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State v. Burns11/8/1999
upon the theory of criminal responsibility includes all the elements of facilitation of first-degree murder except that first-degree murder requires an intentional mental state and facilitation requires a knowing mental state. Pursuant to Tenn. Code Ann. § 39-11-301(a)(2) (1997), however, proof that a person acted knowingly is established if there is also proof that the person acted intentionally. Therefore, facilitation meets the definition of a lesser-included offense under part (a) of our newly adopted test. In addition, facilitation of an offense is expressly included as a lesser-included offense under part (c) of the test. We therefore conclude that, under either part (a) or part (c) of the lesser-included offense definition adopted above, facilitation was a lesser-included offense of the charged offense in this case. Compare Commonwealth v. Day, 983 S.W.2d 505, 509 n.2 (Ky. 1999) ("Generally, criminal facilitation is a lesser included offense when the defendant is charged with being an accomplice to an offense, not the principal offender."); Chumbler v. Commonwealth, 905 S.W.2d 488, 499 (Ky. 1995); see also State v. Lewis, 919 S.W.2d 62, 67 (Tenn. Crim. App. 1995) ("We must conclude that virtually every time one is charged with a felony by way of criminal responsibility for the conduct of another, facilitation of the felony would be a lesser included offense."), overruled on other grounds State v. Williams, 977 S.W.2d 101,106 n.7 (Tenn. 1998).
Having concluded that facilitation was a lesser-included offense of criminal responsibility for first-degree murder as that offense was charged in the indictment, we shall attempt to provide guidance to the trial court concerning instruction upon retrial. The facts developed at trial were susceptible of only two interpretations. Licari testified that the defendant openly discussed hiring him and Spadafina to kill her ex-husband, that they agreed upon a price, and that the defendant gave them an "advance" in the amount of $1,500 taken from Burns's forged check. The defendant, on the other hand, denied knowing Licari other than meeting him briefly the night Burns was murdered. She denied soliciting either him or Spadafina to kill her ex-husband, and she denied that the $1,500 she gave Spadafina was for the purpose of making a down payment on the murder for hire. Furthermore, she testified that she had Burns's permission to cash the $5,000 check. Therefore, either she was guilty of first-degree murder by soliciting Licari and Spadafina to kill Burns, or she was wholly innocent of any wrongdoing.
The defendant now argues that there was a third interpretation: while she did not directly solicit the murder of Burns, she was aware that it might occur and that she facilitated its commission by forging Burns's name to the check so that the killers might flee the jurisdiction. Thus, she had knowledge for purposes of a finding of facilitation but not the intent required to hold her liable as a principal. This argument's flaw is that absolutely no evidence exists upon which a reasonable juror could reach such a Conclusion. Thus, no instruction on the lesser-included offense of facilitation was warranted. See Boyd, 797 S.W.2d at 593; Owens, 221 S.W.2d at 520; Powers, 97 S.W. at 87. While we agree with the Court of Criminal Appeals that it was not error to fail to charge facilitation as a lesser-included offense of first-degree murder under the facts as they developed at the first trial, we caution the trial court that it should conduct an independent evaluation of the facts as they are developed at the new trial and decide whether or not to charge facilitation based on those facts.
Solicitation as a lesser-included offense
The defendant al
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