Letter from the Chair
Paula R. Voss, Chair
Criminal Justice Section, 1999-2000
Given the requirement of a charge to the jury on lesser included offenses, the obvious questions arise as to what offenses are lesser included to others and when should they be instructed. These issues have continued to perplex the courts, due in no small measure to the tendency of the legislature to constantly modify the elements of criminal offenses. Thus, judicial precedent is not always a reliable guide as to which offense is lesser to another.
In State vs. Trusty, 911 S.W.2d 305 (Tenn. 1996) the Supreme Court explained that there were two types of offenses that may be included in the offense charged in the indictment. The first type is a true "lesser included" offense: The elements of the included offense are a subset of the elements of the charged offense, where the greater offense cannot be committed without also committing the lesser offense. The second type is a "lesser grade or class," even though the lower offenses might have different or additional elements than the greater offenses.
On Nov. 8, 1999 the Supreme Court of Tennessee overruled Trusty to the extent that the prior opinion recognized the concept of "lesser grades" of offenses. The court found that Trusty was "unworkable in application." State v. Dominy, ______ S.W.2d _______, 1999 W.L. 1006322 (Tenn. 1999). In a companion case the court promulgated new rules as to what offenses might be considered lesser to others and also when those offenses should be charged to the jury. State v. Burns, ____ S.W.2d______, 1999 W.L. 1006315 (Tenn. 1999).
The facts in Burns read like a chapter from The Godfather. The deceased had been a member of the Columbo crime family in New York City. He moved to Tennessee under the Federal Witness Protection Program. The deceased was found in Camden with his throat slashed. The authorities arrested Michael Spadafina and Vito Licari. These fellows were clearly not local boys!
Vito confessed but claimed that he had been put up to the job by Mrs. Burns, the former wife of the deceased. Vito testified against Mrs. Burns. She was convicted of murder in the first degree under what we would call an accessory before the fact under prior law. (Mr. Spadafina was convicted in a separate trial as being an accessory to Mr. Licari.)
In Mrs. Burns’ trial no jury instructions were given on the issue of any lesser included offenses such as solicitation to commit murder or facilitation to commit murder.
After the trial Mrs. Burns hired me to represent her. Post-trial investigation revealed that several other witnesses had heard Spadafina and third persons conspiring to kill Mr. Burns. Indeed, some of this information was conveyed to the police even before Mr. Burns was murdered.
The Court of Criminal Appeals reversed the conviction because the missing evidence may well have created a reasonable doubt as to whether Mrs. Burns was the one soliciting her former husband’s death. Our proof established that the real soliciting party was named Paul Frappolo who was not a local boy either. Could this have been a hit in retaliation for disloyalty to the mob? They do not put folks into the Federal Witness Protection Program for nothing. Anyway, as to the question or lesser included offenses, the Court of Criminal Appeals found that neither facilitation nor solicitation need have been charged to the jury here.
The state appealed the missing evidence reversal. We countered by taking a cross-appeal on the lesser included offense issue. The Supreme Court of Tennessee granted both applications.
The case was docketed as part of the SCALES Program where the court sits in county courthouses throughout the state so that school children may observe. By coincidence, the court heard oral argument in the exact same courtroom where Mrs. Burns was tried by a jury. The court sustained our reversal finding that the missing evidence of the murder plot by others was sufficient to raise a reasonable doubt and that this evidence should be heard by another jury. No new law on that point.
The court also found merit to our argument that at least solicitation should have been charged to the jury. While not only granting relief to Mrs. Burns, the Supreme Court issued a seminal Opinion that changed the law (1) as to how lesser included offenses are to be defined and, (2) when they should be instructed.
As to the first question, Justice Barker, writing for a unanimous court began his analysis by reviewing the "traditional" rule as to when offenses are lesser included to others: "The lesser offense may not require proof of any element not included in the greater offense as charged in the indictment." Justice Barker found that this restrictive test for lesser included offenses might deprive the defendant of the right to present a defense. He noted the classic example of where the state has charged rape and proves sexual battery but the evidence arguably does not support a finding of penetration that is a necessary element of rape. Under the traditional test, a defendant would not get an instruction on sexual battery because that offense requires the additional element that the touching is for the purpose of sexual arousal, which is not a statutory element of rape. Such a situation forces the jury into an "all or nothing" decision that is likely to be resolved against the defendant who is clearly guilty of "something."
