereby charged and no substantial rights of the defendant are thereby prejudiced, the court may permit an amendment without the defendant's consent before jeopardy attaches." Tenn. R. Crim. P. 7(b) (emphasis added). Here, the amendment of the indictment occurred at the close of proof. In Tennessee, it is well-settled that jeopardy attaches in a jury case when a defendant is put to trial before a court of competent jurisdiction, upon a sufficient indictment and the jury is impaneled and sworn. State v. Todd, 654 S.W.2d 379, 382 (Tenn. 1983); Etter v. State, 185 Tenn. 218, 205 S.W.2d 1, 3 (1947). Therefore, it was error for the trial court to amend the indictment after jeopardy attached and without the Defendant's consent.
However, we find this error was harmless beyond a reasonable doubt. The indictment informed the Defendant that he was charged with "unlawfully, intentionally and knowingly, by violence . . . [of] putting Mose Cuxart in fear, by use of a deadly weapon, [and with]tak[ing] from the person of Mose Cuxart a gun and a quantity of good and lawful money. . . ." There is no indication in the record that the Defendant was misled or surprised at trial or prevented from adequately preparing a defense against this charge. In fact, the Defendant was able to clearly show, through Cuxart's testimony, that Cuxart's gun had not been stolen. Thus, the amendment did not change the charge against the Defendant and did not prejudice the Defendant.
IV. Failure to Charge Lesser Included Offense — Richmond
Next, Defendant Richmond contends that the trial court erred in not charging the jury on robbery and attempted robbery, and facilitation of each offense charged in the indictment. First, Defendant Richmond asserts that there was legally sufficient evidence justifying an instruction on robbery and attempted robbery. Second, the Defendant argues that the trial court's instruction on facilitation was inadequate, as the court did not explain to the jury that it could consider facilitation for each offense charged in the indictment. The State argues that the trial court's instruction on facilitation was sufficient and that there was no evidence that reasonable minds could accept as to robbery and attempted robbery, which would justify an instruction on these offenses.
A. Facilitation of the Offenses Charged
Defendant Richmond claims that the trial court's instruction on facilitation did not clearly state to the jury that it could consider facilitation as a lesser included offense of each of the offenses charged. The trial court's instruction on facilitation was as follows:
Any person who commits the offense of facilitation of a felony is guilty of the crime. For you to find the defendant Linnell Richmond guilty of this offense, the State must have proven beyond a reasonable doubt the existence of the following essential elements:
That the defendant knew that another person intended to commit the specific felony of aggravated robbery, as charged in count one and/or attempted aggravated robbery as charged in count two and/or attempted first degree murder, as charged in counts three and four, but did not have the intent to promote or assist the commission of the offense or to benefit in the proceeds or results thereof; and,
that the defendant furnished substantial assistance to that person in the commission of the felony; and;
that the defendant furnished such assistance knowingly.
The requirement of knowingly is also established if it is shown that the defendant acted intentionally, and the definitions of intentionally and knowingly have previously been defined for you in the charge of aggravated robbery. Please refer to those definitions.
An individual who commits the offense of facilitation of a felony shares a lesser degree of culpability than the person who commits the felony.
We find the above instruction was unambiguous and that it sufficiently charged the jury on facilitation as a lesser-included offense of each offense in the indictment. "A trial court has the duty to give a complete charge of the applicable law to the facts of the case and the defendant has a constitutional right to have every issue of fact raised by the evidence and material to his defense submitted to the jury upon proper instruction by the court." State v. Stoddard, 909 S.W.2d 454, 460 (Tenn.Crim.App. 1994). Here, the trial court clearly informed the jury that it could find Defendant Richmond guilty of facilitation of any or all of the counts charged in the indictment. Although the instructions could have been more detailed, we believe that the jury was adequately instructed regarding facilitation as a lesser-included offense. See State v. Cribbs, 967 S.W.2d 773, 784 (Tenn. 1998) (a jury is presumed to follow instructions from a trial court). Thus, the Defendant is not entitled to relief on this issue.
