Tennessee § 40-18-110 - Charge as to lesser included offenses — Written request.

§ 40-18-110. Charge as to lesser included offenses — Written request.

When requested by a party in writing prior to the trial judge's instructions to the jury in a criminal case, the trial judge shall instruct the jury as to the law of each offense specifically identified in the request that is a lesser included offense of the offense charged in the indictment or presentment. However, the trial judge shall not instruct the jury as to any lesser included offense unless the judge determines that the record contains any evidence which reasonable minds could accept as to the lesser included offense. In making this determination, the trial judge shall view the evidence liberally in the light most favorable to the existence of the lesser included offense without making any judgment on the credibility of evidence. The trial judge shall also determine whether the evidence, viewed in this light, is legally sufficient to support a conviction for the lesser included offense. In the absence of a written request from a party specifically identifying the particular lesser included offense or offenses on which a jury instruction is sought, the trial judge may charge the jury on any lesser included offense or offenses, but no party shall be entitled to any lesser included offense charge. Notwithstanding any other provision of law to the contrary, when the defendant fails to request the instruction of a lesser included offense as required by this section, the lesser included offense instruction is waived. Absent a written request, the failure of a trial judge to instruct the jury on any lesser included offense may not be presented as a ground for relief either in a motion for a new trial or on appeal. Prior to instructing the jury on the law, the trial judge shall give the parties an opportunity to object to the proposed lesser included offense instructions. If the defendant fails to object to a lesser included offense instruction, the inclusion of that lesser included offense instruction may not be presented as a ground for relief either in a motion for a new trial or on appeal. Where the defendant objects to an instruction on a lesser included offense and the judge does not instruct the jury on that offense, the objection shall constitute a waiver of any objection in the motion for a new trial or on appeal concerning the failure to instruct on that lesser included offense. The defendant's objection shall not prevent the district attorney general from requesting lesser included offense instructions or prevent the judge from instructing on lesser included offenses. When the defendant requests an instruction on a lesser included offense, the judge may condition the instruction on the defendant's consent to an amendment to the indictment or presentment, with the consent of the district attorney general, so that if there is a conviction for the requested lesser offense the request shall constitute a waiver of any objection in the motion for new trial and on appeal. The defendant may be required to execute a written document actually consenting to the amendment so that there may be a lawful conviction for the lesser offense. If the district attorney general does not consent to the amendment, the defendant may raise the issue of failure to give the requested charge on appeal. This subsection (e) shall not be construed as requiring an instruction on a lesser offense. An offense is a lesser included offense if: All of its statutory elements are included within the statutory elements of the offense charged; The offense is facilitation of the offense charged or of an offense that otherwise meets the definition of lesser included offense in subdivision (f)(1); The offense is an attempt to commit the offense charged or an offense that otherwise meets the definition of lesser included offense in subdivision (f)(1); or The offense is solicitation to commit the offense charged or an offense that otherwise meets the definition of lesser included offense in subdivision (f)(1). Second degree murder is a lesser included offense of first degree murder as defined in § 39-13-202. Voluntary manslaughter is a lesser included offense of premeditated first degree murder and second degree murder. Aggravated sexual battery is a lesser included offense of aggravated rape, aggravated rape of a child, and rape of a child. Sexual battery and sexual battery by an authority figure are lesser included offenses of rape and aggravated rape. Acts 1877, ch. 85, § 1; Shan., § 7188; Code 1932, § 11751; Acts 1979, ch. 318, § 25; T.C.A. (orig. ed.), § 40-2518; Acts 2001, ch. 338, § 1; 2009, ch. 439, § 1; 2016, ch. 671, § 1. Compiler's Notes. Acts 2001, ch. 338, § 2, provided that the amendment by the act shall govern all trials conducted on or after January 1, 2002. Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 25.48, 30.70, 30.73. Tennessee Jurisprudence, 10 Tenn. Juris., Drugs and Druggists, § 5; 14 Tenn. Juris., Homicide, §§ 50, 51; 15 Tenn. Juris., Instructions, §§ 3, 5; 21 Tenn. Juris., Rape, § 7. Law Reviews. Criminal Law in Tennessee in 1979 — A Critical Survey, III. Procedure (Joseph G. Cook), 48 Tenn. L. Rev. 19 (1980). New Rules Regarding Lesser Included Offense Instructions (David L. Raybin), 37 No. 11 Tenn. B.J. 32 (2001).