Justice Barker’s opinion noted that other jurisdictions resolved this "dilemma" by adopting modified versions of the Model Penal Code definition of lesser included offenses, which considers the traditional "elements" test, but adds an attempt or solicitation test, and a test inquiring as to whether the lesser offense differs from the charged offense only with respect to a less serious injury or a lesser kind of culpability.
The following edited excerpts from the opinion describe when offenses are lesser included to others and also when they should be charged to the jury, which is a completely separate question:
Based on our interpretation of its terms, we find that the Model Penal Code approach, as hereinafter modified, is logical and consistent with the structure of our own criminal code. The Tennessee criminal code is structured to define offenses and assign degrees of punishment by determining the completion of the crime, the culpability of the individual criminal actor, and the degree of perceived harm to the victim or society as a whole. The crime carried to completion, the more responsible party, and the more serious offenses merit harsher penalties. In a general sense, the various criminal offenses can be visualized as "layers," with the most serious, culpable versions of each type of crime at the top, meriting the most severe punishment. Correspondingly, underneath are the less serious versions in decreasing order of seriousness and culpability and with consequently less serious punishment. We find that the following definition of "lesser-included" offenses adapts well to the structure of our Code, and we therefore adopt it for use in our trial courts:
An offense is a lesser-included offense if:
(a) all of its statutory elements are included within the statutory elements of the offense charged; or
(b) it fails to meet the definition in part (a) only in the respect that it contains a statutory element or elements establishing
(1) a different mental state indicating a lesser kind of culpability; and/or
(2) a less serious harm or risk of harm to the same person, property or public interest; or
(c) it consists of
(1) facilitation of the offense charged or of an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or
(2) an attempt to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or
(3) solicitation to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b).
Part (a) of this test defines lesser-included offense using a statutory elements approach consistent with [the traditional rule]. Part (b) of the test modifies the statutory elements test by creating two exceptions to the requirement that all the statutory elements of a lesser-included offense must be included within the statutory elements of the offense charged. Under part (b), the lesser-included offense may contain a statutory element or elements establishing: (1) a different mental state indicating a lesser kind of culpability, and/or (2) a less serious harm or risk of harm to the same person, property or public interest. While conceptually related to paragraph (c) of the Model Penal Code test, part (b) of our test is narrower in that the statutory elements remain the focus of the inquiry. Part (c) of the test specifically includes the inchoate offenses of facilitation, attempt, and solicitation as lesser-included offenses when the evidence in the case would support a conviction for those offenses. The structure of our Code indicates that the Legislature viewed these as lesser offenses of the specific crime charged. We choose to include these offenses in our definition so as to provide clear, comprehensive guidance for our trial courts to use in their determination of lesser-included offenses. [In a footnote the court added that "trial courts should also consider any offenses that presently or in the future are expressly designated lesser-included offenses. See, e.g., Tenn. Code Ann. §39-15 401(d) (Supp. 1998) (child abuse or neglect is a lesser-included offense of any kind of homicide, statutory assault, or sexual offense if the victim is a child and the evidence supports such a charge); Tenn. Code Ann. §55-10 415(c) (1998) (the offense of underage driving while impaired is a lesser included offense of driving while intoxicated)."]
Having stated the test for determining whether a particular offense is a lesser-included offense of another, we must acknowledge that our inquiry continues. Whether a lesser-included offense must be charged in a jury instruction is a two-part inquiry. First, the trial court must apply the new test to determine whether a particular lesser offense is included in the greater charged offense. If a lesser offense is not included in the offense charged, then an instruction should not be given, regardless of whether evidence supports it. If, however, the trial court concludes that a lesser offense is included in the charged offense, the question remains whether the evidence justifies a jury instruction on such lesser offense.
[As to the second part of the test], our prior decisions … support the application of a two-step analysis for determining whether a lesser included offense instruction should be given [in a particular case]. First, the trial court [after determining that an offense is legally a lesser included offense to the charged crime] must determine whether any evidence exists that reasonable minds could accept as to the lesser-included offense. In making this determination, the trial court must view the evidence liberally in the light most favorable to the existence of the lesser included offense without making any judgments on the credibility of such evidence. Second, the trial court must determine if the evidence, viewed in this light, is legally sufficient to support a conviction for the lesser included offense. This two-step analysis is practical, can be easily applied by the trial courts, and remains broad enough to preserve both the state’s and defendant’s rights to consider any lesser-included offenses fairly raised by the proof.
