Opposition Brief — Landon Hank Black, Petitioner v. Tennessee

No. 24-6586

Du the Supreme Court of the Gnited States

LANDON HANK BLACK,

PETITIONER

Vv.

STATE OF TENNESSEE,

RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI

TO THE TENNESSEE COURT OF CRIMINAL APPEALS

BRIEF IN OPPOSITION

Jonathan Skrmetti

Attorney General & Reporter

J. Matthew Rice

Solicitor General

Benjamin A. Ball

Senior Assistant Attorney General

Counsel of Record

OFFICE OF THE TENNESSEE

ATTORNEY GENERAL

P.O. Box 20207

Nashville, TN 37202

(615) 741-7859

Ben.Ball@ag.tn.gov

QUESTIONS PRESENTED

1. Did Tennessee’s pattern jury instructions on two lesser-included

homicide offenses place a burden on Black to prove his innocence in violation of his

right to due process when those instructions allowed a conviction only if the State

proved all the statutory elements of either offense beyond a reasonable doubt?

2. Did the jury instructions on two lesser-included homicide offenses

violate Black’s rights to a fair trial and to present a defense when they accurately

stated the elements of those offenses, explained the sole distinguishing element

between the two, and required holistic consideration of all instructions without

singling out any one to the exclusion of others or placing significance on the order of

instructions?

TABLE OF CONTENTS

QUESTIONS PRESENTED sasisssisussssacsnsnncescexenssanancnernconanarenesscacsssneaacsnsnscaorssecsnenaenenens i

TABLE OF CONTENT .............:seccscssencecccesscnenccceessnscecessssscceeassouscasssasarsnessevsnssseesesssses mt

TABLE OF AUTHORITIEG..............ccccccsceeesssecceceeeesseseceeeessseaeeseseeeesceeseeneeseeessesseeeaseney iv

INTRODUCTION. ...........ccccccesssseeeessecsececeesneeeeseeceeseeseeeesseaeeeseeeseneeesesaeeesaneeeeseseeeeeeeaseres 1

STATEMENT essssvavsavcnconsssccccsvecancascsusucnavsawecscsisticecsassnassansteanssconcaameseuansvcosaeunanasnanseuss 3

REASONS FOR DENYING THE WRIT 00.0.0... ccceeceesesseecesseeeeeecesaceceeneeeeeeeeesesersaeees 7

I. There is No Split of Authority Warranting Review.................:ssssssseeseees 7

II. The Questions Presented Are Oft and Recently Denied. .............0...0 9

Ill... This Case Has Vehicle Problems,..............csscccccsesessosssecasssccscoosersveresesves 10

IV. The Decision Below 1s Corre ti. cecn.<-<iemponnmenennemancomnmmmmerenassoncmnannees 12

A. The challenged definitions fall well within established

constitutional limits on state authority to craft offense

© ETE TUES | acres censeenessmesence sae ceRNcRncUNEN Enola soneRNR RADE NIRNECENRARORECCENEEE 13

B. Tennessee’s pattern instruction on sequential

consideration of offenses did not preclude a complete

defense or a fair trial.............cccccssesceeeccccccceeeeceteeeeeecceeeaeeseeeseeeeeaes 17

1. The pattern instructions did not remove any defense

theory or lesser offense from jury consideration. ............. 18

ya No precedent from this Court prohibits the type of

instructional regime employed by Tennessee. ................. 20

a. This Court has not held that jury

instructions like those challenged here

Violate AUC PLOCESS .............ccccceeeceeeeeeerseseeeeananeeeeeeess 20

b. Falconer is distinguishable..................0::00000eeeeeeeeees 21

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CONCLUSION

CERTIFICATE

SOrrrrrrr rrr eee eee rere reer rere ee ee ee ee ee CeCe ee CT CeCe rrr eee eee eee

OF SERVICE ssssscssassussesusuascssosnnamnowsscavenannssassnnavnassavenanasanccesenineocensnens

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TABLE OF AUTHORITIES

CASES

Bowe v. Scott,

233 U.S. 658 (1914) sassuccessscumsusssspeisnessceresvausseceversverccenterenenuaressccusnencnasies 10

Bradshaw v. Richey,

5AG U.S. 74 (2005 )sscosssescwmucarsasamcentesisccaves dese aenveinanundc aio cacctenbenasneauapeonsnivuausettes 22

Chandler v. Miller,

5 20uLIES| [30551199 7) :. a. see. vs.sees. ce. seeseers=—oary. Sea Re ere 8

Crowell v. Randell,

35 U.S. 368 (1836). ..ccccocmsseccccsreonecnarscosbad saab sess oneadhneseosasdal swonsdpeuasteuguinsusineeengeacss 10

Falconer v. Lane,

905 F.2d 1129 (7th Cir. 1990) .0.............eeeeeeeseceeeeeeeceeeeeeeceeeeeceeeeeeeeeeeeeees 20, 21, 23

Gilmore v. Taylor,

BO8 U.S. 833 (1998)... cccccccesssseeccccceesessecensnnnecesenececeeeesseesseseeeeeeees 9, 20, 21, 22

Hamilton v. Tennessee,

144 S.Ct. 502 (2028)... ccesssccccceccesssessnncnseeeecceeseeeeesssesseceeaceceecesseeseneecaaaes 9, 10

Hemphill v. New York,

B95 U.S. 140 (2022)... cece cccccsesssseeceeceeeeecessecneeneesneeeeeeeeeeeeeseseeceaeeeeeeeeeeees 10, 11

Herndon v. Georgia,

295 U.S. 441 (1985)... cece cecccccccececsenesnsneeeeeeeeeeeseeeeceseseeseeeeeeeeeeeeeseeenteneaueeeetens 10

Hughes v. Tenn. Bd. of Prob. & Parole,

514.S.W.301707 (Tent. (201.7) recennammessesssssevscesicssete is sessScKnASes SRS BAS RCA APLUTE ROE 11

