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State v. Willis6/30/2003
nate theories as to who killed the victim. The defendant attempted to portray Brenda Huggins and "Snake" Frazier as possible suspects. However, it was not beyond a rational jury to conclude that based upon the evidence, Frazier and Huggins did not make contact with the victim on the night in question. The jury was free to believe the testimony that Huggins and Frazier were at the races on the night in question, helped a motorist that same night, and were not in position to kill the victim. The jury was in the best position to evaluate the credibility of the witnesses, and it was not an irrational decision for them to reject the testimony of the taxi driver James Rittenberry, who said that Huggins and Frazier were at the Golden Jukebox the night in question. There was insufficient evidence presented to make it error for a jury to exclude all alternative theories of who killed the victim.
The State's theory was that the defendant was into the bar and drinking scene and was interested in the victim. They posit that the circumstantial evidence proved beyond a reasonable doubt that the defendant was with the victim the night in question, drove her in the late hours to Port Royal, and then decided to kill her using a weapon of opportunity, namely, a nearby Torx screwdriver. The inferences the jury made based on the circumstantial evidence presented were not irrational or improper. We conclude the evidence was sufficient to support the guilty verdict for second degree murder.
II. Second Degree Murder is a Lesser Included Offense of Felony Murder
In Tennessee an offense is a lesser included offense if:
(a) all of its statutory elements are included within the statutory elements of the offense charged; or
(b) it fails to meet the definition in part (a) only in the respect that it contains a statutory element or elements establishing
(1) a different mental state indicating a lesser kind of culpability; and/or
(2) a less serious harm or risk of harm to the same person, property or public interest; or
(c)it consists of
(1) facilitation of the offense charged or of an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or
(2) an attempt to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or
(3) solicitation to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b).
State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 2001).
Our supreme court recently applied the Burns analysis and determined that second degree murder was a lesser included offense of first degree felony murder, stating:
After comparing the respective elements of felony murder, second degree murder, reckless homicide, and criminally negligent homicide, it appears that the elements of the lesser offenses are a subset of the elements of the greater and otherwise differ only in the mental state required. We hold that because the mental states required for the lesser offenses differ only in the level of culpability attached to each in terms of seriousness and punishment, the offenses of second degree murder, reckless homicide, and criminally negligent homicide are lesser included offenses of felony murder under part (b) of the Burns test.
State v. Ely, 48 S.W.3d 710, 721-22 (Tenn. 2001).
The defendant's argument that second degree murder is not a lesser included offense of felony murder because it requires a greater level of mental state as per culpability is rejected by the El
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