As to Mrs. Burns’ appeal, the court held that solicitation and facilitation to commit murder were both lesser included offenses to murder in the first degree. In other words, these offenses qualified under the first part of the new test. As to whether these offenses should have actually been instructed in this particular case, (the second part of the test) the court found that facilitation need not have been instructed but that solicitation should have been charged. The court observed that because the facts might change on retrial, the decision to charge facilitation might be different.
Burns is significant because it greatly expands the number of potential lesser included crimes that might be charged to the jury. Lesser included offenses were traditionally viewed as a stack of bricks, with the charged offense at the top and the lesser offenses neatly stacked below in a narrow vertical column. While this perception of lesser included offenses might be helpful in determining whether a particular crime need be instructed in a given trial, it is now more useful to think of the universe of potential lesser included offenses as a pyramid with the charged offense as the cap stone.
Lesser included offenses differ depending on whether one is dealing with attempts, mental states, degrees of harm, or degrees of responsibility. In short, one can have multiple lesser included offenses "below" the offense charged in the indictment.
On one "face" of the pyramid, we have lesser offenses characterized by the attempt to commit the crime. Offenses may also be lesser to another based on the different harms to the person, property or public interest described in the statute. Another "face" of the pyramid is the differing mental states. Thus, recklessly starting a fire is clearly a lesser offense to knowingly burning personal property of another.
Burns not only expands the number of theoretical lesser included offenses, the Opinion mandates an actual instruction when there is "any evidence" as to the lesser included offense and where the evidence would support an actual conviction for this lesser crime. This part of the test is extremely broad because "the trial court must view the evidence liberally in the light most favorable to the existence of the lesser included offense without making any judgments on the credibility of such evidence."
Another part of the holding dealt with the facilitation statute. There has been great debate as to whether facilitation to commit a crime is actually a lesser included offense. The Supreme Court made that quite clear by finding that facilitation was a lesser included offense to higher crimes. The propriety of charging facilitation was resolved by a citation to an earlier Court of Criminal Appeals opinion holding that "virtually every time one is charged with a felony by way of criminal responsibility for the conduct of another, facilitation of the felony would be a lesser included offense." In other words, where multiple persons are accused of committing a crime, those persons whom we would have previously considered to have been "accessories" would now be possible facilitators as a lesser included offense to full criminal responsibility for the indicted crime.
No longer do we have a rule saying that one offense begins only where the other one ends. There is now play for considerable overlap between greater and lesser crimes. The critical passage in the opinion appears at its conclusion:
Whether sufficient evidence supports a conviction of the charged offense does not affect the trial court’s duty to instruct on the lesser offense if evidence also supports a finding of guilt on the lesser offense. The jury, not the judge, performs the function of fact-finder.
The trial judge should not simply say that there is sufficient evidence to find the defendant guilty of the higher, charged crime that would, under prior law, arguably preclude the necessity of a lesser offense charge. Under Burns, that there may be legally sufficient evidence to convict of the higher crime in no way detracts the duty of the judge to charge as to the lesser offense.
It is suggested that the easiest way to comply with Burns is to instruct "several layers down" of lesser included offenses. Ultimately, the jury will "sort it out" as part of its function to find the truth and do justice.
When I first "discovered" the Tennessee Bar Association’s Criminal Justice Section, I thought it was one of the best kept secrets in the state of Tennessee. It is, after all, probably the only place where everyone who works within the criminal justice system can meet and discuss the problems that arise within this unique setting. Having been a member for several years now, it still amazes me that more of us don’t take advantage of this forum. I have had several discussions in the past few months about the possible reasons for our lack of activity as an organization, but unfortunately, no clear answers have come to the fore. Of course, we are all busy, and of course, we are all involved in other organizations which serve our particular practice niches. But membership and activity in this section is a special opportunity that none of us should forego.
There are no limits on the subjects this committee can discuss or the solutions we can seek. Suggestions for new court rules, debate over proposed legislation, sharing of information about areas of law that affect our day to day practice of law, conversations about ways to make our days in court more enjoyable and challenging — these are only a few of the opportunities the Criminal Justice Section presents. Continuing legal education programs which expose us to all aspects of an area of criminal law practice, rather than only one perspective, can provide new insights for everyone involved and result in a greater understanding of the process and the roles of the individuals involved.
