The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
NOVEMBER 1997 SESSION
FILED
February 4, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) NO. 02C01-9611-CR-00381
Appellee, )
) SHELBY COUNTY
VS. )
) HON. ARTHUR T. BENNETT,
JASON M. WEISKOPF, ) JUDGE
)
Appellant. ) (First Degree Murder)
FOR THE APPELLANT: FOR THE APPELLEE:
LESLIE I. BALLIN JOHN KNOX WALKUP
MARK A. MESLER Attorney General and Reporter
200 Jefferson Avenue, Suite 1250
Memphis, TN 38103 ELIZABETH T. RYAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
THOMAS D. HENDERSON
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103
OPINION FILED:
REVERSED AND REMANDED
JOE G. RILEY,
JUDGE
OPINION
Defendant, Jason M. W eiskopf, was convicted by a Shelby County jury of
premeditated first degree murder and sentenced to life imprisonment. He presents
the following issues for our review:
(1) whether the evidence was sufficient to support the
conviction for premeditated first degree murder;
(2) whether the trial court erred in allowing the
admission of photographs of the victim's body; and
(3) whether the trial court erred in charging the jury on
parole eligibility.
Finding plain error in the parole eligibility jury charge, we REVERSE the judgment
of the trial court and remand for a new trial.
FACTS
The state’s proof revealed that the defendant and the victim were both
employed at the Ridgeway McDonald’s in Memphis. On September 13, 1994, a day
prior to the homicide, the defendant and the victim had a verbal altercation in the
cooking area. That night the defendant told a fellow employee, Cornelius
Buchanan, that he intended to shoot the victim the next morning since he was tired
of being called “bitches and whores” by the victim.
The next morning at approximately 2:50 a.m., Mary Lee, the opening
manager for McDonald’s, arrived at the Ridgeway location to prepare for the 5:00
a.m. opening. Both the defendant and the victim were scheduled to report at 4:00
a.m.
Shortly before 4:00 a.m., Jafus Miller, another employee, heard three (3)
shots while he was sitting in his vehicle. He assumed, however, that they were
firecrackers. Lee also heard a noise about that time, yet did not realize it was
gunfire.
When the employees did not report to work at 4:00 a.m., Lee tried to reach
the defendant by phone and was told he had already left for work. At approximately
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4:15 a.m., the defendant called her and actually arrived at work at 4:22 a.m.
Shortly thereafter, Miller discovered the victim’s body in the McDonald’s
parking lot. The victim had been shot once in the back and twice in the face. The
autopsy report revealed that the victim died as a result of these gunshot wounds.
On the date of the shooting the defendant told Buchanan, “I told you I was
gonna kill Marquese.” Buchanan did not believe the defendant. The following day
the defendant again told Buchanan that he had shot the victim. He stated that he
had walked up to the victim in the parking lot, shook his hand and apologized for the
prior altercation. When the victim turned his back, the defendant said, “You mother
f _ _ _ _ _ ” and shot the victim in the back. Defendant related that the victim pled
for his life just prior to defendant’s shooting him twice in the face. The defendant
stated, “the mother f _ _ _ _ _ s at work will respect me now.” Defendant further
stated he felt no guilt as a result of the shooting.
The defendant was interviewed by the homicide division at approximately
1:00 p.m. on the date of the homicide. He denied shooting the victim.
Upon gathering other information, the authorities arrested defendant on
September 16, 1994. At the time of his arrest he stated that he knew who “had
snitched on him.” Upon being interrogated, the defendant stated that he shot the
victim because he was “messing with me. He was going to shoot me eventually.”
He stated that he waited for the victim to arrive at McDonald’s prior to the shooting.
He further conceded that the victim was not armed with a weapon and made no
mention that the victim did anything to him just prior to the shooting. The defendant
stated he was simply afraid that the victim would eventually shoot him. Defendant
also took the authorities to a dumpster where he had thrown the murder weapon.
The weapon was recovered.
The defense proof consisted of another fellow employee, Morris Robinson,
who testified that both the defendant and victim had threatened each other on prior
occasions. He further testified that the defendant had told him prior to trial that he
thought the victim was going for a gun at the time of the shooting.
