State of Tennessee v. Robert Page

We granted the State’s application for permission to review this case pursuant to Tennessee Rule of Appellate Procedure 11 in order to determine the constitutionality of Tennessee Code Annotated section 40-18-110(c), which provides that failure to request a lesser-included offense instruction in writing waives the right to assign it as an issue in a motion for a new trial or on appeal. We conclude that section 40-18-110(c) renders the omission of instruction on lesserincluded offenses subject to the general rule that issues concerning instructions are considered waived in the absence of objection or a written request, unless they contain plain error. Under section 40-18-110(c), even absent a written request, the trial judge may still charge the jury on applicable lesser-included offenses and an appellate court may still review a lesser-included offense issue under the doctrine of plain error. We conclude, however, that the failure to instruct on lesser-included offenses in the present case does not constitute plain error. Accordingly, we reverse the judgment of the Court of Criminal Appeals.