lesser included offense instruction in Tennessee

2026The harmless error inquiry for when a lesser- included offense instruction was improperly omitted is “whether it appears beyond a reasonable doubt that the error did not affect the outcome of the trial.” State v. Allen, 69 S.W.3d 181, 191 (Tenn. 2002) (citation omitted).

2024A “reviewing court considers the following three questions: (1) whether the offense is a lesser-included offense; (2) whether the evidence supports a lesser-included offense instruction; and (3) whether the failure to give the instruction is harmless error.” Id. (citing State v. Allen, 69 S.W.3d 181, 187 (Tenn. 2002)).

2026The Defendant asserts that the trial court failed to conduct the State v. Burns, 6 S.W.3d 453, 469 (Tenn. 1999), analysis to determine if the lesser-included offense instruction was warranted, failed to construe the evidence in the liberal light required by Burns, and “appeared to misapprehend either the proof, the elements of the offense, or both.” The State argues that the trial court did not plainly err when it denied the Defendant’s oral request for the lesser-included offense instruction.

2020In addressing the trial court’s failure to instruct the jury on the lesser-included offenses, this court applied the three-step analysis set out in State v. Allen, 69 S.W.3d 181, 187 (Tenn. 2002), which involved a determination of (1) whether the offense was a lesser-included offense under the test adopted in State v. Burns, 6 S.W.3d 453 (Tenn. 1999); (2) whether the evidence supported an instruction on the lesser-included offense; and (3) whether the failure to instruct on the lesser-included offense constituted harmless error.

2005Moving to the issue of omitting a lesser included offense instruction, our supreme court, after stating that “an erroneous failure to instruct on lesser-included offenses is a constitutional error,” State v. Ely, 48 S.W.3d 710, 726 (Tenn. 2001), has applied the harmless error standard for constitutional errors, id.

2005Moving to the issue of omitting a lesser included offense instruction, our supreme court, after stating that “an erroneous failure to instruct on lesser-included offenses is a constitutional error,” State v. Ely, 48 S.W.3d 710, 726 (Tenn. 2001), has applied the harmless error standard for constitutional errors, id.

2017Our supreme court has said, “[a]s a non-structural constitutional error, the omission of a lesser-included offense instruction is subject to waiver for purposes of plenary appellate - 14 - review when the issue is not timely raised and properly preserved.” State v. Page, 184 S.W.3d 223, 230 (Tenn. 2006).

2015Our supreme court has cautioned that “[a]s a non-structural constitutional error, the omission of a lesser-included offense instruction is subject to waiver for purposes of plenary appellate review when the issue is not timely raised and properly preserved.” State v. Page, 184 S.W.3d 223, 230 (Tenn. 2006).

2014This court has held that “the trial court is not obliged to give the lesser-included offense instruction where there is no evidence of the lesser offense other than the very same evidence which supports the greater offense, that is, ‘that reasonable minds could accept as to the lesser-included offense.’” State v. Lewis, 36 S.W.3d 88, 100 (Tenn. Crim.

2014This court has held “that the trial court is not obliged to give the lesser included offense instruction where there is no evidence of the lesser included offense other than the very same evidence which supports the greater offense, that is, ‘that reasonable minds could accept as to the lesser included offense.’” State v. Lewis, 36 S.W.3d 88, 100 (Tenn. Crim.

2012When determining whether plain error review is appropriate, the following five factors must be established: “(a) the record must clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial right of the accused must have been adversely affected; (d) the accused [must not have waived] the issue for tactical reasons; and (e) consideration of the error [must be] “necessary to do substantial justice.” State v. Terry, 118 S.W.3d 355, 360 (Tenn. 2003) (quoting State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim.

2009When determining whether plain error review is appropriate, the following five factors must be established: “(a) the record must clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial right of the accused must have been adversely affected; (d) the accused [must not have waived] the issue for tactical reasons; 4 Effective July 1, 2009, Tennessee Rule of Criminal Procedure 52 was deleted in its entirety, and the plain error language was added to Rule 36(b). -9- and (e) consideration of the error [must be] “necessary

2017State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998).

