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State v. Thomas2/27/2004
urt found that, "factually, . . . this case [is not] appropriate for the charging of any lesser offenses." Specifically, the court noted the existence of a videotape of the robbery/murder, revealing "an individual steps out from behind the building, behind Mr. Day, puts a gun to the back of his head and, in essence, executes him even though his final demise is two and a half years later." The trial court noted that "there's nothing shaky about this shooting," " here's no confronting Mr. Day face on," there is no evidence that "the gun misfire or the gun [went] off accidentally." On appeal, both Defendants challenge the trial court's ruling.
The right to jury instructions on lesser-included offenses is based, in large measure, upon the constitutional right to trial by jury. See Tenn. Const. art. I, § 6; State v. Ely, 48 S.W.3d 710, 727 (Tenn. 2001). The question of whether a given offense should be submitted to the jury as a lesser-included offense is a mixed question of law and fact. See State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001). "The standard of review for mixed questions of law and fact is de novo with no presumption of correctness." Id. The trial court has a duty to give a complete charge of the law applicable to the facts of a case. See State v. Harbison, 704 S.W.2d, 314, 319 (Tenn. 1986); see also Tenn. R. Crim . P. 30. In addition, the trial court has a statutory duty to instruct the jury on all applicable lesser-included offenses. See Tenn. Code Ann. § 40-18-110.
In State v. Burns, our supreme court adopted a modified version of the Model Penal Code in order to determine what constitutes a lesser-included offense:
An offense is a lesser-included offense if: (a) all of its statutory elements are included within the statutory elements of the offense charged; or (b) it fails to meet the definition in part (a) only in the respect that it contains a statutory element or elements establishing (1) a different mental state indicating a lesser kind of culpability; and/or (2) a less serious harm or risk of harm to the same person, property or public interest; or (c) it consists of (1) facilitation of the offense charged or of an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or (2) an attempt to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or (3) solicitation to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b).
6 S.W.3d 453, 466-67 (Tenn. 1999). Utilizing this analysis, our supreme court has determined that second degree murder, reckless homicide, and criminally negligent homicide are lesser-included offenses of felony murder under part (b) of the Burns test. See Ely, 48 S.W.3d at 721-22. Additionally, under part (c) of the Burns test, facilitation of felony murder is a lesser-included offense of felony murder. See id. at 720. Our supreme court has acknowledged that facilitation "is not an immediately lesser offense of felony murder . . . is a separate and distinct theory of liability from that of a principal offender or someone who is criminally responsible for the conduct of another." State v. Locke, 90 S.W.3d 663, 672 (Tenn. 2002).
The trial court has a duty to instruct the jury as to a lesser-included offense if: (1) any evidence exists that reasonable minds could accept as to the lesser-included offense, and (2) the evidence is legally sufficient to support a conviction of the lesser-included offense. See Burns, 6 S.W.3d at 469. This duty applies whether or not a defendant requests such an instruction. See State v. Rush, 50 S.W
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