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State v. Garrett12/1/2005
stands convicted occurred in 1992. At that time, first degree felony murder was defined as a "reckless killing of another committed in the perpetration of, or attempt to perpetrate" an enumerated felony. Tenn. Code Ann. § 39-13- 202(a)(2) (1991). The defendant first stood trial in 1993, at which time the test for determining whether an offense is necessarily included in another offense was controlled by Howard v. State, 578 S.W.2d 83 (Tenn. 1979).
Subsequently, the defendant's conviction was vacated in 2001 by this court on appeal from the denial of post-conviction relief. See Claude Francis Garrett v. State, No. M1999-00786-CCA-R3-PC (Tenn. Crim. App., Nashville, Mar. 22, 2001). The defendant was then retried in 2003, at which time the test for determining whether an offense is necessarily included in another offense was controlled by State v. Ely, 48 S.W.3d 710 (Tenn. 2001), and State v. Burns, 6 S.W.3d 453 (Tenn. 1999).
The trial court, at the defendant's second trial, instructed the jury on first degree "reckless" felony murder and included instructions on second degree murder and criminally negligent homicide as lesser included offenses.
A. Instruction on Second Degree Murder
The defendant complains that it was prejudicial error for the trial court to charge the jury on second degree murder because second degree murder was not a lesser included offense of felony murder, as it existed in 1992 at the time of the homicide in this case. The state agrees that the charge should not have been given but insists that the error was harmless.
Prior to the filing of Burns in 1999, the law was settled that second degree murder, a "knowing" killing, was not a lesser included offense of "reckless" felony murder. As the court explained in State v. Gilliam, 901 S.W.2d 385 (Tenn. Crim. App. 1995),
"Reckless" is a lesser included mental state of "knowing". See Tenn. Code Ann. § 39-11-301(a)(2) (1991). When acting recklessly establishes an element, that element is also established if the defendant acted knowingly. Id. Conversely, when acting knowingly establishes an element, that element is not established if the defendant acted only recklessly. See Id. Therefore, in order to find a defendant guilty of second-degree murder, an element not contained in first-degree felony murder (the mental element of "knowing") must be established. It follows that, under Howard, second-degree murder is not a lesser included offense of first-degree felony murder. The only lesser included offenses of first-degree felony murder are reckless homicide, Tenn. Code Ann. § 39-13-215 [ ], and criminally negligent homicide, Tenn. Code Ann. § 39-13-212 (1991).
901 S.W.2d at 390-91 (footnotes omitted). The same result has been reached when analyzed according to Burns. See State v. Ben Mills, No. W1999-01175-CCA-R3-CD (Tenn. Crim. App., Jackson, May 3, 2002) (applying Burns to a "pipeline" case and concluding "second degree murder, which required a showing of the `knowing' mental state, would not have been a lesser included offense of felony murder as it existed in 1995"). A contrary result, however, appears most recently in William Glenn Wiley v. State, No. M2003-00661-CCA R3-PC (Tenn. Crim. App., Nashville, Sept. 23, 2004), perm. app. granted (Tenn. Feb. 28, 2005). The court in that case applied Burns retroactively in a post-conviction case when the defendant's notice of appeal from his original judgment was filed the same day that Burns was decided, and the court concluded:
Based upon Burns, we conclude second degree murder would be a lesser-included offense of "reckless" felony murder as that offense was defined prior to July 1, 1995, just as it is und
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