State of Tennessee v. Linnell Richmond and Shervon Johnson - Concurring

Case Number
E2000-01499-CCA-R3-CD

I concur with Judge Woodall's lead opinion as to the defendant Johnson and would affirm in all respects. I disagree with Judge Smith that this court should reverse Johnson's aggravated robbery and attempted aggravated robbery convictions on a plain error basis for failure to instruct on the lesser offenses of robbery and attempted robbery. Johnson did not present the issue on appeal.  Five factors determine whether the failure to charge lesser included offenses qualifies as reversible, plain error:

1. The record must clearly establish what happened in the trial court;
2. a clear and unequivocal rule of law must have been breached;
3. a substantial right of the accused must have been adversely affected;
4. the accused did not waive the issue for tactical reasons; and
5. consideration of the error is necessary to do substantial justice.

Authoring Judge
Presiding Judge Gary R Wade
Originating Judge
Judge Richard R. Baumgartner
Case Name
State of Tennessee v. Linnell Richmond and Shervon Johnson - Concurring
Date Filed
Dissent or Concur
No
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