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State v. Garrett12/1/2005
er felony murder as it is defined for offenses committed on or after July 1, 1995. See Ely, 48 S.W.3d at 721-22. In Ely, second degree murder was found to be a lesser-included offense of felony murder under the current statute based upon part (b) of Burns. Id. The additional mens rea of recklessness in the prior statute would not eliminate second degree murder as a lesser-included offense of felony murder under the rationale of Ely.
William Glenn Wiley, slip op. at 10. Notably, then, in William Glenn Wiley, this court applied Burns to a pre-July 1, 1995 homicide as a predicate for holding that the "reckless" form of first degree felony murder included the lesser offense of second degree murder. Applying this rule, the trial court in the present case did not err.
In the event, however, the law develops that second degree murder is not a lesser-included offense of "reckless" felony murder as that offense was defined prior to July 1, 1995, we are confident that the instructional inclusion of second degree murder in this case was harmless error. The jury did not convict the defendant of second degree murder, and the jury rejected both that offense and the charged lesser included offense of criminally negligent homicide.
Secondarily, the defendant is aggrieved of the charge given for second degree murder because the instruction misstated the correct mens rea. The trial court instructed the jury that to find the defendant guilty of second degree murder the state must have proven that the defendant unlawfully killed the alleged victim and "that the killing was done recklessly." We agree that the trial court misstated the law and substituted the proper mental element of "knowingly" with "recklessly." See Tenn. Code Ann. § 39-13-210(a)(1) (1991). Even so, the error, is harmless. The jury did not convict the defendant of second degree murder, and we are at a loss to glean how such error would have worked to the defendant's detriment.
B. Reckless Homicide
The defendant complains that the trial court failed to give an instruction for reckless homicide as a lesser included offense of felony murder. This complaint need not detain us long. Reckless homicide did not exist as a statutory offense in 1992, when the defendant performed the acts leading to his indictment. Reckless homicide, codified at Tennessee Code Annotated section 39-13-215, was enacted in 1993. See 1993 Tenn. Pub. Acts, ch. 306 § 2, at 482-83. Therefore, the trial court committed no error by failing to charge reckless homicide as a lesser included offense.
Regarding reckless homicide, we note that both the defendant and the state mistakenly relied upon the following passage in Gilliam: "The only lesser included offenses of first-degree felony murder are reckless homicide, Tenn. Code Ann. § 39-13-215 (1991), and criminally negligent homicide, Tenn. Code Ann. § 39-13-212 (1991)." Gilliam, 901 S.W.2d at 391. That statement is incorrect inasmuch as 1991 Replacement Volume 7 did not contain code section 39-13-215; rather, it first appeared in the 1994 pocket-part Supplement to 1991 Replacement Volume 7. However, in footnote 6, the Gilliam court did correctly observe that the defendant "cannot be convicted of reckless homicide because the statute became effective on May 12, 1993, after the commission of the instant offense." Id. at 391 n.6.
C. Definitions of Intentionally, Knowingly, and Recklessly
The defendant next assails the trial court's instructional definitions of intentionally, knowingly, and recklessly. To place his arguments in perspective, we begin by reviewing the jury charge given in this case. Before providing the jury with instructions on the charged of
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