B. Robbery and Attempted Robbery
In separate opinions in this case, Presiding Judge Wade and Judge Smith conclude that it was reversible error for the trial court to not charge the lesser-included offenses of simple robbery and attempted robbery as to Defendant Richmond. For the reasons that follow, I cannot agree, and would affirm the convictions of Defendant Richmond for aggravated robbery and attempted aggravated robbery.
In order to prove aggravated robbery, the State was required to also prove robbery. Likewise, in order to prove attempted aggravated robbery, the State was required to prove the elements contained in attempted robbery. See State v. Bowles, ___ S.W.3d ___, No. M1997-00092-SC-R11-CD, slip op. (Tenn. July 31, 2001). Bowles is the most recent decision of our supreme court concerning whether or not the trial court's failure to instruct the jury on a lesser-included offense constitutes harmless error. One of the issues in Bowles was whether the trial court in that case committed reversible error by not charging theft as a lesser-included offense of robbery. The supreme court first observed as "uncontested" the fact that theft is a lesser-included offense of robbery. The Court then noted that the issue in Bowles concerned the second inquiry in the analysis set forth in State v. Burns, 6 S.W.3d 453 (Tenn. 1999), that is, "whether the evidence, viewed liberally in a light most favorable to a finding of the lesser-included offense, is such that reasonable minds could find the lesser-included offense, and whether the evidence is legally sufficient to support a conviction for the lesser-included offense." Bowles, slip op. at 11 (quoting Burns, 6 S.W.3d at 469). Further relying upon Burns, the supreme court in Bowles reiterated that in making this determination, an appellate court should not "make any judgments on the credibility of the evidence that may support the finding of the lesser-included offense."Id.
When a lesser-included offense is a Burns "part (a)" lesser-included offense, in order to prove the greater offense, which includes all elements of the lesser-included, the State clearly must prove all the elements of the lesser-included offense. In my opinion, the relevant inquiry in the case sub judice is, at what point should this Court make a determination that "reasonable minds could find the lesser-included offense."
There is absolutely no proof in this record that deadly weapons were not used in the commission of these offenses. On the contrary, there is objective, uncontradicted, undisputed and direct evidence of the use of a deadly weapon. See Tenn. Code Ann. § 39-11-106(a)(5)(a) (a deadly weapon means, inter alia, "[a] firearm or anything manifestly designed, made, or adopted for the purpose of inflicting death or serious bodily injury. . ." (emphasis added)). This necessarily elevated the offenses to that of aggravated robbery and attempted aggravated robbery, as defined by our legislature. See Tenn. Code Ann. §§ 39-13-402, 39-12-101 (1997).
In Bowles, the defendant was convicted of the robbery of Thomas Dobbs, who resided with his wife, Kathleen Dobbs. After forcefully entering the Dobbs' residence, Defendant Bowles entered a bedroom where Thomas Dobbs was lying in bed, suffering from severe emphysema. Kathleen Dobbs was also present, having walked into the bedroom after she heard the defendant break into their home. Defendant Bowles slung Mrs. Dobbs onto the floor of an adjoining bedroom, causing injuries to her person, and attempted to penetrate her with his penis. Thereafter, the defendant entered the room where Thomas Dobbs was still lying in bed. The defendant swept his arm across the top of a chest of drawers, knocking off pictures, a clock, and the top of Thomas Dobbs' breathing machine. The defendant then removed a billfold from a pair of pants lying on Thomas Dobbs' bed and took it with him as he left through the back door.
Bowles is distinguishable from the case sub judice. Robbery is "the intentional or knowing theft of property from the person of another by violence or putting the person in fear." Tenn. Code Ann. § 39-13-401(a) (1997). A person commits theft when, with intent to deprive the owner of property, he knowingly obtains or exercises control of the property without consent. See Tenn. Code Ann. § 39-14-103 (1997). The element which elevates theft to robbery is the taking of the property by violence or by placing the victim in fear at the time of the theft. The "enhancing" element of aggravated robbery and attempted aggravated robbery in the case sub judice, is the use of a deadly weapon. InBowles, proof of the "enhancing" element is not as clearly objective as proof of the "enhancing" element in the case sub judice. In other words, without any "judgments on the credibility of the evidence," Burns, 453 S.W.3d at 469, and Bowles, slip op. at 5, this court can readily determine that no evidence exists that reasonable minds could accept as to the lesser-included offenses of robbery or attempted robbery.