In re Winship,

397 U.S. 358 (1970 )sssssccsscsssasscsssvsnseoccnesnccenantswescavvavadannanaaanmensevocsevexeccocuusenenss 8, 14

Martin v. Ohio,

A480 U.S. 228 (1987).......::sccccccessesseses sdOtiauta Riacciacecsa va ai inate iicaoeeeaeneaanTsnaBsiee 8

Montana v. Egelhoff,

518 U.S. 37 (1996 )swscpausscsssumauconopsanenssneceanenireperenmnranenanruccomaneaenuaents 13

Moore v. Tennessee,

581 U.S. 920 (20117) zcssccapesssuessscgsvasw cscs iainevenseeuess coectavsaanrnurninnavteniauseaccnccsss 10

iv

Mullaney v. Wilbur,

421 U.S. 684 (1975) cccsivssssurssrcnnacnienmnasnwesrmusuinvasivesaseneecwasenesstadtaseswuniuceenss 6, 14, 15

Oxley Stave Co. v. Butler Cty.,

166 U.S. 648 (18971)........... sccuseannnceccsaasevcucasancecnsesaavdceatnicdcsssecibussbescusssaauaits 10

Patterson v. New York,

432 U.S. 197 (1977)... .ccccccccccccccccessssseecceceaessceseseeeseaaccseeseeseseseeeeeoea 6, 8, 14, 16, 17

People v. Garcia,

28 P.3d 340 (Colo. 2001) ...sccccsesseccsessessecsucsseesuessessucssucsseesscssuessecessesssseneesecssueesvee 8

People v. Reddick,

526 N.B.2d 141 CIE. 1988)..............ccccccccceeccccceccsscess++2220000 SSSRUNREReASNENUSpSUEEe INNS 8, 21

State v. Banks,

No. W2021-01038-CCA-R3-CD, 2022 WL2903265

(Tenn. Crim. App. July 22, 2022) 0.0... cceeeeeeeesecceceeteececeeeersessetenreeeeaassneseneees 19

State v. Black,

No. E£2022-01741-CCA-R3-CD, 2024 WL 2320284

(Tenn. Crim. App. May 22, 2024)... eececeseeeeeeeeeeeeeeeeeeeeeteeeees 3, 4, 6, 7, 11, 22

State v. Hamilton,

No. E2021-00409-CCA-R3-CD, 2022 WL 4494108

(Tenn. Crim. App. Sep. 28, 2022) 00... eeeeceeeeeeneeeseeseeeessstteetcestteneeeeseeeeenes 7, 22

State v. Howard,

No. W2020-00207-CCA-R3-CD, 2022 WL 144235

(Tenn. Crim. App. Jan. 15, 2021)... ceeeeeeeeeeeeseeeseeeseeeseneeeettesenesenseesstteeeees 19

State v. Jones,

No. E2022-01287-CCA-R3-CD, 2023 WL 4797734

(Tenn. Crim. App. July 27, 2028) .0.........cceccececeesesesseeeeeeeeeeeseeeeeeanaeeeeereeeeeenenaeees 19

State v. Moore,

No. E2015-00585-CCA-R3-CD, 2016 WL 2865759

(Tenn. Crim. App. May 16, 2016)..................cccccecceeeeeeeeseeeeeeeeereceeeeereseeeteeeeeereees 22

State v. Owens,

No. W2017-02188-CCA-R3-CD, 2019 WL 851465

(Tenn. Crim. App. Oct. 17, 2013) ecsesvenssvenzsuesusstosadsestissenigesccdetevderatdesubeeeetavenpetes 19

State v. Raines,

882 S.W.2d 376 (Tenn. Crim. App. 1994) 200.2... eececceccceccceeeeeeeeeeeeeeseeeeeeeeeaennes 19

State v. Rivers,

No. E2019-01541-CCA-R8-CD, 2020 WL 6441262

(Tenn. Crim. App. Nov. 3, 2020) scssisccsssoexosnessansnaeanvanssosenvenuncnnancencoveneseenanesatens 19

State v. Simpson,

No. M2021-01031-CCA-R38-CD, 2022 WL 1654456

(Tenn. Crim. App. Oct. 31, 2022) oe eceeeceeeseesseneceeeeeeeeessenesceeceeereeeeeeeeeseeess 19

State v. Turner,

No. W2022-01389-CCA-R3-CD, 2024 WL 808713

(Tenn. Crim. App. Feb. 27, 2024) ..........eecccceeeeeeeeessnsceeeeeseeeeessneeeeeeseeeeneeneenensaeess 19

State v. Wright,

No. M2018-00574-CCA-R3-CD, 2020 WL 464631

(Tenn. Crim. App. Sept. 17, 2019)......... cece e cece eccecsreeeecceeesssaceseseeeeseseseessseeeeees 19

Strader v. State,

362 S.W.2d 224 (Tenn. 1962) i. eceeeeecceeeeeeseseceeeeseceesseneeseseesesseeesseaeeesrsneeeeseeess 19

STATUTES

2B U.S.C. § 1257(A) ssscscoscosccecceceeesnceressnceneereccessnsonvonsonvssessscguscsussusssscssccneseacsecsasnasnseseeese 10

Tenn. Code Ann. § 89-11-20] (a) susccsssccessssvscecsrsccansvscsestecscoswesevissaevasanstuensceaatesnsxeomernnees 2

Tenn. Code Ann. § 89-11-201(b)...........ceeceeseseneeeeeeeeeeeeeeeeeeetenenseeeeeeeenseneeaeseesereeereeeneaneees 2

Tenn. Code Ann. § 39-11-201(C) scssisscscescsssensecwanscecassncccscscssuimmnsasecveccmesusimecsxensusasaeaeeess 2,

Tenn. Code Ann. § 39-13-202(a)(1) ........ccceeeeeseeeeeeeceeeeeeeceeeeeensesaeeeeesesseeeneeneeseeseseeeeeeeeees 2

Tenn. Code Ann. § 39-13-210 ssisissccssssesssersusssnaseavarseivcesvevetevenanuniewencuaeucsenresusauaieiueexe 13

