           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                             JANUARY 1998 SESSION
                                                                          FILED
                                                                           March 12, 1998

                                                                         Cecil Crowson, Jr.
STATE OF TENNESSEE,                        )                              Appellate C ourt Clerk
                                           )       NO. 02C01-9702-CR-00075
       Appellee,                           )
                                           )       SHELBY COUNTY
VS.                                        )
                                           )       HON. JAMES C. BEASLEY, JR.,
MICHAEL DINKINS,                           )       JUDGE
                                           )
       Appellant.                          )       (Aggravated assault;
                                           )       Theft under $500)


                              CONCURRING OPINION


       I concur with my learned colleagues as to the disposition of the identification

jury instruction issue; however, I write separately to express my views on the parole

eligibility jury charge.



                                           I



       In State v. Jason M. Weiskopf, C.C.A. No. 02C01-9611-CR-00381, Shelby

County (Tenn. Crim. App. filed February 4, 1998, at Jackson), I, along with Judges

Wade and Hayes, concluded that instructing a jury that they “could weigh and

consider the meaning of a sentence of imprisonment” in determining guilt or

innocence was a violation of the Due Process Clause of the Fourteenth Amendment

to the United States Constitution and Article I, § 8 of the Constitution of Tennessee.

Slip op. at 8-9. Although subject to a harmless error analysis, we concluded that

under the facts of that case the unconstitutional jury instruction was not harmless

error. I continue to adhere to my belief that expressly instructing a jury it can “weigh

and consider” the sentence in determining guilt or innocence is a violation of both

the federal and state constitutions.

       The jury instruction used in the subject case was different than the one used

in Weiskopf. In the subject case the jury was not instructed that they could weigh

and consider the meaning of a sentence of imprisonment. Instead, the jury was
instructed that the sentencing information was furnished “for your information only,”

and not to attempt to fix any punishment. I believe this instruction is substantially

different than telling a jury that they can consider sentencing in determining guilt or

innocence.



                                          II



       Prior to 1982, juries in Tennessee determined not only the guilt or innocence

of a defendant, but also assessed the punishment consisting of imprisonment. See

Tenn. Code Ann. § 40-2707 (Supp. 1981). Jury trials were not bifurcated; therefore,

the court instructed the jury as to the range of punishment along with other

provisions of the jury charge relating to guilt or innocence. Such instructions were

not unconstitutional. Sharp v. State, 513 S.W.2d 189, 191 (Tenn. Crim. App. 1974).

Only the provision relating to charging the jury on parole eligibility and related

matters was subject to constitutional challenge. See Farris v. State, 535 S.W.2d

608 (Tenn. 1976). Even in Farris, only three (3) members of the court found the

provision unconstitutional. Two (2) justices found the statute to be impermissibly

vague, and one (1) justice found the statute only to be in violation of the separation

of powers doctrine. The remaining two (2) members of the court dissented.



                                          III



       Beginning in 1982 and continuing today, the trial judge, and not the jury,

assesses punishment consisting of imprisonment. See Tenn. Code Ann. § 40-35-

203(a) (1982) and (1997). Tenn. Code Ann. § 40-35-201(b) (1982) further required

that, upon motion of either party, the court charge the jury as to possible penalties

for the offenses charged. Advising the jury as to the range of punishment has never

been held to be unconstitutional in Tennessee. In fact, our Supreme Court has

stated:




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       the Legislature desired to give those charged with crimes the option
       of making certain that the jury knew the punitive consequences of
       guilty verdicts in the cases under consideration, and this court
       respects the right of the Legislature to do so.

State v. Cook, 816 S.W.2d 322, 326-327 (Tenn. 1991). The pattern jury charge

utilized to convey this information to the jury was as follows:

               The jury will not attempt to fix any punishment or sentence [at
       this time]. However, for your information only, you are informed that
       the ranges of punishment as to the crimes involved herein are as
       follows: [Here list each offense with range.]