As we entered the new world of the year 2000, many of us made resolutions to make the most of our careers, improve our ability to serve the public and our clients, and better utilize the skills we learned in law school and in the courtrooms. This letter is an open invitation to all who are reading it to accomplish these goals by becoming more active in the Criminal Justice Section. Prosecutors, defense attorneys and judges are all welcome to attend our meetings, write articles for our newsletter, and suggest issues and projects to be discussed and worked on throughout the year. In particular, you are encouraged to call the section’s attention to practical issues which affect us all in our daily practice of criminal law, and help members of the section explore the problems, the common ground and the appropriate resolutions for these problems.
Please join us at the general membership meeting at the Midwinter meeting in Nashville on January 14, 2000!
Since publication of our last newsletter the Tennessee Supreme Court has rendered the following opinions relating to criminal law:
IMPEACHMENT: GENERIC FELONIES; PRESERVATION OF ISSUE FOR APPEAL:
State v. Galmore, 994 S.W.2d 120 (Tenn. 1999)
Defendant may not be impeached with an unnamed "felony conviction." In order to preserve error with regard to the use of prior convictions for impeachment purposes, the defendant does not have to testify, does not have to state on the record that he would have testified but for the error, and is not required to make an offer of proof of what his testimony would have been but for the error. However, error was harmless under the particular facts of the present case.
DEATH PENALTY; WAIVER OF MITIGATION AND CLOSING ARGUMENT:
State v. Smith, 993 S.W.2d 6 (Tenn. 1999)
Competent and informed defendant may waive presentation of mitigation evidence and closing argument in death penalty case. Record shows essential compliance with Zagorski rules. Victim impact evidence and argument is permissible. Strong dissent from Birch finding victim impact evidence to violate state constitution unless it is carefully controlled and restricted.
MURDER: YEAR AND A DAY
RULE ABOLISHED:
State v. Rogers, 992 S.W.2d 393 (Tenn. 1999)
Common law year-and-a-day rule is abolished by the court.
IMPEACHMENT: GENERIC FELONIES, HARMLESS ERROR:
State v. Taylor, 993 S.W.2d 33 (Tenn. 1999)
Defendant may not be impeached with "felonies involving dishonesty," but error harmless where defendant made no argument concerning the substance of his contemplated testimony and failed to articulate a theory of defense for which his testimony was critical.
BURGLARY: DEFINITION OF PERSON
IN LAWFUL POSSESSION:
State v. Langford, 994 S.W.2d 126 (Tenn. 1999)"
"Person in lawful possession" of property for purposes of granting consent to enter under burglary statute is the person whose name is on the lease. All other persons who enter premises without the consent of the lessor may be guilty of burglary.
PROBATION REVOCATION:
State v. Taylor, 992 S.W.2d 941 (Tenn. 1999)
The time a defendant serves on probation does not count on sentence unless the defendant successfully completes the entire term of probation. Trial judge may not increase sentence upon revocation of probation.
DEATH PENALTY; MIDDLEBROOKS, HARMLESS ERROR:
King v. State, 992 S.W.2d 946 (Tenn. 1999)
Middlebrooks harmless where two valid aggravators remain: prior violent felonies and risk of death to two or more people. Strong dissent from Anderson and Birch arguing that majority has failed to properly utilize the Howell harmless error analysis.
JURY INSTRUCTIONS; ERRONEOUS RELEASE ELIGIBILITY:
State v. Meyer, 994 S.W.2d 129 (Tenn. 1999)
Trial court’s erroneous instruction that defendant convicted of rape of a child would be eligible for release after serving 5.73 years of 25-40 year sentence when, in fact, defendant must serve the entire sentence, was not harmless error.
POST-CONVICTION; ILLEGAL SENTENCE; VOID AND VOIDABLE:
Taylor v. State, 995 S.W.2d 78 (Tenn. 1999)
Court finds conviction under statute that is subsequently declared unconstitutional to be voidable rather than void; and must be attacked within the applicable post-conviction statute of limitations or will be deemed waived.
DEATH PENALTY;
MIDDLEBROOKS HARMLESS:
Donald Wayne Strouth v. State, No. 03S01-9707-CC-00079 (Tenn. June 28, 1999)
Middlebrooks was harmless.
