State v. Williams

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
(HEARD AT JOHNSON CITY)
FILED
September 21, 1998
STATE OF TENNESSEE ) FOR PUBLICATION
) Cecil Crowson, Jr.
Appellate C ourt Clerk
Appellant ) Filed: September 21, 1998
)
) HAMILTON COUNTY
v. )
) HON. STEPHEN M. BEVIL,
) JUDGE
WILLIE W ILLIAMS, JR. )
) NO. 03-S-01-9706-CR-00060
Appellee. )

For Appellee: For Appellant:

ALAN R. BEARD JOHN KNOX WALKUP
Chattanooga, TN Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

MICHAEL W. CATALANO
Associate Solicitor General
Nashville, TN

WILLIAM H. COX, III
District Attorney General

THOMAS J. EVANS
Assistant District Attorney
General
Chattanooga, TN

OPINION

COURT OF CRIMINAL APPEALS REVERSED;
JUDGMENT OF TRIAL COURT REINSTATED. DROWOTA, J.
 The defendant, Willie Williams, Jr., was convicted of first degree premeditated

murder.1 In the Court of Criminal Appeals, Williams challenged his conviction, arguing that

prejudicial error resulted when the trial court refused to instruct the jury with respect to the

offense of voluntary manslaughter. A majority of the Court of Criminal Appeals Panel

reversed his conviction and remanded the case for a new trial, finding that the trial court

should have given an instruction on voluntary manslaughter under the proof presented at

trial, that the failure to give the instruction deprived the defendant of his right to a trial by jury,

an error which is not subject to harmless error analysis. Judge Jerry Smith dissented. He

agreed that there was sufficient evidence in the record to trigger the need for an instruction

on voluntary manslaughter and that failure to do so was error. He reasoned, however, that

the error was harmless because it was apparent from the jury's verdict of guilt on the greater

offense of first degree murder and its disinclination to consider the lesser included offense

of second degree murder that it certainly would not have returned a verdict on voluntary

manslaughter.

Thereafter, we granted the State permission to appeal primarily to determine whether

the trial court’s erroneous failure to instruct the jury as to the offense of voluntary

manslaughter is subject to harmless error analysis. Upon careful consideration, we have

determined that the trial court’s failure to instruct the jury as to voluntary manslaughter is

harmless error because the jury was instructed as to the lesser included offense of second

degree murder but convicted the defendant of the greatest charged offense, first degree

premeditated murder. We have also determined that the trial court did not erroneously

1
The defendant was also convicted of unlawful possession of a machine gun, but that conviction is not
relev ant to the is sue s in th is app eal.

-2-
permit the jury to consider inadmissible hearsay testimony. Accordingly, we reverse the

judgment of the Court of Criminal Appeals and reinstate the judgment of the trial court.2

BACKGROUND

At approximately 4:40 a.m. on July 24, 1993, Delaney Thomas’ automobile was found

in an alley adjoining his mother’s home. Thomas was inside the car dead from a gunshot

wound to his head. The car’s engine was still running.

Prior to discovering the victim’s body, the Chattanooga Police Department had

received two Emergency 911 calls involving Thomas and the defendant. At 3:37 a.m. an

Emergency 911 dispatcher received a call from Thomas reporting that he had “a conflict”

with the defendant, and that Williams had shot at his car “for no reason.” Deanna Taylor,

a Chattanooga patrol officer, was the first to respond to the dispatch to the defendant’s

residence. Officer Taylor said Williams seemed surprised to see her and nervous when she

asked him if he had reported some property damage from a shooting incident.

Nevertheless, Williams told Officer Taylor that Thomas had driven by his house shooting a

gun and that he had returned fire. After interviewing Williams, Officer Taylor alerted other

officers to be on the lookout for Thomas.

Approximately one hour later, at 4:37 a.m., the Emergency 911 dispatcher received

a call from the defendant. W illiams told the dispatcher “I believe I shot somebody. I

followed him and he laying in the car.... Get the police out here right now. The man might

be dying, he might be dead. I don’t know. He around the corner from me. He in a Cadillac

. . . I got the gun in the house now . . . .”

2
Oral arguments w ere heard in this case in Johnson City as part of this Co urt’s S.C.A .L.E.S. ( Su pr em e
Court Advancing Lega l Education for Students ) project.

