State v. Ely

• Decision Date: 05 June 2001
• Docket Number: E1998-00099-SC-R11-CD
• Citation: 48 S.W.3d 710
• Parties: STATE OF TENNESSEE v. CURTIS JASON ELY AND STATE OF TENNESSEE v. LACONIA LAMAR BOWERSo. E1999-00170-IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE
• Court: Tennessee Supreme Court

STATE OF TENNESSEE

v.

CURTIS JASON ELY

AND

STATE OF TENNESSEE

v.

LACONIA LAMAR BOWERS

No. E1998-00099-SC-R11-CD, No. E1999-00170-SC-R11-CD

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

May 2, 2001 Session

Filed June 5, 2001

Appeal by Permission from the Court of Criminal Appeals, Criminal Court for Anderson County, No. 96CR0484B, Hon. James B. Scott, Judge

Appeal by Permission from the Court of Criminal Appeals, Criminal Court for Knox County, No. 61221, Hon. Richard R. Baumgartner, Judge

This is a consolidated appeal from the defendants' convictions in the Criminal Courts of Anderson County and Knox County, respectively. Defendant Ely was originally charged with one count of premeditated murder and one count of felony murder; defendant Bowers was charged with two counts of felony murder. In Ely's case, the State nolle prossed the premeditated murder count upon the conclusion of the proof, and the trial court refused to instruct any lesser-included offenses to felony murder. He was convicted as charged of felony murder and sentenced to life imprisonment. In defendant Bowers's case, the trial court dismissed the charges of felony murder at the conclusion of the proof and, over his objection, instructed the jury on the lesser offenses of second degree murder, reckless homicide, and criminally negligent homicide. Bowers was convicted of second degree murder.

On appeal to the Court of Criminal Appeals, Ely argued that the offenses of second degree murder, reckless homicide, criminally negligent homicide, facilitation of felony murder, and accessory after the fact to felony murder were all lesser-included offenses of felony murder and should have been instructed. A majority of the intermediate court held that accessory after the fact was not a lesser-included offense of felony murder. However, assuming that the other lesser offenses were included, the Court of Criminal Appeals determined that no error occurred because the evidence did not support an inference of guilt of any of the other lesser offenses. In his direct appeal, Bowers argued that second degree murder was not a lesser-included offense of felony murder and should not have been charged. The intermediate court held that second degree murder was a lesser-included offense of felony murder and that it was properly instructed in his case.

We granted review in this consolidated appeal to determine several issues: (1) whether there are any lesser-included offenses to felony murder; (2) if there are no lesser-included offenses, whether the conviction in Bowers's case is therefore invalid; (3) if there are lesser-included offenses, whether failure to instruct such offenses was error in Ely's case; and (4) whether any such error was harmless. We also take the opportunity in this case to clarify the harmless error standard, which has been the subject of some confusion since our decision in State v. Williams, 977 S.W.2d 101, 104-06 (Tenn. 1998). We conclude that the offenses of second degree murder, reckless homicide, and criminally negligent homicide are lesser-included offenses of felony murder, and therefore, instruction on these offenses in Bowers's case was not error. In Ely's case, we find that some evidence exists that reasonable minds could accept as to several lesser-included offenses, and therefore, the failure to instruct such offenses was error. Because we conclude that such error was not harmless beyond a reasonable doubt, we reverse Ely's conviction and remand his case for a new trial.

Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the

Court of Criminal Appeals Affirmed in Part, Reversed in Part in Ely's case, and

Affirmed in Bowers's case.

William M. Barker, J., delivered the opinion of the court, in which E. Riley Anderson, C.J., and Frank F. Drowota, III, Adolpho A. Birch, Jr., and Janice M. Holder, JJ., joined.

J. Thomas Marshall, Clinton, Tennessee, for the appellant, Curtis Jason Ely.

William C. Talman, Knoxville, Tennessee, for the appellant, Laconia Lamar Bowers.

Michael E. Moore, Solicitor General, and Gordon W. Smith, Associate Solicitor General, Nashville, Tennessee, for the appellee, State of Tennessee.

OPINION

BACKGROUND

These cases were granted review to settle three issues: first, whether there are any lesser-included offenses to felony murder under the test adopted in State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999); second, if certain offenses are deemed lesser-included in a charge of felony murder and the evidence at trial supports a charge on such offenses, whether failure to so instruct is subject to a harmless error analysis; and third, whether failure to instruct on lesser-included offenses is an error of constitutional dimension so as to apply a "beyond a reasonable doubt" standard when performing a harmless error analysis. A summary of the facts in these respective cases is relevant to put these issues in proper context.

