Today, the Tennessee Supreme Court has denied a new trial to a Nashville man for two counts of the sale of an illegal drug within a school zone, despite his assertions that his attorney did not properly represent him at trial.
In March and April of 2008, Calvin Eugene Bryant, Jr. sold the substance commonly known as Ecstasy to a friend. At the time of the transactions, Bryant was unaware that the friend was working as an informant for the Metropolitan Nashville Police Department. Bryant was arrested and charged with the sale and delivery of a controlled substance within 1,000 feet of a school.
At trial, Bryant’s lawyer argued that he was entrapped by the informant. The attorney did not request, and the trial court did not give, a jury instruction that would have allowed them to find him guilty of facilitation of the sale of illegal drug, a crime that has lighter penalties than the sale of drugs. These other, reduced, charges are referred to as “lesser-included offenses.” The defendant was convicted of selling illegal drugs.
Following an unsuccessful appeal, Mr. Bryant filed a petition for post-conviction relief, which allows defendants to request a new trial because they were denied constitutionally guaranteed rights. One of these rights is the right to effective assistance of counsel under the Sixth Amendment to the United States Constitution.
In this case, Bryant alleged he received ineffective assistance of counsel because his lawyer at trial did not request the facilitation instruction. The trial court denied him relief, stating that trial counsel’s representation was not deficient. The Court of Criminal Appeals affirmed the denial.
In an opinion authored by Chief Justice Sharon G. Lee, three justices held that Bryant’s trial counsel was not deficient because counsel did not ask the trial court to give a jury instruction on facilitation. Thus, Bryant is not entitled to a new trial. However, four justices held that, under certain facts and circumstances, a trial counsel’s failure to request a jury instruction on a lesser‑included offense could be prejudicial to a defendant and entitle him or her to post‑conviction relief based on ineffective assistance of counsel.
Justice Cornelia A. Clark filed a separate opinion. Justice Clark agreed with the majority that Bryant’s trial counsel was not deficient. However, citing the principle that the Court should reserve decision on issues that do not affect the case at hand, she opined that the Court should not comment on whether a trial counsel’s failure to request a lesser-included offense instruction could be prejudicial to a defendant.
Justice Gary R. Wade also filed a separate opinion, in which Justice Janice M. Holder joined. Justice Wade and Justice Holder agreed with the general principle that defendants may seek post-conviction relief when their lawyers fail to request lesser-included offenses at trial, and would have held that Bryant's lawyer was deficient for failing to request an instruction on facilitation. The justices’ reasoning was that a properly instructed jury may have found Bryant guilty of the lesser-included offense of facilitating the drug transactions rather than the charged offense of sale or delivery of the drugs. Justice Wade and Justice Holder would have granted a new trial.
Read the opinion in Calvin Eugene Bryant v. State authored by Chief Justice Lee, the separate opinion of Justice Clark, and the opinion of Justice Wade that concurs in part and dissents in part.