State v. Jerry Cooper ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MAY 1997 SESSION
November 17, 1997
Cecil W. Crowson
Appellate Court Clerk
)
STATE OF TENNESSEE, )
) C.C.A. No. 01C01-9604-CC-00150
Appellee, )
) Lincoln County
V. )
) Honorable Charles Lee, Judge
)
JERRY RAY COOPER, ) (Murder--Second Degree)
)
Appellant. )
)
FOR THE APPELLANT: FOR THE APPELLEE:
Robert D. Massey Charles W. Burson
Roger N. Hays Attorney General & Reporter
209 West Madison Street
Pulaski, TN 37160 Daryl J. Brand
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
W. Michael McCown
District Attorney General
Weakley E. Barnard
Assistant District Attorney General
P.O. Box 787
Fayetteville, TN 37334
OPINION FILED: ___________________
REVERSED AND REMANDED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Jerry Ray Cooper, was indicted for first degree murder in
Lincoln County and pled not guilty based on self defense. In August 1995, a
jury found the appellant guilty of second degree murder. Judge Charles Lee
sentenced the appellant to eighteen years in the Tennessee Department of
Correction. The appellant presents six issues for our review:
1. Whether the evidence was sufficient to convict the appellant
of second degree murder and the jury’s verdict is therefore
contrary to the law and the evidence.
2. Whether the trial court erred by not requiring the district attorney
general’s office to recuse itself from the prosecution of this case.
3. Whether the trial court erred in its denial of the appellant’s
request to withdraw the jury instruction with regard to
sentencing ranges which included provisions concerning
truth in sentencing.
4. Whether the trial court erred in its instruction to the jury
regarding possible release dates on the offense charged as
well as lesser included offenses because the instruction included
the possibility of the appellant being sentenced as a mitigated
offender.
5. Whether the verdict in this case should be set aside because
the truth in sentencing statute and its resulting instructions are
unconstitutional under the United States Constitution and
the Tennessee Constitution.
6. Whether the jury inappropriately considered the jury instructions
given as relates to sentencing ranges and truth in sentencing.
We respectfully reverse the judgment of the trial court and order that the
appellant be granted a new trial.
I. Facts
The facts of this case illustrate how violent episodes involving two men
fighting over a woman for a three-year period inevitably led to a deadly
resolution. In November 1991, Katie Womack and Henry Womack, the
deceased, divorced after twenty-four years of marriage. Included in the couple’s
divorce decree was a provision for Henry W omack to pay the $40,000 mortgage
on the house in which Katie Womack resided. Henry Womack apparently
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resented having to pay this mortgage. He would not only enter the house and
rummage through his ex-wife’s belongings, but he would also search through her
telephone bills and call the telephone numbers of men that she had supposedly
dated.
In February 1992, Katie Womack met Jerry Ray Cooper, the appellant.
Mr. Cooper, a resident of Alabama, began dating Katie Womack and continued
to date her until the shooting of Henry Womack three years later. In February
1992, Henry Womack told his ex-wife that if she went out with Jerry Cooper
again, he was going to quit paying the mortgage on the house. Henry Womack
subsequently became delinquent on two or three mortgage payments.
In September 1992, Katie Womack and Jerry Cooper attended a go-cart
race in which Ms. Womack’s son, Matthew, was a participant. Henry Womack
was also at the go-cart track. Henry made the statement to Jerry that “you may
be her man now, but you will be my man,” and told Katie that he would kill that
son of a bitch [Jerry]. Katie, who was outside of the race track, tried to get back
into the races, but Henry blocked her from entering. Jerry Cooper interceded on
Katie’s behalf by asking the manager of the races to go to Henry and see that
Katie could return. Shortly thereafter, Jerry and Katie left the race track. Katie
told Jerry about Henry’s statement that he was going to kill him. Jerry Cooper
went to the authorities in Lincoln County and reported this threat. However,
Katie persuaded Jerry not to have a warrant issued for Henry because she
feared that her children would hate Jerry for having Henry arrested.
The problems involving these three individuals continued. Sometime after
the first of the year in 1993, Henry tore up Katie’s earrings, which he assumed
were a gift from Jerry; he tore up a picture of Jerry and his kids that Katie had;
and once, he dumped out Katie’s purse, breaking her makeup and perfume onto
her outfit before her date with Jerry.
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In July 1993, Henry told Katie that if she was going out with Jerry not to
come back to the house because he, Henry, was going to move back into the
house. Henry boxed up Katie’s clothes, traveled to Alabama, and dumped them
onto Jerry Cooper’s driveway. Katie spent the night at Jerry’s house, and when
she arrived at her house, Henry had moved back into the house.
On one occasion when Jerry brought Katie home from a date, Katie had
trouble getting into her own house because Henry had locked the storm door.
While Jerry shined his car lights on the door so that Katie could see, Katie beat
on the door until Henry finally opened it. Henry, clad only in very brief
underwear, waved to Jerry as he backed out of the driveway.
On July 31, 1993, Jerry brought Katie home from a date, and again she
had trouble getting into her house. Henry, who ran from behind the house,
chased Jerry away, threw something at his car, and then ran along beside his
car. Jerry Cooper did not stop. Although it is unclear who called first, Henry
spoke to Jerry, who was on his car phone, and wanted to know where Jerry was
located. Again, Jerry Cooper did not tell Henry Womack where he was. Henry,
with a shotgun in hand, left hunting for Jerry Cooper, but before he left, he took
all the phones out of Katie’s house, presumably so that Katie could not call Jerry
to warn him that Henry was looking for him. Unbeknownst to Henry, Katie had
hidden one phone in the house. Katie told Jerry that Henry had a shotgun when
he went looking for him.