-3-
 Cherilyn Bryant, also a Chattanooga patrol officer, was the first officer to arrive at the

defendant’s residence in response to this call. She was escorted by the defendant and his

brother to an alleyway a short distance from Williams’ house. Though not visible from the

road, when Officer Bryant entered the alleyway, she observed a Cadillac automobile parked

in the alleyway. The engine of the car was running, and when she approached the car,

Officer Bryant observed Thomas in the driver’s seat of his car. He had sustained a gunshot

wound to the head, and appeared to be dead. Blood on Thomas’ body was dry and caked,

indicating that some time had passed since the gunshot wound had been inflicted. No

weapons were found in the victim’s car. Officer Bryant, the defendant and his brother

returned to Williams home. The defendant’s brother went into the Williams’ house, retrieved

a Norinco AK-47 semi-automatic rifle, and turned it over to Officer Bryant. Fourteen shells

of bullets from the rifle were found in Thomas’ car and on the street nearby.

After waiving his right to counsel, the defendant gave officers a statement at the

scene, relating that Thomas had shot at his house in a “drive-by” fashion earlier in the

evening, and that he had reported the incident to the police. Thereafter, Williams had driven

to a nearby intersection, where he encountered Thomas. He fired his weapon into the air

to frighten Thomas. Then, he saw Thomas point a handgun through the passenger window

at him, so he fired his gun in Thomas’ direction. When he realized that the bullet had struck

Thomas, he returned home and called the police.

Williams testified in his own behalf at trial stating that after he left work at midnight,

he went to a bar called “The Shack” and remained there until it closed at about 2:30 a.m.

He then went directly home. As he was backing into his driveway, a car he recognized as

belonging to Thomas drove by, and the driver fired shots in his direction. He ran inside the

house and told his wife and children to go to the back of the house where they would be

-4-
safer. He took his gun, the AK-47, inserted a clip, and left the house to go to his

grandmother's home. Williams said he thought Thomas would not cause trouble at his

house if his car was not there. Williams said that when he came upon Thomas by chance

during the drive to his grandmother's home, he panicked and fired his gun several times at

the ground in an attempt to scare Thomas. When Thomas drove into an alleyway, the

defendant assumed he had succeeded in scaring Thomas away, so he returned to his

residence.

The defendant further testified at trial that after he returned home, Officer Taylor

arrived. In response to her inquiries, the defendant told her that Thomas had driven by and

shot at the house. At trial, he denied telling her that he returned fire. After Officer Taylor

left, Williams called his brother and asked him to look for Thomas and talk to him. The

defendant's brother found Thomas sitting in his car. He returned, telling the defendant that

Thomas had been shot. At that point, the defendant made the 4:37 a.m. call to 911. The

defendant denied wanting to kill the victim; he stated that he was extremely upset over his

death.

The Hamilton County medical examiner testified that Thomas had not been facing his

killer when he had been shot. He also stated that had Thomas been holding a gun, the gun

would have been found either in his hand or nearby in his automobile. The medical

examiner also testified that the gunshot wound would have caused immediate death within

seconds to a minute at the longest and that Thomas would have been incapable of any

voluntary activity after sustaining the gunshot wound, such as disposing of a weapon or

driving an automobile.

-5-
 One of the defendant’s neighbors testified that she heard shots, and then saw a man

drive up in a small car, exit the car, approach the alley, return to his car and leave. Soon

afterward, she saw two men walk down the street, reach behind a wall, retrieve a gun while

furtively looking around, and walk away from the area.

Gloria Buchanan, the woman with whom Thomas had been living at the time of his

death also testified at trial. Buchanan stated that on the night of the murder she had seen

the defendant and his brother at a bar called “The Shack.” The defendant’s brother

approached her and asked about the victim’s whereabouts, but she did not tell him anything.

The defendant had been standing nearby when this conversation occurred. Buchanan also

testified that Thomas was the father of a child borne by the defendant’s sister, Valencia

Williams. Buchanan’s daughter, Glorissa Buchanan, had been in a knife fight with Valencia.

As a result of that fight, Glorissa had been sent to a juvenile detention facility after having

been found delinquent at a juvenile hearing which occurred the week before Thomas was

murdered. At that hearing, Thomas had testified that after Glorissa had stabbed his sister,

the defendant had twice hit Glorissa with his rifle.

Based on the evidence as summarized above, the trial court instructed the jury on the

offenses of premeditated first degree murder, second degree murder, and reckless

homicide. The court rejected the defendant's request for an instruction on voluntary

manslaughter. The jury convicted the defendant of first degree murder and imposed a

sentence of imprisonment for life.

On appeal, a majority of the Court of Criminal Appeals’ Panel reversed his conviction

and remanded the case for a new trial because the trial court refused to instruct the jury as

to the offense of voluntary manslaughter. Thereafter, we granted the State permission to

-6-
appeal, and for the reasons that follow, now reverse the judgment of the Court of Criminal

Appeals and reinstate the judgment of the trial court.

