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State v. Wilson8/2/2001
t count of the indictment charging the Defendant with first degree premeditated murder, the jury determined that the defendant was guilty of the lesser offense of second degree murder. Although Tennessee does not require consistency in the verdicts of a multiple count indictment, State v. Gennoe, 851 S.W.2d 833, 836 (Tenn. Crim. App . 1992), we cannot conclude that had the jury also been instructed on any of the lesser-included offenses of felony murder, it would have still chosen to convict the Defendant of the higher offense to the exclusion of the lesser offenses.
Thus, we find that the trial court's failure to instruct the jury on second degree murder was not harmless error, and therefore reverse Defendant's conviction for felony murder and remand for a new trial.
It was error for the trial judge to not charge voluntary manslaughter. Under the circumstances of this case, any conviction under Count II (the felony murder count) must be merged with the conviction for second degree murder in Count I, which we affirm and remand for sentencing. Accordingly, even if the trial court had charged voluntary manslaughter as a lesser-included of the felony murder count, and the jury had found Defendant guilty of voluntary manslaughter under that count, it would have merged with the second degree murder conviction. Therefore, under the particular facts of this case, the error in not charging voluntary manslaughter is harmless beyond a reasonable doubt. However, our affirmance of the conviction for second degree murder in Count I is subject to possible further appellate review. If the Defendant is retried for felony murder, and the proof again requires the charging of voluntary manslaughter as a lesser- included offense, the trial court should so charge the jury.
II. NATURAL AND PROBABLE CONSEQUENCES RULE
The Defendant asserts that the trial court erred in not instructing the jury on the "natural and probable consequences" rule.
Specifically, Defendant argues that, because the State pursued a theory of criminal responsibility for the especially aggravated robbery charge, the trial court should have given an instruction on the "natural and probable consequences" rule. The Defendant relies upon the holding in State v. Howard, 30 S.W.3d 271, 277 (Tenn. 2000) (finding that the natural and probable consequences rule is an "an essential element that the State must prove beyond a reasonable doubt," when relying upon a theory of criminal responsibility). The State contends that the natural and probable consequences rule is not applicable, or in the alternative, that the Defendant has waived this argument for failure to submit a contemporaneous objection to the jury instructions.
The "natural and probable consequences" rule underlies the doctrine of criminal responsibility and is based on the recognition that aiders and abettors should be responsible for the criminal harms they have naturally, probably and foreseeably put into motion. State v. Carson, 950 S.W.2d 951, 954-55 (Tenn. 1997). The rule extends criminal liability to the crime intended by a defendant, and also to other crimes committed by a co-defendant that were the natural and probable consequences of the commission of the original crime. See id., at 954-55. In order for the State to impose criminal liability based on the natural and probable consequences rule, the State must prove beyond a reasonable doubt and the jury must find: (1) the elements of the crime or crimes that accompanied the target crime; (2) that the defendant was criminally responsible under Tenn. Code Ann. § 39-11-402; and (3) that the other crimes that were committed were natural and probable consequences of the target crime. Id.
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