The defendant elected not to testify, and there was no further defense proof.
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SUFFICIENCY OF THE EVIDENCE
A
In determining the sufficiency of the evidence, this court does not reweigh or
re-evaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978).
A jury verdict approved by the trial judge accredits the state’s witnesses and
resolves all conflicts in favor of the state. State v. Williams, 657 S.W.2d 405, 410
(Tenn. 1983). On appeal, the state is entitled to the strongest legitimate view of the
evidence and all legitimate or reasonable inferences which may be drawn
therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn.1992). This Court will not
disturb a verdict of guilt due to the sufficiency of the evidence unless the defendant
demonstrates that the facts contained in the record and the inferences which may
be drawn therefrom are insufficient, as a matter of law, for a rational trier of fact to
find the accused guilty beyond a reasonable doubt. State v. Matthews, 805 S.W.2d
776, 780 (Tenn. Crim. App. 1990). Accordingly, it is the appellate court’s duty to
affirm the conviction if the evidence, viewed under these standards, was sufficient
for any rational trier of fact to have found the essential elements of the offenses
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781,
2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P.
13(e).
B
At the time of the homicide the premeditated first degree murder statute
required that the state prove that the murder was “intentional, premeditated and
deliberate.” Tenn. Code Ann. § 39-13-202(a)(1)(1991).1 The necessary elements
of first degree murder may be shown by circumstantial evidence. State v. Brown,
836 S.W.2d 530, 541 (Tenn. 1992). Premeditation requires “a previously formed
design or intent to kill” and “the exercise of reflection and judgment.” State v. West,
844 S.W.2d 144, 147 (Tenn. 1992); Tenn. Code Ann. § 39-13-201(b)(2)(1991).
Deliberation necessitates a finding that the defendant acted with a “cool purpose”
1
Tenn. Code Ann. § 39-13-202(a)(1) has now been amended to delete the
“deliberate” requirement. Tenn. Code Ann. § 39-13-202(a)(1)(1997).
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and not from “passion or provocation.” Tenn. Code Ann. § 39-13-201(b)(1)(1991)
and Sentencing Commission Comments.
Once a homicide has been proven, the homicide is presumed to be murder
in the second degree with the state having the burden of establishing premeditation
and deliberation. State v. Brown, 836 S.W.2d at 543. In considering the elements
of premeditation and deliberation, the court may consider several factors, including
the use of a deadly weapon upon an unarmed victim, whether the killing was
particularly cruel, declarations by the defendant of his intent to kill the victim,
planning activity by the defendant prior to the killing, evidence concerning the
defendant’s motive and the nature of the killing. State v. Brown, 836 S.W.2d at
541-542; State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996).
C
The evidence is sufficient to support an intentional, premeditated and
deliberate killing of the victim. The defendant and victim had a verbal altercation on
the day prior to the homicide. On that same date the defendant told a co-worker
that he intended to shoot the victim the next morning. The victim was shot in the
back while unarmed and twice more in the face after pleading for his life. That
same date the defendant confessed to the killing to a co-worker and indicated no
remorse. Furthermore, defendant’s confession establishes an intentional,
premeditated and deliberate murder that was not committed in self-defense.
This issue is without merit.
PHOTOGRAPHS
In his second issue, defendant contends the trial court erred by allowing the
state to introduce photographs that depict the victim lying in a pool of blood. More
specifically, he contends the prejudicial effect of the photographs far outweighs any
probative value.
The admissibility of photographs lies within the sound discretion of the trial
court whose ruling will not be overturned on appeal except upon a clear showing of
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an abuse of discretion. State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978); see
also State v. Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994); State v. Bordis, 905
S.W.2d 214, 226 (Tenn. Crim. App. 1995). Nevertheless, the photographs must be
relevant to an issue at trial with their probative value outweighing any prejudicial
effect that they may have upon the trier of fact. State v. Braden, 867 S.W.2d 750,
758 (Tenn. Crim. App. 1993).
We, therefore, must firstly determine whether the photographs were relevant.