Two weeks later on August 14, 1993, Henry Womack was still living in
Katie Womack’s house. Katie was planning to see Jerry that evening, and Henry
told her that if she went it would be her last time. Katie called Jerry and told him
that she had better not go because she was afraid that something bad would
happen. Katie then suggested that she and Jerry meet beside an area church.
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When Katie arrived, Jerry was parked beside the church, and Katie got
into Jerry’s car, an older model 280ZX. When Katie and Jerry came out onto the
road, Henry, who was in his truck, blocked the road. Jerry pulled around Henry’s
truck, and when he did, Jerry rolled down his window and asked what the
problem was. Henry then called Jerry a “yellow belly chicken shit son of a bitch.”
Jerry Cooper drove off. At this point, Henry supposedly threw something at Jerry
Cooper. As Katie and Jerry Cooper were headed in a direction away from
Henry, Katie testified that she heard at least three gunshots and feared that the
bullets might hit the car’s gas tank and blow up the car. She also testified that
Jerry Cooper was trying to get a hold on his gun but could not. Jerry turned
around and headed back toward Henry’s truck. As Jerry Cooper was driving
back toward Henry, Katie was dialing 911 on the car phone because she thought
Henry was coming after her. Henry Womack had fired four shots at Jerry
Cooper and Katie Womack. Katie testified that Jerry did not shoot at Henry
during the August 14th incident, and at no time that day did Jerry Cooper show
Henry Womack his gun. Katie testified that Jerry had carried a gun for as long
as she had known him. Although he did not shoot at Henry Womack or indicate
that he had a gun, Jerry Cooper did accidentally discharge his gun and shoot a
hole in the dashboard of his car. Jerry Cooper went that same day to the
authorities in Lincoln County, explained what had occurred, and secured a
warrant against Henry Womack.
Several days later, a judge ordered Henry Womack to move out of Katie
Womack’s house. Also, Henry was arrested for aggravated assault and was
subsequently put on pretrial diversion with a memorandum of understanding that
restrained him from having contact with Jerry Cooper. During this time, Katie
discovered that Henry had a pistol. Although he had never owned a pistol
before, Henry had owned a shotgun; but he had not hunted with it in a number
of years. Katie found Henry’s pistol and hid it because she feared he would use
it on Jerry. The gun remained hidden until Henry demanded that the pistol be
returned to him, which Katie did.
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On October 7, 1993, Jerry Cooper filed a civil suit against Henry Womack
for damages. There was an agreed order restraining Henry Womack from
“threatening, harassing, assaulting, or harming Jerry Cooper and vice versa.”
On May 1, 1994, Jerry Cooper, who now knew that Henry Womack had a
pistol, came to Katie’s house, and she invited him inside. Jerry’s car was outside
the house. Shortly thereafter, at approximately 12:45 a.m., Henry came to the
door of Katie’s house and began to beat on it. Katie told him to leave. Henry
told her that he was not leaving until that gray headed son of a bitch [Jerry
Cooper] came out. Jerry Cooper had a gun inside the house, but he did not go
outside. Cooper, with a pistol in one hand, called 911 for help, all the while
keeping Henry in his eyesight. Jerry did not chase after Henry with the gun, and
he did not threaten Henry with the gun. By the time the authorities arrived, Henry
was gone. Jerry went to the authorities in Lincoln County, and they issued a
warrant for his arrest. As a result of this contact, a judge found W omack in
contempt of court for violating the restraining order and reserved judgment on the
issue of contempt, further ordering Jerry Cooper and Henry Womack not to visit
the property of Katie Womack without permission. The assault warrant was
dismissed by a Lincoln County General Sessions Judge because he felt no
assault had been committed. District Attorney General Mike McCown, who
represented the state at the appellant’s trial, was also the prosecutor in that
case.
Despite all the problems they had encountered, Katie W omack and Jerry
Cooper continued to date. Henry would drive by public places that Katie and
Jerry would frequent. Because Katie and Henry’s daughter and granddaughter
resided in the same house with Katie, Katie told Henry that he could come to her
house any time he desired. By February 1995, the stress precipitated by his
problems with Henry Womack caused Jerry Cooper to seek medical treatment
for his nerves from Dr. Judy Isenberg, an Alabama doctor. During February
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1995, she treated him for anxiety and depression. On February 22, 1995, the
civil trial against Henry Womack was held, and on March 2, 1995, Jerry Cooper
was awarded $1,100 in damages against Henry Womack. In that judgment was
a permanent injunction restraining the parties from having any contact with each
other.
On March 9, 1995, a little more than two weeks before the shooting, Jerry
Cooper, who had experienced back trouble for quite some time, underwent back
surgery. Dr. Ira Denton, who performed the surgery, testified that, in his opinion,
Jerry Cooper was incapable of running, fighting, or physically defending himself
on the day of the shooting.
On March 24, 1995, the day before the shooting, Katie and Jerry went on
a date in Fayetteville, Tennessee before driving back to Alabama to spend the
night at Jerry’s house. Saturday morning, March 25, 1995, Jerry and Katie went
to Wal-Mart in Fayetteville to get a lawn mower and gas grill that Katie had put in
the lay-away. Katie and an employee at Wal-Mart, not Jerry Cooper, loaded the
grill and mower into Jerry’s truck. Around 11:00 a.m. Katie and Jerry arrived at
Katie’s house on Molina Road near Fayetteville to put away the lawn mower and
the gas grill. Jerry Cooper backed his truck past Katie’s driveway into the
backyard where a shed was located.
