unanimity requirement in Tennessee

2008We also point out that a jury considering a greater offense, by necessity, simultaneously considers, albeit not explicitly, all applicable lesser-included offenses supported by the proof.8 See Dresnek v. State, 697 P.2d 1059, 1062 (Alaska Ct. App. 1985) (“[A] jury cannot consider the elements of the greater offense without simultaneously considering the elements of the lesser- included offense.”).

2008We also point out that a jury considering a greater offense, by necessity, simultaneously considers, albeit not explicitly, all applicable lesser-included offenses supported by the proof. 8 See Dresnek v. State, 697 P.2d 1059, 1062 (Alaska Ct.App.1985) (“[A] jury cannot consider the elements of the greater offense without simultaneously considering the elements of the lesser-included offense.”).

2005It subsequently instructed the jury without providing the jury a special verdict form distinguishing “sale” from “delivery.” The trial court based its ruling primarily on State v. Lemacks, 996 S.W.2d 166 (Tenn. 1999), noting that the supreme court concluded no election or enhanced unanimity instruction was required under circumstances “very similar” to this case.

2005See id.

2003However, “the unanimity requirement is a fundamental right and not contingent upon a request being made.” State v. Brown, 823 S.W.2d 576, 585 (Tenn. Crim.

2002See State v. Phillips, 924 S.W.2d 662 (Tenn. 1996); Brown, 823 S.W.2d at 581-83 .

2002See State v. Phillips, 924 S.W.2d 662 (Tenn. 1996); Brown, 823 S.W.2d at 581-83 .

1998However, where there is only one offense resulting from multiple actions of the defendant, see State v. Phillips, 924 S.W.2d 662 (Tenn. 1996), the proper precaution is giving to the jury an augmented instruction relative to the unanimity requirement.

2025The State responds that the trial court’s instruction was responsive to the phrasing of the jury’s question, it merely paraphrased its earlier instruction, and the record does not clearly establish that the jury was deadlocked. -7- In conducting plain error review, our court will reverse for plain error only if the five following prerequisites are satisfied: (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 did not waiv

2025The trial court provided the unanimity instruction contemplated in Kersey during the main charge; under such circumstances, Kersey states that this instruction “may be repeated should a deadlock develop.” 525 S.W.2d at 145 (emphasis added).

2025In so doing, he asserts that the jury was deadlocked and should therefore have been given the specific unanimity instruction promulgated by the Tennessee Supreme Court in Kersey, 525 S.W.2d at 145 .

2025The State responds that the trial court’s instruction was responsive to the phrasing of the jury’s question, it merely paraphrased its earlier instruction, and the record does not clearly establish that the jury was deadlocked. -7- In conducting plain error review, our court will reverse for plain error only if the five following prerequisites are satisfied: (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 did not waiv

2021In Ramos v. Louisiana, however, the Court did just that, concluding that “[t]here can be no question . . . that the Sixth Amendment’s unanimity requirement applies to state and federal criminal trials equally.” Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 1397 (2020) (citations omitted). -2- Count 1 as alleged fails to protect him against double jeopardy as to the act of assault that was not included in the State’s election of offenses, we would note that any charge related to that offense is barred by Tennessee Rule of Criminal Procedure 8.

2014Regarding the latter argument, he contends that an enhanced unanimity instruction was necessary because the alleged stabbing occurred “well before” the victim exited the truck and he ran over her; thus, “the evidence established two discreet acts separated by time and space.” “A defendant’s right to a unanimous verdict before imposition of conviction requires the trial court to take precautions to ensure that the jury deliberates over the particular charged offense, instead of assembling a ‘patchwork verdict’ based on the different offenses in evidence.” Tidwell v. State, 922 S.W.2d 497, 501 (

2008See also Cantrell v. State, 266 Ga. 700 , 469 S.E.2d 660, 662 (1996) (unanimity is not required as to greater-included offenses if verdict is unanimous on lesser-included offense); State v. Sanders, 81 N.C.App. 438 , 344 S.E.2d 592, 594 (1986), disc, review denied, 318 N.C. 419 , 349 S.E.2d 604 (1986) (unanimous verdicts on lesser charges meet unanimity requirement even if no unanimity is reached on greater charges).

2008See also Cantrell v. State, 266 Ga. 700 , 469 S.E.2d 660, 662 (1996) (unanimity is not required as to greater-included offenses if verdict is unanimous on lesser-included offense); State v. Sanders, 81 N.C.App. 438 , 344 S.E.2d 592, 594 (1986), disc, review denied, 318 N.C. 419 , 349 S.E.2d 604 (1986) (unanimous verdicts on lesser charges meet unanimity requirement even if no unanimity is reached on greater charges).

2008See also Cantrell v. State, 266 Ga. 700 , 469 S.E.2d 660, 662 (1996) (unanimity is not required as to greater-included offenses if verdict is unanimous on lesser-included offense); State v. Sanders, 81 N.C.App. 438 , 344 S.E.2d 592, 594 (1986), disc, review denied, 318 N.C. 419 , 349 S.E.2d 604 (1986) (unanimous verdicts on lesser charges meet unanimity requirement even if no unanimity is reached on greater charges).

2008See also Cantrell v. State, 266 Ga. 700 , 469 S.E.2d 660, 662 (1996) (unanimity is not required as to greater-included offenses if verdict is unanimous on lesser-included offense); State v. Sanders, 81 N.C.App. 438 , 344 S.E.2d 592, 594 (1986), disc, review denied, 318 N.C. 419 , 349 S.E.2d 604 (1986) (unanimous verdicts on lesser charges meet unanimity requirement even if no unanimity is reached on greater charges).

1999State v. Brown, 992 S.W.2d 389, 391 (Tenn. 1999).

1998In State v. Shelton, 851 S.W.2d 134 (Tenn. 1993), the supreme court emphasized the third reason as the most important, pointing out that a unanimity instruction, as given in this case, is necessary “to ensure that the jury deliberates over the particular charged offense, instead of creating a ‘patchwork verdict’ based on different offenses in evidence.” Id. at 137 (citations omitted). 50 In our view, the case before us does not warrant application of the rule that requires the state to “elect the particular offenses for which convictions are sought.” Shelton, 851 S.W.2d at 137 .

1998In State v. Shelton, 851 S.W.2d 134 (Tenn. 1993), the supreme court emphasized the third reason as the most important, pointing out that a unanimity instruction, as given in this case, is necessary “to ensure that the jury deliberates over the particular charged offense, instead of creating a ‘patchwork verdict’ based on different offenses in evidence.” Id. at 137 (citations omitted). 50 In our view, the case before us does not warrant application of the rule that requires the state to “elect the particular offenses for which convictions are sought.” Shelton, 851 S.W.2d at 137 .

1991See United States v. McGuire, 744 F.2d 1197, 1202-03 (6th Cir.1984) (the act to defraud was the same whether the theory was as to the debtor being the victim or was as to the creditor being the victim).