The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
DECEMB ER SESSION, 1998 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. CO LTO N, JR.,
GARY ANTONIO JOHNSON, ) JUDGE
)
Appe llant. ) (SECO ND DE GREE MUR DER)
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES CURBO JOHN KNOX WALKUP
P.O. Box 322 Attorney General & Reporter
Memphis, TN 38101-0322
DOUGLAS D. HIMES
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenu e North
Nashville, TN 37243
JOH N W. P IERO TTI
District Attorn ey Ge neral
DANIEL WOODY
Assistant District Attorney General
Criminal Justice Center, Suite 301
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defenda nt, Gary Antonio Johnson, appeals as of right his conviction of
second degree murder following a jury trial in the Shelby County Crimina l Court.
The trial court sentenced Defendant as a Range I Standard Offender to twenty-two
(22) years in the Department of Correction. In this appeal, Defendant a rgues that
the trial court erred in its instruction on range of punishment. After a careful review
of the reco rd, we affirm the judgm ent of the tria l court.
A brief summary of the facts reveals that during the morning of May 10, 1996,
Ray Lee, the victim, and his brother, Harold Lee, went to the “Chinese store” on the
corner of Trigg and W ellingto n to bu y a bee r. Defe ndan t (“Little Tony”) was on the
other side of the street in front of S & M Grocery. The victim and Defendant
exchanged words. Shortly thereafter, gunfire erupted with Defendant firing two
pistols at the victim and the victim firing a rifle at Defendant. No one was injured
during th is incident.
Two witnesses testified that after the morning incide nt, De fenda nt and his
uncle, Wa lter Farmer (“Little W alter”), drove by the home of victim’s mother at 406
Lucy in Memphis, Tennessee. Farmer called ten-year-old Corey House to the car
and told him that they had something for his brother, the victim. Defendant and
Farm er displaye d their we apon to the boy a nd then drove off.
Later that same afternoon, the victim w as talking to James Weston near the
corner of Wellington and Cambridge. Weston’s rear window of h is car had been
shot-out by the victim in the morning gunfight. At some point, Defendant, his uncle,
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Anwar L. Odom (Lavell), and Greg Williams (“Little Greg”) pulled up in their car and
gunfire erupted again. This time the victim was hit by the gunfire and fell to the
ground. Defendant was shooting a .12 gauge pump shotgun during the gunfire
exchange . Defendan t and the other m en then fled the s cene in their car.
The police recovered nine spent shotgun shells, eight nine-millimeter casings,
two spent bullets and one live nine-millimeter round. It was determined that the
victim was shot three times and d ied as a resu lt of thos e wou nds. T he victim
received one g unsh ot wou nd wh ich wa s a “fles h wou nd.” T he victim also had two
shotgun wounds which caused extensive damage to his lungs, heart, liver, spleen,
and intestines. T hese wou nds were tes tified to as being “very lethal.”
On May 13, 1996, Defendant turned himself in to the police. Defendant was
advised of his cons titutional rights and the n gave th e officers a five page statem ent.
In his statement, Defendant confessed to shooting the victim three or four times.
Defendant described the early morning incident at Trigg and Wellington, and the
final shootout at Wellington and Cambridge. Defendant stated the following:
So, me, Lavell, W alter, and Lil’ Greg, we were fixin’ [to] go
up there and talk to my momma. Soon as we hit the
corner, we see Ray Lee [victim] leaning in the door of the
truck, and the other dude was leaning on the back bed of
the truck. So, w hen we stoppe d, the other dude pointed
at the little junkie car we were in. Then Ray [the victim]
pulled out his pistol and git [sic] to shooting. We jumped
out [of] the car righ t there. I just ran in the street and
started shooting. He [the victim] fell an d we ran back to
the car.
At trial, Defendant denied driving by the victim’s mother’s house on the
morning of the murder. As to the last shootout, Defendant stated that his group was
armed when they got into the car. He said he had a shotgun, Farmer had a .380
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caliber pistol, W illiams had a shotgu n, and Lavell had a nine -millim eter pis tol.
