# State v. Gilliam

> Court of Criminal Appeals of Tennessee · March 14, 1995 · 901 S.W.2d 385

URL: https://www.frixlaw.com/law-library/cases/9776305

## Case

- **Full name:** STATE of Tennessee, Appellee, v. Gregory Alan GILLIAM, Appellant
- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** March 14, 1995
- **Citations:** 901 S.W.2d 385; 1995 Tenn. Crim. App. LEXIS 216
- **Precedential status:** Published
- **Opinion:** Concurrence by White
- **Judges:** Hayes, Scott, White
- **Cited by:** 52 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9776305

## How later opinions describe it (automated extraction)

- 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
- stating district attorneys have broad discretion in determining what crime to charge

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9776305. Public record. Not legal advice.