State v. Stephen Abbott ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
MAY SESSION, 1998 FILED
December 9, 1998
Cecil W. Crowson
STATE OF TENNESSEE, )
Appellate Court Clerk
) No. 01C01-9704-CC-00122
Appellee )
) MAURY COUNTY
vs. ) (Transferred from Giles County)
) Hon. WILLIAM B. CAIN, Judge
STEPHEN JOHN ABBOTT, )
) (Second Degree Murder (Two Counts);
Appellant ) attempted First Degree Murder; and
) Attempted Second Degree Murder)
SEPARATE CONCURRING IN PART AND DISSENTING IN PART
Judge Wade, writing for the majority, finds reversible error in the trial court's
failure to charge facilitation upon each of the indicted charges. Judge Smith finds
the error harmless. Both reach their respective positions after review of our
supreme court's recent decision in State v. Willie Williams, No. 03S01-9706-CR-
00060, (Tenn. Sept. 21, 1998) (for publication), wherein the court applied a
harmless error analysis to the trial court’s refusal to instruct on a lesser offense.
After reviewing the proof, I join with Judge Wade in concluding that the failure
to instruct on facilitation was not harmless. I write separately, however, as I believe
the true test for determining whether "harmless error" has occurred lies in the
common ground left unaddressed by Judges Wade and Smith.
The Supreme Court in Sansone v. United States, 380 U.S. 343, 349, 85 S.Ct.
1004,1009 (1965), held:
The basic principles controlling whether or not a lesser-included
offense charge should be given in a particular case have been settled
by this Court. Rule 31(c) of the Federal Rules of Criminal Procedure[1]
provides in relevant part, that the 'defendant may be found guilty of an
offense necessarily included in the offense charged.' Thus, '[i]n a case
where some of the elements of the crime charged themselves
1
Rule 31(c) of the Tennessee Rules of Criminal Procedure is identical to Fed. R. Crim. P.
31(c).
constitute a lesser crime, the defendant, if the evidence justifie[s] it * *
* [is] entitled to an instruction which would permit a finding of guilt of
the lesser offense.' Berra v. United States, [351 U.S. 131,] 134, 76
S.Ct. [685,] 688.
More recently, the Supreme Court has interpreted lesser offense principles to
include "whether the evidence would permit a jury to rationally find the defendant
guilty of the lesser and acquit him of the greater.” Keeble v. United States., 412
U.S. 205, 208, 93 S.Ct. 1993, 1995 (1973). See also State v. Trusty, 919 S.W.2d
305, 311 (Tenn. 1996); State v. Elder, No. 03C01-9702-CR-00053 (Tenn. Crim.
App. at Knoxville, Apr. 23, 1998). “Accordingly, before instructing on a lesser
offense, the trial court must determine whether the evidence, when viewed in the
light most favorable to the defendant’s theory of the case, would justify a verdict in
accord with [that] theory . . . .” Elder, No. 03C01-9702-CR-00053 (emphasis added)
(citations and footnote omitted).
Where the trial court fails to instruct the jury on any lesser offenses, although
raised sufficiently by the proof, the jury is left with the sole option of either to convict
the defendant of the greater offense or acquit. Thus, the jury may choose to find the
defendant guilty of the greater offense rather than to acquit him altogether even
though it had a reasonable doubt that he really committed the greater offense. Beck
v. Alabama, 447 U.S. 625, 634, 100 S.Ct. 2382, 2388 (1980). Alternatively, the jury
may find the defendant not guilty of the greater offense and let him go unpunished
even though he is in fact guilty of a lesser offense. This error can never be held
harmless; the harm is automatic. See, e.g., Schad v. Arizona, 501 U.S. 624, 646-
647, 111 S.Ct. 2491, 2505 (1991); Spaziano v. Florida, 468 U.S. 447, 455, 104 S.Ct.
3154, 3159 (1984); Beck v. Alabama, 447 U.S. at 634, 100 S.Ct. at 2388; State v.
Jiminez, 953 S.W.2d 293, 299 (Tex. App. 1997); Saunders v. State, 913 S.W.2d
564 (Tex. Crim. App. 1995).
2
In formulating a harmless error rule, our supreme court in Williams
recognized the evils of the “all-or-nothing” approach condemned in Beck. In
determining whether the trial court’s failure to instruct on a lesser offense is
harmless, the court applied the presumption that, “by finding the defendant guilty of
the highest offense to the exclusion of the immediately lesser offense, . . . the jury
necessarily rejected all other offenses.” 2 Williams, No. 03S01-9706-CR-00060
(emphasis added). That is, when the jury is provided an instruction on the
immediate lessor, the “all-or-nothing” option is removed; the jury is given the
opportunity to compromise. See Beck v. Alabama, 447 U.S. at 634, 100 S.Ct. at
2388. However, the jury’s rejection of the “intervening lessor” may not in every
instance render harmless the trial court’s failure to instruct upon another lesser
offense also raised by the evidence. The existence of the “intervening lesser” will
only “save” the court’s failure to charge on another warranted lesser where the
“intervening lesser” instruction indicates a lack of likelihood that the jury would have
adopted the uninstructed lesser offense. In other words, an instruction on an
“intervening lesser” will only hold harmless the court’s failure to instruct on another
lesser when the “intervening lesser” encompasses the defendant’s theory of the
case.