While Jerry backed his truck up toward the shed, Katie went inside the
house, where her adult daughter, Christy Norman, was talking with her father,
Henry Womack. Henry was at Katie’s mother’s house, approximately two-tenths
of a mile east of Katie’s home. Katie spoke with Henry for a brief time, and Jerry
Cooper, who was outside, heard Katie “hollering, ‘Henry,’ he is leaving.” Katie
went outside and told Jerry to leave. Katie testified that Jerry responded that
Henry was supposed to leave him alone and that he was not leaving. Christy
Norman, the deceased’s daughter, testified that the amount of time that passed
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from the time Katie told Jerry to leave until Henry Womack arrived was five
minutes or less.
Katie, along with some help from Jerry, unloaded the mower from the
back of the truck, and within minutes, Henry Womack drove quickly up the
driveway in a blue Datsun 280ZX car, a car similar to the 280ZX that Jerry
Cooper owned. According to Cooper, who is six feet, four inches in height, he
could see into the 280ZX; and he testified that Womack had a pistol in his right
hand which was held close to the side. Womack pulled past the driveway into
the backyard and just past Cooper’s pickup truck. The driver’s side door of each
vehicle was facing each other, about nine feet apart.
According to Cooper, he feared that Womack was going to kill him,
despite all the court orders in effect for Womack to stay away from him. Cooper
got his .380 semi-automatic pistol from the seat of his truck and loaded the clip.
According to Cooper, Womack was coming out of his car when Cooper turned
around from loading his gun. Cooper testified that he thought Womack had a
pistol in his hand when he got out of his Datsun 280ZX, so he fired at W omack in
order to save his life. However, on cross-examination, Cooper admitted that he
did not actually see a gun when Womack got out of the car. Cooper fired five
shots rapidly.
One bullet hit the dashboard, near the speedometer. One bullet hit above
the left rear tire. The remaining three shots hit Womack: one bullet broke his
right collarbone; one bullet punctured his right lung; and one bullet lodged in his
upper left arm bone. Dr. Charles Harlan, the medical examiner, testified that the
front chest wound, which punctured Womack’s right lung, was the fatal wound.
Therefore, although Womack apparently tried to run away from Cooper, Womack
was not shot from behind.
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Katie Womack, the ex-wife of Henry Womack, and Christy Norman, Henry
Womack’s daughter, were at the scene of the shooting. According to Katie
Womack, Henry did not have a gun; and as Henry got out of his car, he did not
say anything to Jerry. Katie testified that she knocked Jerry’s arm as another
shot was fired, although Jerry Cooper disputed this testimony. Christy Norman,
who watched the events unfold from a sliding glass door in Katie’s house several
feet away, testified that her father, Henry, had nothing in his hands as he drove
into the backyard.
After Henry Womack had been shot, Jerry Cooper left in his truck, and
started to telephone an attorney who had represented him in his civil suit against
Henry Womack. When he was unable to reach that attorney, he tried to reach
the attorney who had helped him obtain a divorce, but again, on a Saturday, he
was unable to reach an attorney. In the meantime, the sheriff’s department
arrived at the scene of the shooting. According to C. C. Thornton, a sheriff’s
deputy, Sheriff Tom Bean, who died before the appellant’s trial, found Henry
Womack’s .25 caliber pistol in the console between the bucket seats of his
Datsun 280ZX. The pistol and the clip, which was not in the pistol, were
underneath papers in the console. Deputy Thornton also testified that no
fingerprints were taken of any physical objects at the scene of the shooting or of
any of the three family members of the deceased who were present at the scene
of the shooting.
Jerry Cooper, who threw his gun off a bridge into the Tennessee River,
called the sheriff’s department and turned himself in after speaking with a
Fayetteville attorney the following Monday.
II. Sufficiency of the Evidence
First, the appellant argues that the evidence is insufficient to convict him
of second degree murder. The appellant maintains that because “the record is
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replete with previous threats, previous acts of violence, numerous orders of
various courts for Henry Womack, the deceased, to stay away from and have no
harassing type contact with the appellant, “ he should have been found guilty of
the lesser included offense of voluntary manslaughter, which requires “adequate
provocation sufficient to lead a reasonable person to act in an irrational manner.”
The appellant concedes that whether a defendant is convicted of second
degree murder or voluntary manslaughter is typically a jury question. However,
appellant argues that his case is atypical because of the jury instruction that was
given regarding ranges of punishment. He contends that “the jury took into
consideration the sentencing ranges and truth in sentencing instruction for
voluntary manslaughter in rendering their verdict as opposed to looking at the
adequate provocation issue as is required.”
The state, however, argues that the evidence is sufficient to convict the
appellant of second degree murder. The state maintains that there was no
evidence of any provocation on March 25, 1995, the day of the shooting, that
would warrant a finding of voluntary manslaughter and further asserts that the
evidence indicates that Jerry Cooper’s killing of Henry Womack was “knowing
and unprovoked,” thereby warranting his second degree murder conviction.
Great weight is accorded jury verdicts in criminal trials. Jury verdicts
accredit the state’s witnesses and resolve all evidentiary conflicts in the state’s
favor. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Banes, 874
S.W.2d 73, 78 (Tenn. Crim. App. 1993). On appeal, the state is entitled to both
the strongest legitimate view of the evidence and all reasonable inferences which
may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978).
Moreover, guilty verdicts remove the presumption of innocence, enjoyed by
defendants at trial, and replace it with a presumption of guilt. State v. Grace, 493
S.W.2d 474 (Tenn. 1973). Appellants, therefore, carry the burden of overcoming
a presumption of guilt when appealing jury convictions. Id.
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When appellants challenge the sufficiency of the evidence, this Court
must determine whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements
of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);
Tenn. R. App. P. 13(e); State v. Duncan, 698 S.W.2d 63 (Tenn. 1985). The
weight and credibility of a witness’ testimony are matters entrusted exclusively to
the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984);
Byrge v. State, 575 S.W.2d 292 (Tenn. Crim. App. 1978).
