State v. Dwjuan L. Bradford ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL 1997 SESSION
September 30, 1997
Cecil W. Crowson
STATE OF TENNESSEE, * Appellate Court Clerk
C.C.A. # 01C01-9607-CR-00294
Appellee, * DAVIDSON COUNTY
VS. * Hon. Seth W. Norman, Judge
DWJUAN L. BRADFORD, * (Especially Aggravated Robbery)
Appellant. *
For Appellant: For Appellee:
Roger K. Smith, Attorney Charles W. Burson
104 Woodmont Boulevard Attorney General & Reporter
Suite 115
Nashville, TN 37205 Lisa A. Naylor
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Kymberly Hattaway Haas
Asst. District Attorney General
Washington Square, Suite 500
222 Second Avenue North
Nashville, TN 37201-1649
OPINION FILED:_____________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Dwjuan L. Bradford, was convicted of especially
aggravated robbery. Tenn. Code Ann. § 39-13-403. The trial court imposed a
Range I sentence of nineteen years.
In this appeal of right, the defendant contends that Tennessee Code
Annotated, Section 40-35-201(b)(2)(A)(i) and (ii), the statute regarding jury
instructions on the potential punishment and parole, is unconstitutionally vague; that
the jury instructions pursuant to this statute violate due process of law; and that the
terms of the statute contravene the separation of powers doctrine. We disagree
with each of these contentions and thus affirm the judgment of the trial court.
On September 2, 1994, the victim, seventy-three-year-old Ann Deol,
was walking up the stairway to the back door of her residence on Second Avenue
South in Nashville. At trial, the state was able to prove that the defendant then
emerged from underneath the stairway, snatched the victim's purse, and ran into an
alley. When the victim began to scream, a co-defendant shot the victim in the back,
thereby causing serious injuries and hospitalization for a period of fifteen days. In a
statement made to the police, the defendant acknowledged taking the purse but
claimed that he was unaware of the possibility of gunshots, "If I knew something like
that would happen, I wouldn't have [participated]." At the conclusion of the proof,
the trial court provided instructions to the jury, which later returned a guilty verdict in
the charge appearing in the indictment.
Tennessee Code Annotated, Section 40-35-201(b) (1990) requires trial
courts, upon the request of either party, to instruct jurors as to the possible penalties
for the crime charged and its lesser included offenses:
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In all contested criminal cases, except for capital crimes
which are governed by the procedures contained in §§
39-13-204 and 39-13-205, upon the motion of either
party, filed with the court prior to the selection of the jury,
the court shall charge the possible penalties for the
offense charged and all lesser included offenses.
(Emphasis added). The statute was amended in 1994 to include the following
language:
(2)(A)(i) When a charge as to possible penalties has
been requested pursuant to subdivision (b)(1), the judge
shall also include in the instructions for the jury to weigh
and consider the meaning of a sentence of imprisonment
for the offense charged and any lesser included
offenses. Such instruction shall include an approximate
calculation of the minimum number of years a person
sentenced to imprisonment for the offense charged and
lesser included offenses must serve before reaching
such person's earliest release eligibility date. Such
calculation shall include such factors as the release
eligibility percentage established by § 40-35-501,
maximum and minimum sentence reduction credits
authorized by § 41-21-236 and the governor's power to
reduce prison overcrowding pursuant to title 41, chapter
1, part 5, if applicable.
(ii) Such instructions to the jury shall also include a
statement that whether a defendant is actually released
from incarceration on the date when such defendant is
first eligible for release is a discretionary decision made
by the board of paroles based upon many factors, and
that such board has the authority to require the
defendant to serve the entire sentence imposed by the
court.
(B) On an annual basis, the department of correction
shall provide each judge exercising criminal trial court
jurisdiction with the approximate calculation required in
subdivision (2)(A). Such calculation shall be broken
down to show the effect of each factor used in making
such calculation. If the calculation provided by the
department to the judges changes because of a change
in the law or correctional policy, court intervention, the
governor's prison overcrowding policy or any other such
circumstance, the department shall send a revised
calculation to the judges as such changes occur.
(Emphasis added).
In this case, the defendant, charged with especially aggravated
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robbery, asked for jury instructions on the range of punishment. The trial court
complied with that request and, in addition, followed the terms of the amendment by
including the possible release eligibility dates for especially aggravated robbery,
facilitation to commit especially aggravated robbery, aggravated robbery, and
robbery. The actual instruction for the primary charge was as follows:
The punishment for the offense of Especially
Aggravated Robbery as charged in the indictment in this
case will be imprisonment for a period of not less than
fifteen years, nor more than twenty-five years, and a fine
not to exceed fifty thousand dollars.
You are further informed that the minimum
number of years a person sentenced to imprisonment for
this offense must serve before reaching the earliest
possible release eligibility date is four point five years.