HOMICIDE; FELONY MURDER; FELONY
AS AN AFTERTHOUGHT:
State v. Buggs, 995 S.W.2d 102 (Tenn. 1999)
In order for killing to constitute felony murder, the actor must intend to commit the underlying felony prior to or at the time the killing occurs, there is no felony-murder where the felony occurs as an afterthought following the killing.
DEATH PENALTY; IMPROPER
CLOSING ARGUMENT:
State v. Middlebrooks, 995 S.W.2d 550 (Tenn. 1999)
Pre-1989 HAC aggravator valid despite Sixth Circuit rulings. Prosecutor’s closing argument statement that the "family asks you to impose the death penalty" was improper as was Biblical reference in asking for the death penalty, but argument concerning the defendant’s racial animus was relevant. However, prosecutor’s argument was harmless.
JURY UNANIMITY; GENERAL VERDICTS; INDICTMENTS:
State v. Lemacks, 996 S.W.2d 166 (Tenn. 1999)
General verdict of guilt when defendant was charged with DUI as both the principal and an accomplice did not violate the defendant’s right to a unanimous jury verdict. Indictments do not have to include theory of criminal responsibility.
DUI; ADMISSIBILITY OF BREATH TEST; STANDARD OF REVIEW:
State v. Jerry Wayne Edison, No. 03-S-01-9803-CC-00022 (Tenn. July 6, 1999)
Standard of review of trial’ judge’s decision to admit breath-alcohol test results under Sensing is the preponderance of the evidence standard.
JURY SEPARATION, DEFECTS IN SUMMONING VENIRE, DISCRIMINATION IN
SELECTION OF GRAND JURY FOREPERSON:
State v. Pat Bondurant, No. 01-S01-9804-CC-00064 (Tenn. Sept. 7, 1999)
Convictions reversed for total failure to follow statutory procedures governing selection of a special jury venire and allowing jury, which was required by law to be sequestered, to separate during the trial. Court also holds that discrimination in the selection of a grand jury foreperson is not a cognizable claim in Tennessee.
PROBATION REVOCATION;
AUTHORIZED DISPOSITIONS:
State v. Jeffrey D. Hunter, No. 01S01-9806-CC-00118 (Tenn. Sept. 7, 1999)
When probation is revoked, the trial judge has authority to (1) order incarceration; (2) order the original probationary period to commence anew; or (3) extend the remaining period of probation for as much as an additional two years. Defendants are not entitled to credit for any time served on probation prior to the revocation. However, if the defendant successfully completes a probationary sentence, the trial judge is without authority to revoke the probation and order service of the original sentence.
DISCOVERY: LOST OR
DESTROYED EVIDENCE:
State v. Marvin K. Ferguson, No. 03-S-01-9803-CR-00029 (Tenn. Sept. 20, 1999)
What are the consequences when the State loses or destroys evidence alleged to be exculpatory? Tennessee Supreme Court rejects Arizona v. Youngblood requirement that defendant must show bad faith in order to demonstrate denial of due process. Based on Tennessee Constitution, court adopts a balancing approach which focuses on three factors: (1) the degree of negligence or bad faith; (2) the importance of the missing evidence; and (3) the sufficiency of the other evidence used at trial to sustain the conviction. If after considering these factors, the trial judge finds that a trial without the missing evidence would be fundamentally unfair, the judge may dismiss the charges or craft such other order as will protect the defendant’s fair trial rights.
SENTENCING: WILKERSON CRITERIA, EXPUNGED CONVICTIONS:
State v. David Keith Lane, No. 03-S-01-9802-CC-00013 (Tenn. Sept. 27, 1999)
Wilkerson criteria limited to the "dangerous offender" category used to impose consecutive sentences. Criminal acts which underlie expunged convictions may be considered in denying an alternative sentence.
DEFENSES; PROCURING AGENT:
State v. Albert Dewaynn Porter, No. 02S01-9803-CC-00025 (Tenn. Oct. 11, 1999).
"Procuring agent" defense was abolished by the 1989 Criminal Code.