The three-year history between these two men clearly indicates that the
appellant was undoubtedly provoked on numerous occasions. He repeatedly
sought help not only from law enforcement but also from the courts, and
unfortunately, in the end, he resorted to self help. The appellant based his
defense on self defense, not provocation; and the jury in Lincoln County chose to
believe the state’s witnesses, which included primarily the deceased’s ex-wife
and adult daughter. Because this jury as the triers of fact believed the evidence
sufficient to convict the appellant of second degree murder and not voluntary
manslaughter, we must uphold their verdict. The evidence is sufficient.
III. Disqualification of the District Attorney General’s Office
Second, the appellant argues that the trial court erred by not disqualifying
the district attorney general’s office from the prosecution of the appellant’s case.
The appellant asserts that a conflict of interest existed for the district attorney
general and his staff “due to the previous representation of the appellant [by the
district attorney general’s office] when he was the victim of crimes committed by
the deceased.” The appellant contends that “an appearance of impropriety”
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exists and “that once a defendant has shown a substantial relationship existing
between the pending case and the manner in which the prosecuting attorney was
previously representing in essence the defendant, that there should be a
presumption that the prosecuting attorney shared information and/or possessed
information which should not be divulged.” The appellant maintains that district
attorney general Mike McCown, in effect, represented him, and therefore, there
should be the presumption that McCown “shared information and/or possessed
information which should not be divulged.”
The state argues, however, that the trial court properly refused to
disqualify the district attorney general’s office. First, the state argues that the
appellant filed his motion to disqualify ten days before the trial was scheduled to
begin, so disqualification of the district attorney general would have necessitated
a continuance. Therefore, the state maintains that the motion was not timely
filed under the local rules, and consequently, the trial court did not abuse its
discretion in denying the appellant’s motion.
Second, the state argues that the motion to disqualify the district
attorney’s office was without merit because the appellant’s argument that the
district attorney general represented him in the aggravated assault charge
against Henry Womack is simply incorrect. The state maintains that because the
district attorney general represents the state, an attorney-client relationship
never existed between Mr. Cooper and district attorney general McCown.
Therefore, “the district attorney has no obligation, under law or the principles of
professional ethics, to preserve any confidences of Cooper’s.” The state also
notes that the assault case against Henry Womack was resolved more than a
year before the shooting of Womack, so there was no “‘confidence’
communicated by Cooper to the district attorney at any time, but certainly not
after January 1994.”
The trial judge in this case apparently thought that the decision of whether
or not to disqualify the district attorney general’s office rested with the district
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attorney general himself. However, the decision to disqualify a district attorney
general or someone on his or her staff rests with the trial judge. State v. Tate,
925 S.W.2d 548, 549-50 (Tenn. Crim. App. 1995).
Based upon the record before us, the appellant made a motion to
disqualify the district attorney general and his office, and the trial judge
mistakenly thought that he did not have the authority to disqualify the district
attorney general or his staff. Although Tate had not been decided at the time of
this case, the trial court can disqualify the district attorney general and his or her
staff if necessary. Tate , 925 S.W.2d at 549. However, the appellant did not
develop or present evidence, such as calling district attorney general McCown as
a witness, to support his argument. Therefore, this issue is without merit based
on the record before us. However, upon a new trial, this issue may be
addressed again if the appellant presents sufficient evidence to support his
argument that the district attorney general and his staff should be disqualified.
See State v. Tate, 925 S.W.2d 548 (Tenn. Crim. App. 1995).
IV. Constitutionality of Tennessee Code Annotated § 40-35-201(b)
The appellant’s issues three through six fall within the realm of jury
instructions and thus are intertwined. We will address each issue raised by the
appellant in his brief, but in an order different from that presented by the
appellant.
At the center of issues three through six is Tenn. Code Ann. § 40-35-
201(b) (Supp. 1995), which follows:
40-35-201. Issue of guilt and sentence to be tried separately --
Instructing jury on possible sentences -- Parole considerations. --
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...
(b)(1) 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.
(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 .1
The appellant asserts that this statute is unconstitutional on the grounds
that it allows the trial judge to charge the jury regarding the facts of a case, that it
violates the separation of powers doctrine of the Tennessee Constitution, and
that it is unconstitutionally vague. Furthermore, the appellant notes in his brief
that the trial court, at the time of the trial in August 1995, also believed that this
statute was unconstitutional because “the statute require[d] the jury to take
something into consideration which ha[d] nothing to do with guilt or innocence as
a factor for their deliberations.” The trial court’s comments about the
constitutionality of the statute are addressed in Section VII.
1
This statute, which was amended in 1994 to add subsection (b)(2), provides for a jury
instruction regard ing a defendant’s r ange of punishm ent. This ame ndment beca me effectiv e on July
1, 1994, more tha n a year before the a ppellant’s trial.
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First, the appellant contends that Tenn. Code Ann. § 40-35-201(b) (Supp.
1995) violates Article VI, Section 9 of the Tennessee Constitution: “The Judges
shall not charge juries with respect to matters of fact, but may state the testimony
and declare the law.” Apparently, the appellant’s argument is that although a
trial court’s instruction regarding a range of punishment for a conviction does not
assume facts, a judge has to assume several facts when advising the jury of the
earliest possible release eligibility date of a defendant. For example, the
appellant argues that the court must consider facts in determining the sentence
range of the defendant, which could include mitigating and enhancing factors, in
advising the jury on the earliest release eligibility date, and thus, this violates
Article VI, Section 9.
