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Lesser Included Offenses – Waiver

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CaseState of Tennessee v. Broderick Devonte Fayne

Issues:  Is possession of a firearm a lesser included offense to employing a firearm? Should the judge have instructed this lesser offense notwithstanding a lack of a special request?

Facts:  The Defendant was convicted of employing a firearm in the commission of a dangerous felony. The trial court refused to instruct the jury on the definitions of “possession” and “constructive possession” of a firearm.

Appellate Decision:  The intermediate appellate court held that because the defense failed to specifically request an instruction on the lesser offense of possession of a firearm, there was no error in the judge not instructing on the possession definitions.

Review Granted:  November 13, 2013.

Prediction:  The record is less than clear if there was a special request. Notwithstanding such a failure, can a defendant be deemed to have waived this lesser offense instruction under T.C.A. § 40-18-110? David thinks the court will find the statute in conflict with the defendant’s jury trial right. While not outright holding the statute unconstitutional, the court will find no waiver here and will find the failure harmful and will reverse the firearm conviction. Lawyers should still specifically request lesser included offense instructions since, on different facts, there could well be a waiver.