HARMLESS ERROR ANALYSIS

In this appeal, the State concedes that the proof introduced at trial was legally

sufficient to warrant an instruction upon voluntary manslaughter, and that the trial court erred

in refusing to charge voluntary manslaughter to the jury . However, the State argues that

the error was harmless beyond a reasonable doubt because the jury convicted the

defendant of the greatest offense charged even though it was given instructions on the

lesser included offenses of second degree murder and reckless homicide. In contrast, the

defendant argues that the failure to charge voluntary manslaughter in this case was a

constitutional violation not subject to a harmless error analysis because the charge was

supported by the evidence presented at trial. We disagree.

As a preliminary matter, we deem it necessary to place the issue in appropriate

historical context. Prior to 1967, the federal courts did not apply harmless error analysis to

federal constitutional violations. Consequently, when a federal constitutional error occurred

in a trial, reversal was the automatic remedy. State v. Nichols, 877 S.W.2d 722, 741 (Tenn.

1994); James C. Scoville, Comment, Deadly Mistakes: Harmless Error in Capital

Sentencing, 54 U. Chi. L. Rev. 740, 741-42 (1987). Tennessee courts applied the same rule

of automatic reversal to state constitutional errors as well. Nichols, 877 S.W.2d at 741;

Dykes v. State, 201 Tenn. 65, 68-69, 296 S.W .2d 861, 862 (1956).

Harmless error analysis was approved for the first time in Chapman v. California, 386

U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), in which the United States Supreme

-7-
Court upheld the application of a harmless error analysis to federal constitutional errors in

state criminal trials, concluding that such an error is harmless if the reviewing court is

persuaded beyond a reasonable doubt that the error complained of did not contribute to the

verdict obtained. While the Chapman Court acknowledged that there are some

constitutional rights so basic to a fair trial that their violation can never be treated as

harmless,3 the United States Supreme Court since has indicated that application of harmless

error analysis is generally the rule, not the exception. Rose v. Clark, 478 U.S. 570, 579, 106

S.Ct. 3101, 3106-07, 92 L.Ed.2d 460 (1986). Therefore, assuming that instruction on lesser

offenses is a constitutional requirement under some circumstances,4 no rule of automatic

reversal is required. To the contrary, in modern jurisprudence, there is a presumption that

harmless error analysis should be applied. Id.

Moreover, though sometimes described as a constitutional right, in this State the right

to instructions on lesser offenses actually derives from a statute, Tenn. Code Ann. § 40-18-

110(a)(1997 Repl.).5 That statute was enacted in 1877. Chapter 85, Section 1, Acts of

1877. In Good v. State, 69 Tenn. 293 (1878), a decision rendered one year after passage

of the statute, this Court held that a trial court’s erroneous failure to charge on a lesser

3
Chapman , 386 U.S . at 23, 87 S .Ct. at 827 , (citing e.g. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct.
792, 9 L.Ed.2d 799 (19 63)(right to couns el); Tum ey v. St ate o f Oh io, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749
(1927) ( right to imp artial judge) ); see also Arizona v. F ulmina nte, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d
302 (19 91); State v. Bobo, 814 S.W .2d 353, 358 (Tenn. 1991 ).

4
See e.g. Schad v. Arizona, 501 U.S. 624, 646, 111 S.Ct. 249 1, 2504, 1 15 L.Ed .2d 555 ( 1991); Beck
v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980)(discussing the due process violation which
occurs if a jury is require d to choose betw een conv iction of a c apita l offe nse or ac quitta l, even thou gh th ere is
evidence in the record to suppo rt an instruc tion and c onviction o f a lesser non-ca pital offens e); see also Strader,
supra, (discussing the denial of the right to a jury trial which results when a trial co urt fa ils to charg e the jury with
respect to any lesse r offens es even though th e eviden ce wou ld have s upporte d an instr uction upon a lesser
offens e.) It is significant to note that this Court’s decision in Strader was rendered prior to the utilization of
harmless error analysis for constitutional violations. See also David F. Abele, C omm ent, Jury Deliberations and
the Lesser Included Offense Rule: Getting the Courts Back in Step, 23 U.C.Davis L. Rev. 375, 377 (W inter,
1990).

5
That statu te pro vides as fo llows: “ It is the duty of all judges charging juries in cases of criminal
prosecutions for any felony wherein two (2) or more grades or classes of offe nse ma y be included in the
indictment, to charge the jury as to all the law of each offense included in the indictment, without any request
on the pa rt of the de fendan t to do so.”

-8-
included offense does not automatically result in reversal. Instead, this Court stated in Good

that reversal is required only if the defendant has been prejudiced by the error. See also

Rushing v. State, 196 Tenn. 515, 268 S.W.2d 563 (Tenn. 1954); Frazier v. State, 117 Tenn.

430, 100 S.W. 94 (1907); Powers v. State, 117 Tenn. 363, 97 S.W. 815 (1906); Wilson v.

