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State v. Wilson8/2/2001
e felt Christein's statement about the marijuana in the park was a lie, but stated that he was not certain there was no marijuana nearby. The Defendant conceded that there was no blood on the back of the shirt he had worn on the night of the stabbing. He testified that he did not mention the victim hitting him with the beer bottle, because Detective Smeltzer did not ask about it.
Bobby Lee Lingerfelt testified that he had know the Defendant all of his life, and that Defendant had a good reputation and was not a violent person.
ANALYSIS
I. LESSER-INCLUDED OFFENSES
In his first issue, the Defendant argues that the trial court erred in failing to charge the jury on facilitation to commit especially aggravated robbery, facilitation to commit felony murder, and on second degree murder and voluntary manslaughter as lesser-included offenses of felony murder. The Defendant contends that there was legally sufficient evidence presented at trial, which would have justified a charge on any of the previously mentioned lesser-included offenses. However, the Defendant failed to raise this issue in his motion for new trial. The failure of the Defendant to raise this issue in his motion for a new trial constitutes a waiver of the issue. See Tenn. R. App. P. 3(e).
However, the Defendant asks this Court to review this issue under the plain error doctrine. See Tenn. R. Crim. P. 52(b). After review, we find that the requirements for plain error review exist in this case. See State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000).
Tennessee Code Annotated section 40-18-110(a) (1997) provides that a trial court must charge the jury with all lesser-included offenses included in the indictment, without any request on the part of the defendant to do so. Under this provision, " a trial court must instruct the jury on all lesser-included offenses if the evidence at trial is legally sufficient to support a conviction for the lesser offense." State v. Burns, 6 S.W.3d 453, 464 (Tenn. 1999) (quoting State v. Langford, 994 S.W.2d 126, 128 (Tenn. 1999)).
In this case, the Defendant was indicted for first degree premeditated murder (Count I), felony murder in perpetration of a robbery (Count II), and especially aggravated robbery (Count III). As to the first degree premeditated murder count of the indictment, the trial court charged the jury on the lesser-included offenses of second degree murder, voluntary manslaughter, reckless homicide, and criminally negligent homicide. The trial court then instructed the jury on the second count of the indictment charging felony murder, and the third count charging especially aggravated robbery. However, the trial court did not charge the jury on any lesser-included offenses for felony murder. In regards to the robbery of the victim, the trial court charged the jury on especially aggravated robbery, aggravated robbery, robbery and theft under $500. The jury convicted the Defendant of second degree murder on the first count, felony murder on the second count and especially aggravated robbery on the third count. The trial court merged the conviction for second degree murder with the conviction for felony murder.
A. Facilitation of Especially Aggravated Robbery
The Defendant contends that the trial court erred by failing to instruct the jury on the lesser-included offense of facilitation of especially aggravated robbery. See Tenn. Code Ann. § 39-11-403(a). He argues that the proof presented could have supported a finding that he knowingly furnished substantial assistance in the robbery of the victim, but lacked the intent to rob the victim. The state argues that an instruction on facilitation was unwarra
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