Second, the appellant also asserts that this statute violates Article II,
Sections 1 and 2 of the Tennessee Constitution, requiring the separation of
powers into three branches of government. Appellant argues that this statute
permits the legislature to invade the province of the judicial branch of the
government, which is charged with the responsibility of ensuring “that jury
instructions do not compromise the integrity of the jury.”
Third, the appellant also argues that the statute is unconstitutionally
vague, citing Farris v. State, 535 S.W.2d 608 (Tenn. 1976). The appellant notes
that the court in Farris found the statute in that case vague because of the
speculative nature “with respect to certain powers and duties of the Board of
Pardons and Paroles, good behavior allowances, and the allowance of honor
time” in determining parole eligibility. Farris, 535 S.W.2d at 609. He asserts
that his case is analogous to Farris.
The state, however, argues that Tenn. Code Ann. § 40-35-201(b) (Supp.
1995) is constitutional. The state maintains that this statute does not violate
Article VI, Section 9 of the Tennessee Constitution. The state asserts that this
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statute does not require factual assumptions because “[b]y referring to an
objective, abstract, indefinite person, rather than to the specific defendant, the
statute provides that the instruction not contain factual assumptions about the
particular defendant before the jury, but only information as to the absolute
minimum of time which any offender must serve for a given offense.” Also, the
state notes that the information supplied to the jury is furnished by the
Department of Correction pursuant to Tenn. Code Ann. § 40-35-201(b)(2)(B)
(Supp. 1995), and consequently, does not allow “speculation or assumption by
the trial judge.”
The state further contends that the statute does not violate the separation
of powers of Article II, Sections 1 and 2 of the Tennessee Constitution, citing
State v. Cook, 816 S.W.2d 322 (Tenn. 1991). Our Supreme Court in Cook
observed that “[t]he Legislature . . . certainly has the right and power to direct the
judicial process. They have said that where a defendant wants his trial jury to
know the range of possible punishments resulting from convictions that he is
entitled to have that information conveyed to the jury.” Cook, 816 S.W.2d at 327.
Thus, the state asserts that Tenn. Code Ann. § 40-35-201(b) (Supp. 1995) does
not intrude upon the judicial process, and consequently, does not violate the
separation of powers doctrine of the Tennessee Constitution.
With respect to the appellant’s argument that this statute is
unconstitutionally vague, the state argues that because only two members of the
Farris court found the statute “void for vagueness,” Farris is not authority for the
appellant’s argument that Tenn. Code Ann. § 40-35-201(b) is unconstitutional.
This Court has held that Tenn. Code Ann. § 40-35-201(b) is
constitutional. State v. King, No. 02C01-9601-CR-00032 (Tenn. Crim. App. at
Jackson, Oct. 22, 1996), perm. app. granted, (Tenn. Mar. 10, 1997). In King,
this Court noted that at the time Farris was decided in 1976, a jury determined a
defendant’s sentence as well as his or her guilt. Id. at *3. Furthermore, as this
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Court in King noted, the Farris court stated that “[t]he error which we find in the
charge to the jury bears only upon the question of punishment and has no
relation to the jury’s finding of guilt or innocence.” Id. at *3 (citing Farris v. State,
535 S.W.2d 608, 614 (Tenn. 1976)). Like the court in King, I believe that
because the error in the jury instruction in Farris relates only to punishment and
not to guilt or innocence, Farris is not relevant to this case.
Furthermore, this Court in King addressed the issue of whether Tenn.
Code Ann. § 40-35-201(b) (Supp. 1995) allows the legislature to intrude upon
the powers of the judiciary. In that case, this Court observed that “the statute
under consideration in Farris required the trial judge to instruct as regards to
parole eligibility at a time when sentencing was a jury function. . . . [Therefore,]
Farris’ applicability is limited under our current sentencing laws.” Id. at *4. Thus,
I conclude that Farris has limited applicability in this case as well.
Accordingly, I conclude that Tenn. Code Ann. § 40-35-201(b) (Supp.
1995) is constitutional.
V. Timing of Motion Pursuant to Tennessee Code Annotated § 40-35-201(b)
The appellant argues that the trial court erred by not allowing him to
withdraw his request for the sentencing range instruction pursuant to Tenn. Code
Ann. § 40-35-201(b) (Supp. 1995). The pertinent part of the statute follows:
(b)(1) 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 appellant contends that the trial court’s denial for his
request to withdraw the motion violates his due process rights by preventing him
from withdrawing his intent to exercise his statutory right for the jury to know the
range of punishment.
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The state argues that the statute should be interpreted to give effect to the
legislature’s purpose and intent, and that the legislature clearly intended for a
request regarding a range of punishment to be made before the jury is selected.
Further, the state argues that no language in the statute permits a “conditional
motion,” regardless of whether the appellant had “reserved” the right to withdraw
the motion at a later time. Finally, the state notes that although the appellant
argues that his due process rights were affected by the trial court’s denial of his
request to withdraw the motion, he cites no authority for his argument.
This Court has addressed the issue of when a motion pursuant to Tenn.
Code Ann. § 40-35-210(b) (Supp. 1995) may be made. We have held that “the
state [or defense] must be given notice of this request prior to jury selection so
that prospective jurors may be questioned about the effect that knowing the
possible punishment might have upon their verdict.” State v. McIntosh, No. 85-
27-III (Tenn. Crim. App. at Nashville, May 23, 1986) at *4; see also State v.
Bowie, No. 86-212-III (Tenn. Crim. App. at Nashville, Mar. 12, 1987)
In this case, the appellant wanted to withdraw his request well into the
trial. To allow the appellant to do so would prejudice the state’s case. Once the
appellant had been granted his request for the instruction, the state could rely on
the appellant’s request, which, as we have noted, must be made before the jury
is selected. If the trial court had allowed the appellant to withdraw his request
for the instruction, then time would have already passed for the state itself to
move for the instruction. Therefore, we conclude that the denial of the
appellant’s request to withdraw his motion was well within the trial court’s
discretion. This issue is without merit.