State, 109 Tenn. 167, 70 S.W. 57 (1902); Morton v. State, 91 Tenn. 437, 19 S.W. 225

(1892); Tarvers v. State, 90 Tenn. 485, 16 S.W. 1041 (1891); State v. Hargrove, 81 Tenn.

178 (1884); Parham v. State, 78 Tenn. 498 (1882). The substance of the holding in Good

is now contained in Rule 52(a), Tenn. R. Crim. P., which provides “No judgment of conviction

shall be reversed on appeal except for errors which affirmatively appear to have affected the

result of the trial on the merits.” Likewise, Rule 36(b), Tenn. R. App. P. provides that “[a]

final judgment from which relief is available and otherwise appropriate shall not be set aside

unless, considering the whole record, error involving a substantial right more probably than

not affected the judgment or would result in prejudice to the judicial process.” Compare

Tenn. R. App. P. 3(e) (Appellate review of challenges to jury instructions refused or given

are waived if not raised in the motion for new trial). Accordingly, we conclude that a trial

court’s erroneous failure to instruct on vlontary manslaughter is subject to 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. See e.g. State v. Hamm, 611

S.W.2d 826 (Tenn. 1981) (applying harmless error analysis and concluding that the trial

court’s failure to instruct upon the lesser offense constituted prejudicial error).6

6
Many of the cases relied upon by the dissent to support its pos ition th at rev ersa l is auto ma tically
required whe n a tria l cour t fails to instru ct up on a le sse r offe nse eithe r do n ot su ppo rt that posit ion or are c learly
distin guis hab le from the c ircum stan ces of this case. For example, the decision in Frazier v. S tate, 117 Tenn.
430, 100 S.W . 94, 9 6-97 (190 7) is d irectly c ontra ry to the disse nt’s position. There, this Court explicitly refused
to reverse the conviction for first deg ree m urder ev en thoug h the trial cou rt did not instru ct the jury as to
manslaughter and assault and battery, declaring that reversal is req uired only if the error is one that “prejudices
[the defend ant] and a ffects the merits of the ca se.” In several other cases convictions were reversed only upon
a finding that the failure to instru ct on a les ser offe nse co nstituted p rejudicial err or. In Potter v. Sta te, 85 Tenn.
88, 1 S.W. 614, 618 (1886), reversal was ordered only after this Court determined that the trial court’s failure
to charge the lesser offense constituted an “affirmative injury” to the defendant, i.e., prejudicial error. Also in
Templeton v. State, 146 Tenn. 272, 280, 240 S.W. 789, 791 (1922), this Court reversed the conviction stating,
“it cannot be said that . . . the omission of the trial judge to instruct the jury upon the subject of manslaughter

-9-
 Applying that standard to the facts in this case, we conclude that the trial court’s

failure to instruct upon voluntary manslaughter constitutes harmless error. In this case the

trial judge instructed the jury on the elements necessary to prove first degree premeditated

murder, which specifically required proof that the killing was “intentional, deliberate and

premeditated.” Tenn. Code Ann. § 39-13-202(a) (1991 Repl.). In addition, the trial judge

instructed the jury as to the lesser included offenses of second degree murder, and reckless

homicide. The jurors were also instructed:

You must first determine if the defendant is guilty of the offense of
murder in the first degree as charged in the indictment. If you agree that the
defendant is guilty beyond a reasonable doubt of murder in the first degree,
you may stop your discussions and return your verdict.

If you have a reasonable doubt as to the defendant’s guilt of murder in
the first degree, then your verdict must be not guilty as to this offense, and
then you shall proceed to determine his guilt or innocence of the lesser
included offense of murder in the second degree.

It is an elementary principle of law that jurors are presumed to follow the instructions of the

trial court. State v. Cribbs, 967 S.W.2d 773, 784 (Tenn. 1998); State v. Laney, 654 S.W.2d

383, 389 (Tenn. 1983). By convicting the defendant of first degree murder the jury

determined that the proof was sufficient to establish all the elements of that offense beyond

