Larry Keaton v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL SESSION, 1998 August 18, 1998
Cecil W. Crowson
Appellate Court Clerk
LARRY JUNIOR KEATON, ) C.C.A. NO. 01C01-9704-CR-00146
)
Appe llant, )
) DEKALB COUNTY
V. )
)
) HON. LEON BURNS, JR., JUDGE
STATE OF TENNESSEE )
)
Appellee. ) (POST -CON VICTIO N)
CONCURRING OPINION
Except for the conclusion that the failure to instruct a lesser included
offense is not a constitutional abridgement, I concur entirely with the majority
opinion. The trial judge has a duty to give the complete charge of the law applicable
to the facts of each case. State v. Harbison, 704 S.W.2d 314, 319 (Tenn.), cert.
denied, 476 U.S. 1153 (1986). It is settled law that when "there are any facts that
are susceptible of inferring guilt of any lesser included offense or offenses, then
there is a mandatory duty upon the trial judge to charge on such offense or
offenses. Failure to do so denies the defendant his constitutional right of trial by
jury." State v. Wright, 618 S.W.2d 310, 315 (Tenn. Crim. App. 1981) (citations
omitted); Tenn. Code Ann. § 40-18-110(a). When there is a trial on a single charge
of a felony, there is also a trial on all lesser included offenses, "as the facts may be."
Strader v. State, 362 S.W.2d 224, 227 (Tenn. 1962). See State v. Belser, 945
S.W.2d 776, 789 (Tenn. Crim. App. 1996).
I concur in the results reached by the majority because the issue, as
indicated, has been waived due to the petitioner's failure to present the issue in the
motion for new trial or on direct appeal. Tenn. Code Ann. § 40-30-206(g), -210(f).
_________________________________
Gary R. Wade, Presiding Judge