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State v. Thomas2/27/2004
iefs and the applicable authority, we affirm Defendant Thomas' conviction for first degree felony murder. Additionally, in accordance with the mandate of Tennessee Code Annotated section 39-13-206(c)(1), and the principles adopted in prior decisions of the Tennessee Supreme Court, we have considered the entire record in this cause and find, with regard to Defendant Thomas, that the sentence of death was not imposed in any arbitrary fashion, that the evidence supports, as previously discussed, the jury's finding of the statutory aggravating circumstance, and the jury's finding that the aggravating circumstance outweighed mitigating circumstances beyond a reasonable doubt. Furthermore, our comparative proportionality review, considering both the nature of the crime and the defendant, convinces us that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases. See id. § 39-13-206(c)(1)(D). Accordingly, we also affirm the sentence of death imposed on Defendant Thomas.
Defendant Bond
We have determined that the trial court's failure to properly charge the jury as to the lesser-included offense of facilitation of felony murder was not harmless beyond a reasonable doubt with respect to Defendant Bond. Therefore, Defendant Bond is entitled to a new trial. Accordingly, Defendant Bond's conviction for the murder of James Day is vacated and this matter is remanded for a new trial on the charge of first degree felony murder in the death of James Day.
Joe G. Riley, J., concurring in part and dissenting in part.
I agree with the majority opinion in all respects with one exception. The majority opinion concludes the failure of the trial court to charge the lesser-included offense of facilitation of felony murder as to Defendant Bond was not harmless error. I respectfully disagree with this conclusion.
In conducting a harmless error analysis, this court must conduct a thorough examination of the record, which should include "the evidence presented at trial, the defendant's theory of defense, and the verdict returned by the jury." State v. Allen, 69 S.W.3d 181, 191 (Tenn. 2002). " n determining whether it was harmless beyond a reasonable doubt not to charge a lesser-included offense, the reviewing court must determine whether a reasonable jury would have convicted the defendant of the lesser-included offense instead of the charged offense." State v. Richmond, 90 S.W.3d 648, 662 (Tenn. 2002) (emphasis in original). Here, as the majority opinion notes, (1) both defendants discussed the plan to rob an armored truck the day prior to the robbery/murder; (2) Defendant Bond admitted he drove the getaway car after Defendant Thomas shot and robbed the victim; (3) Defendant Bond shared in the robbery proceeds; and (4) Defendant Bond, prior to the instant trial, entered a guilty plea in federal court to charges arising from the robbery. Defendant Bond defended on the basis that the gunshot wound was not the cause of death.
An essential element of facilitation of felony murder is that the defendant knew another person intended to commit the underlying felony (robbery in this case), but did not intend to promote or assist in that offense or to benefit in the proceeds of that offense. State v. Ely, 48 S.W.3d 710, 720 (Tenn. 2001) (citing Tenn. Code Ann. §§ 39-13-202, 39- 11-403 (1997)). The intent for felony murder relates to the underlying felony of robbery, not the intent to kill. See Tenn. Code Ann. § 39-13- 202(b).
Here, it is undisputed that Defendant Bond intended to, and did in fact, promote and assist in the robbery as well as share in its proceeds. Defendant Bond's lack of intent was not his theory of de
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