was not prejudicial to the defendant.” Likewise, in W right v. State , 549 S.W.2d 682, 686 (Tenn. 1977), the
conviction was reve rsed only after this Court determined that the failure to charge on the lesser offense
constituted ”plain and prejudicial error.” See also State v. W oodcock, 922 S.W.2d 904 (Tenn. Crim. App.
1995)(finding error preju dicial, citing Frazier, and reversing conviction). In other cases cited by the dissent, the
jury was not ins truct ed as to an y lesse r inclu ded offe nse s, tho ugh the re cord cont ained evidence of those
offenses. See e.g. Strader, supra; State v. Vance, 888 S.W .2d 776 (Tenn. Crim . App 1994); State v. McKnight,
900 S.W.2d 36 (Tenn. Crim. App . 1994). Since the jury was given only one option, and the proof would have
supported another, those cases also are c learly d isting uish able from the circumstances of this case. In many
of the o ther c ase s cit ed by the dissent, the defendant was convicted of an offense lesser than the greatest
offense with which he had been charged, and on appeal complained of the trial court’s failure to instruct on a
second lesser of fense. See e.g. Johns on v. State , 531 S.W .2d 558 ( Tenn . 1975); State v. Belser, 945 S.W.2d
776 (Tenn . Crim. A pp. 1996 ); State v. Ruane, 912 S.W .2d 766 (Tenn. Crim . App. 1995); State v. Sum me rall,
926 S.W.2d 272 (Tenn. Crim. App. 1995). Again, the circumstances of those cases are easily distinguished
from the facts in this case where the defendant was convicted of the greatest offense charge d, though the jury
was charged with a lesser offense. Here, the jury’s verdict demonstrates that the defendant suffered no
prejudice from the trial court’s failure to charge the lesser offense. Finally, some of the cases cited by the
dissent are distinguishable on the law. For example, in Jones v. State, 128 Tenn. 493, 495 -98, 161 S.W. 1016,
1017 (1913), this Court reversed the conviction on the basis of a statute wh ich require d the jury to de signate
in its ver dict w heth er the conv iction was for firs t or se con d deg ree m urde r. Th e Co urt sta ted th at the trial co urt’s
failure to instruct the jury as to second degree murder “withdrew from the jury a question which the Code
spe cifica lly required should be subm itted to them .” The C ourt spe cifically noted th at, with resp ect to the failure
to instruct on other types of homicide, “the rule laid down in Good v. State applies.” Likewise, in State v. Forbes,
918 S.W .2d 431 (Tenn. Crim . App. 1995), the conviction was reversed on other grou nds and the appellate court
me rely dire cted the tria l cour t to ins truct the ju ry as to all less er of fens es up on re trial.

-10-
a reasonable doubt, including that the killing was “intentional, deliberate and premeditated.”

In other words, by 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. Accordingly, the trial court’s erroneous

failure to charge voluntary manslaughter is harmless beyond a reasonable doubt because

the jury's verdict of guilt on the greater offense of first degree murder and its disinclination

to consider the lesser included offense of second degree murder clearly demonstrates that

it certainly would not have returned a verdict on voluntary manslaughter.7 See State v.

Boyd, 797 S.W.2d 589, 593 (Tenn. 1990) (Any possible error in failing to instruct voluntary

and involuntary manslaughter, when second degree murder was charged and the defendant

was convicted of first degree felony murder, was “completely harmless.”); State v. Blanton,

926 S.W.2d 953 (Tenn. Crim. App. 1996); State v. Newsome, 744 S.W.2d 911 (Tenn. Crim.

App. 1987); State v. Atkins, 681 S.W.2d 571 (Tenn. Crim. App. 1984); see also State v.

White, 697 P.2d 328, 330 (Ariz. 1985)(“[B]y finding defendant guilty of the highest offense,

to the exclusion of the immediately lesser-included offense, second degree murder, the jury

necessarily rejected all other lesser included offenses.”); Taylor v. State, 799 S.W.2d 519,

(Ark. 1990) (“[T]he jury convicted appellant on the greater offense of first degree murder

even though the lesser included offense of second degree murder had been given. Under

these circumstances, we have held that any error resulting from the failure to give lesser

included offenses is cured.”); People v. Mullins, 532 P.2d 733, 735 (Colo. 1975) (“The jury

rejected the less serious offense of two alternatives. If the jury had been given three

alternatives, the resulting verdict would have undoubtedly been the same as here.”); Lilly v.

State, 649 a.2d 1055,1063 (Del. 1994) (“The jury’s decision to convict [the defendant] of

Murder in the Second Degree and to reject the option of . . . Criminally Negligent Homicide

7
Any prior appe llate decision s incons istent with ou r holding he rein are he reby exp ressly ove rruled. See
e.g. State v. Staggs, 554 S.W.2d 620 (T enn. 197 7); State v. Howard, 926 S.W .2d 579 (Tenn. Crim . App. 1996);
(no perm . app. filed); State v. King, 905 S.W .2d 2 07 (T enn . Crim . App. 19 95); State v. Lew is, 919 S.W.2d 62
(Tenn . Crim. A pp. 1995 ) (no perm . app. filed).

-11-
leads this Court to conclude that the Superior Court’s erroneous decision not to instruct the

jury regarding Vehicular Homicide was harmless beyond a reasonable doubt.”); State v.