This is not to say that, if the trial court had charged the lesser-included offense, that Defendant would be entitled to relief. It is well-settled law in Tennessee that "[a] defendant will not be heard to complain of conviction of a lesser included offense when he could have been convicted of a higher [offense]." State v. Smith, 695 S.W.2d 527, 529 (Tenn. 1985); McDonald v. State, 512 S.W.2d 636, 640 (Tenn.Crim.App. 1974).
The conclusions reached in this analysis would apply only in a limited number of cases. For instance, acting "intentionally" and with "premeditation" elevates second degree murder to first degree murder. There would be minimal, if any, instances where direct, uncontradicted, and uncontested evidence that the accused acted intentionally, and with premeditation, would be so strong as to justify not giving a charge of at least second degree murder. However, in this particular case, there is absolutely no question that firearms were used to commit the offenses. If the trial court had given an instruction on the lesser-included offense of robbery under count one, and the jury had returned a verdict of guilty as to that offense, the first question asked by a person reviewing the record would probably be, "How could a jury find the defendant guilty of only robbery in this case with the facts as presented?" The only reasonable explanation could be "jury nullification," a process which is not even "officially" recognized, and which the appellate courts of this state have clearly prohibited from being mentioned to a jury. See State v. Taylor, 771 S.W.2d 387, 397 (Tenn. 1989); State v. Shropshire, 874 S.W.2d 634, 640 (Tenn.Crim.App. 1993).
The trial court made no judgment on the credibility of the evidence in this case, under the unique and particular facts presented, in determining that no reasonable mind could find the lesser-included offense of robbery or the lesser-included offense of attempted robbery under counts one and two of the indictment. Therefore, I conclude that there was no error on the part of the trial court in declining to charge the lesser-included offenses of robbery and attempted robbery.
V. Failure To Allow The Victim To Be Impeached
Defendant Richmond contends that the trial court erred by ruling that the victim, Mose Cuxart, could not be impeached with his 1992 and 1993 income tax returns. Specifically, the Defendant argues that Cuxart's income tax returns would have been probative of Cuxart's character for truthfulness or untruthfulness, as provided under Rule 608 of the Tennessee Rules of Evidence. The State challenges this argument and asserts that the trial court properly declined to admit this evidence on grounds of relevancy as provided by Rule 402, Tenn. R. Evid.
Generally, evidence of character or character traits is not admissible. Rule 404(a), Tenn. R. Evid. Rule 608 offers an exception to that general principle by allowing, in certain circumstances, character evidence to be utilized if limited to impeachment purposes. Rule 608(b) provides, in pertinent part:
Specific Instances of Conduct — Specific instances of conduct of a witness for the purpose of attacking or supporting the witness's credibility, other than convictions of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, if probative of truthfulness or untruthfulness and under the following conditions, be inquired into on cross-examination of the witness concerning the witness's character for truthfulness or untruthfulness or concerning the character for truthfulness or untruthfulness of another witness as to which the character witness being cross-examined has testified. The conditions which must be satisfied before allowing inquiry on cross-examination about such conduct probative solely of truthfulness or untruthfulness are:
(1) The court upon request must hold a hearing outside the jury's presence and must determine that the alleged conduct has probative value and that a reasonable factual basis exists for the inquiry;
(2) The conduct must have occurred no more than ten years before commencement of the action or prosecution, but evidence of a specific instance of conduct not qualifying under this paragraph (2) is admissible if the proponent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence and the court determines in the interests of justice that the probative value of that evidence, supported by specific facts and circumstances, substantially outweighs its prejudicial effect;. . . .