This calculation is based on the minimum sentence
possible which is fifteen years. However, you are
instructed that the Court will set the punishment after a
separate sentencing hearing, and that the punishment
will be set within the applicable range of fifteen to twenty-
five years after review of all the relevant factors.
Whether a defendant is actually released from
incarceration on the date when first eligible for release is
a discretionary decision made by the Board of Pardons
and Paroles and is based on many factors. The Board of
Pardons [and Paroles] has the authority to require a
defendant to serve the entire sentence imposed by the
Court.
(Emphasis added). Only the range of sentence, maximum fine, and the release
eligibility dates were changed when the trial court provided these instructions on the
lesser included offenses.
The defendant, who claims that the portions of the instructions should
not have been charged to the jury, relies upon Article I, Sections 8, 9, 17, and 19,
Article II, Sections 1 and 2, and Article VI, Section 19 of the Tennessee Constitution
and the Fifth, Sixth, and Fourteenth Amendments to the U. S. Constitution in
challenging the constitutionality of the amendment to the statute. More specifically,
the defendant insists that the portions of the 1994 amendment requiring "an
approximate calculation of the minimum" sentence as opposed to the exact
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sentence is unconstitutionally vague because it invites a jury to speculate as to
punishment. Without any citation to authority, the defendant also complains that the
statutory provision precludes a fair and impartial jury by mandating instruction of
only the minimum number of years to be served without any reference to the
maximum. Finally, the defendant contends that the statute is an infringement by the
legislature on judicial powers. Article II, Section 1, of course, divides the powers of
government into three departments while Article II, Section 2 prohibits any branch
from exercising "any of the powers properly belonging to ... the others...." Tenn.
Const. art. II, § 2.
The defendant bases his arguments on the holding in Farris v. State,1
535 S.W.2d 608 (Tenn. 1976), a case in which a plurality of our supreme court ruled
that a 1973 statute permitting the jury to compute the time a prisoner would serve
required undue speculation on the part of the jury. In Farris, three of the justices
concluded that the 1973 statute violated Article II, Section 17 of our state
constitution in that the subject matter of the act was not adequately set out in the
caption but only two of those justices could agree that the statute requiring a charge
to the jury on the parole procedure was "impermissibly vague and impossible to
apply." 535 S.W.2d at 613. Justice Ray Brock concurred that the act was invalid
because the subject matter was not expressed in the caption but rejected the notion
that the statute was unconstitutionally vague. Justice Brock stood alone in his
conclusion that the requirement that trial judges charge juries on parole eligibility
also violated Article II, Sections 1 and 2 of the Tennessee Constitution as an
infringement upon judicial powers. Id. The final two justices comprising the 1976
court would have upheld the constitutionality of the act. The position of three of the
1
The statute in Fa rris required the trial judge to instruct the jury on parole procedures and
sentencing. From this information, a jury could theoretically compute or estimate the time to be
served. 535 S.W .2d at 609.
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five justices on the vagueness issue was reflected in the dissent of Justice William
Harbison:
There is absolutely no evidence in any of the records
before this Court that the jury had the slightest difficulty
in understanding or applying the statutes in question, and
it is clear from listening to the legislative debates on this
Act that the General Assembly felt it necessary and
proper for jurors to be allowed to have a general
understanding of parole procedures.
There had been a long line of cases in this state, as well
as in other states, in which jurors had repeatedly asked
questions of the trial judge as to the effect of a sentence
which they had under consideration.
Farris, 535 S.W.2d at 617.
Challenges to legislative acts based upon vagueness are founded in
the terms of Article I, Section 8 of the Tennessee Constitution guaranteeing "the
judgment of his peers or the law of the land." The concepts of due process of law
have been derived from this provision. See State v. Bobo, 727 S.W.2d 945 (Tenn.
1987); McCarroll's Lessee v. Weaks, 2 Tenn. 215 (1814). So, when standards
established by statute "'cannot be determined with reasonable definiteness that any
particular act is disapproved,'" it fails. Donathan v. McMinn County, 213 S.W.2d
173, 176 (Tenn. 1948) (quoting State v. Lanesboro Produce & Hatchery Co., 21
N.W.2d 792, 795 (Minn. 1956)). An ordinary person who exercises ordinary
common sense must sufficiently understand the statute so as to be able to comply.
Big Fork Mining Co. v. Tenn. Water Quality Control Bd., 620 S.W.2d 515 (Tenn.
App. 1981); Williams v. State Dep't of Health and Env't, 880 S.W.2d 955 (Tenn.
App. 1994).
