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State v. Thomas2/27/2004
.3d 424, 428 (Tenn. 2001); but see Tenn. Code Ann. § 40-18-110(c) (Repl. 2003). Moreover, our supreme court has held that trial courts must provide an instruction on a lesser-included offense supported by the evidence even if such instruction is not consistent with the theory of the State or of the defense. See State v. Allen, 69 S.W.3d 181, 187-88 (Tenn. 2002). The evidence, not the parties, controls whether an instruction is required. See id. at 188. Our high court observed that the jury is not required to believe any evidence offered by the State, and held that the authority of the jury to convict on a lesser-included offense may not be taken away, even when proof supporting the element distinguishing the greater offense from the lesser offense is uncontroverted. See id. at 189.
A. Defendant Thomas
We turn now to whether the evidence supported a jury instruction on any of the lesser-included offenses of felony murder with respect to Defendant Thomas. Second degree murder is the "knowing killing of another." Tenn. Code Ann. § 39-13-210(a)(1). A defendant kills another person knowingly when he engages in conduct that he is aware is reasonably certain to cause death. See id. § 39-11-302(b). Deliberately shooting someone in the back of the head satisfies the definition of knowing conduct. In this case, a surveillance videotape from a store security camera showed Defendant Thomas approach the armored car guard from behind, shoot him in the back of the head, take the money bag, and flee without making any demand for money or engaging in any kind of struggle. James Day survived the initial shooting, but was paralyzed as a result thereof and required constant care from his wife, including regular catheterization due to the neurogenic bladder resulting from the gunshot. Both Dr. Smith and Dr. Gardner testified that the sepsis causing the victim's death was a direct result of the gunshot wound inflicted by Defendant Thomas on April 21, 1997. This evidence supported an instruction on second degree murder as to Defendant Thomas.
The "next" lesser-included offense of felony murder is reckless homicide, which is the "reckless killing of another." Id. § 39-13-215(a). A reckless killing is committed when the defendant engages in conduct which he is aware creates a substantial and unjustifiable risk of death to the victim, but consciously disregards that risk. See id. § 39-11-302(c). Deliberately shooting someone in the back of the head from close range certainly creates a substantial and unjustifiable risk of death, and the jury was therefore also entitled to an instruction on reckless homicide as to Defendant Thomas. Similarly, the evidence justified an instruction on negligent homicide, which requires that the defendant engaged in criminally negligent conduct resulting in death of the victim. See id. § 39-13-212(a). Criminal negligence occurs when the defendant engages in conduct that creates a substantial and unjustifiable risk that the victim will be killed, but fails to perceive the risk. Again, the evidence in this case supported an instruction on this lesser-included offense as to Defendant Thomas. Accordingly, the trial court erred in refusing to charge the jury on these lesser-included offenses of felony murder.
Facilitation of felony murder is a lesser-included offense under part (c) of the Burns test. An instruction on facilitation of felony murder is required where the proof demonstrates that (1) a killing was committed in the perpetration of one of the felonies enumerated in the statute defining felony murder, (2) the defendant knew that another person intended to commit the underlying felony, but he did not have the intent to promote or assist the commission of the offe
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