* * *
Rule 608(b) applies to specific instances of conduct which might tend to accredit or discredit the witness. Thus, specific instances of conduct which are probative of truthfulness or untruthfulness "may be asked about on cross-examination and the witness's answers must be taken as given." N. Cohen, S. Sheppeard, D. Paine, Tennessee Law of Evidence, § 608.4 at 350 (3d ed. 1995). Moreover, evidence of specific instances of conduct is admissible only if: (1) there is a reasonable factual basis for an inquiry into the specific instance and (2) the probative value on credibility outweighs any unfair prejudice.
Under Rule 608(b), extrinsic proof of Cuxart's allegedly falsified tax returns would not be admissible in court. Here, the Defendant had the opportunity, during a jury-out hearing, to question Cuxart about his 1992 and 1993 tax returns. This examination would have permitted the trial court to determine whether there was any factual basis for the inquiry concerning Cuxart's tax returns. Cuxart was already on the witness stand, yet he was not questioned and there was no offer of proof made by the Defendant. Without an offer of proof as to the witnesss testimony, we are unable to assess the impact of the trial court's ruling. Thus, the failure of the Defendant to fully avail himself of the remedy offered in Rule 608(b) constitutes a waiver of any error committed by the trial court in admitting this evidence. See Tenn.R.App.P. 36(a).
VII. Consecutive Sentencing — Richmond and Johnson
Finally, the Defendants argue that the trial court erred in ordering their state sentences to be served consecutively to the federal sentences stemming from the same incident. The Federal Court of the Eastern District of Tennessee sentenced the Defendants to thirty-five (35) years incarceration for the illegal of possession of an automatic weapon. On appeal, the Defendants contend that the trial court failed to give due consideration to the "good causes," which show a need for concurrent state and federal sentences.
When a defendant appeals the manner of service of a sentence imposed by the trial court, this court conducts a de novo review of the record with a presumption that the trial court's determinations are correct. Tenn. Code Ann. § 40-35-401(d). The presumption of correctness is "conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The burden of showing that the sentence is improper is upon the appealing party. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments. However, if the record shows that the trial court failed to consider the sentencing principles and all relevant facts and circumstances, then review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.
Tennessee Code Annotated § 40-35-115 provides that a trial court may order sentences to run consecutively if the court finds by a preponderance of the evidence that one or more of the factors in subsection (b) exists. The trial court is required to state on the record its specific findings of fact, which support consecutive sentencing. See Tenn. Code Ann. § 40-35-209(c); Ashby, 823 S.W.2d at 169.
At the sentencing hearing, the trial court ordered Defendant Johnson to serve his attempted murder convictions consecutively to each other and concurrently to the remainder of his sentences, for an effective sentence of seventy years. (Defendant Johnson does not challenge the trial court's decision to find him a dangerous offender, under Tenn. Code Ann. § 40-35-115(b)(4).) Regarding Defendant Richmond, the trial court determined that Richmond's state sentences were to run concurrently. The court's explanation for ordering concurrent state sentences for Richmond included the following:
However, with the disparity between Mr. Richmond's participation and that conduct and the fact that Mr. Johnson, I have already found, was the leader of this offense. I believe that Mr. Johnson is the one — and infer from this record that Mr. Johnson was the one that directed the conduct on that night, that he instructed, Mr. Richmond listened to his instructions to drive around the front of that building. Mr. Johnson was the individual who had the automatic weapon, who leaned out of the window, who fired the weapon.
I don't think that, based on that proof and Mr. Richmond's prior lack of convictions for felonies or anything but a misdemeanor assault and misdemeanor vandalism, that the Court would be justified in finding that he is a dangerous offender, as it is set forth in this statute. So I am not going to apply consecutive to Mr. Richmond. These sentences will run concurrently with one another, they being all one event.
* * *
On appeal, the Defendants only challenge the trial court's decision to run their state sentences consecutively to their federal sentences. In this analysis, the trial court relied upon Rule 32(c)(2) of the Tennessee Rules of Criminal Procedure, which states
If the defendant has additional sentences or portions thereof to serve as a result of a conviction in other states or in federal court, the sentence imposed shall be consecutive thereto, unless the Court shall determine, in the exercise of its discretion, that good cause exists to run the sentences concurrently and explicitly so orders.
(emphasis added).