Tenn. Code Ann. § 39-13-21 0(a)(1) .........cceeeceseeeseceeeeeeeeeeeceesensneeeeeesesseeneenereeeeeeeeseereesens 2

Tenn. Code Ann. § 39-13-2111 .. sisgasssssvassssacsenensncnnvensenmneanstecd son vecbernieceneeiecsccscueessaessuses 13

Tenn. Code Av. §1392153521-11 2) cscnnssenareannoosnaenouemanaamneeninnemmenereennnneserennes 2

OTHER AUTHORITIES

Tenn. R. Ct: Crim. App. Rule 10(D) sacsscscssssensssenensssommescarccremnncensencrncnenssnarnunancenmennewensenenen 11

T.P.T. Criminal] 1.02 sjaccsssenscessccsnapescsaaae sensccunaensvanecewocauqusssissnassauscaese susan con eetbanseceieseuevevies 3

vi

T P.I. Criminal 2.02. vccencverreoceroncsenceesensscecssnapennaneassesssassct aces sougeaxécse nian susuubaussds Quauwuesteeness

PSP ste, GST TTL (OMe preccressressrsare cuncaesezussatsttsalssoc oR Maison SuSE ROAM RIGAKU

T.P.I. Criminal 7.05(a) ...nrscnsonnsrecenennpsenercecensesgeerscavesdusasennsiasddiiensdaagaasiss couassctsusivcscewenees

TPL. Criminal] 7.06 sssssssscsssssscannsscocssvesscassanscesaseacasnsssevnevaanssannsasourmawanacnensasscenneenrvonsasexs

vii

INTRODUCTION

Petitioner Landon Hank Black shot and killed Brandon Lee outside a bar. A

jury convicted Black of second-degree murder. In doing so, the jury rejected Black’s

suggestion that he committed the killing in a state of passion produced by sufficient

provocation—the element that distinguishes second-degree murder from voluntary

manslaughter under Tennessee law.

The petition claims the jury instructions erroneously shifted the burden for

proving that distinguishing element to Black and even prevented the jury from

considering that element at all. Neither is true. But more relevantly, neither issue

merits this Court’s attention. Although Black tries to conjure up a split of authority

on these issues, he fails to identify any actual disagreement between circuits, among

any state courts of last resort, or within this Court’s own precedent. The purported

tension he conjures in this Court’s cases, for example, has failed to produce any lowercourt confusion. And his emphasis on the uniqueness of Tennessee’s law gets him

nowhere. A difference in state substantive law is not a conflict of authority.

On top of that, Black’s case presents serious vehicle problems. Most fatal,

Black failed to fairly present any of the federal questions he raises here in the state

court below. And he entirely waived his claim that jury instruction error violated his

right to present a defense. Both oversights leave this Court without jurisdiction to

consider these issues in the first instance.

In any case, the Tennessee Court of Criminal Appeals correctly affirmed

Black’s conviction. This Court should deny the petition.

STATEMENT

A. Legal Background

Tennessee law defines first-degree premeditated murder as a “premeditated

and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). It defines

second-degree murder as “[a] knowing killing of another.” Jd. § 39-13-210(a)(1). And

it defines voluntary manslaughter as “the intentional or knowing killing of another

in a state of passion produced by adequate provocation sufficient to lead a reasonable

person to act in an irrational manner.” Id. § 39-13-211(a).

Consistent with federal law, Tennessee requires the State to prove all the

statutory elements of a criminal offense beyond a reasonable doubt to sustain a guilty

verdict. Id. § 39-11-201(a). Short of such proof, a defendant retains a presumption

of innocence. Id. § 39-11-201(b). The defendant never faces any burden to prove his

own innocence. Id. § 39-11-201(c).

The Tennessee pattern jury instructions accurately restate and define all the

essential statutory elements of the homicide offenses. T.P.I. Criminal 7.01, 7.05(a),

and 7.06. And when voluntary manslaughter is charged as a lesser offense of seconddegree murder, the second-degree instruction distinguishes voluntary manslaughter

by its additional element that the killing must result from a state of passion produced

by adequate provocation. T.P.I. Criminal 7.05(a).

Consistent with Tenn. Code Ann. § 39-11-201 and federal law, the pattern

instructions also explain both the State’s unshifting burden of proof and a defendant’s

presumption of innocence. T.P.I. Criminal 2.02. The pattern instructions also tell

the jury that “the order in which [the] instructions are given is no indication of their

relative importance.” T.P.I. Criminal 1.02. And they direct the jury to “not single out

any one or more [instructions] to the exclusion of another or others but [to] consider

each one in light of and in harmony with the others.” Id.

B. Factual Background

In late December 2020, Landon Black shot and killed Brandon Lee outside a

bar in Knoxville, Tennessee, before fleeing to California. State v. Black, No. E2022-

01741-CCA-R3-CD, 2024 WL 2320284, at *1 (Tenn. Crim. App. May 22, 2024). Both

men visited the bar that night. Id. Black was there with his cousin, Taylor Hodge,

and his cousin’s girlfriend, Carrie Phillips. Jd. Lee was there with two friends and

Jackson’s girlfriend. Id. Eventually, Hodge’s ex-girlfriend, Kelsey Murrell, and her

sister joined Lee’s group at the bar. Id.

After midnight, two overlapping conflicts erupted. Id. at *2. First, Black

confronted Murrell for engaging in “intimate contact” with Lee in view of Hodge, and

this escalated into a scuffle between Black and Murrell. Jd. Second, a nearby patron,

Alan Ford, intervened in the conflict between Murrell and Black, which led to Ford

and Black fighting until a barkeeper separated them. Id.

Ford then left the bar through the front door, followed shortly by Jackson,

Hayes, and Lee. Id. Black left through an emergency exit. Jd. Ford and some other

patrons stopped in the parking lot, while Lee and his group continued toward Lee’s

truck. Id. at *3. Black, having armed himself after the confrontation with Ford,

drove his cousin’s car through the parking lot and saw Ford, who had already become

involved in another fight. Jd. at *25. Black sped up, rounded a corner, and almost

struck Lee with the car. Id. Lee responded by walking toward the driver’s side of the

vehicle, holding his hands out, and cursing. Jd. Instead of simply driving away, Black

shot Lee, whose hands were at his sides, through the heart. Id. at *3, 25. Lee fell to

the ground, and Black drove back toward the bar. Jd. at *3.

