The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBER 1998 SESSION
FILED
November 20, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9711-CR-00443
Appellee, )
) Shelby County
V. )
) Honorable W . Fred Axley, Judge
RECO R. DOUGLAS, )
)
Appellant. ) (First-degree felony murder)
FOR THE APPELLANT: FOR THE APPELLEE:
A C Wharton John Knox Walkup
Shelby County Public Defender Attorney General & Reporter
Tony N. Brayton Marvin E. Clements, Jr.
Assistant Public Defender Assistant Attorney General
201 Poplar Avenue, Suite 201 425 Fifth Avenue North
Memphis, TN 38103 Nashville, TN 37243
(on appeal)
William L. Gibbons
Trent R. Hall District Attorney General
Assistant Public Defender
201 Poplar St., Ste. 2-01 Edgar A. Peterson IV
Memphis, TN 38103 Assistant District Attorney General
(at trial) 201 Poplar Avenue, Suite 301
Memphis, TN 38103
OPINION FILED:____________________
REVERSED AND REMANDED FOR A NEW TRIAL
PAUL G. SUMMERS,
Judge
OPINION
The defendant was charged with first-degree murder during the perpe-
tration of a robbery and convicted of that offense by a jury. He was sentenced to life
imprisonment. In this direct appeal the defendant raises the following issues:
1. Whether the trial court erred in its instruction to the jury
on release eligibility dates;
2. Whether T.C.A. § 40-35-201(b)(2)(A)(I) (1997) is uncon-
stitutional; and
3. Whether the evidence is sufficient to support the ver-
dict.
The state correctly concedes that this case must be reversed and remanded for a new
trial because the trial court committed reversible error in its instruction to the jury on
release eligibility dates.
FACTS
According to the defendant's statement to the police, he and a friend
named Dion decided on December 3, 1994, to rob “[a]nybody we see with something.”
They saw the victim's apartment door open and entered it. The victim, Jack Rouse,
“ran towards Dion” and the defendant shot him once in the stomach with a sawed-off
.410 shotgun. Dion then took the gun and hit Rouse in the head with the gun barrel.
The two assailants then took approximately nine dollars in change and the victim's
beeper and ran out of the apartment.
Other proof established that the victim called his neighbors and 911.
The police and emergency medical personnel arrived and the victim was taken to the
hospital. He subsequently bled to death from a severed aorta caused by the shotgun
wound to the abdomen. Fifteen shotgun pellets were recovered from Rouse's
abdomen.
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Several days later the police found the defendant, recovered the victim's
beeper from his person and took his statement. The defendant's ex-girlfriend testified
at trial that the defendant had also confessed the murder and robbery to her after he
was in jail.
ANALYSIS
The defendant first contends that the trial court erred in its instruction to
the jury on parole eligibility dates.1 The trial court instructed the jury as follows:2
The jury will not attempt to fix any punishment or sentence
for [the defendant's] offenses. However, for your
information only, you are informed that the [range] of
punishment as to . . . Murder in the First Degree During the
Perpetration of a Robbery [is] imprisonment for life with
parole.
...
You are further informed that the minimum number of
years a person sentenced to imprisonment for [this
offense] must serve before reaching the earliest release
eligibility date (RED) is:
...
RED % 30%
RED % Applied 4.50 years
W[ith] Max[imum] Credits 2.95 years
Safety Valve 2.70 years
Safety Valve & Max[imum] Credits 1.77 years
The trial judge further instructed the jury with explanations for the terms “RED %,”
“RED % Applied,” “With Max[imum] Credits,” “Safety Valve,” and “Safety Valve &
Max[imum] Credits.” He then told the jury that “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
1
T.C.A. § 40-35-201(b)(2)(A)(I) (1997) provides that “[w]hen a charge as to possible penalties has
been requested pursuant to subdiv ision (b)(1), the judge s hall also include in the in structions 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 b y § 41-21-236 and the governor's po wer to reduce pris on overcrow ding pursuant to title
41, chapter 1, part 5, if app licable.”
2
The actual charge to the jury was not transcribed. The record contains a copy of the written
charge, however, from which we quote.
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Paroles has the authority to require a defendant to serve the entire sentence imposed
by the Court.”
As pointed out by the defendant, persons sentenced to life imprisonment
for first-degree murder must serve at least twenty-five full calendar years before
becoming eligible for parole. See T.C.A. § 40-35-501(h)(1). Furthermore, our criminal
code requires a trial court to instruct the jury in a first-degree murder case that a
defendant receiving a life sentence shall not be eligible for parole until he has served
at least twenty-five full calendar years of his life sentence. See T.C.A. § 39-13-
204(e)(2).
In State v. Cook, 816 S.W.2d 322 (Tenn. 1991), the jury was mistakenly
instructed that the defendant's range of punishment was Range I when the
defendant's crimes were statutorily required to be sentenced at Range II. Our
Supreme Court held that T.C.A. § 40-35-201(b) “gives a defendant a claimable
statutory right to have the jury know the range of punishment applicable to the
charges before deciding guilt or innocence.” Id. at 326. It further held that this right
“would be lost if the defendant were to be sentenced to punishments greater than
what the jury finding guilt was instructed would be imposed” and that denying the
defendant this right “constitutes prejudice to the judicial process, rendering the error
reversible under Rule 36(b) T.R.A.P.” Id. at 327.