We conclude that the trial court properly applied section 40-35-115(b), as well as Rule 32(c)(2). The "shall" language in Rule 32(c)(2) connotes a requirement that the Defendants' state and federal sentences run consecutively to each other, absent "good cause" to do otherwise. Furthermore, Rule 32(c)(2) places a finding of "good cause" solely within the discretion of the trial court. Here, the trial court noted made the following statements to support his finding that good cause did not exist to run the Defendants' federal and state sentences concurrently:
Notwithstanding your characterization of these being trumped-up charges, Mr. Haas, part and parcel of the conviction in federal court was the fact that an automatic weapon was used. I think they are a scourge on our society, and I think that individuals that resort to the use of those type of weapons in these types of fences [sic] put themselves almost in a special classification. We do not have an offense in state court similar to that offense, and I think that was a major consideration in the sentence that Mr. Richmond received in federal court.
Therefore, I don't believe that, even though this is the same event — the same series of events — that the offense for which he convicted and serving the major portion of his sentence is a different offense,. . . .
So I don't believe that good cause exists to run these sentences and find that I should exercise discretion in running these concurrently. So I decline to do that.
We agree with the findings of the trial court, and conclude that the serious nature of this federal offense combined with the detrimental effect that the illegal use of automatic weapons has had on our society, provided a sufficient basis for not running the federal and state sentences concurrently. The Defendants have failed to show that the trial court abused its discretion in ordering consecutive sentencing, and are not entitled to relief on this issue.
CONCLUSION
All of the convictions of Defendant Johnson, and the sentences imposed thereon, are affirmed. All of the convictions of Defendant Richmond are reversed and remanded for a new trial.
I concur with Judge Woodall's lead opinion as to the defendant Johnson and would affirm in all respects. I disagree with Judge Smith that this court should reverse Johnson's aggravated robbery and attempted aggravated robbery convictions on a plain error basis for failure to instruct on the lesser offenses of robbery and attempted robbery. Johnson did not present the issue on appeal. Five factors determine whether the failure to charge lesser included offenses qualifies as reversible, plain error:
1. The record must clearly establish what happened in the trial court;
2. a clear and unequivocal rule of law must have been breached;
3. a substantial right of the accused must have been adversely affected;
4. the accused did not waive the issue for tactical reasons; and
5. consideration of the error is necessary to do substantial justice.
State v. Adkisson, 89 S.W.2d 626, 639 (Tenn.Crim.App. 1994). Because the proof was so overwhelming as to Johnson's convictions, I would characterize the error as harmless beyond a reasonable doubt and cannot, therefore, conclude that considering the error as plain "is necessary to do substantial justice." Id.
I concur in part with Judge Woodall's opinion as to the defendant Richmond, who was granted a new trial on the murder count based upon error in the natural and probable consequences rule. The defendant Richmond should, however, be granted a new trial on all counts. I concur with Judge Smith, who concluded that the trial court also erred by the failure to instruct the jury on the lesser included offenses of robbery and attempted robbery on the aggravated and attempted aggravated robbery indictments.
The evidence showed that the victims were standing outside of a nightclub when four men wearing masks and hoods came around the corner of the building and demanded that they hand over their money. There was testimony that the defendant Johnson held a .9 millimeter pistol to one victim's head and took $200 from him. There was also proof that when the other victims related that they had no money, the defendants entered the nightclub and opened fire. The defendant Richmond was arrested shortly after the incident driving the getaway car. He was not wearing a mask or a toboggan. Police found no weapons and no money in his possession. By proving aggravated robbery and attempted aggravated robbery, the state also proved robbery and attempted robbery. See State v. Bowles, 52 S.W.3d 69 (Tenn. 2001). Under these circumstances, if the defendant Richmond had been convicted of robbery or attempted robbery, this court would have clearly found that the evidence supported the convictions. Thus, these lesser offenses should have been charged to the jury.