Black then pulled up to Hodge, who was standing outside the bar. Id. at *7.

Black appeared distraught and scared, and he told Hodge to get in the car. Id. Hodge

said he was going home with Phillips, and Black drove away. Id. Later, Hodge

retrieved his car from Black, who admitted that he had shot Lee, and Black urged his

cousin to repaint this car and remove any stickers. Jd. Black claimed that he shot

Lee because he was holding a knife, but Hodge later told investigators that he thought

Black may not have been honest on this point. Id.

Indeed, when Lee’s companions approached him right after the shooting, they

found no weapons on or near him, and authorities also found no weapon at the scene.

Id. at *3-*4. Lee had a bullet wound to his chest, and he died before emergency

medical assistance could arrive. Id. at *3, 8.

An arrest warrant issued for Black in early January 2021. Id. at *8.

Investigators soon discovered that Black’s cell phone was no longer active. Id. Law

enforcement arrested Black in Los Angeles three weeks later, and recovered his cell

phone, which had not connected to a cell tower since January 6th. Id. at *3, 8.

C. Procedural Background

A Knox County grand jury indicted Black for first-degree murder and unlawful

possession of a firearm after being convicted of a violent felony. Id. at *1. The case

proceeded to a jury trial on the murder charge alone. Id. After the close of proof, the

trial court read the jury Tennessee’s pattern instructions. These included

instructions on the order of considering offenses, the offense elements, the State’s

unshifting burden of proof, and Black’s presumption of innocence. (Resp. App., 2-6,

8-9.)

The trial court first told the jury to consider all instructions “in harmony” and

to not “single out one or more of them to the exclusion of others.” (Resp. App., 2.) The

court accurately instructed the jury sequentially on the elements of first-degree

murder, second-degree murder, and voluntary manslaughter. (Resp. App., 2-6.) After

defining the two elements of second-degree murder, the court gave the pattern

instruction distinguishing voluntary manslaughter from second-degree murder by

the element of provocation. (Resp. App., 4-5.) The next instruction on voluntary

manslaughter reiterated that distinguishing element. (Resp. App., 5-6.) And the trial

court told the jury to consider the lesser offense of voluntary manslaughter if it had

any reasonable doubt as to Black’s guilt of second-degree murder. (Resp. App., 5.)

Before reading the elements of each homicide offense, the trial court reiterated

that the State had the burden to prove all the elements of each offense beyond a

reasonable doubt. (Resp. App., 1-6.) The court also stated that Black’s presumption

of innocence remained with him through every stage of trial. (Resp. App., 17.) And

the court repeated that the State bore the burden of proof, that this burden never

shifts, and that Black was not required to prove his innocence. (Resp. App., 17.)

After hearing these pattern instructions, the jury found Black guilty of seconddegree murder. Black, 2024 WL 2320284, at *9.

On appeal, Black argued that the trial court erred by denying his request for

special jury instructions on second-degree murder and voluntary manslaughter. The

crux of his argument was that the pattern instruction for voluntary manslaughter

should have defined “state of passion” as a defense to second-degree murder instead

of as an element of voluntary manslaughter and that the sequential nature of the

instructions prevented them from accurately conveying the law to the jury. In

passing—and without citation to any federal constitutional provision—Black stated

that the jury instructions for second-degree murder, voluntary manslaughter, and

sequential consideration of offenses violated his rights to due process and to a fair

trial, citing only Mullaney v. Wilbur, 421 U.S. 684 (1975), and Patterson v. New York,

432 U.S. 197 (1977). Black, 2024 WL 2320284, at *26-29.

The Tennessee Court of Criminal Appeals affirmed Black’s conviction, holding

that the trial court accurately instructed the jury on the elements of voluntary

manslaughter and that the jury instruction for second-degree murder was “clear and

unambiguous” in distinguishing that offense from voluntary manslaughter. Id. at

*40, 43. In doing so, the court did not address Black’s barely hinted federal questions

and instead simply confirmed that “state of passion produced by adequate

provocation” is an element of voluntary manslaughter that the State had to prove

beyond a reasonable doubt, rather than a partial defense to second-degree murder.

Id. at *28. The court also approved the instruction on sequential consideration of

offenses because, immediately after the instruction on the elements of second-degree

murder, the instructions defined provocation as the element that distinguished the

lesser-included offense of voluntary manslaughter, thereby requiring the jury to pass

on that element when it considered second-degree murder. Jd. at *28.

The Tennessee Supreme Court denied Black’s application for permission to

appeal. (Pet. App. C.)

REASONS FOR DENYING THE WRIT

The Court should deny the petition. Black identifies no split. The questions

presented are oft and recently denied. And this case has serious vehicle problems.

On top of that, the Tennessee Court of Criminal Appeals’ decision was correct.

I. There is No Split of Authority Warranting Review.

Black identifies no split on any of the federal due process questions he now

raises—relating to burden shifting, a defendant’s right to a fair trial, and the right to

present a defense. He asserts (at 15) that this Court’s precedent creates “uncertainty”

about burden shifting to defendants. And he gestures at supposed “tension” among

this Court’s cases as to whether a jury instruction may violate due process or deprive

a defendant of his right to a defense. (Pet., 19.) But lower courts are not confused—

they’re applying the law consistently. Black cites no circuit cases struggling to apply

precedent, no widespread confusion, and no division of authority.

Black’s numerous attempts to manufacture a split go nowhere. First, Black

identifies a “contrast” (at 10-12) between Tennessee law and other States’ on the

allocation of the burden to prove a state of passion or provocation—the key element

distinguishing second-degree murder and manslaughter under Tennessee law. But

a difference in state substantive law is not a split of legal authority. “[NJovelty itself

is not a vice.” Chandler v. Miller, 520 U.S. 305, 324 (1997) (Rehnquist, C.J.,

dissenting). It is a virtue of our federal system.

