State of Tennessee v. Terrance G. Motley - Concurring

• Court: Court of Criminal Appeals of Tennessee
• Decided: November 14, 2003
• Docket: W2002-02079-CCA-R3-CD
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs June 3, 2003

STATE OF TENNESSEE v. TERRANCE G. MOTLEY

Appeal from the Criminal Court for Shelby County No. 00-01715, 16 Joseph B. Dailey, Judge

No. W2002-02079-CCA-R3-CD - Filed November 14, 2003

JOSEPH M. TIPTON, J., concurring.

I concur in the result reached and most of the reasoning in the majority opinion. However, I do not believe that we should rely on T.C.A. § 40-18-110 to bar relief in this case relative to a jury instruction for the lesser included offense of attempted voluntary manslaughter. The state has not raised the statute to bar the defendant’s jury instruction claim, and, obviously, the defendant has not had an opportunity to address the validity of the statute. In this respect, I believe that legitimate questions exist about the constitutionality of, at least, part of T.C.A. § 40-18-110 but that this case is not the one to answer those questions. The fact that no harm could flow to the defendant under the circumstances in this case is sufficient, by itself, to warrant affirming the judgments of conviction. Therefore, I concur in the majority opinion.

____________________________________ JOSEPH M. TIPTON, JUDGE