Relevant evidence is evidence “having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401.
We conclude the photographs were indeed relevant. The photographs
reveal the presence of a Krystal cup, paper bag and car keys near the victim's body.
It is apparent from the photographs that the victim had been shot while holding
these items. There was no weapon. Since self-defense was an issue at trial, the
photographs were relevant.
Furthermore, the photographs were not particularly inflammatory and were
not “closeups.” We conclude the trial court did not abuse its discretion in finding
that the probative value of the photographs outweighed any prejudicial effect.
This issue is without merit.
PAROLE ELIGIBILITY JURY CHARGE
Defendant contends the trial court erred by charging the jury as to the range
of punishment since he withdrew his request for this charge. He further contends
the jury charge setting forth the earliest release eligibility date was inaccurate.
A
Prior to trial both the defendant and the state filed a written request that the
jury be charged as to range of punishment pursuant to Tenn. Code Ann. § 40-35-
201. Prior to the jury charge the defendant objected to the charge; however, the
state continued in its request that the charge be given. Tenn. Code Ann. § 40-35-
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201(b)(1) provides that the range of punishment shall be charged “upon the motion
of either party.” The trial court, therefore, did not err by charging range of
punishment even though the defendant had withdrawn his request.
B
The trial court charged the jury that the range of punishment for second
degree murder was not less than 13.5 years nor more than 60 years with the
earliest release eligibility date being 1.06 years. The range of punishment for
voluntary manslaughter was given at not less than 2.7 years nor more than 15 years
with the earliest release eligibility date being .21 years. Defendant contended at
trial the earliest release eligibility date should have been twenty percent (20%) of
13.5 years or 2.7 years for second degree murder and twenty percent (20%) of 2.7
years or 0.5 years for voluntary manslaughter. It is obvious that the defendant
based his argument upon the twenty percent (20%) release eligibility percentage for
mitigated offenders as established by Tenn. Code Ann. § 40-35-501(b). However,
Tenn. Code Ann. § 40-35-201(b)(2)(A)(i) provides that the jury charge on the
“earliest release eligibility date” include not only the “release eligibility percentage”
established by Tenn. Code Ann. § 40-35-501, but also certain sentence reduction
credits and the governor’s power to reduce prison overcrowding. The Department
of Correction is to periodically provide each judge with these approximate
calculations. Tenn. Code Ann. § 40-35-201(b)(2)(B). Defendant’s contention
relating to the calculation of the earliest release eligibility date is without merit.2
2
The defendant did not in the trial court nor does he in this Court contend that the
actual calculation of the earliest release eligibility date was inaccurate based upon the
statistical information furnished by the Department of Correction. This information is not a
part of the record before us.
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C
(1)
Although the defendant challenges the parole eligibility jury charge in this
Court, he does not specifically base his contention upon constitutional grounds. In
the trial court the defendant made a general objection to the parole eligibility jury
charge on the basis of constitutional infirmity; however, no specific constitutional
basis was expressed. Accordingly, we are constrained to conclude that the
constitutionality of the parole eligibility jury charge has not been specifically
presented as an issue for our review.
Nevertheless, our “plain error rule” provides that an error affecting the
“substantial rights of the accused may be noticed at any time where necessary to
do substantial justice.” Tenn. R. Crim. P. 52(b). We find the parole eligibility jury
charge, under the facts and circumstances of this case, contained such egregious
and fundamental error that it affected the fairness and integrity of the judicial
proceedings; therefore, we find plain error. See State v. Stephenson, 878 S.W.2d
530, 553-554 (Tenn. 1994); State v. Adkisson, 899 S.W.2d 626, 639-640 (Tenn.
Crim. App. 1994).
(2)
Pursuant to Tenn. Code Ann. § 40-35-201(b)(1), the jury was instructed as
to the range of punishment for the various offenses along with the earliest release
eligibility dates. The jury was further instructed they could weigh and consider the
meaning of a sentence of imprisonment. The function of a jury in Tennessee is to
determine guilt or innocence, not the length of imprisonment. Tenn. Code Ann. §
40-35-201(a). As provided by statute, this jury was implicitly instructed that they
could consider punishment in determining the guilt or innocence of the defendant.