2001After the Court’s recent re-evaluation of this issue in Ely & Bowers, I stand by my assertion in Williams that “a complete charge is an inherent part of the right to a jury trial,” Id. at 108 (Birch, J., dissenting), but I am persuaded that an erroneous failure to give a lesser-included offense instruction may be subject to the stringent standards of constitutional harmless error analysis. 8 .

2002A. Failure To Instruct On The Lesser-included Offenses of Robbery And Attempted Robbery In an attempt to make the application of the lesser-included offense doctrine more understandable, we wish to underscore our analysis and holdings in State v. Ely, 48 S.W.3d 710 (Tenn.2001), State v. Allen, 69 S.W.3d 181 (Tenn.2002), Burns, 6 S.W.3d 453 , and Bowles, 52 S.W.3d 69 (Tenn.2001), and provide further insight on when lesser-included offense instructions are merited.

2002A. Failure To Instruct On The Lesser-Included Offenses of Robbery And Attempted Robbery In an attempt to make the application of the lesser-included offense doctrine more understandable, we wish to underscore our analysis and holdings in State v. Ely, 48 S.W.3d 710 (Tenn. 2001), Allen, 69 S.W.3d 181 (Tenn. 2002), Burns, 6 S.W.3d 453 , and Bowles, 52 S.W.3d 69 (Tenn. 2001), and provide further insight on when lesser-included offense instructions are merited.

2020Bryant v. State, 460 S.W.3d 513, 523 (Tenn. 2015), overruled in part on other grounds by Moore v. State, 485 S.W.3d 411, 421 (Tenn. 2016). -25- The Defendant has waived appellate review of this issue by failing to raise it at the trial.

2015Our supreme court has determined that an offense is a lesser-included offense if “all of its statutory elements are included within the statutory elements of the offense charged” or if the offense is “ an attempt to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense.” State v. Burns, 6 S.W.3d 453 , 466-67 -12- (Tenn. 1999).2 Generally, a lesser-included offense instruction is proper if “1) the record contains any evidence that reasonable minds could accept as to the existence of the lesser-included offense; and 2) the conviction for the less

1999In Strader v. State, 210 Tenn. 669 , 362 S.W.2d 224, 228-29 (1962), the Court held that the lesser-included offense instruction is required “where the evidence, upon any view the jury may take of it, permits an inference of guilt as to such lesser-included offenses.” More recently, we restated the test as follows: “a trial court must instruct the jury on all lesser offenses if the evidence introduced at trial is legally sufficient to support a conviction for the lesser offense.” Langford, 994 S.W.2d at 128 (quoting Bolden, 979 S.W.2d at 593 ); see also Cleveland, 959 S.W.2d at 553 .

1999In Strader v. State, 362 S.W.2d 224, 228-29 (Tenn. 1962), the Court held that the lesser-included offense instruction is required “where the evidence, upon any view the jury may take of it, permits an inference of guilt as to such lesser-included offenses.” More recently, we restated the test as follows: “a trial court must instruct the jury on all lesser offenses if the evidence introduced at trial is legally sufficient to support a conviction for the lesser offense.” Langford, 994 S.W.2d at 128 (quoting Bolden, 979 S.W.2d at 593 ); see also Cleveland, 959 S.W.2d at 553 .

2012When determining whether plain error review is appropriate, the following five factors must be established: “(a) the record must clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial right of the accused must have been adversely affected; (d) the accused [must not have waived] the issue for tactical reasons; and (e) consideration of the error [must be] “necessary to do substantial justice.” State v. Terry, 118 S.W.3d 355, 360 (Tenn. 2003) (quoting State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim.

