issue for plain error in Tennessee

2020However, as we previously recognized, we must review this issue for plain error, and we are constrained to conclude that, in light of the overwhelming evidence of guilt presented at trial, the defendant has failed to show that consideration of the error is “necessary to do substantial justice.” See Smith, 24 S.W.3d at 282 .

2017We decline to review this issue for plain error because a clear and unequivocal rule of law was not breached, a substantial right of the accused was not adversely affected, and consideration of the error is not “necessary to do substantial justice.” See Smith, 24 S.W.3d at 282 .

2025Therefore, we can only review the issue for plain error. - 16 - We may consider an issue to be plain error when all five of the following factors are met: (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 waive the issue for tactical reasons; and (e) consideration of the error is “necessary to do substantial justice.” State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim.

2018This Court, however, will not review an issue for plain error unless the following five factors are met: (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 waive the issue for tactical reasons; and (e) consideration of the error is “necessary to do substantial justice.” State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim.

2025Id. at § 40-18-110(b), (c); State v. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006).

2016App. P. 36(b); see also State v. Page, 184 S.W.3d 223, 229-30 (Tenn. 2006) (determining that, when a jury instruction is waived for failure to request it in writing, an appellate court may still review the issue for plain error). -11- Applying the aforementioned plain error requisites, we first conclude that no clear and unequivocal rule of law has been breached.

2020The doctrine of plain error applies when all five of the following factors have been 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; -37- (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. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006) (quoting State v. Terry, 118 S.W.3d 355, 360 (Tenn. 2003)) (internal brackets omitte

2019The doctrine of plain error applies when all five of the following factors have been 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. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006) (quoting State v. Terry, 118 S.W.3d 355, 360 (Tenn. 2003)) (internal brackets omitted).

2021Because we are reviewing the issue for plain error, Defendant “bears the burden of persuading the appellate court . . . that the error was of sufficient magnitude that it probably changed the outcome of the trial.” Martin, 505 S.W.3d at 505 .

2019Because we are reviewing the issue for plain error, Defendant “bears the burden of persuading the appellate court . . . that the error was of sufficient magnitude that it probably changed the outcome of the trial.” Martin, 505 S.W.3d at 505 .5 As stated above, “the failure to properly instruct the jury on a material element of an offense is a non-structural constitutional error,” and as such, is subject to harmless error review.

2026See Melendez-Diaz v. Massachusetts, 557 U.S. 305 , 313 n.3 (2009) (“The right to confrontation may, of course, be waived, including by failure to object to the offending evidence.”); see also Hemphill v. New York, 595 U.S. 140 , 157 n.* (2022) (Alito, J., concurring) (stating that a defendant can impliedly waive his Sixth Amendment right to confrontation through his conduct or that of counsel); State v. Parker, 350 S.W.3d 883, 900 (Tenn. 2011) (holding that a confrontation issue regarding the nontestimonial nature of a hearsay statement had been waived due to the defendant’s failure to raise t

2014In so arguing, appellant relies on the United States Supreme Court opinions of Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307 (2009), and Bullcoming v. New Mexico, --- U.S. ---, 131 S.Ct. 2705 , 2709 (2011).

2021In any event, we will review the issue for plain error. - 50 - “An evidentiary ruling ordinarily does not rise to the level of a constitutional violation.” State v. Powers, 101 S.W. 3d 383, 397 (Tenn. 2003) (citing Crane v. Kentucky, 476 U.S. 683, 689 (1986)).

2019“An evidentiary ruling ordinarily does not rise to the level of a constitutional violation.” State v. Powers, 101 S.W. 3d 383, 397 (Tenn. 2003) (citing Crane v. Kentucky, 476 U.S. 683, 689 (1986)).

2021In any event, we will review the issue for plain error. - 50 - “An evidentiary ruling ordinarily does not rise to the level of a constitutional violation.” State v. Powers, 101 S.W. 3d 383, 397 (Tenn. 2003) (citing Crane v. Kentucky, 476 U.S. 683, 689 (1986)).

2019“An evidentiary ruling ordinarily does not rise to the level of a constitutional violation.” State v. Powers, 101 S.W. 3d 383, 397 (Tenn. 2003) (citing Crane v. Kentucky, 476 U.S. 683, 689 (1986)).

2019Grindstaff, 297 S.W.3d at 219 (“[T]he plain error rule, which would otherwise permit an appellate court to address the issue sua sponte, may not be applied in post- conviction proceedings to grounds that would otherwise be deemed either waived or previously determined.”); State v. West, 19 S.W.3d 753, 756-57 (Tenn. 2000) (concluding that plain error review cannot be applied in post-conviction cases where the grounds for relief have been waived or previously determined).

2015In the alternative, the State argues that the post-conviction court did not deprive the petitioner of a full and fair hearing. “[A] „full and fair hearing . . . occurs if a petitioner is given the opportunity to present proof and argument on the petition for post-conviction relief.‟” State v. West, 19 S.W.3d 753, 755 (Tenn. 2000) (quoting House v. State, 911 S.W.2d 705, 714 (Tenn. 1995)); see also T.C.A. § 40-30-106(h) (“A full and fair hearing has occurred where the petitioner is afforded the opportunity to call witnesses and otherwise present evidence, regardless of whether the petitioner ac

2016State v. Dotson, 450 S.W.3d 1, 48-49 (Tenn. 2014), cert. denied, 135 S. Ct. -51- 1535 (2015).