Under the Due Process Clause of the Fourteenth Amendment, criminal
defendants must be afforded a meaningful opportunity to present a complete
defense. California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532 (1984).
Implicit within the right to present a defense is the right to have the jury, via a jury
instruction, consider the defense. As a general proposition, a defendant is entitled
to an instruction as to any recognized defense for which there exists evidence
sufficient for a reasonable jury to find in his favor. See Matthews v. United States,
485 U.S. 58, 64, 108 S.Ct. 883, 887 (1988) (citing Stevenson v. United States, 162
2
The trial court, in Williams, instructed on premeditated m urder, second degree m urder,
and reckless hom icide, however, the trial court denied the request for an instruction on voluntary
man slaughte r. The jur y convicted the defe ndant of first degre e mu rder.
3
U.S. 313, 16 S.Ct. 839 (1896); 4 C. Torcia, Wharton's Criminal Procedure § 538, p.
11 (12th ed. 1976)). Parallel to the right to an instruction on a particular defense is
the right to an instruction on a lesser offense sufficiently raised by the proof. See
Matthews v. United States, 485 U.S. at 64, 108 S.Ct. at 887 (citing Fed. Rule Crim.
Proc. 31(c); Keeble v. United States, 412 U.S. at 208, 93 S.Ct. at 1995; Sansone v.
United States, 380 U.S. at 349, 85 S.Ct. at 1009). Failure to provide instructions
encompassing the defendant’s theory of the case, whether it be in the form of a
“defense instruction” or a “lesser offense instruction,” sufficiently raised by the
evidence, renders the due process right to present a defense only half a right.
Moreover, it subverts the adversarial process in that it only permits the prosecution's
theory of the case to go to the jury. However, the right to have the jury consider the
defendant’s theory of the case does not equate with a right to have the trial court
charge on defense theories that have no evidentiary support or that are inconsistent
with the defendant’s theory of the case.3
Thus, where the “intervening lesser” instruction fails to present the
defendant’s theory, which is sufficiently raised by the evidence, the reviewing court
must determine whether the evidence supporting the judgment of conviction is so
relatively strong and the evidence supporting a different outcome is so
comparatively weak that there is no reasonable probability the error of which the
defendant complains affected the result. If the court so determines, the error is
harmless. If the court determines otherwise, the error is reversible.
The proof before us established that the defendant and Rouse had been
friends for approximately one and one-half years. During this period, the defendant,
on different occasions, had heard Rouse threaten to kill his brother, a State Trooper,
a coach, a teacher, and an ex-girlfriend. Previous to the school shootings, the
3
The principles governing lesser offense instructions espoused herein are not adopted
simply to alleviate the dangers of an “all-or-nothing choice,” but to assure, in the interest of justice,
the m ost acc urate po ssible verd ict encom passe d by the ch arge an d supp orted by the evidenc e.
See People v. Breverman, 960 P.2d 1094, 1105 (Ca l. 1998).
4
defendant knew of no attempts by Rouse to carry out any of these threats. On the
morning of the shootings, the defendant rode with his friend Rouse to school as he
had done on other occasions. On the way to school, they stopped at the house of
their friend, Stephen Ray. Ray saw the rifle in the truck and asked, "Who are you
going after?" Rouse replied, "Hobbs and whoever gets in the way." Ray thought
Rouse was joking and did not consider his comments as serious. After the
shootings, Rouse told an investigator that he did not believe the defendant had
taken him seriously. The defendant, at trial and in his statements to the police,
admitted that he was aware of Rouse's threats to kill on the date of the shooting. He
testified, however, that he never believed Rouse would do such a thing.
The trial court instructed the jury upon the State’s theory that the defendant
was criminally liable as a principle offender based upon the conduct of the co-
defendant, Rouse. See Tenn. Code Ann. § 39-11-402(3). This theory is applicable
when it is based upon the premise that the defendant knowingly, voluntarily, and
with common intent united with the co-defendant in the commission of the crime.
See State v. Carson, 950 S.W.2d 951 (Tenn. 1997). Moreover, in Carson, our
supreme court held that criminal responsibility, under an aiding and abetting theory,
“requires that a defendant act with a culpable mental state, specifically, the intent to
promote or assist the commission of the offenses. . . .” Id. at 954.
