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State v. Burns11/8/1999
p analysis is practical, can be easily applied by the trial courts, and remains broad enough to preserve both the State's and defendant's rights to consider any lesser-included offenses fairly raised by the proof.
We now apply the above-stated tests to this case to determine whether the jury should have received instructions on the lesser-included offenses of facilitation and solicitation.
Facilitation of a felony as a lesser-included offense
The defendant claims reversible error in the trial court's failure to charge the jury on the offense of facilitation of a felony. The original indictment charged:
[Defendant] intentionally, deliberately and with premeditation act to promote or assist the commission of first-degree murder, or act to benefit in the proceeds or results of the commission of first-degree murder, by soliciting, directing, aiding, or attempting to aid MICHAEL SPADAFINA and VITO LICARI in the intentional, deliberate and premeditated killing of PAUL A. BURNS on or about the 13th day of December, 1994, thereby becoming criminally responsible for the aforesaid conduct of MICHAEL SPADAFINA and VITO LICARI (T.C.A. 39-11-402) and committing the offense of First-degree MURDER, in violation of T.C.A. 39-13-202(a)(1), against the peace and dignity of the State of Tennessee.
The indictment thus expressly charged the defendant with first-degree premeditated murder, based upon a theory of criminal responsibility.
Part 4 of Chapter 11 of Title 39 of the Tennessee Code sets forth the various means for incurring criminal liability. A person is punishable to the same degree as a principal offender if "the offense is committed by the person's own conduct, by the conduct of another for which the person is criminally responsible, or by both." Tenn. Code Ann. § 39-11-401(a) (1997). "Each party to an offense may be charged with commission of the offense." § 39-11-401(b).
A person is criminally responsible for the conduct of another person if that person, acting with the culpability required for the offense, uses an innocent or irresponsible person to commit an offense, see Tenn. Code Ann. § 39-11-402(1) (1997); or, "acting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense," § 39-11-402(2) (emphasis added); or, having a duty (either statutorily imposed or voluntarily undertaken) to prevent the commission of an offense, fails to make a reasonable effort to do so, with intent by neglecting such a duty to benefit in the proceeds or results of the offense, or to help in the commission of the offense, see § 39-11-402(3). Facilitation of a felony is a lesser degree of criminal responsibility than that codified at Tenn. Code Ann. § 39-11-402. It is defined as follows:
A person is criminally responsible for the facilitation of a felony if, knowing that another intends to commit a specific felony, but without the intent required for criminal responsibility under § 39-11-402(2), the person knowingly furnishes substantial assistance in the commission of the felony.
Tenn. Code Ann. § 39-11-403(a) (1997). Facilitation is punishable as an offense of one class lower than the felony so facilitated. See § 39-11-403(b).
First, we note that the Sentencing Commission Comments expressly characterize facilitation as "a lesser included offense if the defendant's degree of complicity is insufficient to warrant conviction as a party." Tenn. Code Ann. § 39-11-403 (1997) Sentencing Commission Comments. In addition, first-degree premeditated murder based
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