State of Tennessee vs Phedrek Davis - Concurring

The specific question presented for our review is whether the acquittal-first jury instruction, in the context of the right to a complete charge on the count in the indictment as well as any and all lesser-included offenses supported by the evidence at trial, either is violative of our constitution or should be overruled for policy reasons. See State v. Ely, 48 S.W.3d 710 (Tenn. 2001); State v. Burns, 6 S.W.3d 453 (Tenn. 1999). The majority concludes that the instruction meets constitutional muster, and I am inclined to concur with that assessment; however, an acquittal-first instruction in Tennessee largely qualifies as legal fiction because the trial judge is required under our constitution to instruct on the primary charge and the full panoply of lesser-included offenses in advance of deliberations. That is, the jury, by being provided with the entirety of the instructions as appropriate, necessarily considers any lesser-included offenses before convening for deliberations. It is my belief, therefore, that as a matter of practicality and for sound policy reasons, Tennessee should retreat from acquittal-first and formally adopt an alternative instruction – one which fits within the framework of a criminal jury trial and which best conforms to specific provisions within our state constitution.