And Black wrongly suggests (at 12) that Tennessee’s conflicts specifically with

People v. Reddick, 526 N.E.2d 141 (Ill. 1988), and People v. Garcia, 28 P.3d 340 (Colo.

2001). Neither Garcia nor Reddick address any federal question. Indeed, Reddick

barely addressed the issue at all. The court simply found that the Illinois General

Assembly intended state of passion to be an affirmative defense to murder that the

State must disprove. Reddick, 526 N.E.2d at 146. And the court in Garcia found held

the jury instructions in that case were erroneous because they “contravened the

intent of the legislature” to treat provocation as a “mitigator to second-degree

murder” rather than as an element of a “separate offense.” 28 P.3d at 345. These

cases do not reflect a split among the States on any common federal question; they

simply show the States taking different approaches to defining criminal offenses.

Next, Black suggests (at 15-16) that Mullaney and Patterson created

“uncertainty” about the limits of imposing evidentiary burdens on defendants—

uncertainty that this case could resolve. But if that’s so, lower court decisions do not

show it. Black identifies no lower-court opinion displaying the uncertainty he alleges.

Black also observes (at 19) that the concurring opinion in Gilmore v. Taylor,

508 U.S. 333 (1993), notes tension between In re Winship, 397 U.S. 358 (1970), and

two other cases—Patterson, 432 U.S. 197, and Martin v. Ohio, 480 U.S. 228 (1987).

But again, lower courts do not seem to be struggling with any such tension; at least,

Black does not identify any. And that is because no tension exists. As the Gilmore

concurrence explains, Winship stands for the “straightforward proposition” that due

process requires the State to prove every element of a criminal offense beyond a

reasonable doubt. See Gilmore, 508 U.S. at 350 (O’Connor, J., concurring). Martin

and Patterson merely clarify that due process does not require the State to prove the

absence of an affirmative defense beyond a reasonable doubt. Jd. These wholly

compatible decisions are not in tension. And consistent with Winship, Tennessee

places an unshifting burden squarely on the State to prove all the elements of a

homicide offense.

With no split between any circuits, among any state courts of last resort, or

within this Court’s own precedent, there is no compelling reason for review.

II. The Questions Presented Are Oft and Recently Denied.

Black contends that this case presents constitutional questions in need of an

answer. But the Court twice denied review of these precise questions in the last

decade, and Black introduces nothing new to warrant a different result now.

In Hamilton v. Tennessee, the petition for writ of certiorari presented questions

identical to those presented here: (1) whether Tennessee’s pattern jury instructions

on second-degree murder and voluntary manslaughter violated due process

protections by shifting the burden of proof to the petitioner; and (2) whether the jury

instructions on second-degree murder and voluntary manslaughter violated the

petitioner’s right to a fair trial and to present a defense. 144 S.Ct. 502 (2023) (Pet.

App., at ii). The Court denied certiorari.

In Moore v. Tennessee, the petition presented the same questions. 581 U.S.

920 (2017) (Pet. App., at ii). Again, as with Hamilton, the Court denied certiorari.

The Court has twice denied review of these same issues in the last eight years. Yet

Black does not explain why this petition should yield a different result.

Ill, This Case Has Vehicle Problems.

Various vehicle defects afflict Black’s petition. First up, jurisdiction: This

Court’s jurisdiction under 28 U.S.C. § 1257(a) hinges on the proper presentation of a

federal question in the state court below. That proposition stems from an early

interpretation of Section 25 of the Judiciary Act of 1789, the lineal ancestor of 1257(a).

See Crowell v. Randell, 35 U.S. 368 (1836). And since then, this Court “has almost

unfailingly refused to consider any federal-law challenge to a state-court decision

unless the federal claim was either addressed by or properly presented to the state

court.” Hemphill v. New York, 595 U.S. 140, 148 (2022).

Indeed, this Court routinely dismisses cases for want of jurisdiction when

petitioners fail to fairly present a federal question in state court. Mere references to

the “Constitution of the United States” or the “laws of the United States,” for example,

do not fairly raise a federal question. Herndon v. Georgia, 295 U.S. 441, 442-43

(1935); Oxley Stave Co. v. Butler Cty., 166 U.S. 648, 656 (1897). Nor do cursory

allusions to “due process of law,” Bowe v. Scott, 233 U.S. 658, 665 (1914). Black’s

petition suffers similar jurisdictional defects due to his failure to fairly present any

federal question to the Tennessee Court of Criminal Appeals.

10

In his opening brief in that court, Black failed to fairly raise any of the dueprocess, fair-trial, or right-to-present-a-defense issues raised here (at 16-18, 20-22).

(Resp. App., 115-21.) He cited no constitutional provisions (state or federal) and

offered only three passing references to “due process,” a single reference to a “fair

trial,” and solitary cites—with no discussion—to three federal court opinions

involving the alleged instructional errors that his petition now recasts as implicating

federal constitutional rights. The Court of Criminal Appeals did not perceive or

address any federal question because that court treats “[i]ssues . . . not supported by

argument or citation to authorities ... as waived.” Tenn. R. Ct. Crim. App. Rule

10(b). And Black’s failure to properly raise any federal issues in state court means

this Court should not consider them either. See Hemphill, 595 U.S. at 148.

Even worse, Black entirely waived his claim that Tennessee’s pattern jury

instructions violated his right to present a defense by failing to raise it in his opening

brief in the Court of Criminal Appeals. His tactical mention of the issue for the first

time in his reply brief waived the issue under state law. (Resp. App., 145.); see Hughes

v. Tenn. Bd. of Prob. & Parole, 514 S.W.3d 707, 724 (Tenn. 2017) (“Issues raised for

the first time in a reply brief are waived.”). Predictably, the Court of Criminal

Appeals did not address the issue. Black, 2024 WL 2320284, at *26-29. And this

Court should also pass for want of jurisdiction.