Defendant said he took a shotgun because he could shoot it better than the
automatics. Defendant denied that they went out lookin g for the victim . Defendant
admitted shooting the victim while the victim was on the ground because “he [the
victim] was shooting at me.” Defendant did reconfirm his previous statement given
to the police. The jury found Defendant guilty of second degree murder. On
January 12, 1998, the trial court sentenced Defendant to twenty-two years as a
Range I Standard O ffender.
In this appeal, Defendant specifically raises the following issue:
Did the Trial Court err in charging the jury on the range of
punishment with an inclusion of eligibility of
parole/suspension of sentence included regarding range
1 only, particularly when there was no written or oral
request by either the state of [sic] the D efendant prior to
the jury being selected or otherwise?
In Defe ndan t’s brief, he argues that he was prejudiced by the range of punishment
instruction in two respects: (1) “it did not explain both the minimum and maximum
credits, but only listed the maxim um cre dits;” and (2) it “did not instruct the jury that
the range of punishment for manslau ghter is 3 to 15 yea rs, but instructed the jury
that the range of punishment was 3 to 6 years.” Defendant further contends that the
trial court erred in even charging the jury with any range of punishment when neither
he nor th e State re queste d the instru ction pre-tria l as require d by statu te.
At the tim e of De fenda nt’s trial, T enne ssee Code Anno tated s ection 40-35-
201(b) provided the following:
(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
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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 pursu ant to s ubdivis ion (b)( 1), the ju dge s hall
also include in the instructions for the jury to weigh and
consider the me aning o f a senten ce of imp risonm ent for
the offens e cha rged a nd an y lesser included offenses.
Such instruction shall include an approxim ate calculation
of the minimu m num ber of years a pe rson sente nced to
imprisonment of the offense charged and lesser included
offenses must serve b efore reach ing su ch pe rson’s
earliest releas e eligib ility date. S uch c alcula tion sh all
include such factors as the release eligibility percentage
estab lished 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 autho rity to require the defendan t to serve
the entire s entenc e impo sed by th e court.
On May 1, 1998, Tennessee’s General Assembly passed Public Chapter No.
1041, an amendment to § 40-35-201, which deletes the foregoing subs ection (b) in
its entirety and provide s that th e trial co urt sha ll not inst ruct the jury on p ossib le
penalties for the offense charged nor lesser included offenses. This amendment
applies to all trials occu rring after the Act’s effec tive date. H oweve r, since
Defe ndan t’s trial was held in 1997, the former subsection (b) applies. Our supreme
court has upheld the constitutionality of jury instructions given pursuant to former
Tennessee Code Annota ted sectio n 40-35 -201(b). State v. King, 973 S.W.2d 586
(Tenn. 19 98).
The trial court’s instruction in the case sub judice on range of punishment
provided:
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The jury will not attemp t to fix any sentence . However,
you may weigh and consider the meaning of a sentence of
imprison ment. The ra nge of punis hment for the crimes
involved herein is as follows:
The punishm ent for murde r in the first degre e is
imprisonm ent for life in the penitentiary.
The punishment for m urder in the se cond degre e is
imprisonment in the penitentiary for not less than fifteen
(15) nor more than twenty-five (25) years.
The punishment for voluntary manslaughter is
imprisonment in the penitentiary for not less than three (3)
nor more than six (6) years.
You are further informed that the minimum number of
years a person sentenced to imprisonment for these
offenses must se rve before reaching the earlies t release
eligibility date is:
MURDER FIRST DEGREE
A defendant who receives a sentence of imprisonment for
life shall not be eligible for releas e until the defendant has
served at least fifty-one (51) years of such sentence.
MURDER SECOND DEGREE
A defendant convicted of murder in the Seco nd De gree is
not eligible for early release.
VOLUNTARY MANSLAUGHTER
3 YRS.
RED% 30%
RED% APPLIED 0.90 yrs.
W/MAX CREDITS 0.59 yrs.
SAFETY VALVE 0.54 yrs.
S.V. & MAX CREDITS 0.35 yrs.