In short, they were told they could consider extraneous information that had nothing
whatever to do with guilt or innocence in arriving at their verdict.
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Unquestionably, this jury instruction is in violation of the Due Process Clause
of the Fourteenth Amendment to the United States Constitution and Article I, § 8 of
the Constitution of Tennessee. One accused of a crime is entitled to have his or her
guilt or innocence determined solely on the basis of the evidence introduced at trial
and not other circumstances not adduced as proof at trial. Taylor v. Kentucky, 436
U.S. 478, 485, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978); Estelle v. Williams, 425 U.S.
501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). Advising a jury that it can consider
punishment allows consideration of extraneous information, not adduced as proof,
that in no way relates to their determination of guilt or innocence. Since the earliest
release eligibility date for some offenses seems ridiculously low, consideration of
such information could be prejudicial to a defendant.
(3)
Erroneous jury instructions are subject to a harmless error analysis. Rose
v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986); State v. Bush, 942
S.W.2d 489, 505 (Tenn. 1997); State v. Belser, 945 S.W.2d 776, 782 (Tenn. Crim.
App. 1996). Under the facts and circumstances of this case, however, we are
unable to conclude that the error was harmless.
At trial it was abundantly clear that the defendant unlawfully took the life of
the victim. The primary issue for the jury was whether this was a premeditated first
degree murder, second degree murder or voluntary manslaughter. In final
argument defense counsel contended the evidence, at most, supported a lesser
offense. The jury was then charged by the trial court that the earliest release
eligibility date for first degree murder was twenty-five (25) years; the earliest release
eligibility date for second degree murder was 1.06 years; and the earliest release
eligibility date for voluntary manslaughter was .21 years. The jury was also
instructed that they could weigh and consider this sentencing information.
We have no way of knowing whether the jury did in fact consider this
sentencing information in their determination of guilt. Thus, we do not know
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whether the ridiculously low, earliest release eligibility dates of 1.06 years and .21
years for second degree murder and voluntary manslaughter, as compared to the
earliest release eligibility date of twenty-five (25) years for first degree murder, had
any affect upon, or was even discussed by, the jury. Nevertheless, we are unable
to conclude that this information had no impact upon the jury since the primary
question for the jury in this case was the degree of homicide.
(4)
A member of this panel, Judge Hayes, has previously concluded that the
parole eligibility jury instruction is unconstitutional. See State v. Cooper, C.C.A. No.
01C01-9604-CC-00150, Lincoln County (Tenn. Crim. App. filed November 17, 1997,
at Nashville) (Hayes, J., Concurring). The other two (2) members of this panel have
previously upheld the constitutionality of the parole eligibility jury instruction. See
State v. David Palmer, C.C.A. No. 01C01-9607-CR-00285, Davidson County (Tenn.
Crim. App. filed November 20, 1997, at Nashville); State v. William K. Howell,
C.C.A. No. 01C01-9610-CR-00443, Davidson County (Tenn. Crim. App. filed
November 6, 1997, at Nashville); State v. Dwjuan L. Bradford, C.C.A. No. 01C01-
9607-CR-00294, Davidson County (Tenn. Crim. App. filed September 30, 1997, at
Nashville). However, the precise issue of telling the jury they could consider
irrelevant information in determining guilt or innocence was not raised in these latter
three (3) cases.
(5)
In spite of the fact that the evidence is sufficient to sustain a verdict of
premeditated first degree murder, the parole eligibility jury instruction
unconstitutionally informed the jury that they could consider extraneous and
irrelevant information in determining guilt or innocence. This error was indeed
egregious and fundamental. Since we are unable to determine under the facts and
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circumstances of this case whether or not it had any impact upon the jury’s verdict,
the only remedy is the granting of a new trial.
CONCLUSION
For the above reasons, the judgment of the trial court is reversed and the
case remanded for a new trial.
________________________________
JOE G. RILEY, JUDGE
CONCUR:
GARY R. WADE, JUDGE
DAVID G. HAYES, JUDGE
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