Jurisdictional defects aside, this case is no vehicle to provide nationwide clarity

on rights to due process, to a fair trial, or to present a defense. Black casts

Tennessee’s regime as an outlier, claiming that Tennessee “stands alone” in treating

11

passion or provocation as an element that the State must prove beyond a reasonable

doubt. (Pet., 12.) But assuming that’s true does not aid Black’s cause. Rather,

Tennessee’s unique definition of voluntary manslaughter only shows that his petition

presents a single-state issue—one that offers small opportunity to give nationwide

guidance about the broad constitutional rights Black’s petition belatedly invokes.

IV. The Decision Below is Correct.

Regardless, the Court of Criminal Appeals properly affirmed Black’s

conviction. Black insists that the pattern jury instructions given in his case violated

his right to due process, to a fair trial, and to present a defense in two reasons. He

alleges the instructions (1) required him to prove his innocence of second-degree

murder, and (2) precluded a verdict on the lesser offense of voluntary manslaughter—

the target of his defense theory. He is wrong on both counts.

First, Black fails to show that Tennessee’s definitions of second-degree murder

and voluntary manslaughter fall outside constitutional limits on the States’ broad

authority to determine the elements of offenses they intend to punish. And the

pattern instructions given at Black’s trial placed no burden on him to prove his

innocence. To the contrary, they repeatedly emphasized Black’s presumption of

innocence. (Resp. App., 2-9, 17.) And they placed the burden of proving all offense

elements beyond a reasonable doubt on the State. (Resp. App., 2-9, 17.) They also

stated expressly that Black was not required to prove his innocence. (Resp. App., 17.)

Second, Black’s jury instructions did not preclude a verdict on the lesser

offense of voluntary manslaughter. The instruction for second-degree murder invited

the jury to consider Black’s alternative guilt of voluntary manslaughter by explaining

12

in detail the distinguishing element of voluntary manslaughter—that the killing

resulted from a state of passion produced by adequate provocation. (Resp. App., 5-6.)

That explanation preceded the instruction on sequential consideration of offenses,

which directed the jury to consider voluntary manslaughter if it had any reasonable

doubt about Black’s guilt of second-degree murder. (Resp. App., 5.)

Considered in this context, the instruction on sequential consideration of

offenses did not preclude a verdict on voluntary manslaughter. Rather, the jury

simply rejected Black’s theory of provocation given that he shot an unarmed victim

after nearly running him over with a car.

A. The challenged definitions fall well within established

constitutional limits on state authority to craft offense elements.

Black is correct that, in Tennessee, second-degree murder requires proof of a

knowing killing, while voluntary manslaughter also requires the same proof plus

provocation producing a state of passion in the defendant. Tenn. Code Ann. §§ 39-13-

210, -211. But he strays with the claim that these offense elements, when instructed

together, “impose a burden on defendant of disproving his guilt” of second-degree

murder.” (Pet., 9.) Just because Black’s defense strategy was to prove a lesser offense

to the exclusion of the greater offense does not mean he bore the burden of doing so.

(Pet., 9-17.) And the jury instructions make clear that was not the case.

This Court recognizes that “[a] state legislature certainly has the authority to

identify the elements of the offenses it wishes to punish,” while “a defendant has the

right to insist that the State prove beyond a reasonable doubt every element of an

offense charged.” Montana v. Egelhoff, 518 U.S. 37, 64 (1996). “[A]pplicability of the

13

reasonable-doubt standard, however, has always been dependent on how a State

defines the offense that is charged.” Patterson, 432 U.S. at 211 n.12.

Tennessee’s homicide offense definitions, which the trial court accurately

instructed here, comply with established constitutional mandates about the burden

of proof and its assignment in criminal cases. The pattern jury instructions allow a

conviction for either second-degree murder or voluntary manslaughter only if the

State proves all elements of either offense beyond a reasonable doubt. (Resp. App.,

2-9, 17.) And the instructions repeatedly emphasize that the defendant is entitled to

the presumption of innocence. (Resp. App., 2-9, 17.) Contrary to Black’s suggestion,

this case offers no potential to examine the scope of constitutional “limits{] on

redefinition of crimes” or improper burden shifting to the defendant because

Tennessee’s homicide definitions in no way test this Court’s holdings in In re Winship,

397 U.S. 358, Mullaney, 421 U.S. 684, or Patterson, 432 U.S. 197.

Black wrongly insists (at 17) that his conviction is “a result anathema to this

”

Court’s due process jurisprudence from In re Winship.” In re Winship concerned a

state court juvenile delinquency adjudication that involved proof by a preponderance

rather than proof beyond a reasonable doubt. 397 U.S. at 360. This Court surveyed

the longstanding rule that a criminal charge must be established by the government’s

proof beyond a reasonable doubt and held that this standard should also apply to

delinquency adjudications. Jd. at 361-62. Black’s jury instructions here clearly

followed that longstanding rule by ensuring that the jury deliberated on all charged

offense elements under the appropriate burden of proof—beyond a reasonable doubt.

14

And the instructions clearly placed that burden on the State. (Resp. App., 2-9, 17.)

Black was not convicted of second-degree murder because he failed to prove his

innocence of that offense. Rather, he was convicted of second-degree murder because

the State proved beyond a reasonable doubt both elements of that offense—(1) he

killed the victim and (2) did so knowingly. Nothing about Black’s conviction offends

the holding of In re Winship.

Black’s reliance on Mullaney (at 12-13.) is similarly inapposite because the

state statutes and precedent addressed in that opinion differ significantly from

Tennessee’s. Mullaney addressed a state murder statute that included “malice

aforethought [as] an essential and indispensable element” of that offense “without

which the homicide would be manslaughter.” 421 U.S. at 685-86, 688. But the trial

court nonetheless instructed the jury that “malice aforethought was to be conclusively

implied unless the defendant proved by a fair preponderance of the evidence that he

acted in the heat of passion on sudden provocation.” Id. at 686. The state appellate

court upheld the murder conviction, noting that “for more than a century it repeatedly

had held that the prosecution could rest on a presumption of implied malice

aforethought and require the defendant to prove that he had acted in the heat of

passion on sudden provocation in order to reduce murder to manslaughter.” Id. at

688. This Court unsurprisingly held that relieving the prosecution of proving the

essential element of malice violated due process. Id.