The defendant contends that the trial court erred in submitting to the jury only
the State’s theory of the case, i.e., that the defendant was a principle offender. He
insists that, at best, the proof established culpability for facilitating, a subordinate
degree of criminal responsibility. The defendant’s position, at trial, was that he
acted not with the intent to promote or assist murder, but only with the intent to
assist his high school friend. These respective theories illustrate the principal
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distinction between “criminal facilitation” and “criminal responsibility.”4 Criminal
facilitation is established, in this case, if the proof demonstrated that the defendant
had knowledge that Rouse intended to commit murder and the defendant furnished
substantial assistance in the murder but without the intent to promote, assist or
benefit in the murders committed by Rouse.
In this case, the jury was only instructed on the theory of criminal
responsibility. Thus, the jury was permitted to consider the defendant’s guilt or
innocence only upon this one theory. The proof in the record, when reviewed in the
light most favorable to the defendant, clearly supports the defendant’s theory of
facilitation.5 See Elder, No. 03C01-9702-CR-00053. Contrary to Judge Smith’s
assertion, the jury could not have rejected the defendant’s theory of “facilitation,”
because they were precluded by the trial court from even considering this theory.
Moreover, Judge Smith concludes, utilizing the Williams presumption, that, because
the jury was instructed on offenses lesser than those for which the defendant was
convicted, any error in refusing to charge facilitation was harmless. I believe this
analysis too narrow and too mechanical in its application. Under this rationale, the
failure to charge voluntary manslaughter would always be harmless in a case of first
degree murder as long as the trial court instructed on second degree murder, even
though the proof was replete with uncontested evidence of adequate provocation
and passions and the defendant conceded the elements of manslaughter.
4
The fo llowing two h ypothetical c ases p rovide clas sic illustrations of “crim inal facilitation:”
In the first, the ‘offender’ sells large quantities of sugar and malt to illegal distillers
with k now ledge of the ir illega l inten tions . He k now s tha t his c ond uct m ake s it
possible for the offense to be committed, but, at the same time, he has no
intention to fu rther the c riminal ob jective. In the s econd , the ‘offend er,’ a drugg ist,
sells poiso nous s ubstan ces to a wom an with k nowled ge that sh e intends to
poison her husband. As in the first case, the actor knows that his conduct
facilitates commission of the offense but he has no intention to promote or
contribute to its fruition.
See gene rally Kentucky Crime Com mission Commentary, Ky. Rev. Stat. Ann. § 506.080 (citing
generally to the New York Penal Code ).
5
Similar to a motion for directed verdict, the trial court must view the evidence in the light
mos t favorab le to the def endan t, indulging in all rea sonab le inferenc es in his fa vor. See Tenn.
Rules C iv. P. 50. Th e rule doe s not per mit a we ighing of the evidenc e by the trial judg e.
Obviously, a review of the evidence in the light most favorable to the State, following conviction,
would never reach the defendant’s theory of the case.
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Thus, I conclude that the failure of the trial court to instruct on a lesser
offense is harmless only where the jury’s resolution of disputed facts compels the
conclusion that the jury, by their verdict, necessarily rejected an alternative
resolution of fact that would have supported the lesser offense which was not
instructed. See Turner v. Commonwealth, 476 S.E.2d 504, 508 (Va. App. 1996).
In the instant case, the jury was not provided the opportunity to resolve “disputed
facts” regarding the theory of criminal liability. In sum, I find the trial court’s failure to
provide the jury of its option to find the defendant guilty of facilitation impaired the
jury’s truth-ascertainment function by forcing the jury to make an “all or nothing”
choice between conviction as a principal offender of the crimes charged or acquittal,
thereby denying the jury the opportunity to consider the defendant’s theory of the
lesser grade of criminal responsibility which was established by the evidence. See
Breverman, 960 P.2d at 1094. Thus, the error cannot be held harmless.
Additionally, I am unable to join in the conclusion that the defendant was
properly classified as a dangerous offender thus warranting consecutive sentences.
The fact that an inherently dangerous offense occurred, as is clearly the case before
us, does not necessarily translate to the fact that all of the criminal actors involved
were dangerous offenders. The decision to impose consecutive sentences should
be based upon the presence of aggravating circumstances. See Gray v. State, 538
S.W.2d 391, 393 (Tenn. 1976). The defendant’s unlawful conduct in this case
involved the operation of a vehicle to the crime scene at the request of the co-
defendant. I am unable to conclude that this fact alone establishes that the
defendant has little or no regard for human life. Accordingly, I would find that the
defendant’s conduct in this case fails to establish aggravating circumstances
necessary for classification as a dangerous offender.
For the foregoing reasons, I concur in part and dissent in part.
____________________________________
DAVID G. HAYES, Judge
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