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State v. Thomas2/27/2004
nse or to benefit in the proceeds or results of the offense, (3) the defendant furnished substantial assistance to that person in the commission of the felony, and (4) the defendant furnished such assistance knowingly. See Ely, 48 S.W.3d at 719-20. The proof in this case demonstrated that Defendant Thomas approached the victim from behind, shot him in the back of the head, grabbed the money carried by the victim, and ran to the getaway car. Thomas' theory of defense was twofold: (1) he was not involved in the robbery and (2) an intervening factor, and not the gunshot wound, was the cause of the victim's death. Thomas did not defend on the ground that he simply facilitated someone else in committing this crime. Moreover, there is no proof in the record to support a jury instruction on facilitation of felony murder with respect to Thomas. Accordingly, the trial court committed no error in refusing to charge the jury on this lesser-included offense.
We must now determine whether the trial court's failure to instruct the jury on the lesser-included offenses of second degree murder, reckless homicide and criminally negligent homicide was reversible error as to Defendant Thomas. In State v. Williams, 977 S.W.2d 101, 105 (Tenn. 1998), our supreme court held that the erroneous failure to instruct on lesser-included offenses may be harmless under certain circumstances. The supreme court re-examined the standard to be applied when assessing whether a trial court's failure to provide lesser-included offense instructions constituted harmless error in Ely, 48 S.W.3d at 710. In Ely, our supreme court held that "when determining whether an erroneous failure to instruct on a lesser-included offense requires reversal, . . . the proper inquiry for an appellate court is whether the error is harmless beyond a reasonable doubt." Id. at 727. In conducting this inquiry, "the reviewing court must determine whether a reasonable jury would have convicted the defendant of the lesser-included offense instead of the charged offense." Richmond, 90 S.W.3d at 662. That is, "the reviewing court must determine whether it appears beyond a reasonable doubt that the trial court's failure to instruct on the lesser-included offense did not affect the outcome of the trial." Id. "In making this determination, a reviewing court should conduct a thorough examination of the record, including the evidence presented at trial, the defendant's theory of defense, and the verdict returned by the jury." Allen, 69 S.W.3d at 191.
In the present case, the proof overwhelmingly established Defendant Thomas' participation in the robbery of James Day and his sharing in the proceeds thereof. The proof overwhelmingly established that Defendant Thomas employed a firearm to execute the robbery. It is uncontested that during the robbery, James Day was shot in the back of the head with the weapon. The victim, James Day, died over two years after the incident as a result of sepsis caused by the need for catheterization due to a neurogenic bladder which was the result of the gunshot. Defendant Thomas defended on two grounds: (1) he was not involved in the robbery at all and (2) an intervening factor, and not the gunshot wound, was the cause of the victim's death. Under the "it wasn't me" theory, the Defendant was guilty of no offense and the charging of lesser-included offenses would have had no impact on the verdict. Likewise, under the theory of the intervening factor causing James Day's death, no homicide whatsoever occurred. The jury found and the evidence overwhelmingly supports its finding that Defendant Thomas is guilty of first degree murder committed during the perpetration of a robbery. James Day was robbed and shot and he ultimately died as a result of th
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 Tennessee Personal Injury Attorneys
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