By contrast to the state laws addressed in Mullaney, Tennessee’s homicide

offense definitions did not allow the State to rest on any presumption about an

15

essential element of Black’s conviction offense. They required the jury to decide

whether the State had proven the two statutory elements of second-degree murder

beyond a reasonable doubt. (Resp. App., 3-5.) And the second-degree murder

instructions also explained the provocation element unique to voluntary

manslaughter. They thereby invited the jury to consider whether the evidence

established voluntary manslaughter rather than second-degree murder during the

jury’s sequential consideration of second-degree murder. (Resp. App., 3-5.)

Finally, contra Black (at 14-15), Patterson supports denying certiorari rather

than granting it. In that case, the Court rejected a constitutional attack on a state

murder statute that assigned the defendant the burden to prove the affirmative

defense of extreme emotional disturbance. 482 U.S. at 198. Focusing on the elements

of the conviction offense—“death, the intent to kill, and causation’—the Court

emphasized that “[nJo further facts [were] either presumed or inferred in order to

constitute the crime.” Jd. at 205-06. Similarly, the jury instructions here did not

allow the jury to presume or infer any facts or essential elements of second-degree

murder. It may have been Black’s strategy to prove provocation in the hope of

limiting conviction to the lesser manslaughter offense, but the burden of proving the

provocation element of the manslaughter charge never shifted to Black. That burden

belonged to and remained with the State throughout. (Resp. App., 1-4, 15, 20.) In re

Winship, Mullaney, or Patterson do not call into doubt the propriety of that burden or

its assignment to the State.

16

To the contrary, Patterson underscores the limited occasion for federal

intervention in the administration of justice by the States:

It goes without saying that preventing and dealing with crime is much

more the business of the States than it is of the Federal Government,

Irvine v. California, 347 U.S. 128, 134 (1954) (plurality opinion), and

that we should not lightly construe the Constitution so as to intrude

upon the administration of justice by the individual States. Among

other things, it is normally “within the power of the State to regulate

procedures under which its laws are carried out, including the burden

of producing evidence and the burden of persuasion,” and its decision in

this regard is not subject to proscription under the Due Process Clause

unless “it offends some principle of justice so rooted in the traditions and

conscience of our people as to be ranked as fundamental.” Speiser v.

Randall, 357 U.S. 518, 523 (1958); Leland v. Oregon, 343 U.S. 790, 798

(1952); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

Patterson, 482 U.S. at 201-02. Black’s jury instructions accurately defined the

statutory elements of all pertinent homicide offenses, and they conditioned any guilty

verdict on the State’s proof of all offense elements beyond a reasonable doubt. Thus,

the instructions did not offend any fundamental principle of justice such that there is

a pressing need to intrude on Tennessee’s administration of criminal justice.

B. Tennessee’s pattern instruction on sequential consideration of

offenses did not preclude a complete defense or a fair trial.

Black does not present a close or important federal question with his claim that

the pattern instruction on sequential consideration of offenses prevented a verdict on

voluntary manslaughter. (Pet., 18-20.) Viewed together, the pattern instructions

fairly invited the jury to consider the distinguishing element between second-degree

murder and voluntary manslaughter. (Resp. App., 2-9.) And this is demonstrated by

the fact that Tennessee juries routinely return verdicts for voluntary manslaughter

as a lesser offense of second-degree murder based on the same or similar instructions.

17

No binding precedent from this Court prohibits the type of jury instructions used by

Tennessee, and Black’s reliance on precedent addressing statutes and jury

instructions from other States is inapposite given that Tennessee’s pattern

instructions are unique and distinguishable. Because the instructions did not remove

any defense theory or lesser-included offense from the jury’s consideration, they

created no constitutional violation requiring federal intervention.

1. The pattern instructions did not remove any defense

theory or lesser offense from jury consideration.

Black’s contention (at 18) that the jury instructions made “a voluntary

manslaughter verdict impossible” finds no support in the instructions themselves.

The trial court began the charge by telling the jury to consider all instructions

together in harmony and cautioned against singling out any to the exclusion of others.

(Resp. App., 2-3.) The instruction for second-degree murder specifically invited the

jury to consider voluntary manslaughter by explaining in detail the distinguishing

element of that offense—that the killing resulted from a state of passion produced by

adequate provocation. (Resp. App., 5.) And that explanation preceded any

instruction on the sequential consideration of offenses, which itself directed the jury

to consider voluntary manslaughter if it had a reasonable doubt about Black’s guilt

of second-degree murder. (Resp. App., 2-9, 17.) Black relies on a hyper-technical

reading of the sequential-consideration instruction to emphasize an alleged “logical

and legal problemJ].” (Pet., 5.) But a plain interpretation of the trial court’s opening

instruction to consider all instructions in harmony belies his claim that a voluntary

manslaughter verdict was impossible. (Pet., 5.)

18

Several recent Tennessee decisions further undermine Black’s claim that a

manslaughter verdict was a logical impossibility. In each case, a defendant charged

with first- or second-degree murder was convicted for the lesser offense of

manslaughter. See, e.g., State v. Banks, No. W2021-01038-CCA-R38-CD, 2022

WL2903265, at *1 (Tenn. Crim. App. July 22, 2022) (conviction for manslaughter as

lesser of second-degree murder charge).! Second-degree murder is always a lesserincluded offense of first-degree murder in Tennessee, so the jury in all of these cases

would have heard both the pattern second-degree murder instruction and the pattern

manslaughter instruction—just as in this case. See Strader v. State, 362 S.W.2d 224,

227 (Tenn. 1962). And just as in this case, they would have also heard the standard

instruction on the sequential consideration of offenses. See, e.g., State v. Raines, 882

S.W.2d 376, 381-82 (Tenn. Crim. App. 1994). As these cases make clear, Tennessee

juries routinely return voluntary manslaughter verdicts based on the pattern

instructions Black wrongly claims make such a verdict impossible.

