non-structural constitutional error in Tennessee

2026When determining whether a non-structural constitutional error is harmless, we must consider “whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” Id. (citations omitted); see Qualls, 482 S.W.3d at 18 (“If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error . . . [the appellate court] should not find the error harmless.”). - 21 - Here, we are convinced beyond a reasonable doubt after examining the record that the lack of an electio

2025The burden rests with the State “to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id.; see also State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008) (reiterating that “the burden on the State to demonstrate that a non- structural constitutional error is harmless remains quite stringent”).

2025A non-structural constitutional error is harmless if “it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” State v. Allen, 69 S.W.3d 181, 190 (Tenn. 2002) (quoting Neder v. United States, 527 U.S. 1, 15 (1999)) (internal citations omitted).

2025A non-structural constitutional error does not require reversal if the State demonstrates “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24 (1967); see also State v. Allen, 69 S.W.3d 181, 190 (Tenn. 2002).

2025A non-structural constitutional error is harmless if “it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” State v. Allen, 69 S.W.3d 181, 190 (Tenn. 2002) (quoting Neder v. United States, 527 U.S. 1, 15 (1999)) (internal citations omitted).

2024Specifically, “[t]he existence of a non-structural constitutional error requires reversal unless the State demonstrates beyond a reasonable doubt that the error is harmless.” Id. (emphasis added). “‘In order to determine whether an instructional error is harmless, the appellate court must ask whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” Perrier, 536 S.W.3d at 404 n.8 (quoting Cecil, 409 S.W.3d at 610 ); see Neder v. United States, 527 U.S. 1, 15 (1999) (stating that the test for determining whether a non-structural cons

2025“The erroneous admission of evidence obtained in violation of a defendant’s Miranda rights is a non-structural constitutional error, and as such, is subject to ... harmless error analysis.” State v. Climer, 400 S.W.3d 537, 569-70 (Tenn. 2013).

2025The Tennessee Supreme Court has indicated that “[t]he erroneous admission of evidence obtained in violation of a defendant’s Miranda rights is a non-structural constitutional error.” State v. Climer, 400 S.W.3d 537, 569 (Tenn. 2013).

2025A non-structural constitutional error does not require reversal if the State demonstrates “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24 (1967); see also State v. Allen, 69 S.W.3d 181, 190 (Tenn. 2002).

2020In evaluating whether a non-structural constitutional error requires reversal, “the test is ‘whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” State v. Climer, 400 S.W.3d 537, 569 (Tenn. 2013) (quoting State v. Rodriguez, 254 S.W.3d 361 , 371 2008) (internal quotation marks omitted)); see Neder v. United States, 527 U.S. 1, 15 , (1999); Chapman v. California, 386 U.S. 18, 24 (1967).

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).

2015See Powers, 101 S.W.3d at 397 .

2011Under this harmless error analysis, “[t]he existence of a non-structural constitutional error requires reversal unless the State demonstrates beyond a reasonable doubt that the error is harmless.” Id.; see also State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008) (citing State v. Allen, 69 S.W.3d 181, 190 (Tenn. 2002); State v. Rice, 184 S.W.3d 646, 670 (Tenn. 2006); State v. Powers, 101 S.W.3d 383, 397 (Tenn. 2003)).

2015See Rice, 184 S.W.3d at 672-73 ; see also Sullivan v. Louisiana, 508 U.S. 275, 279 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993) (“The inquiry ... is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.”); Chapman v. Cali fornia, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967) (holding that, “before a federal constitutional error can be held harmless, the [reviewing] court must be able to declare a belief that it was harmless beyond a r

2015See Rice, 184 S.W.3d at 672-73 ; see also Sullivan v. Louisiana, 508 U.S. 275, 279 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993) (“The inquiry ... is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.”); Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967) (holding that, “before a federal constitutional error can be held harmless, the [reviewing] court must be able to declare a belief that it was harmless beyond a re

2021He asserts that the State’s first comment constitutes a non-structural constitutional error that requires reversal because it violated his constitutional right to remain silent under the test in State v. Jackson, 444 S.W.3d 554 (Tenn. 2014).