2009When determining whether plain error review is appropriate, the following five factors must be established: “(a) the record must clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial right of the accused must have been adversely affected; (d) the accused [must not have waived] the issue for tactical reasons; 4 Effective July 1, 2009, Tennessee Rule of Criminal Procedure 52 was deleted in its entirety, and the plain error language was added to Rule 36(b). -9- and (e) consideration of the error [must be] “necessary

2026See Tenn. Code Ann. § 40-18-110 (b) (“In the absence of a written request from a party specifically identifying the particular lesser included offense or offenses on which a jury instruction is sought, the trial judge may charge the jury on any lesser included offense or offenses, but no party shall be entitled to any lesser included offense charge.”); State v. Fayne, 451 S.W.3d 362, 371 (Tenn. 2014) (stating that failure to request a lesser included offense instruction in writing does not prohibit “consideration of the issue under the doctrine of plain error”); see also State v. Linville, 647

2020See id.; see also State v. Martin, 505 S.W.3d 492, 503 (Tenn. 2016) (finding waiver when defendant made an oral request for a lesser included offense instruction but did not make a written request); State v. Fayne, 451 S.W.3d 362, 371 (Tenn. 2014).

2018See State v. Brown, 311 S.W.3d 422, 434 (Tenn. 2010) (stating that failure to instruct the jury as to a - 27 - lesser-included offense is a nonstructural constitutional error).

2014See, e.g., State v. Brown, 311 S.W.3d 422, 431 (Tenn. 2010).

2004In a case decided shortly after the direct appeal in Carpenter's case, the Court stated the holding in King as follows: "where the record clearly shows that the defendant was guilty of the greater offense and is devoid of any evidence permitting an inference of guilt of the lesser offense, it is not error to fail to charge on a lesser offense.” State v. Boyd, 797 S.W.2d 589, 593 (Tenn.1990) (emphasis added); see also State v. Langford, 994 S.W.2d 126, 128 (Tenn.1999) (stating Boyd’s interpretation of King); State v. Stephenson, 878 S.W.2d 530, 550 (Tenn.1994) (stating Boyd’s interpretation of

1999First, the trial court must determine whether any 15 See also Boyd, 797 S.W.2d at 593 (concluding in first-degree murder case that where there was no evidence the killing was committed upon a sudden heat produce by adequate provocation, it was not error to fail to charge voluntary manslaughter); State v. Spadafina, 952 S.W.2d 444, 452 (Tenn. Crim.

2024Banks, 271 S.W.3d at 124 (first citing State v. Hatfield, 130 S.W.3d 40, 41 (Tenn. 2004); and then citing Carpenter v. State, 126 S.W.3d 879, 892 (Tenn. 2004)).

2016We next turn to ―whether the evidence supports a lesser included offense instruction[.]‖ Banks, 271 S.W.3d at 124 .

2024A “reviewing court considers the following three questions: (1) whether the offense is a lesser-included offense; (2) whether the evidence supports a lesser-included offense instruction; and (3) whether the failure to give the instruction is harmless error.” Id. (citing State v. Allen, 69 S.W.3d 181, 187 (Tenn. 2002)).

2016When addressing issues related to failure to charge lesser included offenses, appellate courts consider three questions: ―(1) whether the offense is a lesser-included offense; (2) whether the evidence supports a lesser-included offense instruction; and (3) whether the failure to give the instruction is harmless error.‖ - 20 - Id. (citing Allen, 69 S.W.3d at 187 ). ―[I]f the purported lesser-included offense is not actually a lesser-included offense, then the court‘s inquiry ends.‖ Id. at 125.

2020See State v. Howard, 504 S.W.3d 260 (Tenn. 2016). - 11 - The issue of whether the court or the jury determines a witness’s status as an accomplice has been previously determined by this Court: The question of who determines whether a witness is an accomplice depends upon the evidence introduced during the course of a trial.

2019Upon review, this Court must determine “(1) whether the offense is a lesser included offense; (2) whether the evidence supports a lesser included offense instruction; and (3) whether the failure to give the instruction is harmless error.” State v. Howard, 504 S.W.3d 260, 268 (Tenn. 2016) (citing State v. Allen, 69 S.W.3d 181, 187 (Tenn. 2002)).

2016State v. Fayne, 451 S.W.3d 362, 371 (Tenn. 2014) (citing State v. Page, 184 S.W.3d 223, 230 (Tenn. 2006); State v. Vasques, 221 S.W.3d 514, 524 (Tenn. 2007)).

2014Page, 184 S.W.3d at 230 ; see also Vasques, 221 S.W.3d at 524 .

