holding that under the test of Howard v. State, 578 S.W.2d 83 (Tenn. 1979), second degree murder was not a lesser included offense of felony murder because second degree murder required a higher “knowing” culpable mental state than the “reckless” mens rea of felony murder
How later courts described this case
- holding that under the test of Howard v. State, 578 S.W.2d 83 (Tenn. 1979), second degree murder was not a lesser included offense of felony murder because second degree murder required a higher “knowing” culpable mental state than the “reckless” mens rea of felony murder
- holding that under the test of Howard v. State, 578 S.W.2d 83 (Tenn. 1979
- adjudicating a 1990 offense and holding that second degree murder is not a lesser included offense of felony murder
- stating district attorneys have broad discretion in determining what crime to charge
Written by the judges who cited it.
The opinion
WHITE, Judge,
concurring.
In this case, I concur with the majority’s opinion that Rule 8 of the Tennessee Rules of Criminal Procedure requires the reversal of appellant’s second degree murder convictions. I further concur with their conclusion that, under the 1989 Sentencing Reform Act, second degree murder is not a lesser included offense of first degree felony murder. I write separately only because I disagree in part with the conclusions reached by the majority on the sentencing issue. Since the majority notes that the reversal moots the sentencing issue and offers that portion of the opinion for “guidance on remand,” it is not necessary for me to address the concerns I have on that issue.