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State v. Thomas2/27/2004
-included offense without making any judgments on the credibility of such evidence." Burns, 6 S.W.3d at 469. Moreover, our supreme court has instructed us that "the jury is free to reject any evidence offered by the State, no matter how uncontroverted or uncontested a particular fact or element may appear." Richmond, 90 S.W.3d at 660. So long as there is evidence sufficient such that a jury could convict on that lesser-included offense, no matter how improbable, the lesser-included offense must be charged to the jury. See id. at 662.
Keeping these principles in mind, we conclude that the proof warranted a facilitation instruction as to Bond. Bond took no active part whatsoever in the attack upon James Day. Bond was not armed during the robbery and was not even present at the actual crime scene. Rather, his participation was limited to assisting Thomas depart from the crime scene. This evidence could have justified a jury in concluding that Bond knew that Thomas intended to commit the robbery, drove Thomas away from the scene out of a warped sense of fellowship rather than out of an intent to actively assist Thomas in his criminal activity, and did not form the intent to share in the proceeds of the robbery until after the crime had been completed. Certainly, had the jury been given an instruction on facilitation of felony murder as to Bond, and returned with a guilty verdict as to that charge, this Court would uphold the conviction on a challenge to the sufficiency of the proof. Given that the evidence supported a jury instruction on facilitation of felony murder as to Bond, we find that the trial court erred in refusing to provide one.
Our remaining inquiry is whether this error was harmless beyond a reasonable doubt; that is, whether a reasonable jury would have convicted Defendant Bond of the lesser-included offense of facilitation of felony murder instead of the charged offense of felony murder. See Richmond, 90 S.W.3d at 662. Bond's guilt of felony murder was predicated solely upon his criminal responsibility for the actions of Thomas. Significantly in this case, the jury was given only two choices: convict Bond of felony murder just like Thomas or find him not guilty of any crime at all. Given the proof before it, no reasonable jury was going to simply acquit Bond and set him free. However, although the jury convicted both Defendant Thomas and Defendant Bond of felony murder, the jury chose to impose the death penalty only on Thomas. The jury sentenced Defendant Bond to life without the possibility of parole. Clearly, since the two Defendants have very similar backgrounds and very similar criminal histories, the jury determined that Bond was less culpable in James Day's murder than was Thomas. The jury's verdicts at the guilt and sentencing phases of this trial, combined with the erroneously limited alternatives given to it, precludes us from concluding beyond a reasonable doubt that, had the jury also been instructed on facilitation of felony murder, it would have eschewed this lesser-included offense and convicted Defendant Bond of felony murder. Stated differently, we cannot conclude beyond a reasonable doubt that the jury, if given the opportunity, would not have convicted Bond of facilitation of felony murder. See Allen, 69 S.W.3d at 191. "Because we are unable to conclude beyond a reasonable doubt that the omission of an instruction [on facilitation] did not affect the outcome of the trial, we must hold that the error was not harmless." Id. at 191-92. Accordingly, we must reverse Defendant Bond's conviction of felony murder and remand this matter for a new trial on this charge.
Conclusion
Defendant Thomas
Having fully reviewed the record, the br
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