STATE v. ELY

During the early morning hours of December 3, 1996, intruders broke into the home of seventy-year-old William Bond and repeatedly struck him over the head with a brick, killing him. The intruders took several pieces of electronic equipment from Bond's home, including two televisions, a VCR, and a compact disc player. Within a few days, the victim's former step-grandson, Trinidy Carden,¹ was linked to the crime when he attempted to dispose of some of the victim's property. When Carden was brought in for questioning, he confessed to the crimes and implicated the defendant as the person who had actually killed the victim.

At trial, Carden recanted his statement to the police. Instead, he claimed full responsibility for the crimes and claimed that the defendant was not present. On cross-examination, the State elicited the fact that Carden had already been permitted to plead guilty to a reduced charge of second degree murder. Furthermore, Carden admitted that both he and the defendant were affiliated with the "A-town Mafia Gangstas," a "club" that operated within Anderson County. The implication of this admission was that as a member of the A-town Mafia Gangstas, Carden was honor-bound not to betray a fellow member.

When the defendant was questioned following his arrest, he admitted to spending the night with Carden the night of the murder, but he did not acknowledge any involvement in the crimes. He stated, "Me and Trinidy went up to the Bond house that night. We knocked on the door. No one was home. Take me to jail."

Several witnesses linked the defendant to the murder of Bond. Wesley Powers testified that at approximately 3:00 a.m. on the morning of the murder, he received a phone call from the defendant requesting Powers to take him and Carden to Knoxville. The defendant told Powers he had broken into a house and "knocked somebody unconscious." Although Powers declined to drive the defendant and Carden to Knoxville at that time, he did take them to Martha Wine's residence later that day where he saw a television and a VCR. While at Wine's residence, the defendant told Powers that he hit the victim with a brick.

Martha Wine testified that the defendant, "Wes," and Carden showed up at her house at approximately 5:00 a.m. on the morning of the murder. They had a TV, a VCR, and a CD player, and they asked her whether they could store them at her house. At that time, Carden told her that he and the defendant had beaten the victim with a brick. The following day, Carden admitted to Wine that "he" killed the victim.

Jason Johnson, Carden's cousin, testified that three days after the murder the defendant had told him that he had hit the victim with a brick, and that he felt no remorse about the killing. Although two defense witnesses implicated Johnson as Carden's accomplice instead of the defendant, Johnson denied any involvement in the crime.

At the conclusion of the proof, the State nolle prossed the charge of premeditated murder and proceeded solely on the charge of felony murder. Ely requested jury instructions on the lesser offenses of second degree murder, reckless homicide, criminally negligent homicide, facilitation of felony murder, and accessory after the fact. The trial court, finding that no lesser offenses to felony murder existed under the current statute, declined to give these instructions. The jury found the defendant guilty as charged of felony murder. On appeal, the Court of Criminal Appeals held that accessory after the fact was not a lesser-included or lesser grade offense of felony murder. The court further held that, even assuming the other requested offenses were either lesser-included or lesser-grade offenses of felony murder, no error occurred because the evidence did not support an inference of guilt of any of these other lesser offenses.²

STATE v. BOWERS

On the afternoon of April 21, 1996, victim Peter Whatmough and his girlfriend Stacy Yessler stopped in Knoxville en route from Florida to Ohio. They drove to the Walter P. Taylor housing project, purchased three rocks of crack cocaine, and then drove to a motel room where they ingested the cocaine. Later that day, they drove back to the housing project to purchase more cocaine. While driving through the area, Yessler recognized Artis Bonner as the person from whom she had purchased the cocaine earlier that day. Yessler called Bonner over to the vehicle and inquired about purchasing more cocaine. While Yessler and Whatmough waited in the van, Bonner entered one of the apartments in the housing complex. A few minutes later, Bonner came running out of the apartment and jumped into the vehicle with Yessler and Whatmough, telling them to "hurry up and get on out of [here]." As Whatmough started the engine and placed the vehicle in drive, he was fatally shot in the head by a man through the driver's window as they were attempting to leave. The bullet traveled through Whatmough's head, grazed Yessler's arm, and ultimately struck Bonner.

During the police investigation...