2021First, the Defendant argues that the prosecutor’s first challenged remark constituted a non-structural constitutional error because it violated his right to remain silent under the test in Jackson, 444 S.W.3d at 588, 592 .

2015See Rice, 184 S.W.3d at 672-73 ; see also Sullivan v. Louisiana, 508 U.S. 275, 279 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993) (“The inquiry ... is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.”); Chapman v. Cali fornia, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967) (holding that, “before a federal constitutional error can be held harmless, the [reviewing] court must be able to declare a belief that it was harmless beyond a r

2015See Rice, 184 S.W.3d at 672-73 ; see also Sullivan v. Louisiana, 508 U.S. 275, 279 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993) (“The inquiry ... is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.”); Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967) (holding that, “before a federal constitutional error can be held harmless, the [reviewing] court must be able to declare a belief that it was harmless beyond a re

2012This court further concluded that because the instruction misstated the element of premeditation, it fell “within the category of a non-structural constitutional error that requires reversal of the conviction unless harmless beyond a reasonable doubt.” Id. at 51-52 (citation omitted).

2011We further concluded that because the instruction misstated the element of premeditation, it fell “within the category of a non-structural constitutional error that requires reversal of the conviction unless harmless beyond a reasonable doubt.” Id. at 51-52 (citation omitted).

2022See, e.g., Neder v. United States, 527 U.S. 1, 18 (1999) (“The erroneous admission of evidence in violation of the Fifth Amendment’s guarantee against self-incrimination, and the erroneous exclusion of evidence in violation of the right to confront witnesses guaranteed by the Sixth Amendment are both subject to harmless-error analysis under our cases” (citations omitted)); Arizona v. Fulminante, 499 U.S. 279, 295-96 (1991) (majority concluded that the harmless error rule adopted in Chapman v. California, 386 U.S. 18 , (1967), was applicable to the admission of coerced confessions that violate

2013The erroneous admission of evidence obtained in violation of a defendant’s Miranda rights is a non-structural constitutional error, and as such, is subject to the harmless *570 error analysis described above. 18 Fulminante, 499 U.S. at 292, 295-96 , 111 S.Ct. 1246 (holding that the admission of a coerced confession is subject to harmless error analysis and recognizing that federal circuit courts of appeal have held that the introduction of statements elicited in violation of Miranda is subject to harmless error analysis); Franklin v. Bradshaw, 545 F.3d 409, 415 (6th Cir.2008); State v. Bates,

2013The erroneous admission of evidence obtained in violation of a defendant’s Miranda rights is a non-structural constitutional error, and as such, is subject to the harmless *570 error analysis described above. 18 Fulminante, 499 U.S. at 292, 295-96 , 111 S.Ct. 1246 (holding that the admission of a coerced confession is subject to harmless error analysis and recognizing that federal circuit courts of appeal have held that the introduction of statements elicited in violation of Miranda is subject to harmless error analysis); Franklin v. Bradshaw, 545 F.3d 409, 415 (6th Cir.2008); State v. Bates,

2013The erroneous admission of evidence obtained in violation of a defendant’s Miranda rights is a non-structural constitutional error, and as such, is subject to the harmless *570 error analysis described above. 18 Fulminante, 499 U.S. at 292, 295-96 , 111 S.Ct. 1246 (holding that the admission of a coerced confession is subject to harmless error analysis and recognizing that federal circuit courts of appeal have held that the introduction of statements elicited in violation of Miranda is subject to harmless error analysis); Franklin v. Bradshaw, 545 F.3d 409, 415 (6th Cir.2008); State v. Bates,

2019Thus, “[a]s a non-structural constitutional error, the erroneous admission of this evidence is only harmless when it appears beyond a reasonable doubt that its admission did not contribute to the verdict obtained.” Hutchison, 482 S.W.3d at 921 (citing State v. Ingram, 331 S.W.3d 746, 759 (Tenn. 2011); see State v. Sanders, 452 S.W.3d 300, 306 (Tenn. 2014) (“if the trial court commits a nonstructural constitutional error, the appellate court may still ‘affirm the conviction if the State proves beyond a reasonable doubt that the error did not affect the verdict’”)).