ATTEMPT; SUBSTANTIAL STEP:
State v. Charles D. Fowler, No. 01S01-9810-CC-00185 (Tenn. Oct. 25, 1999)
Defendant’s actions of soliciting an undercover agent to bring him a young male for "straight sex" and paying the officer $200, constituted a "substantial step" toward the commission of statutory rape as to justify a conviction for attempted statutory rape. Strong dissent by Birch: Definition of "substantial step too expansive.
LESSER INCLUDED OFFENSES,
STATE V. TRUSTY OVERRULED:
State v. Brenda Anne Burns, No. W1996-00004-SC-R11-CD (Tenn. Nov. 8, 1999)
Failure to investigate separate conspiracy to kill victim, not involving the defendant, constituted ineffective assistance of counsel. IAC raised on direct appeal. State v. Trusty reversed to the extent that instructions are not required on lesser "grades" or "classes" of offenses in addition to "lesser included" offenses. Instructions are only required as to "lesser included" offenses which shall henceforth be defined as:
An offense is a lesser included offense if:
(a) all of its statutory elements are included within the statutory elements of the offense charged; or
(b) it fails to meet the definition in part (a) only in respect that it contains a statutory element or elements establishing
(1) a different mental state indicating a lesser kind of culpability; and/or
(2) a less serious harm or risk of harm to the same person, property or public interest; or
(c) it consists of facilitation, solicitation, or an attempt to commit the offense charged or an offense that otherwise meets the definition of a lesser included offense in part (a) or (b).
LESSER INCLUDED OFFENSES;
TRUSTY OVERRULED:
State v. Terry Allen Dominy, No. M1995-00001-SC-R11-CD (Tenn. Nov. 8, 1999)
Spousal rape is not a lesser included offense of aggravated rape under Burns test. Thus, conviction of defendant for spousal rape based on indictment charging aggravated rape, must be reversed. State v. Trusty reversed to the extent that instructions are not required on lesser "grades" or "classes" of offenses in addition to "lesser included" offenses.n
DUE PROCESS; MULTIPLE
CONVICTIONS; ANTHONY:
State v. Lawrence Ralph, Jr., No. M1997-00019-SC-R11-CD (Tenn. Nov. 15, 1999)
State v. Anthony due process analysis preventing multiple convictions arising out of a kidnapping does not apply to bar multiple convictions for theft and burglary.
DEATH PENALTY; HAC
State v. Jon Douglas Hall, No. W1997-00023-SC-DDT-DD (Tenn. Nov. 15, 1999).
Explains Odom as ruling that when defendant is convicted of felony murder, mere fact of felony murder alone cannot be sufficient to constitute torture or serious physical abuse. Use of underlying felony to both convict defendant and impose death penalty fails to narrow the class. Anticipation of physical harm to one’s self or a loved one constitutes mental torture. Severity of beating may support either torture or serious physical abuse.
RECKLESS ENDANGERMENT; VICTIM
AS "PUBLIC AT LARGE"
State v. Robert A. Payne, No. M1997-00020-SC-R11-CD (Nov. 15, 1999)
Reckless endangerment may be committed against the public at large, but to prove the charge, the State must show that a representative of that group was in the area (zone of danger) in which a reasonable probability of danger existed. "Zone of danger" is defined as "that area in which a reasonable probability (as opposed to mere possibility) exists that the defendant’s conduct would place others in imminent danger of death or serious bodily injury if others were present in that zone or area."
RIGHT TO TESTIFY; WAIVER:
Napoleon Momon v. State, No. E1996-00007- SC-R11-PC (Nov. 15, 1999)
Right to testify is a fundamental constitutional right which must be personally waived by the client. Counsel cannot unilaterally waive the right of the client to testify. In all cases tried hereafter, if the defendant desires to waive the right to testify, defense counsel shall request a hearing outside the presence of the jury to ascertain on the record whether the defendant has made a knowing, voluntary, and intelligent waiver of the right to testify. No particular litany is required but counsel must show that the defendant knows and understands: (1) the right to testify and, if the defendant chooses not to testify, the jury will be instructed that they may not draw any inference from the failure to testify; (2) no one can prevent the defendant from testifying; and (3) that defendant has consulted with counsel in making the decision, has been advised of advantages and disadvantages, and defendant has voluntarily and personally waived the right. Under normal circumstances, trial judge should not participate in questioning unless it appears defendant is not making a valid waiver. [By inference, prosecutor shall not participate in questioning] However, in a 3 to 2 split, the court holds that denial of the right may be deemed harmless error.