Nowlin, 244 N.W.2d 591, 596 (Iowa 1976) (“Where both first and second-degree murder

verdicts are submitted and a first-degree murder conviction is returned, there is no prejudice

for failure to instruct on manslaughter.”); State v. Shoemaker, 432 S.E.2d 314, 324 (N.C.

1993) (“A verdict of murder in the first degree shows clearly that the jurors were not coerced,

for they had the right to convict in the second degree. That they did not indicates their

certainty of [defendant’s] guilt of the greater offense. The failure to instruct them that they

could convict of manslaughter therefore could not have harmed the defendant.”); State v.

No Heart, 353 N.W.2d 43 (S.D. 1984) (“In view of the fact that the jury had an opportunity

to consider a lesser included offense (grand theft), but returned a verdict of guilty on the

greater offense, we can see no prejudicial error in the trial court’s failure to also instruct on

petty theft first degree and petty theft second degree.”); State v. Gotschall, 782 P.2d 459

(Utah 1989) (“We conclude that even if it was error for the trial court not to instruct the jury

on negligent homicide . . . the error was harmless. The jury had the opportunity to find that

[the defendant] acted with a lesser mental state than that required for second degree murder

when it was given a manslaughter instruction, yet it convicted Gotschall of second degree

murder.”);Britton v. State, 631 So.2d 1073, 1080 (Ala. Crim.App. 1993) (“[T]rial court’s failure

to charge the jury on vehicular homicide as a lesser included offense of murder is harmless

error where the jury was charged on the lesser included offense of manslaughter and

criminally negligent homicide and it rejected those offenses and found the defendant guilty

of murder.”); Ridgely v. State, 739 P.2d 1299, 1301 (Alaska. App. 1987) (“Given the jury’s

rejection of second-degree murder as a lesser-included offense, it is evident that [the

defendant] suffered no prejudice, even assuming the challenged manslaughter instruction

was inadequate.”); People v. Dominguez, 15 Cal.Rptr.2d 46, 52 (Cal. App. 1992) (Failure

to instruct on additional lesser included offense of grand theft in trial on charges of first-

-12-
degree residential robbery was harmless error, where jury was properly instructed on lesser

included offense of petty theft.); People v. Zak, 457 N.W.2d 59, 66 (Mich. App. 1990)

(“Where the trial court instructs on a lesser included offense which is intermediate between

the greater offense and second lesser included offense, for which instructions were

requested by the defendant and refused by the trial court, and the jury convicts on the

greater offense, the failure to instruct on that requested lesser included is harmless . . . . “);

Turner v. Commonwealth of Virginia, 476 S.E.2d 504 (Va. App. 1996) (“[W]e conclude that

the jury in this case, by rejecting the lesser-included offense of second-degree murder,

necessarily rejected the factual basis upon which it might have rendered a verdict on the

lesser-included offense of voluntary manslaughter.”); State v. Barriault, 581 P.2d 1365, 1371

(Wash. App. 1978) (“The trial court did instruct on first-degree manslaughter, but the jury

found defendant guilty of the greater offense of second degree murder. The jury verdict

indicates that the defendant was not prejudiced by the failure to give a second-degree

manslaughter instruction.”); State v. Truax, 444 N.W.2d 432 (Wis. Ct. App. 1989) (Any error

resulting from omission of jury instructions on homicide by reckless conduct was harmless

in light of the fact that the jury received instruction on both first degree and second degree

murder and found the defendant guilty of the greater offense.).

Having determined that the trial court’s failure to charge voluntary manslaughter does

not constitute reversible error, we must next consider the Court of Criminal Appeals’

conclusion that the jury was permitted to consider inadmissible hearsay evidence.

ALLEGED EVIDENTIARY ERROR

This issue pertains to the ruling of the Court of Criminal Appeals that the testimony

of Gloria Buchanan, the woman with whom Thomas had been living at the time of his death

was inadmissible hearsay. As previously stated, at trial Buchanan testified that her

-13-
underage daughter, Glorissa Buchanan, had been involved in a knife fight with the

defendant’s sister, Valencia Williams. Glorissa Buchanan was prosecuted in juvenile court

as a result of having stabbed Valencia Williams. The victim, Delaney Thomas, testified on

behalf of Glorissa Buchanan in the juvenile proceeding. At the defendant’s trial, Gloria

Buchanan was permitted to recount the testimony given by Thomas during the hearing in

the juvenile court. Buchanan stated that Thomas had testified that immediately after the

stabbing, the defendant had hit Glorissa Buchanan with a rifle. The trial court admitted this

testimony as “non-hearsay” evidence of the defendant’s motive for shooting and killing

Thomas some five days after the juvenile hearing.