2017“As a non-structural constitutional error, the erroneous admission of this evidence is only harmless when it appears beyond a reasonable doubt that its admission did not contribute to the verdict.” State v. Ingram, 331 S.W.3d 746, 759 (Tenn. 2011).

2019Rather, “[t]he erroneous admission of evidence obtained in violation of a defendant’s rights under the Fourth Amendment and article I, section 7 is a non-structural constitutional error, subject to harmless error analysis.” Id. (citing State v. Hutchison, 482 S.W.3d 893, 921 (Tenn. 2016)).

2019Thus, “[a]s a non-structural constitutional error, the erroneous admission of this evidence is only harmless when it appears beyond a reasonable doubt that its admission did not contribute to the verdict obtained.” Hutchison, 482 S.W.3d at 921 (citing State v. Ingram, 331 S.W.3d 746, 759 (Tenn. 2011); see State v. Sanders, 452 S.W.3d 300, 306 (Tenn. 2014) (“if the trial court commits a nonstructural constitutional error, the appellate court may still ‘affirm the conviction if the State proves beyond a reasonable doubt that the error did not affect the verdict’”)).

2015See Rice, 184 S.W.3d at 672-73 ; see also Sullivan v. Louisiana, 508 U.S. 275, 279 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993) (“The inquiry ... is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.”); Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967) (holding that, “before a federal constitutional error can be held harmless, the [reviewing] court must be able to declare a belief that it was harmless beyond a re

2015See Rice, 184 S.W.3d at 672-73 ; see also Sullivan v. Louisiana, 508 U.S. 275, 279 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993) (“The inquiry ... is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.”); Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967) (holding that, “before a federal constitutional error can be held harmless, the [reviewing] court must be able to declare a belief that it was harmless beyond a re

2006See State v. Terry, 118 S.W.3d 355, 359 (Tenn. 2003) (defendant’s failure to request lesser-included offense instruction at trial or in a motion for a new trial waived issue).

2006See State v. Terry, 118 S.W.3d 355, 359 (Tenn. 2003) (defendant's failure to request lesser-included offense instruction at trial or in a motion for a new trial waived issue).

2024Specifically, “[t]he existence of a non-structural constitutional error requires reversal unless the State demonstrates beyond a reasonable doubt that the error is harmless.” Id. (emphasis added). “‘In order to determine whether an instructional error is harmless, the appellate court must ask whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” Perrier, 536 S.W.3d at 404 n.8 (quoting Cecil, 409 S.W.3d at 610 ); see Neder v. United States, 527 U.S. 1, 15 (1999) (stating that the test for determining whether a non-structural cons

2024The “failure to properly instruct the jury on a material element of an offense is a non-structural constitutional error” requiring a new trial, “unless the State can prove beyond a reasonable doubt that the error was harmless.” State v. Clark, 452 S.W.3d 268, 295 (Tenn. 2014); see State v. Cecil, 409 S.W.3d 599, 610 (Tenn. 2013); State v. Hawkins, 406 S.W.3d 121, 128 (Tenn. 2013).

2022See, e.g., Neder v. United States, 527 U.S. 1, 18 (1999) (“The erroneous admission of evidence in violation of the Fifth Amendment’s guarantee against self-incrimination, and the erroneous exclusion of evidence in violation of the right to confront witnesses guaranteed by the Sixth Amendment are both subject to harmless-error analysis under our cases” (citations omitted)); Arizona v. Fulminante, 499 U.S. 279, 295-96 (1991) (majority concluded that the harmless error rule adopted in Chapman v. California, 386 U.S. 18 , (1967), was applicable to the admission of coerced confessions that violate

2013The erroneous admission of evidence obtained in violation of a defendant’s Miranda rights is a non-structural constitutional error, and as such, is subject to the harmless *570 error analysis described above. 18 Fulminante, 499 U.S. at 292, 295-96 , 111 S.Ct. 1246 (holding that the admission of a coerced confession is subject to harmless error analysis and recognizing that federal circuit courts of appeal have held that the introduction of statements elicited in violation of Miranda is subject to harmless error analysis); Franklin v. Bradshaw, 545 F.3d 409, 415 (6th Cir.2008); State v. Bates,

2026See State v. Howell, 868 S.W.2d 238, 253 (Tenn. 1993).