VI. Jury Instruction Regarding Possible Release Dates As A Mitigated Offender
Next, the appellant argues that the trial court erred in instructing the jury
regarding the possible release dates on the offense charged and on lesser
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included offenses because the instruction included the possibility that the
appellant could be sentenced as a mitigated offender. The appellant contends
that the trial court erred by charging the jury that the appellant could be released
after 1.77 years. The appellant argues that the trial court erred and gave the
release eligibility date for a mitigated offender and not a Range I, standard
offender, which the appellant was determined to be.
The state maintains that the trial court gave the correct release eligibility
dates for the appellant, who was determined to be a Range I, standard offender.
The state notes that the trial court used the calculations provided by the
Department of Correction pursuant to Tenn. Code Ann. § 40-35-201(b)(2)(B),
and thus instructed the jury that “the minimum number of years a person
sentenced to imprisonment for the offense of Murder in the Second Degree must
serve before reaching his earliest release eligibility date is 1.77 years.”
Although the number “1.77" appears in the box for mitigated offenders, it is not
listed as the minimum figure for a mitigated offender.
Therefore, we agree with the state that the trial court did not err by
instructing the jury on the minimum release eligibility date for a mitigated
offender. We will, however, address the completeness of the trial court’s
instruction to the jury regarding sentencing in discussing the appellant’s next
issue.
VII. Correct and Complete Jury Instruction Pursuant to Tennessee Code
Annotated § 40-35-201(b)
The appellant’s final issue is that the jury inappropriately considered the
jury instructions given as relates to sentencing ranges and truth in sentencing.
He contends that the trial court, which on several occasions stated that it
believed that Tenn. Code Ann. § 40-35-201(b) (Supp. 1995) was
unconstitutional, attempted to correct the statute by deleting the language “weigh
and consider” and adding in its place “for information only.” The appellant
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further argues that despite the trial court’s attempt to correct what it believed to
be an unconstitutional statute, the jury did consider the dates during their
deliberations, which is evidenced by the affidavit of attorney Hershell Koger. Mr.
Koger interviewed several jurors after the trial, and in his affidavit, he states that
the jury did, at least in some measure, discuss and consider the possible
sentences the appellant could receive for the offense charged and any lesser
included offenses.
The appellant further argues that the trial court instructed the jury “in a
manner inconsistent with the statute as it [the trial court] attempted to correct the
unconstitutionality of the statute.” Therefore, the appellant argues that the jury
could not properly consider the sentencing ranges because the instruction was
incomplete. The trial court neglected to include in the jury charge Tenn. Code
Ann. § 40-35-201(b)(2)(A)(ii) (Supp. 1995):
Such instruction 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.
The appellant argues that because the jury considered the truth in sentencing
information and because it did not receive the entire instruction provided in the
statute, his conviction should be reversed.
The state, on the other hand, argues that the trial court correctly rejected
the affidavit of Mr. Koger because it “sets forth only hearsay statements of jurors,
which should not be considered as evidence of what occurred during jury
deliberations.” No juror was willing to sign an affidavit concerning the information
conveyed to Mr. Koger. The state further contends that had the jurors supplied
affidavits, the information in those affidavits would not be grounds to impeach the
jury’s verdict under Tennessee Rule of Evidence 606(b).
With regard to the appellant’s argument that the trial court gave an
incomplete instruction under Tenn. Code Ann. § 40-35-201(b) by deleting
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subsection (b)(2)(A)(ii), the state asserts that this issue is waived because the
appellant did not raise it in his motion for new trial or his amended motion for
new trial. Notwithstanding waiver, the state argues that the omission of this
provision of the statute from the jury instruction “did not render the jury
instructions inaccurate, but at worst incomplete.”
We will first address the trial judge’s comments about the
unconstitutionality of Tenn. Code Ann. § 40-35-201(b) (Supp. 1995) during the
trial and at the appellant’s hearing for a new trial. The trial judge stated during
the trial:
Well, I am of the opinion that the truth in sentencing statute
as it is written -- not the concept particulary [sic] -- but as it is
written is unconstitutional because you will note a change from
my instructions and the statute. The statute says that the jury
shall consider it in their deliberations.
In this court’s opinion to have the jury take in a matter that
has nothing to do with guilt or innocence as a factor for their
deliberations is unconstitutional. I have worded my charge so
that the jury is not instructed, where requested on the range,
that the jury -- that language I leave out of my charge. The
concept I do not think is unconstitutional but the jury may
be informed for their information only but the language of
the statute is and I have in this court declared it unconstitutional.
No one has taken it up.
At the appellant’s hearing for a new trial, the trial judge responded to the
appellant’s argument that he be allowed to withdraw his request for a jury
instruction pursuant to Tenn. Code Ann. § 40-35-201(b) (Supp. 1995) in this
manner:
THE COURT: Didn’t we have a hearing upon this before
the trial began which the court expressed grave concerns both
as to the constitutionality of the statute and didn’t the court say
however, if you ask that I give it that I will have to use -- I will have
to follow the law. I have grave concerns concerning the
constitutionality of the statute. I would attempt to fashion
instructions so as to make the truth in sentencing statute
constitutional.
Didn’t I relate to counsel for the defense before the trial
started you are looking at me tellling [sic] them it may be days
involved?