1 State v. Howard, No. W2020-00207-CCA-R3-CD, 2022 WL 144235, at *1 (Tenn.

Crim. App. Jan. 15, 2021) (conviction for manslaughter as lesser of second-degree

murder charge); State v. Rivers, No. E2019-01541-CCA-R3-CD, 2020 WL 6441262, at

*1 (Tenn. Crim. App. Nov. 3, 2020) (same); State v. Turner, No. W2022-01389-CCA-

R3-CD, 2024 WL 808718, at *1 (Tenn. Crim. App. Feb. 27, 2024) (conviction for

manslaughter as lesser of first-degree murder); State v. Jones, No. £2022-01287-

CCA-R3-CD, 2023 WL 4797734, at *3 (Tenn. Crim. App. July 27, 2023) (same); State

v. Simpson, No. M2021-01031-CCA-R3-CD, 2022 WL 1654456, at *1 (Tenn. Crim.

App. Oct. 31, 2022) (same); State v. Wright, No. M2018-00574-CCA-R3-CD, 2020 WL

464631, at *1 (Tenn. Crim. App. Sept. 17, 2019) (same); State v. Owens, No. W2017-

02188-CCA-R3-CD, 2019 WL 851465, at *4 (Tenn. Crim. App. Oct. 17, 2013) (same).

19

2. No precedent from this Court prohibits the type of

instructional regime employed by Tennessee.

Black cites Gilmore, 508 U.S. 333, and its discussion of Falconer v. Lane, 905

F.2d 1129 (7th Cir. 1990), to argue that the jury instructions violated his rights to a

fair trial and to present a defense. (Pet., 18-20.) But the unique state laws and jury

instructions in those cases have no bearing on the constitutionality of the instructions

here. And Gilmore rejected the argument that a state court’s instructional errors

implicate the right to present a defense.

a. This Court has not held that jury instructions like

those challenged here violate due process.

Black makes much of Justice Blackmun’s dissenting conclusion in Gilmore that

the jury instructions there deprived the defendant of his right to a fair trial, as well

as Justice O’Connor’s concurring opinion that the Court’s cases did not conclusively

resolve that question. (Pet., 19-20.) Justice Blackmun agreed with the Seventh

Circuit’s holding in Falconer that Illinois’s pattern instructions permitted a jury to

find a defendant guilty of murder, even when the elements of voluntary manslaughter

were satisfied, thus violating due process. See Gilmore, 508 U.S. at 355-57

(Blackmon, J., dissenting). But Justice Blackmun’s opinion, joined by Justice

Stevens, is not controlling. And the Gilmore majority reversed after finding that

Falconer announced a new rule for retroactive application purposes and, therefore,

could not form the basis for federal habeas relief. Id. at 344. In doing so, moreover,

the majority rejected the argument that “the jury instructions . . . interfered with [the

defendant’s] fundamental right to present a defense.” Id. at 343. The majority

20

explained that the Court’s existing precedent recognizing a defendant’s right to

present a defense involved the exclusion of defense evidence or testimony—not

instructional errors or other “restrictions . . . on a defendant’s ability to present an

affirmative defense” provided under state law. Id. at 343-44. So Gilmore does not

establish Black suffered a constitutional violation.

b. Falconer is distinguishable.

Even if Gilmore—and by way of that case, Falconer—governed here, the

relevant state law and jury instructions differ significantly from Tennessee’s. In

Falconer, the defendant obtained federal habeas relief because the issued

instructions left the jury “with the false impression that it could convict [her] of

murder even if she possessed one of the mitigating states of mind described in the

voluntary manslaughter instruction.” 905 F.2d at 1136. The district court’s decision

in Falconer discussed an earlier decision from the Supreme Court of Illinois, Reddick,

526 N.E.2d at 145-47. Reddick reversed a murder conviction because the murder

instruction made no mention of the mitigating mental conditions that could allow for

a manslaughter conviction, instead of murder, and because the instructions failed to

require the State to disprove these mitigating mental conditions, which he had

presented as a “partial affirmative defense.” 526 N.E.2d at 147. In accord with

Reddick, the Seventh Circuit ultimately concluded on habeas review that the

identical pattern instructions in Falconer’s case violated due process. Falconer, 905

F.2d at 1137.

21

But unlike the Illinois Supreme Court, Tennessee courts have held that

voluntary manslaughter, and more specifically the mitigating mental circumstance

of provocation, is not an affirmative defense to murder. Black, 2024 WL 2320284, at

*1; State v. Hamilton, No. E2021-00409-CCA-R3-CD, 2022 WL 4494108, at *19 (Tenn.

Crim. App. Sep. 28, 2022), perm. app. denied (Tenn. Apr. 17, 2023), cert. denied 144

S.Ct. 502 (2023); State v. Moore, No. E2015-00585-CCA-R3-CD, 2016 WL 2865759, at

*10 (Tenn. Crim. App. May 16, 2016), perm. app. denied (Tenn. Sept. 22, 2016), cert.

denied 581 U.S. 920 (2017). That conclusion about a matter of Tennessee law is

binding on this Court. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005).

Moreover, the pattern instructions in this case differ significantly from the

instructions in Falconer and Reddick, which makes this case a poor vehicle to consider

the question Justice O’Connor thought Gilmore left open—whether it “violates due

process to give an instruction that is reasonably likely to prevent the jury from

considering an affirmative defense.” See Gilmore, 508 U.S. at 351 (O’Connor, J.,

concurring). Again, the trial court told the jury to consider all instructions together

in harmony, and the instruction for second-degree murder required the jury to

consider not just the next lesser offense of voluntary manslaughter but specifically

the distinguishing element of provocation. (Resp. App., 4-5.) And that explanation

preceded the sequential-consideration instruction. (Resp. App., 8-9.) Unlike the jury

in Falconer, the jury here was not “left with the false impression that it could convict

the petitioner of [second-degree] murder even if [he] possessed... the mitigating

state[] of mind described in the voluntary manslaughter instruction.” 905 F.2d at

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