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State v. Burns11/8/1999
so complains of the trial court's failure to charge the jury on the offense of solicitation of first-degree murder. The offense of solicitation is defined as follows:
Whoever, by means of oral, written or electronic communication, directly or through another, intentionally commands, requests or hires another to commit a criminal offense, or attempts to command, request or hire another to commit a criminal offense, with the intent that the criminal offense be committed, is guilty of the offense of solicitation.
Tenn. Code Ann. § 39-12-102(a) (1997). We note that as charged in the indictment, first-degree premeditated murder based upon the theory of criminal responsibility specifically included solicitation as one possible means of the commission of this offense. Therefore solicitation is a lesser-included offense under part (a) of the test enunciated today.
Furthermore, under part (c) of the lesser-included offense definition adopted above, solicitation to commit a crime is expressly recognized as a lesser-included offense of the charged offense. It follows that under either part (a) or part (c) of the definition, solicitation to commit first-degree murder was a lesser-included offense in this case.
Having concluded that solicitation was a lesser-included offense of criminal responsibility for first-degree murder as that offense was charged in the indictment, we consider whether it should have been instructed. Clearly direct evidence from Licari indicated that the defendant solicited him and Spadafina to kill Burns. As we have recently noted:
" he evidence may show that the defendant is guilty of some intermediate offense included within, but lesser than, the crime charged. A trial court's failure to inform the jury of its option to find the defendant guilty of the lesser offense would impair the jury's truth-ascertainment function. Consequently, neither the prosecution nor the defense should be allowed, based on their trial strategy, to preclude the jury from considering guilt of a lesser offense included in the crime charged. To permit this would force the jury to make an `all or nothing' choice between conviction of the crime charged or complete acquittal, thereby denying the jury the opportunity to decide whether the defendant is guilty of a lesser included offense established by the evidence."
Bolden, 979 S.W.2d at 593 (quoting People v. Barton, 906 P.2d 531, 536 (Cal. 1995)). Whether sufficient evidence supports a conviction of the charged offense does not affect the trial court's duty to instruct on the lesser offense if evidence also supports a finding of guilt on the lesser offense. The jury, not the Judge, performs the function of fact-finder. We conclude that it was error to fail to charge the offense of solicitation. Again, however, the facts as they develop at the defendant's new trial will determine whether an instruction on solicitation is then warranted.
CONCLUSION
After exhaustively analyzing the facts and law pertinent to the case, we conclude that the defendant was deprived of the effective assistance of counsel when counsel failed to investigate adequately and present evidence concerning whether Paul Frappolo, and not the defendant, may have been responsible for soliciting Burns's death. For purposes of retrial, we note that the offenses of facilitation and solicitation are lesser-included offenses of criminal responsibility for first-degree murder as charged in the defendant's indictment, and we instruct the trial court to consider jury instructions on those offenses if legally sufficient evidence at trial supports convictions for these offenses.
WILLIAM M. BARKER, JUSTICE
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