            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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