In all criminal cases, the burden of proof is on the state. The defendant had no obligation to prove that deadly weapons were not used in the offense. The jury has the right to accredit or reject the testimony of witnesses and, ultimately, to determine the law and the facts. See Tenn. Const. art. I, § 19. The trial judge has a duty to give a complete charge of the law applicable to the facts of the case. State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986). There is an obligation "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." Tenn. Code Ann. § 40-18-110(a). Pursuant to our statute and case law interpretations, defendants are entitled to jury instructions on all lesser offenses for which the evidence would support conviction. Complete instructions allow the jury to determine among each alternative the appropriate offense, if any, for conviction and to more evenly balance the rights of the defendant and the state. It is only when the record is devoid of evidence to support an inference of guilt of the lesser offense that the trial court is relieved of the responsibility to charge the lesser crime. State v. Stephenson, 878 S.W.2d 530, 549-50 (Tenn. 1994); State v. Boyd, 797 S.W.2d 589, 593 (Tenn. 1990).
A finding that the trial court erred by not instructing the jury, however, does not end the inquiry. In State v. Williams, 977 S.W.2d 101, 105 (Tenn. 1998), our supreme court appeared to have rejected a line of cases which had concluded that the right to instructions on lesser offenses was founded in the Tennessee Constitution and instead ruled that entitlement was based solely upon the statutory requirement. In consequence, the high court directed that any error in the omission of a lesser included offense would be subject to the following harmless error analysis:
Reversal is required if the error affirmatively appears to have affected the result of the trial on the merits, or in other words, reversal is required if the error more probably than not affected the judgment to the defendant's prejudice.
In State v. Bolden, 979 S.W.2d 587 (Tenn. 1998), the defendant, who was charged with premeditated first degree murder, was willing to gamble on an "all or nothing" verdict by asking the trial judge not to charge the lesser included offense of second degree murder; the trial judge refused and the defendant was convicted on that lesser crime. While our supreme court affirmed the second degree murder conviction, its opinion emphasized the mandate of the statute requiring trial courts to "instruct the jury on all lesser offenses if the evidence introduced at trial is legally sufficient to support a conviction of the lesser offense." Id. at 593. Our supreme court also acknowledged that a "purpose of the statute is to protect the right to trial by jury by instructing the jury on the elements of all offenses embraced by the indictment [and to] facilitate the overall truth-seeking function of the process." Id. If the failure to charge a lesser included offense was an error of constitutional dimension, as Bolden implied, the proper question would have been whether the error was harmless beyond a reasonable doubt. In State v. Swindle, 30 S.W.3d 289, 293 (Tenn. 2000), however, our supreme court followed the rationale in Williams and held that reversal was required only "if the error affirmatively affected the result of the trial, or if the error more probably than not affected the judgment to the defendant's prejudice." Our highest state court concluded that the trial court's failure to instruct misdemeanor assault as a lesser included offense of the primary charge, aggravated sexual battery, was harmless error under Tennessee Rule of Criminal Procedure 52(a).
In State v. Ely, however, our supreme court clarified the holding inWilliams and confirmed that the failure to charge a lesser included offense qualifies as an error of constitutional proportions:
[T]he right of trial by jury is of constitutional dimension [as] evidenced by its embodiment in Article I, section 6 of the Tennessee Constitution, which states, "the right of trial by jury shall remain inviolate." Accordingly, we hold that this constitutional right is violated when the jury is not permitted to consider all offenses supported by the evidence.
48 S.W.3d 710, 727 (Tenn. 2001) (emphasis in original). Our high court directed that in reviewing error arising from a failure to charge one or more lesser included offenses, "the proper inquiry for an appellate court is whether the error is harmless beyond a reasonable doubt." Id. That is not, in my view, a mechanically applied analysis, as Judge Smith suggests, but a fact-specific one, requiring review of the evidence in the record. For example, a concurring opinion authored by Chief Justice Rehnquist in Sullivan v. Louisiana accurately describes the duty of the appellate court in circumstances where there is constitutional error:
[T]he reviewing court is usually left only with the record developed at trial to determine whether it is possible to say beyond a reasonable doubt that the error did not contribute to the jury's verdict. . . . [A]ny time an appellate court conducts harmless-error review it necessarily engages in some speculation as to the jury's decision making process; for in the end no judge can know for certain what factors led to the jury's verdict.