T.P.I - CRIM. 43.11 (3d ed. 1992) (emphasis added). The jury charge used in the

subject case was identical.



                                           IV



       The only difference in the present statute is that its provisions also require

that the jury be advised as to additional information as to sentencing; namely, an

approximate calculation of the minimum number of years a person sentenced to

imprisonment for the offense charged must serve before reaching the earliest

release eligibility date, including parole eligibility, sentence reduction credits and the

governor’s power to reduce for overcrowding.             Tenn. Code Ann. § 40-35-

201(b)(2)(A)(i). The jury is further instructed that actual release is a discretionary

decision by the Board of Paroles based upon many factors. Tenn. Code Ann. § 40-

35-201(b)(2)(A)(ii). This information is detailed, and I fail to see that it is vague.



                                            V



       Furthermore, I fail to see a due process violation when the trial court instructs

the jury that the sentencing information is furnished to them for informational

purposes only. A jury is presumed to have followed the law as instructed by the trial

court. State v. Harris, 839 S.W.2d 54, 72 (Tenn. 1992). The instruction used in this

case did not tell the jury that they could weigh and consider this information in

arriving at their verdict as to guilt or innocence. In essence, the trial court merely



                                            3
gave the jury sentencing information so that they would understand the punitive

consequences of a guilty verdict. This concept has been expressly approved by our

Supreme Court. State v. Cook, 816 S.W.2d at 327.



                                           VI



       The statute itself literally requires that the instruction tell “the jury to weigh

and consider the meaning of a sentence of imprisonment.” Tenn. Code Ann. § 40-

35-201(b)(2)(A)(i). This portion of the statute, I believe, is clearly unconstitutional

since it tells the jury to consider sentencing in determining guilt or innocence.

However, the trial judge in this case disregarded this portion of the statute and

stated the sentencing information was provided to the jury “for your information

only.” By doing so the trial court has utilized the statute in such a way that the

instruction was constitutional.

       The judiciary has done the very same thing with regard to Tenn. Code Ann.

§ 55-10-408(a)(Supp. 1997). That statute provides that a blood alcohol content of

.10%, or more, “shall create a presumption that the defendant was under the

influence . . .” (emphasis added). Our courts have stated that it is proper and, in

fact, necessary to substitute the word “inference” for the word “presumption” so as

to avoid a constitutional problem. See State v. Sensing, 843 S.W.2d 412, 417

(Tenn. 1992); State v. Baker, 729 S.W.2d 286, 287 (Tenn. Crim. App. 1987).

Specifically, this Court in Baker found no merit to the argument that the judiciary had

no power to change the statute by substituting a word for that used in the statute.

729 S.W.2d at 287. I believe the trial court acted properly in disregarding the

unconstitutional portion of the statute and utilizing the statute in such a way to avoid

the constitutional dilemma.




                                           4
                                         VII



       Finally, I reject defendant’s argument that the statute is a violation of the

separation of powers doctrine. Our Supreme Court in State v. Cook expressly

recognized the right of the legislature to direct that the range of punishment

resulting from convictions be conveyed to the jury. 816 S.W.2d at 327.



                                         VIII



       It may well be that providing this information to the jury is unnecessary or

even unwise since the jury does not assess the punishment. However, this is not

the issue before this Court. The issue before this Court is whether providing the jury

with sentencing information so that they will understand possible future

consequences of their verdict is unconstitutional, when the jury is not told to weigh

and consider this information in arriving at their verdict as to guilt or innocence. In

view of the language used in this case, I find no constitutional flaws in the charge.



                                   CONCLUSION



       I do concur with my colleagues that if the jury charge was unconstitutional,

it was clearly harmless error under the facts and circumstances of this case.

However, I write separately to express my view that the jury charge utilized in this

case was constitutional.



                                           _________________________________
                                           JOE G. RILEY, JUDGE




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