In the instant case, the trial court did not err in its instruction to the jury
on range of punishment. However, the instructions did inform the jury that the
defendant could be released on parole in less than two years when he was, in fact,
ineligible for parole until after serving twenty-five years. This case is distinguishable
from those in which the defendant is eventually determined to be a Range II offender
but the jury was instructed on the minimum Range I sentence and the maximum
Range II sentence. See, e.g., State v. Smith, 926 S.W.2d 267, 271 (Tenn. Crim. App.
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1995). In those cases, the defendant may indeed become ineligible for a Range I
sentence upon later proof submitted at the sentencing hearing. At the time of trial,
however, such defendants' sentencing status has not been established and the state's
proof for a higher range may fail. In other words, in those cases, the instructed
minimum sentence is still a possibility. In this case, the defendant was ineligible for
parole before serving twenty-five years at the time of trial. Because the defendant
could not, under any circumstances, be eligible for release in 1.77 years, he was
subjected, in effect, to a greater sentence than that about which the jury was
informed.
Also, the jury in this case was instructed not only on the offense of first-
degree felony murder but also on the lesser offenses of reckless homicide and
criminally negligent homicide. As the Cook court recognized, “It is widely perceived by
those who observed the operations of our trial courts in previous times, when juries
had the additional responsibility of setting punishment, that often they seemed to find
guilt of a crime not necessarily most strongly suggested by the evidence, but one the
punishment for which suited their sense of justice in the case.” Cook, 816 S.W.2d at
326. In the instant case, it is conceivable that, had the jury known that a first-degree
murder conviction carried a minimum service of twenty-five years, it would have
chosen to convict the defendant of a lesser offense. Cf. State v. Winford Lee Pipkin,
No. 01C01-9605-CR-00210 (Tenn. Crim. App. filed Dec. 4, 1997, at Nashville) (where
no lesser offenses were charged to the jury, the trial court's failure to inform the jury
that the defendant would not be eligible for sentence reduction credits did not
constitute reversible error).
In State v. Jerry Ray Cooper, No. 01C01-9604-CC-00150 (Tenn. Crim.
App. filed Nov. 17, 1997, at Nashville), this Court considered a jury charge given
pursuant to T.C.A. § 40-35-201(b) which included the minimum release eligibility date
but omitted the paragraph stating that the Board of Paroles has the authority to
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require the defendant to serve his entire sentence. As a result, the trial court had
thereby given “an inaccurate statement of the law and mis[led] the jury regarding the
likelihood of when [the] defendant would be released.” Accordingly, this Court
reversed the conviction and remanded the case for a new trial. 3
The instructional error committed in this case was similarly misleading to
the jury. The jury was informed that, even if it convicted the defendant of the greatest
offense with which he was charged, he could be paroled in less than two years.
Misinformation of that magnitude resulted in prejudice to the judicial process. See
T.R.A.P. 36(b). Accordingly, we have no choice but to reverse the conviction below
and remand this matter for a new trial.
In his next issue, the defendant challenges the constitutionality of the
statute under which a jury is instructed about the range of punishments for the
offenses charged, T.C.A. § 40-35-201(b)(2)(A)(I) (1997). Our Supreme Court has
recently addressed this issue and found the statute constitutional. State v. King, 973
S.W.2d 586, 592 (Tenn. 1998). This issue is, therefore, without merit.
Finally, we address the defendant's contention that the evidence is not
sufficient to sustain his conviction. A defendant challenging the sufficiency of the
proof has the burden of illustrating to this Court why the evidence is insufficient to
support the verdict returned by the trier of fact in his or her case. This Court will not
disturb a verdict of guilt for lack of sufficient evidence unless the facts contained in the
record and any inferences which may be drawn from the facts are insufficient, as a
matter of law, for a rational trier of fact to find the defendant guilty beyond a
reasonable doubt. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). We
must review the evidence in the light most favorable to the prosecution in determining
3
We note that two separate concurring opinions in this case reached this result based on finding the
statute unconstitutiona l.
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whether “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We do
not reweigh or re-evaluate the evidence and are required to afford the state the
strongest legitimate view of the proof contained in the record as well as all reasonable
and legitimate inferences which may be drawn therefrom. See State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978).
Questions concerning the credibility of witnesses, the weight and value
to be given to the evidence, as well as factual issues raised by the evidence are
resolved by the trier of fact, not this Court. See id. A guilty verdict rendered by the
jury and approved by the trial judge accredits the testimony of the witnesses for the
state, and a presumption of guilt replaces the presumption of innocence. See State v.
Grace, 493 S.W.2d 474, 476 (Tenn. 1973).
The proof in this case established that the defendant confessed at least
twice to the crime of which he was convicted. Testimony and physical evidence
corroborated these confessions. See Ashby v. State, 139 S.W. 872, 875 (1911)
(holding that confessions corroborated by other evidence, direct or circumstantial, will
support a conviction). The proof of the defendant's guilt is not only sufficient, it is
overwhelming. This issue is without merit.
For the reasons set forth above, the defendant's conviction is reversed
and this matter is remanded for a new trial.
_____________________________
PAUL G. SUMMERS, Judge
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CONCUR:
___________________________
DAVID H. WELLES, Judge
___________________________
JOE G. RILEY, Judge
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