attempt instruction in Tennessee

2015In Marcum, 109 S.W.3d at 303 , this Court considered whether an attempt instruction was "warranted” within the following context: The testimony in this case was susceptible of only two interpretations — that the rape occurred or that it did not.

2013Although our supreme court has clarified that an instruction on attempt is “unnecessary where the evidence clearly establishes completion of the criminal act,” State v. Banks, 271 S.W.3d 90, 125 (Tenn. 2008) (citing State v. Wilson, 211 S.W.3d 714 , 721 n.2 (2007); State v. Robinson, 146 S.W.3d at 487 n. 7; Marcum, 109 S.W.3d at 303-04 (Tenn. 2003); State v. Ely, 48 S.W.3d 710, 719 (Tenn. 2001)), we can find no case, save Kevin Fritz Edwards, that deems the giving of an attempt instruction reversible error when a completed act is proven.

2017“An attempt instruction is not required if the only proof presented was proof of the completed crime as opposed to an attempt.” State v. Biggs, 218 S.W.3d 643, 658 (Tenn. Crim.

2016See, e.g., State v. Marcum, 109 S.W.3d 300, 304 (Tenn. 2003); State v. Biggs, 218 S.W.3d 643, 658 (Tenn. Crim.

2014See Banks, 271 S.W.3d at 125 .

2013Although our supreme court has clarified that an instruction on attempt is “unnecessary where the evidence clearly establishes completion of the criminal act,” State v. Banks, 271 S.W.3d 90, 125 (Tenn. 2008) (citing State v. Wilson, 211 S.W.3d 714 , 721 n.2 (2007); State v. Robinson, 146 S.W.3d at 487 n. 7; Marcum, 109 S.W.3d at 303-04 (Tenn. 2003); State v. Ely, 48 S.W.3d 710, 719 (Tenn. 2001)), we can find no case, save Kevin Fritz Edwards, that deems the giving of an attempt instruction reversible error when a completed act is proven.

2023In Faretta, the United States Supreme Court stated: - 25 - [W]hatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of “effective assistance of counsel.” 422 U.S. at 835, n. 46 .

2013Although our supreme court has clarified that an instruction on attempt is “unnecessary where the evidence clearly establishes completion of the criminal act,” State v. Banks, 271 S.W.3d 90, 125 (Tenn. 2008) (citing State v. Wilson, 211 S.W.3d 714 , 721 n.2 (2007); State v. Robinson, 146 S.W.3d at 487 n. 7; Marcum, 109 S.W.3d at 303-04 (Tenn. 2003); State v. Ely, 48 S.W.3d 710, 719 (Tenn. 2001)), we can find no case, save Kevin Fritz Edwards, that deems the giving of an attempt instruction reversible error when a completed act is proven.

2010See State v. Johnson, 970 S.W.2d 500, 508 (Tenn. Crim.

2007At the time of Petitioner’s trial, it was “the trial court’s duty to charge juries as to the law of each offense included in an indictment . . . whether or not a defendant requested such an instruction.” State v. Wilson, 92 S.W.3d 391, 394 (Tenn. 2002) (citing T.C.A. § 40-18-110(c) (1997)); see also State v. Page, 184 S.W.3d 223, 229 (Tenn. 2006) (holding that “[u]nder this prior version of section 40-18-110, a defendant was not required to request a lesser-included instruction to assign as error the trial court’s failure to give such instruction).

2007At the time of Petitioner’s trial, it was “the trial court’s duty to charge juries as to the law of each offense included in an indictment . . . whether or not a defendant requested such an instruction.” State v. Wilson, 92 S.W.3d 391, 394 (Tenn. 2002) (citing T.C.A. § 40-18-110(c) (1997)); see also State v. Page, 184 S.W.3d 223, 229 (Tenn. 2006) (holding that “[u]nder this prior version of section 40-18-110, a defendant was not required to request a lesser-included instruction to assign as error the trial court’s failure to give such instruction).

1998That being so, the petitioner is not entitled to relief because post- conviction proceedings may not be employed to question, review, or test the sufficiency of the convicting evidence, see Gant, 507 S.W.2d at 136 , and because the convicting evidence has already been tested on direct appeal, barring this issue as “previously determined,” see T.C.A. § 40-30-112(a)(1990); see also Meeks, 867 S.W.2d at 369 (concluding that the evidence was sufficient to support all convictions).