Hearsay is defined as “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Tenn. R. Evid. 801(c). We agree with the trial court that the declarant's statement in this

case was not hearsay because it was not admitted for the truth therein, i.e., that the

defendant had struck Buchanan. Rather, the statement was admitted for the purpose of

showing the “bad blood” between the Buchanan family, with which the victim was aligned,

and the Williams family, of which the defendant was a member. In fact, the falsity of the

statement would have increased the probative value of the evidence. Accordingly, the trial

court did not allow the jury to consider inadmissible hearsay.

CONCLUSION

Having concluded that the trial court's erroneous failure to instruct the jury on

voluntary manslaughter is harmless error, and that the admission of Gloria Buchanan’s

testimony was not error, we reverse the judgment of the Court of Criminal Appeals and

reinstate the judgment of the trial court in accordance with the jury verdict.

-14-
 ______________________________
FRANK F. DROWOTA, III,
Justice

Concur:
Anderson, C.J.
Holder, J.

Birch, J. and Reid, Sp.J. - See Separate Dissenting Opinion.

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE FILED
(HEARD AT JOHNSON CITY)
September 21, 1998

Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE ) FOR PUBLICATION
)
Appellant ) FILED:
)
) HAMILTON COUNTY
v. )
) HON. STEPHEN M. BEVIL,
) JUDGE
WILLIE WILLIAMS, JR. )
) NO. 03-S-01-9706-CR-00060
Appellee )

DISSENTING OPINION

Because I find that the failure to instruct the jury on

voluntary manslaughter is a violation of the basic constitutional
right to trial by jury, I respectfully dissent. In my view, because

there is evidence to support a conviction of voluntary manslaughter,

the failure of the trial judge to charge that offense requires

reversal and a new trial.

The majority reasons that the right to a jury instruction

on a lesser offense derives primarily from statute, although it is

“sometimes described as a constitutional right.” Thus, the majority

has no qualms about applying harmless error analysis to a violation

of that right. I find, however, that not only is the instruction

required by Tenn. Code Ann. § 40-18-110(a), but it is also

constitutionally required. The right to a trial by jury, guaranteed

by Tenn. Const. art. I, § 6, includes the right to have every issue

established by the proof tried and determined by the jury under a

correct and complete charge of the law. Without a complete charge,

the jury simply cannot determine every issue established by the

proof. Thus, the right to a complete charge is an inherent part of

the right to a jury trial. State v. Staggs, 554 S.W.2d 620, 626

(Tenn. 1977); Strader v. State, 210 Tenn. 669, 682-83, 362 S.W.2d

224, 230 (1962).

In Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17

L. Ed.2d 705 (1967), the Supreme Court upheld the application of a

harmless error analysis to federal constitutional errors in state

criminal trials. The Court acknowledged, however, that there are

some constitutional rights so basic to a fair trial that their

violation can never be treated as harmless error. Id. at 23, 87 S.

Ct. at 827, 17 L. Ed.2d at 710 (citing, e.g., Gideon v. Wainwright,

372 U.S. 335, 83 S. Ct. 792, 9 L. Ed.2d 799 (1963)(right to

-16-
counsel); Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L.Ed. 749

(1927)(right to impartial judge)).

Article I, Section 6 of the Tennessee Constitution states

that “the right of trial by jury shall remain inviolate.” Indeed,

the right to a trial by jury is a basic, fundamental guarantee. It

is uniquely within the sole province of the jury to determine how

much and what parts of the evidence are to be believed and to

determine whether the defendant is guilty of any one or none of the

offenses. Strader, 210 Tenn. at 675, 362 S.W.2d at 227. And as

this Court has previously determined, “errors affecting the

constitutional right to trial by jury will result in such prejudice

to the judicial process that automatic reversal is required.” State

v. Bobo, 814 S.W.2d 353, 358 (Tenn. 1991). “Such violations are

defects in the structure of the trial mechanism and thus defy

analysis by harmless error standards.” Id. (citing Arizona v.

Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed.2d 302 (1991));

see also Ricketts v. Carter, 918 S.W.2d 419, 424 (Tenn.

1996)(rejecting application of a harmless error analysis in a civil

case where the right to trial by jury was compromised). I adhere to

and reiterate our prior decisions holding that harmless error

standards cannot be applied to salvage a conviction where the

defendant has been deprived of the right to a trial by jury.

That failure to charge a lesser offense may violate the

right to a jury trial is not new to Tennessee law. See Strader, 210

Tenn. at 682-83, 362 S.W.2d at 230. Neither is the requirement of

reversal, in the event of such violation. “[W]here the evidence,

upon any view the jury may take of it, permits an inference of guilt

-17-
as to such lesser included offenses, it is the mandatory duty of the

Trial Judge to charge all the law as to each of such offenses, and

a failure to do so requires a reversal and a new trial. Our cases

have expressed this rule in variant language.” Id. at 679, 362

S.W.2d at 228-29 (emphasis added)(citing Poole v. State, 61 Tenn.