2025See State v. Howell, 868 S.W.2d 238, 253 (Tenn. 1993).

2026When determining whether a non-structural constitutional error is harmless, we must consider “whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” Id. (citations omitted); see Qualls, 482 S.W.3d at 18 (“If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error . . . [the appellate court] should not find the error harmless.”). - 21 - Here, we are convinced beyond a reasonable doubt after examining the record that the lack of an electio

2016See State v. Qualls, 482 S.W.3d 1, 18-20 (Tenn.2016) (applying constitutional harmless error analysis to assess election error); State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn.2008) (“The test used to determine whether a non-structural constitutional error is harmless is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (internal citation and quotation marks omitted)).

2024This task requires more than evaluating the sufficiency of the evidence to support the conviction, and it does not turn on the appellate court’s belief about the correctness of the jury’s verdict.”), overruled on other grounds by State v. Enix, 653 S.W.3d 692 (Tenn. 2022); see also State v. Shelton, 851 S.W.2d 134, 138 (Tenn. 1993) (“[A]n appellate court’s finding that the evidence is sufficient to support convictions for any of the offenses in evidence is an inadequate substitute for a jury’s deliberation over identified offenses.”).

2014State v. Shelton, 851 S.W.2d 134, 138 (Tenn. 1993).

2022Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986); Sayles, 49 S.W.3d 275 at 280 .

2017Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986); Sayles, 49 S.W.3d 275 at 280 .

2015Arizona v. Fulminante, 499 U.S. 279, 295-96 (1991) (holding that the admission of a coerced confession is subject to harmless error analysis and recognizing that federal circuit courts of appeal have held that the introduction of statements elicited in violation of Miranda is subject to harmless error analysis); Franklin v. Bradshaw, 545 F.3d 409, 415 (6th Cir. 2008); State v. Bates, 804 S.W.2d 868, 876 (Tenn. 1991); Koffman, 207 S.W.3d at 320 .

2013The erroneous admission of evidence obtained in violation of a defendant’s Miranda rights is a non-structural constitutional error, and as such, is subject to the harmless *570 error analysis described above. 18 Fulminante, 499 U.S. at 292, 295-96 , 111 S.Ct. 1246 (holding that the admission of a coerced confession is subject to harmless error analysis and recognizing that federal circuit courts of appeal have held that the introduction of statements elicited in violation of Miranda is subject to harmless error analysis); Franklin v. Bradshaw, 545 F.3d 409, 415 (6th Cir.2008); State v. Bates,

2024The “failure to properly instruct the jury on a material element of an offense is a non-structural constitutional error” requiring a new trial, “unless the State can prove beyond a reasonable doubt that the error was harmless.” State v. Clark, 452 S.W.3d 268, 295 (Tenn. 2014); see State v. Cecil, 409 S.W.3d 599, 610 (Tenn. 2013); State v. Hawkins, 406 S.W.3d 121, 128 (Tenn. 2013).

2019The Tennessee Supreme Court has held that “the failure to properly instruct the jury on a material element of an offense is a non-structural constitutional error.” Id. - 10 - There is no evidence in the record that Defendant waived the issue for tactical purposes.

2012State v. Brown, 311 S.W.3d 422, 434 (Tenn. 2010).

2011Brown, 311 S.W.3d at 434 ; Rodriguez, 254 S.W.3d at 371 .

2024See State v. Hawkins, 519 S.W.3d 1, 37 (Tenn. 2017) (“[A]n appellate court’s task when evaluating the effect of a non-structural constitutional error is to ascertain the actual basis for the jury’s verdict.

2024The “failure to properly instruct the jury on a material element of an offense is a non-structural constitutional error” requiring a new trial, “unless the State can prove beyond a reasonable doubt that the error was harmless.” State v. Clark, 452 S.W.3d 268, 295 (Tenn. 2014); see State v. Cecil, 409 S.W.3d 599, 610 (Tenn. 2013); State v. Hawkins, 406 S.W.3d 121, 128 (Tenn. 2013).