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State v. Thomas2/27/2004
at incident. Although lesser offenses as to other forms of homicide exist and, if found, can be supported by the evidence, the jury in this case would not have reasonably concluded that anything less than a murder in the perpetration of a robbery occurred. We therefore conclude that the trial court's failure to instruct on the lesser included offenses did not affect the outcome of the trial. Thus, any error as to the instructions on second degree murder, criminally negligent homicide, and reckless homicide is harmless beyond a reasonable doubt and Defendant Thomas is entitled to no relief on this ground.
B. Defendant Bond
We turn now to the issue of lesser-included offenses with respect to Defendant Bond. There is no proof in the record before us that Bond shot and killed James Day. Rather, the State adduced proof that Bond was an active participant in the underlying felony of robbery, driving the getaway car and splitting the stolen money with Thomas. Nevertheless, Bond may be held criminally liable for the victim's death to the same extent as Thomas under the theory of criminal responsibility for the conduct of another. See Tenn. Code Ann. ยง 39-11-402(2) (A defendant is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the defendant solicits, directs, aids, or attempts to aid another person to commit the offense). Thus, because the proof supported jury instructions on second degree murder, reckless homicide and criminally negligent homicide with respect to Defendant Thomas, the same instructions should have been issued with respect to Bond. In refusing to give these instructions, the trial court erred. Nevertheless, for the same reasons that we find the error harmless beyond a reasonable doubt as to Thomas, we find the error harmless beyond a reasonable doubt as to Bond.
Our next inquiry is whether the trial court should have instructed the jury that Defendant Bond facilitated the felony murder of James Day. As set forth above, an instruction on facilitation 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 offense 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 at trial regarding Bond's participation in the robbery consisted of the following:
(1) his fingerprint was found on the getaway car;
(2) an eyewitness identified him as the driver of the getaway car;
(3) he carried the envelopes containing money from the robbery into Angela Jackson's home;
(4) he left Jackson's home with the gun;
(5) he remarked during a television show that he had robbed an armored truck;
(6) he admitted his involvement in the robbery to law enforcement officers; and
(7) he pled guilty to federal charges arising from the robbery.
This proof is certainly sufficient to sustain Defendant Bond's conviction of the felony murder of James Day. However, with respect to determining whether an instruction on facilitation of felony murder was warranted, we must view this evidence "liberally in the light most favorable to the existence of the lesser
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