State of Tennessee v. Ned Jackson - Dissenting

While I agree with the majority’s conclusion that the evidence adduced at trial is sufficient to support the jury’s verdict of guilt of aggravated robbery, I respectfully disagree with its conclusion that the trial court properly declined to instruct the jury on lesser-included offenses.
Currently, members of this court are divided concerning the correct interpretation of the two-step process set forth by our supreme court in State v. Burns, 6 S.W.3d 453, 469 (Tenn. 1999), for determining if the evidence adduced at trial justifies jury instructions on lesser-included offenses. See, e.g., State v. Linnell Richmond, No. E2000-01545-CCA-R3-CD, 2001 WL 1222247 (Tenn. Crim. App. at Knoxville, October 15, 2001). I am largely in agreement with the position expressed by Judge Smith in his opinion in Richmond, No. E2000-01545-CCA-R3-CD, 2001 WL 1222247, at *21 (concurring in part and dissenting in part)(footnote omitted), that [a] reading of the recent cases of [State v. Bowles, 52 S.W.3d 69, 80 (Tenn. 2001), and State v. Ely, 48 S.W.3d 710, 724-725 (Tenn. 2001),] leads one to the inescapable conclusion that our high court has mandated that lesser-included offense instructions be given anytime the evidence is sufficient to support a conviction for these offenses. This means that anytime the proof is sufficient for a conviction of the indicted offense, the proof will a fortiori be sufficient for a conviction of the lesser-included offenses. . . . As a practical matter, this in turn means that it will almost always be error to fail to instruct the jury as to all lesser-included offenses of the indicted offense. Thus, the only real inquiry, in my opinion, in virtually all of the cases raising the lesser-included offense issue is whether the error in failing to instruct on the lesser offenses can be said to be harmless beyond a reasonable doubt.