Wh ether a defen dant is actually released from incarceration on
the date when first eligible for releas e is a discretionary decision
made by the Boa rd of Paro le and is b ased o n man y factors. The
Board of Parole has the authority to require a de fendant to serve
the entire s entenc e impo sed by th e Cou rt.
First, Defendant contends that the trial court erred in not instructing the jury
on the number of years before release eligibility based on the minimum credits.
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In compliance with the statute, the trial court informed the jury as to the shortest and
longest poss ible sentences as a Range I Standard Offender for each offense
charged to the jury. Additionally, the trial c ourt ins tructed the jury o n Def enda nt’s
earliest release eligibility date without credits applied, with maximum credits applied,
with the safety valve applied, and with both the maxim um cre dits and th e safety
valve applied. See Tenn. C ode Ann . § 40-35-201 (b)(2)(A)(i). Although the trial court
did not sp ecifica lly use th e phra se “m inimu m cre dits,” it did give the sentence without
credits, which is e ssentially the minim um. W e find that th e trial court tracked the
language of the statute and that the jury was properly instructed on range of
punish ment. See also King, 973 S.W.2d 586.
Second ly, Defendant argues that the trial court should have instructed the jury
that the range of punishment for manslaughter is three to fifteen years, not three to
six years. The trial cou rt instructed the jury as to what punishmen t would be for a
Range I Standard Offender convicted of voluntary manslaughter (three to six years).
Defendant did no t qualify fo r an en hanc ed pu nishm ent ran ge, so the trial court
correc tly instructed the jury as to Rang e I pun ishm ent. D efend ant wa s even tually
convicted of second degree murder and sentenced as a Range I Standard O ffender.
We canno t see how the cour t’s instruction on voluntary manslaughter prejudiced
Defen dant, especially in light of the fact that had he been con victed of voluntary
manslau ghter, he would have bee n sen tence d as a Rang e I Stan dard O ffende r in
which case the trial court’s instru ction wou ld have b een ap plicable a nd corre ct. See,
e.g., State v. S mith, 926 S.W .2d 267 (Tenn . Crim. A pp. 199 5).
Finally, the record indicates that neither party even requested a range of
punishment instruction prior to trial as required by Tenn. Code Ann. § 40-35-
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201(b)(1). However, the trial court engaged counsel in the following discussion prior
to closing arguments:
The Court: Lawyers, did you get a copy of any of that [the
charge ]?
Mr. Cu rbo [D efend ant’s la wyer]: Y es, sir
The Court: All right. We’re going to put the tim e amo unts
-- amou nts of time and eve rything tha t
people -- that the de fendan t could po ssibly get o n all of
these various --
Mr. Curbo [Defendant’s lawyer]: Are you talking about the
full range, Judge?
The Court: Um-hum.
Counsel for Defendant did not object at anytime. Also, counsel made no
objection to the range of punishment instruction before or after it was given to the
jury. The first time counsel challenged the instruction was at the sentencing hearing,
and the n only as to the cons titutionality of the statute.
The instruction in this case was accurate and Defendant has failed to show
any prejudice resulting from the instruction. In State v. Ray Vance, the rec ord did
not reflect that e ither part y filed a request for range of punishment prior to the
seating of the jury. C.C.A. No. 01C01-9610-CC-00425 , slip op. at 10, Stewa rt
Coun ty (Tenn . Crim. A pp., Nas hville, Dec. 3 , 1997), perm. to appeal denied (Tenn.
1998). Nevertheless, a range of punishment instruction was charged without
objection. Id. In con cludin g that th e error was h armle ss, a p anel o f this Court stated
the following:
W e fail to see how the instruction, which was available as
a matter of right to either party and which contained no
information which has been shown to be inaccurate,
prejudice d the de fendan t.
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Id. As in Vance, any error in the case sub judice in charging range of punishment
absent the statuto rily requ ired req uest is harmle ss beyo nd a rea sonab le doub t. Id.;
Tenn. R . App. P. 36(b); T enn. R. Crim . P. 52(a).
Based on all the foregoing, the judgment of the trial court is affirmed.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
GARY R. WA DE, Presiding Judge
___________________________________
JOHN EVERET T WILLIAMS, Judge
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