# State v. Gary Johnson > Court of Criminal Appeals of Tennessee · April 26, 1999 URL: https://www.frixlaw.com/law-library/cases/1081451 ## Case - **Court:** Court of Criminal Appeals of Tennessee - **Decided:** April 26, 1999 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1081451 ## Opinion text 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, -2- 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 -3- 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 -4- 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: -5- 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. -6- 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- -7- 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. -8- 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 -9- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1081451. Public record. Not legal advice.