This court has addressed the vagueness and due process challenges
presented here in at least two other cases. In State v. Howard E. King, No. 02C01-
9601-CR-00032 (Tenn. Crim. App., at Jackson, Oct. 22, 1996), app. granted (Tenn.,
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A.K. Marsh. 10, 1997), a panel of this court ruled that the plurality view in Farris would not
apply because since that ruling, the state has changed from jury- to judge-
sentencing. Slip op. at 7. In State v. Curtis Lee Majors, No. 01C01-9602-CR-00076
(Tenn. Crim. App., at Nashville, July 30, 1997), a separate panel determined that
the 1994 amendment was not unconstitutionally vague. In distinguishing the ruling
in Farris, Judge David H. Welles wrote as follows:
Juries were provided with information that invited them to
speculate about sentences because no approximation
was provided. The Farris court concluded that "[j]urors
should not be permitted to speculate on the length of
sentences, discretionary parole, the accumulation of
good and honor time and a whole conglomeration of
contingent events which, if they come to pass at all, will
come to pass in the future."
Subsequently, the legislature has attempted to remedy
this by supplying the estimated figures to juries rather
than leaving them on their own to calculate parole
eligibility [citing Tenn. Code Ann. § 40-35-201].
***
As a result, juries are provided with a figure with a caveat
that the actual time served may vary. Although an
"approximate," we feel that this figure provides sufficient
definition and is not unconstitutionally vague.
Furthermore, jurors are protected from the wide open
speculation that was apparent with the statutory section
considered in Farris.
Majors, slip op. at 13-14 (citations omitted).
In our view, the 1994 amendment passes the vagueness test.
Certainly, this newer enactment is no less definitive than the statute under
consideration in Farris, which would have been upheld by a majority of the justices
sitting in 1976 had the enactment been properly captioned.
The panel in Majors also addressed the due process challenge made
by this defendant to the constitutionality of Tenn. Code Ann. § 40-35-201(b)(2):
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The Defendant also charges that the calculation of the
minimum number of years to be served unfairly misleads
the jury because the actual time served may be longer.
Therefore, he argues that he has been deprived of due
process and the right to a fair and impartial jury. We
disagree. He claims that the suggestion of the parole
eligibility dates may vary due to decision by the Board of
the Paroles "based on many factors" invites the jury to
speculate. However, we do not believe this differs
substantially from the charge of the "possible penalties
for the offense charged and all lesser included offenses."
Tenn. Code Ann. § 40-25-201(b)(1).
***
The legislature has seen fit to provide juries with
comprehensive information about the sentencing scheme
when either party requests such an instruction. The
Defendant complains that the jury was unfairly informed
of the earliest release date, but the latest release date
has also been provided. It is possible that the Defendant
could be sentenced to [the maximum], of which the jury
was informed, and serve the entire term while
incarcerated. Thus, the maximum sentence was charged
as well. We cannot conclude that the defendant has
been deprived of due process in this case.
Id., slip op. at 15-16 (citation omitted).
The panel in Majors also considered the separation of powers
argument:
The Defendant next asserts that the relevant portions of
the statute are a constitutionally impermissible
encroachment on the judicial function by the legislature.
We disagree. Some functions of the three departments
of state government are necessarily overlapping and
interdependent. We believe this is particularly true in our
criminal justice system. See e.g., Lavon v. State, 586
S.W.2d 112, 115 (Tenn. 1979); Underwood v. State, 529
S.W.2d 45, 47 (Tenn. 1975); Woods v. State, 130 Tenn.
100, 169 S.W. 558 (1914).
Id., slip op. at 14-15.
Our supreme court has held that "[t]heoretically, the legislative power
is the authority to make, order, and repeal[;] the executive, that to administer and
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enforce[;] and the judicial, that to interpret and apply, laws." Richardson v. Young,
125 S.W. 664, 668 (Tenn. 1910) (quoted with approval in Underwood v. State, 529
S.W.2d 45, 47 (Tenn. 1975)). Our court has recently acknowledged that the
"authority to grant paroles is not judicial in nature but is administrative." Monroe E.
Davis v. Jimmy Harrison, Warden, No. 02C01-9607-CC-00242, slip op. at 3 (Tenn.
Crim. App., at Jackson, Jul. 2, 1997) (citing Woods v. State, 169 S.W. 558 (Tenn.
1914)). Nevertheless, our supreme court has observed, "it is impossible to preserve
perfectly the theoretical lines of demarcation between the [three] branches of
government." Underwood, 529 S.W.2d at 47. "There is necessarily a certain
amount of overlapping. The three departments are interdependent." Id. From all of
this, we must conclude that the statute did not infringe upon the powers reserved for
the judiciary under the state or the federal constitution.
Accordingly, the judgment must be affirmed.
__________________________________
Gary R. Wade, Judge
CONCUR:
______________________________
David H. Welles, Judge
_______________________________
Curwood Witt, Judge
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