State of Tennessee v. Donald Luke Seiber, alias - Concurring

Court of Criminal Appeals of Tennessee

State of Tennessee v. Donald Luke Seiber, alias - Concurring

CourtCourt of Criminal Appeals of Tennessee

DecidedOctober 25, 2005

DocketE2004-01794-CCA-R3-CD

StatusPublished

This text of State of Tennessee v. Donald Luke Seiber, alias - Concurring (State of Tennessee v. Donald Luke Seiber, alias - Concurring) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State of Tennessee v. Donald Luke Seiber, alias - Concurring, (Tenn. Ct. App. 2005).

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Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE June 28, 2005

STATE OF TENNESSEE v. DONALD LUKE SEIBER, ALIAS

Direct Appeal from the Criminal Court for Knox County No. 73049 Ray L. Jenkins, Judge

No. E2004-01794-CCA-R3-CD - Filed October 25, 2005

JAMES CURWOOD WITT , JR., J., concurring.

Respectfully, I find I cannot fully concur in the opinion because, based upon the absence of a contemporaneous objection, it treats as waived the issue of the trial court’s “reading the aggravated kidnapping as a lesser-included offense out of order during the charge to the jury.” The instructional problem alleged is one of instructional error, not instructional omission. In the case of the former, no contemporaneous objection is required, unlike when an instruction is omitted. See, e.g., State v. Johnny Wade Meeks, No. 03C01-9811-CR-00411, slip op. at 8-9 (Tenn. Crim. App., Knoxville, Dec. 3, 1999).

Even though I see no requirement that appellate review of this issue is occluded based upon a lack of contemporaneous objection, I nevertheless would not reverse the conviction of aggravated kidnapping. In my view the arrangement of the jury instructions, if error, was harmless beyond a reasonable doubt.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE

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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE June 28, 2005

STATE OF TENNESSEE v. DONALD LUKE SEIBER, ALIAS

Direct Appeal from the Criminal Court for Knox County No. 73049 Ray L. Jenkins, Judge

No. E2004-01794-CCA-R3-CD - Filed October 25, 2005

JAMES CURWOOD WITT , JR., J., concurring.

Respectfully, I find I cannot fully concur in the opinion because, based upon the absence of a contemporaneous objection, it treats as waived the issue of the trial court’s “reading the aggravated kidnapping as a lesser-included offense out of order during the charge to the jury.” The instructional problem alleged is one of instructional error, not instructional omission. In the case of the former, no contemporaneous objection is required, unlike when an instruction is omitted. See, e.g., State v. Johnny Wade Meeks, No. 03C01-9811-CR-00411, slip op. at 8-9 (Tenn. Crim. App., Knoxville, Dec. 3, 1999).

Even though I see no requirement that appellate review of this issue is occluded based upon a lack of contemporaneous objection, I nevertheless would not reverse the conviction of aggravated kidnapping. In my view the arrangement of the jury instructions, if error, was harmless beyond a reasonable doubt.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE

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