Later at the hearing for a new trial, the trial judge stated:
With regard to the other issues raised, the court has
some concern and expressed those concerns about
40-35-201. The nature of the court’s concerns will be
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borne out in the transcript of the hearing which was had in
this matter. I believe that the court informed counsel
for the defense it prohibited the State on their motion
for asking for a range of punishment and it is not the
range of punishment -- not the numbers that bothers the
court. It is the statute which says that the jury will be
instructed that they -- for the jury to weigh and consider
the meaning of a sentence of imprisonment for the
offense charged and any lesser included offenses.
The statute says that the judge shall include in its
instructions for the jury to weigh and consider. Well, I
do not understand why a jury is to consider something
that has nothing to do with the guilt or innocense [sic] of
the defendant. To tell the jury they shall consider it
causes the court some great concern. Consequently the
court altered that language and told the jury that these
numbers involved was for their information only. Did not
tell them that they shall consider it.
Counsel for the defense is caught in a catch 22. He
says well, we believe the jury considered this. If they
did they were only following the law. It says they shall
consider it. This court didn’t instruct them to consider it.
The legislature missed the public concern about
truth in sentencing. Rather than informing the juries
as to what the sentence was what they ought to do is
change the law so that a sentence is what it says it is.
Three years is three years or 15 years is 15 years and
not 1.77 years.
I cannot find that the court has committed error. The
court as well as it could brought its concerns to the
attention of trial counsel. The court changed the law
or changed or - - did not follow the instructions
in the statute in an effort to make sure that the jury
considered only the matters that touched upon the
defendant’s guilt or innocence. So I do not know
any more that the court could do. . . .
The court will ask, gentlemen, as an exhibit to
this proceeding since you all did not introduce--
that the sentencing range by class which was given
to the court by the Department of Corrections dated
6-29-94 which I would ask that a copy of that be made
an exhibit to these proceedings so that the court of
appeals will know from whence those numbers came from.
...
There are-- the sentencing issues will be an interesting
matter for the court of appeals to address. We attempted
to get a case that was perhaps not quite as serious as this
one to frame these issues so that they could rule upon
that statute. I do not believe however that the statute--
in the court’s mind the statute has some severe problems
but the court did not follow the statute in it’s [sic] charge
to the jury.
This Court has held that Tenn. Code Ann. § 40-35-201(b) (Supp. 1995) is
constitutional. See Section IV for that discussion.
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With respect to the jury charge pursuant to Tenn. Code Ann. § 40-35-
201(b) (Supp. 1995), the trial judge’s comments while hearing pretrial motions
follow:
THE COURT: You are aware that the legislature in their
truth in sentencing requires the court to charge on the first
possible time that a person could be released. That is what
the court has been doing on -- I know on a recent case that we
had that was an aggravated assault case it worked out to like
51 days. I want you to be aware that is what the court
charges. I break mine down in days. I think it is easier
to understand than .1 years.
MR. MASSEY: Yes, sir, I understand that. W hile we
are on jury instructions, Judge, if you don’t mind me
asking would there be a point in time where defense
counsel could get a copy of what you would be
charging?
THE COURT: Yes, somewhere close to the State’s case
the court will provide both parties with a proposed charge.
Of course a lot of things at that juncture I don’t know how to
charge. Whether your client is going to take the stand or
not, but generally after the close of the State’s case I
am in a position to formulate a proposed charge which I
will give both parties a rough draft copy to inspect and
most of the time depending upon progress of the trial I
will provide the parties with a final draft before it is
charged to the jury.
MR. MASSEY: Yes, sir. As far as requested charges
just so I don’t miss any deadlines I know if we have any
is it the court’s preference that we go ahead and get the
requested charges filed immediately so that you could
see what we were requesting? I looked at the local
rules. I didn’t see anything in there about instructions.
THE COURT: There used to be a local rule here
that you had to have those in within five days
preceding the trial. I understand that during the course
of the trial that things change. I do not require that
any more since I have the use of a computer system
it is not as onerous on the trial court to develop a set
of charges.
If it is something -- I would appreciate and it is not
required-- if it is something that-- especially if you want
to deviate from the pattern jury instructions that you
file those in advance if you can to give me an
opportunity to do a little research before the court
makes a ruling on that.
I also charge for your information if you want to
start looking now, I generally charge the plain
language charges that you will find in the most
recent addition [sic] of the pattern jury instructions.
The Tennessee Pattern Jury Instruction2, Criminal No. 43.11 for the range
of punishment follows:
2
The com ment accom panying this pattern jury ins truction advises the trial judge to “refer to
the charts provided by the Department of Correction and accompanying notes for information
concerning the calculation of the minimum sentence.” Tennessee Pattern Jury Instruction, Criminal
No. 43.11, cmt. 1.
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The jury will not attempt to fix any sentence. However,
you may weigh and consider the meaning of a sentence of
imprisonment. The range of punishment for the crime(s)
involved herein is as follows:
(Charge range of punishment as set forth in the
Sentencing Act.)
You are further informed that the minimum number of
years a person sentenced to imprisonment for (this/these)
offense(s) must serve before reaching the earliest release
eligibility date is:
(Insert appropriate minimum sentence as set forth by
the Department of Correction grid.)
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 Parole and is based on many
factors. The Board of Parole has the authority to require a
defendant to serve the entire sentence imposed by the Court.
(emphasis added).
In the case sub judice, the trial court’s instruction to the jury regarding
ranges of punishment pursuant to Tenn. Code Ann. § 40-35-201(b) (Supp. 1995)
follows:
The Jury will not attempt to fix any punishment or sentence,
as by law this is a matter that now addresses itself to the Court.
However, for you [sic] information only, you are informed that
the ranges of punishment as to the crimes involved herein are
as follows:
As to the offense of Murder in the First Degree, this
offense is punishable by imprisonment in the penitentiary for
life. The minimum number of years a person sentenced to
imprisonment for the offense of Murder in the First Degree
must serve before reaching his earliest release eligibility
date is 25 years.