2015See, e.g, Dellinger, 79 S.W.3d at 496 (finding that a trial court had 6 Under Tennessee Code Annotated section 40-18-110(a), the test for determining whether a trial court should give a lesser-included offense instruction is: 1) whether the record contains any evidence that reasonable minds could accept as to the existence of the lesser-included offense, and 2) whether the conviction for the lesser-included offense is supported by legally sufficient evidence.

2015See, e.g., Dellinger, 79 S.W.3d at 496 (finding that a trial court had not erred when it failed to instruct the jury on facilitation as a lesser-included offense of murder when no evidence was presented at trial to support facilitation and the defense’s theory of the case was that the defendants did not participate in the murder).

2008Cf State v. Sawyer, 227 Conn. 566 , 630 A.2d 1064, 1070 (1993) (observing that “the lesser included offense doctrine ... does not imply that the jury should be allowed to consider the charged offense and lesser included offenses in any order and with whatever degree of dedication it chooses”).

2008Cf State v. Sawyer, 227 Conn. 566 , 630 A.2d 1064, 1070 (1993) (observing that “the lesser included offense doctrine ... does not imply that the jury should be allowed to consider the charged offense and lesser included offenses in any order and with whatever degree of dedication it chooses”).

2004In applying the lesser-included offense doctrine, three questions must be addressed: “‘(1) whether an offense is a lesser-included offense; (2) whether the evidence supports a lesser-included offense instruction; and (3) whether an instructional error is harmless.’” State v. Richmond, 90 S.W.3d 648, 659 (Tenn. 2002) (quoting State v. Allen, 69 S.W.3d 181, 187 (Tenn. 2002)).

2004In applying the lesser-included offense doctrine, three questions must be addressed: “‘(1) whether an offense is a lesser-included offense; (2) whether the evidence supports a lesser-included offense instruction; and (3) whether an instructional error is harmless.’” State v. Richmond, 90 S.W.3d 648, 659 (Tenn. 2002) (quoting State v. Allen, 69 S.W.3d 181, 187 (Tenn. 2002)).

2002See id. at 200 . .

2002See id. at 200 . 2 The majority responds by reiterating that we must view the evidence in the light most favorable to the existence of the lesser-included offense.

1999See Owen, 221 S.W.2d at 520 ; Powers, 97 S.W. at 817. 15 When read together, our prior decisions, such as Templeton, Strader, and Johnson , and our recent decisions, such as Trusty, Cleveland, Bolden, and Langford , support the application of a two-step analysis for determining whether a lesser-included offense instruction should be given.

1999See Owen, 221 S.W.2d at 520 ; Powers, 97 S.W. at 87.15 When read together, our prior decisions, such as Templeton, Strader, and Johnson, and our recent decisions, such as Trusty, Cleveland, Bolden, and Langford, support the application of a two-step analysis for determining whether a lesser-included offense instruction should be given.

1999See, e.g., State v. Williams, 243 Neb. 959 , 503 N.W.2d 561, 565 (1993) ("[O]nce it is determined that an offense is a lesser-included one, a court must examine the evidence to determine whether it justifies an instruction on the lesser-included offense by producing a rational basis for a verdict acquitting defendant of the offense charged and convicting him of the lesser offense.”) (citations omitted); State v. Berlin, 133 Wash.2d 541 , 947 P.2d 700, 705 (1997) ("If the evidence would permit a jury to rationally find a defendant guilty of the lesser offense and acquit him of the greater, a le

1999Stat. § 556.046.2 (1999); Utah Code An n. § 76-1-402 (4) (1995). 14 See, e.g., State v. Williams, 503 N.W.2d 561, 565 (Neb. 1993) (“[O]nce it is determined that an offense is a lesser-included one, a court must examine the evidence to determine whether it justifies an instruction on the lesser-included offense by producing a rational basis for a verdict acquitting defendant of the offen se cha rged an d conv icting him o f the lesse r offense .”) (citations o mitted); State v. Be rlin, 947 P.2d 700 , 705 (Wash. 1997) (“If the evidence would permit a jury to rationally find a defendant guilty o