508 U.S. 275, 283 (1993) (Rehnquist, J., concurring).
In Fahey v. Connecticut, 375 U.S. 85 (1963), our highest court observed that the real question when there is a constitutional violation is whether there is "a reasonable possibility" that error might have contributed to the conviction. In Chapman v. California, our Supreme Court approved of that language and further concluded that when constitutional error has occurred, appellate courts have the obligation "to declare a belief that it was harmless beyond a reasonable doubt." 386 U.S. 18, 24 (1967).
In summary, I concur in the affirmances of each of Johnson's convictions. In my view, defendant Richmond is entitled to a new trial on all counts. Because there was no direct testimony that he was armed or that he wore a mask, there is a "reasonable possibility" that the failure to instruct on robbery and attempted robbery may have contributed to the aggravated robbery and attempted aggravated robbery convictions. These errors cannot be considered harmless beyond a reasonable doubt. I therefore concur with Judge Smith that the defendant Richmond is entitled to new trials on those convictions.
GARY R. WADE, PRESIDING JUDGE
I concur fully in the lead opinion with respect to the attempted murder convictions of both defendants. I also concur fully with Judge Woodall's opinion in all other respects save for the issue concerning the failure of the trial court to instruct the jury on the lesser-included offenses of robbery and attempted robbery to the aggravated robbery indictment and the attempted aggravated robbery indictment. For the reasons stated below I would find this failure to instruct with respect to these lesser-included offenses constituted reversible error. A reading of the recent cases of State v. Bowles, ___ S.W.3d ___(Tenn. 2001); and State v. Ely Bowers, 48 S.W.3d 710 (Tenn. 2001); leads one to the inescapable conclusion that our high court has mandated that lesser-included offense instructions be given anytime the evidence is sufficient to support a conviction for these offenses. This means that anytime the proof is sufficient for a conviction of the indicted offense, the proof will a fortiori be sufficient for a conviction of the lesser-included offenses. See Bowles ___ S.W.3d at ___. As a practical matter, this in turn means that it will almost always be error to fail to instruct the jury as to all lesser-included offenses of the indicted offense. Thus, the only real inquiry, in my opinion, in virtually all of the cases raising the lesser-included offense issue is whether the error in failing to instruct on the lesser offenses can be said to be harmless beyond a reasonable doubt.
This analysis may not hold true where the issue is a failure to instruct the jury on the offenses of solicitation or facilitation of the indicted offense. A finding of guilt on the indicted charge does not a fortioti mean that there is sufficient proof to support a conviction on these offenses. For example, in the instant case constitutionally sufficient proof of guilt of aggravated robbery necessarily means there is sufficient proof of simple robbery and attempted robbery, but it does not necessarily follow that proof of aggravated robbery will establish that the defendant solicited or facilitated others in the commission of the offense. Presumably, the question to be asked in determining error with respect to solicitation and facilitation is whether there is any evidence that a reasonable juror could accept as to these offenses to the exclusion of the greater offenses.
It should be noted at the outset of this discussion that although defendant Richmond raised on appeal the lesser-included offense issue, defendant Johnson did not. Nevertheless, pursuant to Tenn. R. Crim. P. 52(b) and the case of State v. Smith, 24 S.W.3d 274 (Tenn. 2000); I would find as to Johnson that the failure to instruct the jury on the lesser-included offenses of robbery and attempted robbery constitutes plain error. As such I would therefore grant relief on this issue to both defendants.
Tenn. R. Crim. P. 52(b) provides:
An error which has affected the substantial rights of an accused may be noticed at any time, even though not raised in the motion for a new trial or assigned as error on appeal, in the discretion of the appellate court where necessary to do substantial justice.
In State v. Smith, supra., the Tennessee Supreme Court delineated a five (5) part test for determining whether an error is plain error. All five (5) criteria for establishing plain error must be established by the record. Id. at 282-83. These five (5) criteria are:
the record must establish what occurred in the trial court;
a clear and unequivocal rule of law must have been breached;
a substantial right of the accused must have been adversely affected;
the accused must not have waived the issue for tactical reasons; and,
consideration of the error must be necessary to do substantial justice.
