          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON
                                                             FILED
                                                             December 4, 1998
STATE OF TENNESSEE,                )
                                   )                     Cecil Crowson, Jr.
                                        NO. 02C01-9611-CR-00381
                                                             Appellate C ourt Clerk
      Appellee,                    )
                                   )    SHELBY COUNTY
VS.                                )
                                   )    HON. ARTHUR T. BENNETT,
JASON M. WEISKOPF,                 )    JUDGE
                                   )
      Appellant.                   )    (First Degree Murder)


      UPON REMAND FROM THE SUPREME COURT OF TENNESSEE


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


       This case is again before the Court after remand from the Supreme Court of

Tennessee in light of its opinion in State v. King, 973 S.W.2d 586 (Tenn. 1998). The

issue upon remand is whether the trial court erred by instructing the jury that it could

“weigh and consider” the meaning of a sentence of imprisonment in arriving at its

verdict. Finding the jury charge given in this case and the jury charge given in King

significantly different, we again declare a due process violation. Therefore, we

reverse and remand for a new trial.



                              PROCEDURAL HISTORY



       Defendant, Jason M. Weiskopf, was convicted by a Shelby County jury of

premeditated first degree murder and sentenced to life imprisonment. In his original

appeal to this Court he presented three 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 into evidence photographs of the

victim’s body; and (3) whether the trial court erred in charging the jury on parole

eligibility. Although this Court found the evidence to be sufficient to support the

conviction and the photographs to have been properly admitted, this Court found the

jury instructions on parole eligibility to be in violation of due process. State v. Jason

M. Weiskopf, C.C.A. No. 02C01-9611-CR-00381, Shelby County (Tenn. Crim. App.

filed February 4, 1998, at Jackson).

       Permission to appeal was granted by the Supreme Court of Tennessee, and

the case was “remanded to the Court of Criminal Appeals for reconsideration in light

of State v. King, 973 S.W.2d 586 (Tenn. 1998).” State v. Jason M. Weiskopf, No.

02C01-9611-CR-00381, Shelby County (Tenn. filed November 2, 1998, at Jackson).




                                           2
                                       FACTS



       In order to place the parole eligibility jury instructions in proper context, we

incorporate this Court’s statement of facts in our prior opinion.

              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 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.


                                          3
       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.



                                   THE JURY CHARGE



       The jury was charged as to the indicted offense of premeditated first degree

murder and the lesser offenses of second degree murder and voluntary

manslaughter. Pursuant to Tenn. Code Ann. § 40-35-201(b), the jury was instructed

as to the range of punishment for these offenses along with the earliest release

eligibility dates. The jury was instructed that the earliest release eligibility date for first

degree murder was 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. Unlike the jury in King, the jury was specifically

instructed they could “weigh and consider the meaning of a sentence of

imprisonment.”



                                      STATE V. KING



       The Supreme Court of Tennessee in King found that the “for your information

only” parole eligibility jury instruction was not error; however, the Court appears to

have limited its ruling “as applied under the circumstances of this case...” 973

S.W.2d at 587. The Court further stated:

              “Significantly, [the jurors] were additionally instructed that they
       were not to attempt to fix punishment for the offense and that the
       sentencing information was “for your information only.” When the trial
       court explains, as it did here, that the sentencing, parole, and early
       release information is not to be considered in the determination of guilt
       or innocence, then certainly no due process violation has occurred.

                                              4
Id. at 592. The Court concluded that “under the circumstances presented we find

that the jury instruction given under Tenn. Code Ann. § 40-35-201(b)(2) did not

deprive the appellant of his due process right to a fair trial.” Id. (emphasis added)

       We likewise conclude there is a glaring and pivotal difference in providing a

parole eligibility jury instruction “for your information only” versus instructing the jury,

as was done in the case sub judice, that the jury can “weigh and consider” sentencing

in arriving at the determination of guilt or innocence.

       This glaring difference is evidenced in King by its reliance upon California v.

Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed. 2d 1171 (1983). Ramos upheld the

California practice of informing juries about the Governor’s power to commute a life

sentence without the possibility of parole. However, this jury instruction was given

during the penalty phase of a capital murder trial in which the jury had the

responsibility of sentencing. Thus, the Tennessee Supreme Court’s reliance upon

Ramos is understandable with reference to the “for your information only” jury

instruction. However, the Ramos jury instruction given at the penalty phase of a

capital murder trial to a jury that has the responsibility of sentencing may not be

compared to a jury instruction given during the guilt/innocence phase of a non-capital

case authorizing the jury to consider the meaning of a sentence where the jury has

no sentencing responsibilities.

       We, therefore, conclude that King in no way sanctions a jury instruction which

authorizes the jury to “weigh and consider” the meaning of a sentence in arriving at

guilt or innocence. The sole function of the jury in this case was to determine guilt

or innocence, not the length of imprisonment. In essence, this jury was specifically

told they could consider extraneous information that had nothing whatever to do with

guilt or innocence in arriving at their verdict.

       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).



                                             5
       The nature of this error becomes evident when comparing the release eligibility

dates given in this case. The earliest release eligibility date for first degree murder

was given at 25 years, whereas for second degree murder and voluntary

manslaughter, it was given at 1.06 years and .21 years, respectively. When a jury

is told to “weigh and consider” the meaning of a sentence in arriving at a verdict, the

nature of the problem is perfectly obvious.

       In this case it was readily apparent 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. Defense counsel

argued to the jury that the evidence, at most, supported a lesser offense. We know

not to what extent, if any, the jury considered the ridiculously low release eligibility

dates for second degree murder and voluntary manslaughter as compared to the

much higher release eligibility date for first degree murder. Nevertheless, we are

unable to conclude that this information had no impact upon the jury since the

primary issue was the degree of homicide. Accordingly, we are unable to find

harmless error.



                                   CONCLUSION



       We find the jury charge given in this case to be fundamentally different from

the jury charge given in King. The jury charge was 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. Furthermore, being unable to find harmless

error under the circumstances of this case, we reverse and remand for a new trial.




                                           6
                                       _____________________________
                                       JOE G. RILEY, JUDGE



CONCUR:



____________________________________
GARY R. WADE, PRESIDING JUDGE



____________________________________
DAVID G. HAYES, JUDGE




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