 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Burns11/8/1999
fenses that were traditionally considered lesser-included offenses at common law were no longer lesser-included offenses under the redefinition of offenses in the 1989 Criminal Sentencing Reform Act ("the 1989 Act"). The expansion of the definition to include lesser "grades" or "classes" was based on the language of section 110 that provided " t is the duty of all Judges charging juries in cases of criminal prosecutions for any felony wherein two (2) or more grades or classes of offense may be included in the indictment, to charge the jury as to all of the law of each offense included in the indictment . . . ." Tenn. Code Ann. § 40-18-110 (1997) (emphasis added). Trusty defined lesser "grades" or classes" of offenses as those offenses established by the legislature and determined by looking at the offenses set forth in a particular statutory chapter and part. See State v. Cleveland, 959 S.W.2d 548, 553 (Tenn. 1997).
The expanded definition of lesser-included offenses was based upon the premise that the terms "grades" and "classes" had a meaning separate and distinct from the term "lesser-included." However, historical research into the meaning of those terms as originally adopted reveals that the terms were used synonymously, without distinction. See Acts of 1877, Ch. 85, § 1; see also Good v. State, 69 Tenn. 293 (Tenn. 1878). Thus, the Trusty Court wrongly assumed that the terms had any distinct meaning separate and apart from "lesser-included."
The expanded definition in Trusty also proved unworkable. Under the 1989 Act, any particular chapter or part of the Code might contain myriad offenses that, while related in a general sense, were distinct in nature. For example, while Part 5 of Chapter 13 of the Code addresses sexual offenses in general, it includes offenses as diverse as rape, sexual battery, public indecency, and prostitution. It is ludicrous to suggest that a jury considering a charge of aggravated rape should receive an instruction on prostitution simply because this lesser offense is included within the same chapter and part.
That criminal provisions are scattered throughout the Tennessee Code also proved problematic. Moreover, the Trusty analysis simply did not apply in many cases. See State v. Ealey, 959 S.W.2d 605, 611 (Tenn. Crim. App. 1997). As the cases developed in the trial courts, it became apparent that because the requirement for instruction of lesser offenses was mandatory under section 110, Trusty's directive to instruct lesser "grades" or classes" of offenses could conceivably confront a defendant with a jury instruction for an offense for which he or she had no notice. This would constitute a violation of our own constitutional requirement that a defendant be given notice of the offenses with which he or she is charged. Tenn. Const. Art. I, § 14. Thus, in State v. Dominy, - S.W.2d - (Tenn. 1999) (filed simultaneously with this opinion), we overruled the language in Trusty that purported to require jury instructions and to allow convictions for lesser "grades" or "classes" of offenses in addition to "lesser-included" offenses.
The problem after Dominy remains this: under our present statutory scheme, the State has broad discretion to charge the offense it deems appropriate. Often, this is the most serious offense conceivable even though the evidence may not be clear as to one or more elements of the offense. Application of the statutory elements test of Howard may preclude instruction on a lesser related offense where that lesser offense contains an element not required for the greater offense. Thus, in some cases, application of the Howard analysis may deprive the defendant of the right to present a defense.
The classic examp
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Tennessee DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|