acquittal-first instruction in Tennessee

2024The Defendant asserts that he is not challenging the acquittal-first instruction itself, which our supreme court approved in State v. Davis, 266 S.W.2d 896 (Tenn. 2008), but that he is challenging “the fact that here the acquittal first instruction was combined with a so-called lesser-included offense that (contrary to the traditional meaning of a lesser included) actually has more elements rather than fewer elements.

2016However, he asserts that this court ―has never, in a published opinion, addressed the nonsensical result that a jury, following the sequential instructions, can never properly convict of voluntary manslaughter, as it will always return a verdict of guilty of second- degree murder, or not guilty of both offenses.‖ He asserts that State v. Davis, 266 S.W.3d 896 (Tenn. 2008), cannot be interpreted as ruling on the issue of ―whether jury instruction[s] are prejudicially erroneous when they combine an acquittal-first instruction with a definition of voluntary manslaughter as having the same element

2008Finally, while we recognize that requiring a jury to reach a unanimous verdict of not guilty on each greater offense before allowing it to consider a lesser-included offense may, on occasion, result in a mistrial, we agree with the Supreme Court of Connecticut about this concern: “The fact that a jury may occasionally be unable to reach a unanimous verdict by following the acquittal first instruction does not warrant the precipitous abandonment of precedent by tinkering with an instruction for which the necessity of repair has not been convincingly established.” Sawyer, 630 A.2d at 1074 .

2008Finally, while we recognize that requiring a jury to reach a unanimous verdict of not guilty on each greater offense before allowing it to consider a lesser-included offense may, on occasion, result in a mistrial, we agree with the Supreme Court of Connecticut about this concern: “The fact that a jury may occasionally be unable to reach a unanimous verdict by following the acquittal first instruction does not warrant the precipitous abandonment of precedent by tinkering with an instruction for which the necessity of repair has not been convincingly established.” Sawyer, 630 A.2d at 1074 .

2008As noted in the concurring opinion, there is “a wide divergence of opinion” on the issue of the order and manner in which a trial court instructs a jury to consider an indicted offense together with any appropriate lesser-included offenses, id. at 721 , and jurisdictions have devised at least four alternatives for its resolution, see State v. LeBlanc, 186 Ariz. 437 , 924 P.2d 441, 444 (1996) (Martone, J., concurring).

2008As noted in the concurring opinion, there is “a wide divergence of opinion” on the issue of the order and manner in which a trial court instructs a jury to consider an indicted offense together with any appropriate lesser-included offenses, id. at 721 , and jurisdictions have devised at least four alternatives for its resolution, see State v. LeBlanc, 186 Ariz. 437 , 924 P.2d 441, 444 (1996) (Martone, J., concurring).

2008Policy Considerations Having concluded that the trial court’s acquittal-first instruction did not offend the Defendant’s right to a jury trial under Tennessee’s Constitution, we also consider the public policy concerns inherent in what some courts refer to as the “transitional instruction.” See, e.g., State v. Daulton, 518 N.W.2d 719, 720 (N.D. 1994).

2008Policy Considerations Having concluded that the trial court’s acquittal-first instruction did not offend the Defendant’s right to a jury trial under Tennessee’s Constitution, we also consider the public policy concerns inherent in what some courts refer to as the “transitional instruction.” See, e.g., State v. Daulton, 518 N.W.2d 719, 720 (N.D.1994).

2016See id. at 904 n.8 (stating that a jury considering the greater offense necessarily considers all applicable lesser included offenses supported by the proof, at least in a situation in which the statutory elements of the lesser included offense are included within the statutory elements of the charged offense as described in the first of the three categories of lesser included offenses outlined in Burns, 6 S.W.3d at 466-67 ). - 26 - Moore cites to Judge Tipton‘s concurrence in State v. Earnest Gwen Humphrey, No. M2003-01489-CCA-R3-CD, 2005 WL 2043778 , at *14-15 (Tenn. Crim.

2008State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000); see also Grooms v. State, 426 S.W.2d 176 (Tenn. 1968).5 So, even if the guarantee of trial by jury in Article I, section 6 does not mandate an outright rejection of the acquittal-first instruction on constitutional grounds, the reasonable efforts approach, in my judgment, is more closely aligned with the corresponding provision of Article I, section 19 that “the jury shall have the right to determine the law and the facts, under the direction of the court . . . in . . . criminal cases”;6 I would add that the current editions of the Tennessee

2008State v. Garrison, 40 S.W.3d 426, 432 (Tenn.2000); see also Grooms v. State, 221 Tenn. 243 , 426 S.W.2d 176 (1968). 5 So, even if the guarantee of trial by jury in Article I, section 6 does not mandate an outright rejection of the acquittal-first instruction on constitutional grounds, the reasonable efforts approach, in my judgment, is more closely aligned with the corresponding provision of Article I, section 19 that “the jury shall have the right to determine the law and the facts, under the direction of the court ... in ... criminal cases”; 6 I would add that the current editions of the Ten

2008State v. Garrison, 40 S.W.3d 426, 432 (Tenn.2000); see also Grooms v. State, 221 Tenn. 243 , 426 S.W.2d 176 (1968). 5 So, even if the guarantee of trial by jury in Article I, section 6 does not mandate an outright rejection of the acquittal-first instruction on constitutional grounds, the reasonable efforts approach, in my judgment, is more closely aligned with the corresponding provision of Article I, section 19 that “the jury shall have the right to determine the law and the facts, under the direction of the court ... in ... criminal cases”; 6 I would add that the current editions of the Ten

2008State v. Garrison, 40 S.W.3d 426, 432 (Tenn.2000); see also Grooms v. State, 221 Tenn. 243 , 426 S.W.2d 176 (1968). 5 So, even if the guarantee of trial by jury in Article I, section 6 does not mandate an outright rejection of the acquittal-first instruction on constitutional grounds, the reasonable efforts approach, in my judgment, is more closely aligned with the corresponding provision of Article I, section 19 that “the jury shall have the right to determine the law and the facts, under the direction of the court ... in ... criminal cases”; 6 I would add that the current editions of the Ten