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State v. Wilson8/2/2001
e have previously stated, facilitation poses a different theory of liability (i.e., the role of the Defendant as the facilitator of criminal activity, and not the principal actor). Therefore, the failure of the trial court to present the jury with this option cannot be deemed harmless beyond a reasonable doubt.
Next, we must determine whether second degree murder and voluntary manslaughter should have been charged as lesser-included offenses. In State v. Ely, our supreme court held that second degree murder is a lesser-included offense of felony murder under part (b)(1) of the Burns test, which states that, an offense is a lesser-included offense if the lesser offense fails part (a) only "in the respect that it contains a statutory element or elements establishing . . . a different mental state indicating a lesser kind of culpability." 2001 WL 605097, at *8; Burns, 6 S.W.3d at 466. The Court did not address whether voluntary manslaughter is a lesser included offense of felony murder; however, we find that it is.
Voluntary manslaughter "is the intentional or knowing killing of another in a state of a passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner." See Tenn. Code Ann. § 39-13-211(a) (1997) (emphasis added). The culpable mental state for voluntary manslaughter is "intentional" or "knowing, while the mental state required for first degree felony murder is "intentional." The mental state of `intentional' is the highest level of culpability, which subsumes all other mental states. The differing mental state of "knowing," clearly indicates a lesser kind of culpability than required for felony murder. Moreover, our supreme court has held "that the `passion' language in the definition of voluntary manslaughter simply reflects a less culpable mental state than required for first or second degree murder." See State v. Jason Thomas Beeler, No. W1999-01417-CCA-R3-CD, 2000 WL 1670945, at *20 (Tenn. Crim . App., Jackson, Nov. 2, 2000) (quoting State v. Dominy, 6 S.W.3d 472, 479 n.9 (Tenn. 1999)). Therefore, voluntary manslaughter is also a lesser- included offense under part (b)(1) of Burns.
We must next determine whether the trial court should have instructed the jury on either of these offenses. Regarding second degree murder, we find that the proof suggested evidence that reasonable minds could accept as to this lesser offense, which is also evident from the jury convicting the Defendant of second degree murder under Count I of the indictment. The Defendant testified that the victim began to attack him, and in an effort to prevent the victim from hitting him, the Defendant began stabbing the victim. Dr. Harlan testified that none of the wounds received by the victim appeared to be defensive wounds, or wounds received in the course of protecting oneself from an attack. Viewed in this manner, we find that this evidence would be sufficient to show that the Defendant was aware that his conduct was reasonably certain to cause the victim's death. See Tenn. Code Ann. § 39-11-302 (1997). We further conclude that these facts were also sufficient evidence of provocation, justifying an instruction on voluntary manslaughter as a lesser-included offense of felony murder.
Finally, we must analyze whether the failure to charge second degree murder and voluntary manslaughter was harmless beyond a reasonable doubt. Concerning second degree murder, we find that the trial court committed reversible error. As was the case in Ely, the jury in this case was not given the option to find the Defendant guilty of a lesser offense than felony murder in Count II of the indictment. Ely, 2001 WL 605097, at * 14.
With regard to the firs
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