2016State v. Dotson, 450 S.W.3d at 48-49 .

2026New York v. Hill, 528 U.S. 110, 115 (2000). “[T]his court will not review an issue for plain error when the defendant has affirmatively - 13 - waived the issue rather than simply failed to object.” State v. Wyrick, 62 S.W.3d 751, 768 (Tenn. Crim.

2026New York v. Hill, 528 U.S. 110, 115 (2000). “[T]his court will not review an issue for plain error when the defendant has affirmatively - 13 - waived the issue rather than simply failed to object.” State v. Wyrick, 62 S.W.3d 751, 768 (Tenn. Crim.

2026See Melendez-Diaz v. Massachusetts, 557 U.S. 305 , 313 n.3 (2009) (“The right to confrontation may, of course, be waived, including by failure to object to the offending evidence.”); see also Hemphill v. New York, 595 U.S. 140 , 157 n.* (2022) (Alito, J., concurring) (stating that a defendant can impliedly waive his Sixth Amendment right to confrontation through his conduct or that of counsel); State v. Parker, 350 S.W.3d 883, 900 (Tenn. 2011) (holding that a confrontation issue regarding the nontestimonial nature of a hearsay statement had been waived due to the defendant’s failure to raise t

2026See Faulkner, 154 S.W.3d at 58 ; Tenn. R.

2026See Melendez-Diaz v. Massachusetts, 557 U.S. 305 , 313 n.3 (2009) (“The right to confrontation may, of course, be waived, including by failure to object to the offending evidence.”); see also Hemphill v. New York, 595 U.S. 140 , 157 n.* (2022) (Alito, J., concurring) (stating that a defendant can impliedly waive his Sixth Amendment right to confrontation through his conduct or that of counsel); State v. Parker, 350 S.W.3d 883, 900 (Tenn. 2011) (holding that a confrontation issue regarding the nontestimonial nature of a hearsay statement had been waived due to the defendant’s failure to raise t

2025Harbison, 539 S.W.3d at 164 (“Grounds not raised in a motion for new trial are waived for purposes of appeal.”) Whether properly assigned or not, however, this court may review an issue for plain error.

2025The right of confrontation provides “two types of protection for criminal defendants: the right to physically face the witnesses who testify against the defendant, and the right to cross-examine witnesses.” State v. Williams, 913 S.W.2d 462, 465 (Tenn. 1996).

2024Joint trials promote judicial efficiency and “serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” Richardson v. Marsh, 481 U.S. 200, 210 (1987).

2021See State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim.

2020See State v. Walls, 537 S.W.3d 892, 901 (Tenn. 2017) (cautioning that it is incumbent upon an appellant “to persuade an appellate court that plain error occurred that was sufficient to change the outcome of the trial”).

2019Clark, 452 S.W.3d at 295 ; see also Garrison, 40 S.W.3d at 434 (citing Neder v. United States, 527 U.S. 1, 8-9 (1999); Teel, 793 S.W.2d at 249 ). “[W]here a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” Neder, 527 U.S. at 17 .

2019Clark, 452 S.W.3d at 295 ; see also Garrison, 40 S.W.3d at 434 (citing Neder v. United States, 527 U.S. 1, 8-9 (1999); Teel, 793 S.W.2d at 249 ). “[W]here a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” Neder, 527 U.S. at 17 .

2019Clark, 452 S.W.3d at 295 ; see also Garrison, 40 S.W.3d at 434 (citing Neder v. United States, 527 U.S. 1, 8-9 (1999); Teel, 793 S.W.2d at 249 ). “[W]here a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” Neder, 527 U.S. at 17 .

2019Grindstaff, 297 S.W.3d at 219 (“[T]he plain error rule, which would otherwise permit an appellate court to address the issue sua sponte, may not be applied in post- conviction proceedings to grounds that would otherwise be deemed either waived or previously determined.”); State v. West, 19 S.W.3d 753, 756-57 (Tenn. 2000) (concluding that plain error review cannot be applied in post-conviction cases where the grounds for relief have been waived or previously determined).

2017In State v. Anthony, 817 S.W.2d 299, 301 (Tenn. 1991), a jury convicted the defendant of the armed burglary of a Shoney’s restaurant, the armed robbery of the restaurant’s manager, and the aggravated kidnappings of the manager and five other employees.

2017Relevant to this case, part (b) of the Burns test provides that an offense is a lesser- included offense if “it fails to meet the definition in part (a)1 only in the respect that it contains a statutory element or elements establishing . . . a less serious harm or risk of harm to the same person, property or public interest.” State v. Burns, 6 S.W.3d 453 , 466- 67 (Tenn. 1999); see State v. Howard, 504 S.W.3d 260, 270 (Tenn. 2016) (holding that subsections (f) and (g) of Tennessee Code Annotated section 40-18-110(f) did not abrogate part (b) of the Burns test and that part (b) continues to be