288, 294 (1872); Potter v. State, 85 Tenn. 88, 98, 1 S.W. 614, 618

(1886); Frazier v. State, 117 Tenn. 430, 440-41, 100 S.W. 94, 96-97

(1907); Jones v. State, 128 Tenn. 493, 495-98, 161 S.W. 1016, 1016-

17 (1913); and Templeton v. State, 146 Tenn. 272, 280, 240 S.W. 789,

791 (1922)). Tennessee courts have consistently reversed

convictions when a trial court failed to instruct the jury on a

lesser offense, so long as the record included proof supporting a

verdict of guilt on that lesser offense. See, e.g., Staggs, 554

S.W.2d 620 (failure to charge attempt to commit robbery in robbery

case was reversible error where proof would have supported a verdict

for lesser-included offense); Wright v. State, 549 S.W.2d 682 (Tenn.

1977)(failure to charge shoplifting in petit larceny case was

reversible error where proof established the elements of lesser-

included offense); Johnson v. State, 531 S.W.2d 558 (Tenn.

1975)(failure to charge petit larceny and larceny in robbery case

was reversible error where proof showed that the property was worth

less than one hundred dollars and may have been taken from back seat

of victim's car, not from victim herself); Spencer v. State, 501

S.W.2d 799 (Tenn. 1973)(failure to charge joyriding in grand larceny

case was reversible error because proof supported a finding that the

defendant took the vehicle and used it on a “frivolous adventure”).8

8
The Court of Criminal Appeals has consistently applied this principle as
well. See, e.g., State v. Belser, 945 S.W.2d 776, 791 (Tenn. Crim. App.
1996)(failure to charge voluntary manslaughter in first-degree murder case was
reversible error even though second-degree murder and negligent homicide were
charged because proof included evidence that defendant acted in state of passion
produced by adequate provocation); State v. Ruane, 912 S.W.2d 766, 783 (Tenn.

-18-
 In the instant case, the defendant testified that the

victim shot at the defendant’s house while his family was inside and

further that the defendant “panicked” when he unexpectedly came in

contact with the victim a short time later. At least some of the

facts adduced at trial, such as the 911 call during which the

defendant reported the incident, arguably corroborated his

testimony. I agree with the Court of Criminal Appeals that the

evidence sufficiently raised the issue of “passion produced by

adequate provocation sufficient to lead a reasonable person to act

in an irrational manner.” Tenn. Code Ann. § 39-13-211(a)(1991).

The jury reasonably could have accepted his testimony and convicted

him of voluntary manslaughter, had that offense been included in the

jury’s instructions.

Admittedly, both the majority view and the view which this

dissent expresses are adequately, at least, supported. After

careful analysis, however, I cannot reach the same conclusion as the

majority. It was the jury’s function to decide the offense, if any,

upon which to convict the defendant. However plain it may be to the

trial court or the reviewing courts that the evidence was sufficient

to support a conviction for the greater offense of first-degree

murder, failure to instruct on all offenses raised by the evidence

deprives the defendant of his right to a jury trial. Poole, 61

Crim. App. 1995)(failure to charge voluntary manslaughter and attempted voluntary
manslaughter in first-degree murder case was reversible error where there was
evidence of passion produced by adequate provocation); see also State v. Howard,
926 S.W.2d 579, 586-87 (Tenn. Crim. App. 1996); State v. Woodcock, 922 S.W.2d 904,
914 (Tenn. Crim. App. 1995); State v. Summerall, 926 S.W.2d 272, 278 (Tenn. Crim.
App. 1995); State v. Boyce, 920 S.W.2d 224, 227 (Tenn. Crim. App. 1995); State v.
Lewis, 919 S.W.2d 62, 68-69 (Tenn. Crim. App. 1995); State v. Forbes, 918 S.W.2d
431, 449 (Tenn. Crim. App. 1995); State v. King, 905 S.W.2d 207, 214 (Tenn. Crim.
App. 1995); State v. McKnight, 900 S.W.2d 36, 53 (Tenn. Crim. App. 1994); State
v. Vance, 888 S.W.2d 776, 781 (Tenn. Crim. App. 1994); State v. Wright, 618 S.W.2d
310, 317 (Tenn. Crim. App. 1981). But see, e.g., State v. Blanton, 926 S.W.2d 93
(Tenn. Crim. App. 1996).

-19-
Tenn. at 294. I would thus be constrained to reverse the conviction

and remand the case to the trial court for a new trial.

Accordingly, I respectfully dissent.

I am authorized to state that Special Justice Reid joins

this dissenting opinion.

______________________________
ADOLPHO A. BIRCH, JR., Justice

-20-