1999See also Boyd, 797 S.W.2d at 593 (concluding in first-degree murder case that where there was no evidence the killing was committed upon a sudden heat produce by adequate provocation, it was not error to fail to charge voluntary manslaughter); State v. Spadafina, 952 S.W.2d 444, 452 (Tenn.Crim.App.1996) (determining in first-degree murder case that instruction on facilitation of first-degree murder was not supported by the proof where the evidence showed unequivocally that the defendant was a principal in the commission of the offense); State v. Lewis, 978 S.W.2d 558, 565 (Tenn.Crim.App.1997)

1999First, the trial court must determine whether any 15 See also Boyd, 797 S.W.2d at 593 (concluding in first-degree murder case that where there was no evidence the killing was committed upon a sudden heat produce by adequate provocation, it was not error to fail to charge voluntary manslaughter); State v. Spadafina, 952 S.W.2d 444, 452 (Tenn. Crim.

1999In Strader v. State, 210 Tenn. 669 , 362 S.W.2d 224, 228-29 (1962), the Court held that the lesser-included offense instruction is required “where the evidence, upon any view the jury may take of it, permits an inference of guilt as to such lesser-included offenses.” More recently, we restated the test as follows: “a trial court must instruct the jury on all lesser offenses if the evidence introduced at trial is legally sufficient to support a conviction for the lesser offense.” Langford, 994 S.W.2d at 128 (quoting Bolden, 979 S.W.2d at 593 ); see also Cleveland, 959 S.W.2d at 553 .

1999In Strader v. State, 362 S.W.2d 224, 228-29 (Tenn. 1962), the Court held that the lesser-included offense instruction is required “where the evidence, upon any view the jury may take of it, permits an inference of guilt as to such lesser-included offenses.” More recently, we restated the test as follows: “a trial court must instruct the jury on all lesser offenses if the evidence introduced at trial is legally sufficient to support a conviction for the lesser offense.” Langford, 994 S.W.2d at 128 (quoting Bolden, 979 S.W.2d at 593 ); see also Cleveland, 959 S.W.2d at 553 .

1999In Strader v. State, 210 Tenn. 669 , 362 S.W.2d 224, 228-29 (1962), the Court held that the lesser-included offense instruction is required “where the evidence, upon any view the jury may take of it, permits an inference of guilt as to such lesser-included offenses.” More recently, we restated the test as follows: “a trial court must instruct the jury on all lesser offenses if the evidence introduced at trial is legally sufficient to support a conviction for the lesser offense.” Langford, 994 S.W.2d at 128 (quoting Bolden, 979 S.W.2d at 593 ); see also Cleveland, 959 S.W.2d at 553 .

1999In Strader v. State, 362 S.W.2d 224, 228-29 (Tenn. 1962), the Court held that the lesser-included offense instruction is required “where the evidence, upon any view the jury may take of it, permits an inference of guilt as to such lesser-included offenses.” More recently, we restated the test as follows: “a trial court must instruct the jury on all lesser offenses if the evidence introduced at trial is legally sufficient to support a conviction for the lesser offense.” Langford, 994 S.W.2d at 128 (quoting Bolden, 979 S.W.2d at 593 ); see also Cleveland, 959 S.W.2d at 553 .

2017The Martin court discussed the analysis that an appellate court should undertake when considering whether plain error occurred in the omission of a lesser-included offense instruction: As set forth in Moore v. State, [ 485 S.W.3d 411 (Tenn. 2016)], where the jury was given no option to convict of any lesser-included offense, the 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.” Moore, 485 S.W.3d at 422 (quoting State v. Allen, 69 S.W.3d 181, 191 (Tenn. 2002))

2017The Martin court discussed the analysis that an appellate court should undertake when considering whether plain error occurred in the omission of a lesser-included offense instruction: As set forth in Moore v. State, [ 485 S.W.3d 411 (Tenn. 2016)], where the jury was given no option to convict of any lesser-included offense, the 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.” Moore, 485 S.W.3d at 422 (quoting State v. Allen, 69 S.W.3d 181, 191 (Tenn. 2002))