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Tennessee Court of Criminal Appeals Hears Argument Over Jury Instruction in Smotherman Meth Case
Summary
In oral argument at the University of Memphis School of Law, appellate counsel for Kenneth Ray Smotherman argued the trial court erred by refusing a lesser‑included 'casual exchange' jury instruction in his client’s methamphetamine sale conviction; the state urged waiver and pointed to video evidence and a brief appearance by another person at the scene.
The Tennessee Court of Criminal Appeals on Feb. 13 heard arguments in State v. Kenneth Ray Smotherman II over whether the trial court erred by denying a jury instruction for the lesser‑included offense of casual exchange in a methamphetamine sale case.
Appellant attorney Mike Flanagan told the three‑judge panel he was focusing his brief on the jury instruction question and asked the court to allow the jury to decide whether the transaction was a casual exchange rather than one by design. "For the sake of this argument ... I asked for that jury instruction," Flanagan said, conceding he had not preserved a facilitation instruction in his motion for new trial but urging the court to consider the record on the casual‑exchange issue.
The state, represented by Kirby May of the Tennessee Attorney General's Office, urged the court to affirm the convictions on preservation grounds. May summarized trial testimony that Officer Hatley supervised an undercover purchase using confidential informant Amber Johnson, that the parties negotiated a $75 price, and that the defendant ultimately handed Johnson an eight‑ball of methamphetamine weighing 3.28 grams. May also told the court that a review of the video shows "very briefly you can actually see another individual open the door" of a trailer at the second location the parties visited.
The central legal dispute at argument was procedural preservation and the standard for giving a lesser‑included instruction. Judges pressed Flanagan on whether the defense complied with the statutory requirement to submit requested instructions in writing and whether the trial court’s oral ruling and record sufficiently raised casual exchange. Flanagan argued the trial court erred by not allowing the jury to decide the issue, citing State v. Hawkins for the proposition that trial courts must give proper instructions when warranted by the evidence.
May responded that the defense's failure to submit the instructions in writing and to raise facilitation in the motion for new trial meant the issue was waived and that, in any event, the trial court did not commit plain error. May also cited a recent panel opinion, State v. Nice, to explain limits on plain‑error review if a party fails to argue that theory in its opening brief.
The panel did not rule at argument. Judges said they had read the briefs and would review the record before issuing a decision. The court concluded the session by inviting law students in the audience to ask questions about appellate procedure.
Next steps: The Court of Criminal Appeals will issue a written opinion after reviewing the briefs and record; the transcript shows no immediate ruling from the bench.