Turning to the instant case the record reveals that no instructions on the lesser-included offenses of simple robbery and attempted robbery were given to the jury for consideration in the panel's deliberations on the aggravated robbery and attempted aggravated robbery counts in the indictment. In my view, for the reasons stated infra. the Tennessee Supreme Court has now established clear and unequivocal rules of law in this area. Clearly a substantial right of the accused, i.e. the state constitutional right to a jury trial was adversely affected. See, State v. Ely Bowers, 48 S.W.2d at 727, (Tenn. 2001). Nothing in the record suggests Johnson waived this issue for tactical reasons. Finally, since Johnson and Richmond were tried together in this case and presumably will be in the future trial necessitated by this Court's opinion, substantial justice requires that consistent jury instructions be given for both defendants. Thus, I would find the failure to instruct as to defendant Johnson on lesser-included offenses to the aggravated robbery and attempted aggravated robbery charges constitutes plain error.
Turning to the merits of the lesser-included offense issue in this case, I am again compelled by recent Tennessee Supreme Court precedent to conclude that an error in failing to instruct the jury as to lesser-included offenses will be found harmless beyond a reasonable doubt only in the situation presented in the case of State v. Williams, 977 S.W.2d 101 (Tenn. 1998). In Williams, the defendant was indicted for first degree murder. The jury was also instructed on second degree murder, but the trial judge declined to give instructions on voluntary manslaughter. The defendant was convicted of first degree murder as charged in the indictment. The supreme court held that the error was harmless because: "[B]y finding the defendant guilty of the highest offense to the exclusion of the immediately lesser offense, second degree murder, the jury necessarily rejected all other lesser offenses, including voluntary manslaughter." (Emphasis supplied), Id. at 106.
In the case of State v. Ely Bowers, supra.; the supreme court referred to Williams as an example of when an error in failing to instruct on lesser-included offenses is harmless beyond a reasonable doubt. 48 S.W.3d at 727. In State v. Bowles, supra.; Williams was again touted as the paradigm for harmless error analysis in this area. ___ S.W.3d at ___. In both State v. Swindle, 30 S.W.3d 289, 293 (Tenn. 2000); and State v. Bolden, 979 s.W.2d 587, 593 (Tenn. 1998); theWilliams case is held out as an example of when an error in failing to instruct on lesser-included offenses will be found to be harmless beyond a reasonable doubt.
In summary, each time our supreme court has performed a harmless error analysis on the failure to instruct on a lesser-included offense, the court has found the error to be harmless beyond a reasonable doubt when the Williams situation is presented. See e.g. Bowles, ___ S.W.3d at ___;State v. Swindle, 30 S.W.3d at 293. Each time the Williams situation is not present the court has found, irrespective of the quantum of proof as to the defendant's guilt of the greater offense, that the failure to instruct on lesser-included offenses was reversible error. State v. Ely Bowers, 48 S.W.3d at 727; State v. Rush, 50 S.W.3d at 424, 433 (Tenn. 2001). I am therefore forced to conclude that the only time a failure to instruct on lesser-included offenses can be considered harmless beyond a reasonable doubt is in the situation presented by the Williams case, i.e., where the jury by rejecting a verdict of guilt on an intermediate lesser-included offense for which they were instructed, in favor of a verdict on the more serious offense, " necessarily' rejects all other lesser-included offenses. Williams, 977 S.W.2d at 106. Although Judge Wade characterizes this approach to this seemingly intractable area of the law as "mechanically applied", such an analysis does establish a bright line rule that will foster consistence and predictability in this area of the law and provide guidance to the bench and bar. Given the troubled past of lesser-included jurisprudence, this seems to me to be a desirable result.
Since the situation in Williams is not that presented in the case sub judice I cannot say the jury " necessarily" rejected the lesser-included offenses of robbery and attempted robbery. Thus, I cannot find the error to be harmless beyond a reasonable doubt.
I, therefore feel compelled by our supreme court's precedents to reverse this case as to both defendants and remand for a new trial wherein the jury is instructed as to all lesser-included offenses of aggravated robbery and attempted aggravated robbery.