STATE OF TENNESSEE v. BRODERICK DEVONTE FAYNE - Articles

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Posted by: Tanja Trezise on Oct 27, 2014

Court: TN Supreme Court

Attorneys 1:

Gary F. Antrican (on appeal), District Public Defender; and Parker O. Dixon (on appeal and at trial) and Melissa Downing (at trial), Assistant District Public Defenders, for the appellant, Broderick Devonte Fayne.

Attorneys 2:

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor General; Rachel E. Willis, Senior Counsel; D. Michael Dunavant, District Attorney General; and Billy G. Burk, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WADE

The defendant and an accomplice were indicted for aggravated burglary and employment of a firearm during the commission of a dangerous felony. At the trial of the defendant, the court denied a request by the defense for a special jury instruction on the definition of actual and constructive possession as an element of employment of a firearm. The jury convicted the defendant on both charges, and the trial court imposed an effective nine-year sentence. On appeal, the defendant argued that the trial court erred by denying his request for the special jury instruction and by failing to instruct the jury on the crime of possession of a firearm during the commission of a dangerous felony as a lesser included offense. The Court of Criminal Appeals affirmed the trial court. We hold that possession of a firearm during the commission of a dangerous felony qualifies as a lesser included offense of employment of a firearm during the commission of a dangerous felony. In this instance, however, the defendant waived the issue, and he is not entitled to relief under the plain error doctrine. We further hold that the trial court did not err by refusing the defendant’s request for a special instruction on the definition of possession. Accordingly, the judgment of the Court of Criminal Appeals is affirmed.

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