State v. Gary Johnson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
DECEMBER SESSION, 1999
April 26, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9803-CR-00082
)
Appellee, ) SHELBY COUNTY
)
V. ) HON. JOHN P. COLTON, JR.,
) JUDGE
)
GARY ANTONIO JOHNSON, ) (SECOND DEGREE MURDER)
)
Appellant. )
DISSENTING OPINION
I would reverse and remand for a new trial under the rationale
presented in State v. Jason M. Weiskopf, No. 02C01-9611-CR-00381 (Tenn. Crim.
App., at Jackson, Dec. 4, 1998), app. for perm. to appeal filed (Feb. 3, 1999). In
State v. King, 973 S.W.2d 586 (Tenn. 1998), our supreme court ruled that the
charge on parole eligibility and early release was acceptable because the jury was
provided the instruction on an "information only" basis. In my view, juries should not
be allowed to weigh and consider parole eligibility in the context of innocence or
guilt. In Weiskopf, this court found plain error because the jury was instructed they
could "weigh and consider the meaning of a sentence of imprisonment." Weiskopf,
No. 02C01-9611-CR-00381, slip op. at 8 (Tenn. Crim. App., at Jackson, Feb. 4,
1998). Our supreme court granted the state's application for permission to appeal
and remanded the cause to this court for reconsideration in light of King. Weiskopf,
No. 02-C-02-9611-CR-00381 (Tenn., Nov. 2, 1998). On remand, Judge Joe G.
Riley, writing for the panel, distinguished the jury instruction in King and, adhering to
the reasoning of the initial opinion, reversed the conviction, and remanded for a new
trial. Weiskopf, No. 02C01-9611-CR-00381 (Tenn. Crim. App., at Jackson, Dec. 4,
1998), perm. to app. filed by state (Feb. 3, 1999).
Under our law, the jury determines the guilt or innocence of the
accused but does not determine the length of imprisonment. Weiskopf, slip op. at 5
(Dec. 4, 1998); Tenn. Code Ann. § 40-35-201(a). An instruction to "weigh and
consider" sentencing information is constitutionally infirm because the jury is
permitted to base its decision on information other than that adduced at trial.
Weiskopf, slip op. at 5 (Dec. 4, 1998). Moreover, the error in giving the instruction in
this instance was not harmless. That the defendant killed the victim is not disputed.
The primary issue at trial, however, was the degree of homicide. The defendant
presented testimony that the victim was shooting at him while he fired the fatal
shots. The victim and the defendant had exchanged gunfire earlier in the day.
Defense counsel argued that the defendant acted in self-defense; however, a
mutual combat instruction was included in the traditional jury instruction for voluntary
manslaughter:
For you to find the defendant guilty of [voluntary
manslaughter], the state must have proven beyond a
reasonable doubt the existence of the following
elements:
***
(1) that the killing resulted from mutual combat or the
excitement and heat of passion arising therefrom.
Mutual combat means the[re] must be a mutual intention
to fight and deadly or dangerous weapons must be used.
From all of this, I am unable conclude that the release eligibility jury instruction had
no impact on the jury.
___________________________
Gary R. Wade, Presiding Judge
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