As to the offense of Murder in the Second Degree, this
offense is punishable by imprisonment in the penitentiary
for a determinate sentence of not less than fifteen (15) years
nor more than twenty-five (25) years and in addition thereto, the
Jury may impose a fine in any amount not greater than fifty
thousand dollars ($50,000). The minimum number of years
a person sentenced to imprisonment for the offense of Murder
in the Second Degree must serve before reaching his earliest
release eligibility date is 1.77 years.
As to the offense of Voluntary Manslaughter, this offense is
punishable by imprisonment in the penitentiary for a determinate
sentence of not less than three (3) years nor more than six (6)
years and in addition thereto, the Jury may impose a fine in any
amount not greater than ten thousand dollars ($10,000). The
minimum number of days a person sentenced to imprisonment
for the offense of Voluntary Manslaughter must serve before
reaching his earliest release eligibility date is 138 days.
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This Court addressed a similar question regarding a jury instruction
pursuant to Tenn. Code Ann. §§ 40-35-201(b)(1), -(b)(2)(A)(I) in State v. King,
No. 02C01-9601-CR-00032 (Tenn. Crim. App. at Jackson, Oct. 22, 1996), perm.
app. granted, (Tenn. Mar. 10, 1997). The jury instruction given in that case
follows:
The jury will not attempt to fix any punishment or sentence
for these offenses. However, for your information only, you
are informed that the ranges of punishment as to the offenses
are as follows:
AGGRAVATED BURGLARY--imprisonment for not less
that [sic] three (3) years nor more than fifteen (15) years.
You are further informed that the minimum number of
years a person sentenced to imprisonment for these offenses
must serve before reaching the earliest release eligibility
date (RED) is:
AGGRAVATED BURGLARY 3 YEARS
RED % 30%
RED % APPLIED 0.90 yrs.
W/MAX CREDITS 0.59 yrs.
SAFETY VALVE 0.54 yrs.
SAFETY VALVE & MAX CREDITS 0.35 yrs.
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 Paroles and
is based on many factors. The Board of Paroles has the
authority to require a defendant to serve the entire
sentence imposed by the Court.
This Court held in King that the trial court did not err in its jury instruction,
finding that “[t]he trial court followed the requirements of the applicable statute as
to what must be included in an instruction considering punishment of a
defendant.” Id. at *3.
A defendant has a constitutional right to a correct and complete charge of
the law. State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). A defendant has a
right to have every issue of fact raised by the evidence and material to his or her
defense submitted to the jury on proper instructions. Poe v. State, 370 S.W.2d
488, 489 (Tenn. 1963). This Court must review the entire charge and only
invalidate it if, when read as a whole, it fails to fairly submit the legal issues or
-25-
mislead the jury as to the applicable law. State v. Phipps, 883 S.W.2d 138, 142
(Tenn. Crim. App. 1994).
Based upon the record before us, the trial court obviously believed that
Tenn. Code Ann. § 40-35-201(b) (Supp. 1995) was unconstitutional, and as the
appellant noted in his brief and as the trial court stated in its own comments, the
trial court attempted to “correct” the statute. However, in its attempt to “correct”
the statute, the trial court failed to give a correct and complete jury instruction
pursuant to the statute or Tennessee Pattern Jury Instruction, Criminal No. 43.11
regarding the range of punishment.
Unlike the trial court in King, the trial court in this case failed to charge the
jury pursuant to Tenn. Code Ann. § 40-35-201(b)(2)(A)(ii), a provision of the
statute beneficial to the appellant. This subdivision of the statute, when included
with the other information required by the statute, clearly indicates that whether
an individual is released from incarceration on his earliest release eligibility date
is “a discretionary decision made by the board of paroles.” To completely delete
this subdivision of the statute from the jury instruction undoubtedly gives an
inaccurate statement of the law and misleads the jury regarding the likelihood of
when a defendant would be released. Also, the trial court, unlike the court in
King, stated only the lowest number in the grid (i.e., the number of years,
including the safety valve and maximum credits if applied) as the earliest
release eligibility date. Consequently, I conclude that the trial court erred in its
instruction to the jury pursuant to Tenn. Code Ann. § 40-35-201(b) (Supp. 1995)
because the jury instruction misled the jury as to the applicable law.
I must note that the trial court in King not only included the subdivision in
the statute that states whether a defendant is actually released from
incarceration is a discretionary decision by the Board of Parole based on many
factors, but also included all the information provided in the Department of
Correction grid, thereby giving a far more accurate picture of the defendant’s
-26-
likelihood of release from incarceration than did the jury instruction given in this
case.
With respect to the state’s contention that this issue is waived and that the
jury instruction was “at worst incomplete,” I must note that the appellant’s failure
to raise this issue in his motion for new trial does not waive this issue. This
Court may, pursuant to Tennessee Rule of Criminal Procedure 52(b), notice “[a]n
error which has affected the substantial rights of an accused . . . at any time,
even though not raised in the motion for a new trial or assigned as error on
appeal, in the discretion of the appellate court where necessary to do substantial
justice.” Because the jury instruction as given failed to conform to the statute or
the pattern jury instruction and thereby misled the jury as to the applicable law, I
find plain error in the jury instruction. Having found plain error, I, therefore, need
not address the issue of impeaching the jury’s verdict.
VIII. Conclusion
We respectfully reverse the judgment of the trial court and order that the
appellant be granted a new trial.
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______________________________
PAUL G. SUMMERS, Judge
CONCUR:
(Separate Concurring Opinion)
______________________________
DAVID G. HAYES, Judge
(Separate Concurring Opinion)
______________________________
JERRY L. SMITH, Judge
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