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.
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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.
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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
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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.
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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
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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
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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.”
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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
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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.
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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).
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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-
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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
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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.
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______________________________
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
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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
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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.
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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).
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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
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