            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE             FILED
                           APRIL 1997 SESSION
                                                     September 30, 1997

                                                    Cecil W. Crowson
STATE OF TENNESSEE,          *                     Appellate Court Clerk
                                  C.C.A. # 01C01-9607-CR-00294

      Appellee,              *    DAVIDSON COUNTY

VS.                          *    Hon. Seth W. Norman, Judge

DWJUAN L. BRADFORD,          *    (Especially Aggravated Robbery)

      Appellant.             *



For Appellant:                    For Appellee:

Roger K. Smith, Attorney          Charles W. Burson
104 Woodmont Boulevard            Attorney General & Reporter
Suite 115
Nashville, TN 37205               Lisa A. Naylor
                                  Assistant Attorney General
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  Kymberly Hattaway Haas
                                  Asst. District Attorney General
                                  Washington Square, Suite 500
                                  222 Second Avenue North
                                  Nashville, TN 37201-1649




OPINION FILED:_____________________




AFFIRMED




GARY R. WADE, JUDGE
                                        OPINION

              The defendant, Dwjuan L. Bradford, was convicted of especially

aggravated robbery. Tenn. Code Ann. § 39-13-403. The trial court imposed a

Range I sentence of nineteen years.



              In this appeal of right, the defendant contends that Tennessee Code

Annotated, Section 40-35-201(b)(2)(A)(i) and (ii), the statute regarding jury

instructions on the potential punishment and parole, is unconstitutionally vague; that

the jury instructions pursuant to this statute violate due process of law; and that the

terms of the statute contravene the separation of powers doctrine. We disagree

with each of these contentions and thus affirm the judgment of the trial court.



              On September 2, 1994, the victim, seventy-three-year-old Ann Deol,

was walking up the stairway to the back door of her residence on Second Avenue

South in Nashville. At trial, the state was able to prove that the defendant then

emerged from underneath the stairway, snatched the victim's purse, and ran into an

alley. When the victim began to scream, a co-defendant shot the victim in the back,

thereby causing serious injuries and hospitalization for a period of fifteen days. In a

statement made to the police, the defendant acknowledged taking the purse but

claimed that he was unaware of the possibility of gunshots, "If I knew something like

that would happen, I wouldn't have [participated]." At the conclusion of the proof,

the trial court provided instructions to the jury, which later returned a guilty verdict in

the charge appearing in the indictment.



              Tennessee Code Annotated, Section 40-35-201(b) (1990) requires trial

courts, upon the request of either party, to instruct jurors as to the possible penalties

for the crime charged and its lesser included offenses:


                                             2
            In all contested criminal cases, except for capital crimes
            which are governed by the procedures contained in §§
            39-13-204 and 39-13-205, upon the motion of either
            party, filed with the court prior to the selection of the jury,
            the court shall charge the possible penalties for the
            offense charged and all lesser included offenses.

(Emphasis added). The statute was amended in 1994 to include the following

language:

            (2)(A)(i) When a charge as to possible penalties has
            been requested pursuant to subdivision (b)(1), the judge
            shall also include in the instructions 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 by § 41-21-236 and the governor's power to
            reduce prison overcrowding pursuant to title 41, chapter
            1, part 5, if applicable.

               (ii) Such instructions to the jury shall also include a
            statement that whether a defendant is actually released
            from incarceration on the date when such defendant is
            first eligible for release is a discretionary decision made
            by the board of paroles based upon many factors, and
            that such board has the authority to require the
            defendant to serve the entire sentence imposed by the
            court.

              (B) On an annual basis, the department of correction
            shall provide each judge exercising criminal trial court
            jurisdiction with the approximate calculation required in
            subdivision (2)(A). Such calculation shall be broken
            down to show the effect of each factor used in making
            such calculation. If the calculation provided by the
            department to the judges changes because of a change
            in the law or correctional policy, court intervention, the
            governor's prison overcrowding policy or any other such
            circumstance, the department shall send a revised
            calculation to the judges as such changes occur.

(Emphasis added).



            In this case, the defendant, charged with especially aggravated

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robbery, asked for jury instructions on the range of punishment. The trial court

complied with that request and, in addition, followed the terms of the amendment by

including the possible release eligibility dates for especially aggravated robbery,

facilitation to commit especially aggravated robbery, aggravated robbery, and

robbery. The actual instruction for the primary charge was as follows:

                      The punishment for the offense of Especially
              Aggravated Robbery as charged in the indictment in this
              case will be imprisonment for a period of not less than
              fifteen years, nor more than twenty-five years, and a fine
              not to exceed fifty thousand dollars.
                      You are further informed that the minimum
              number of years a person sentenced to imprisonment for
              this offense must serve before reaching the earliest
              possible release eligibility date is four point five years.
              This calculation is based on the minimum sentence
              possible which is fifteen years. However, you are
              instructed that the Court will set the punishment after a
              separate sentencing hearing, and that the punishment
              will be set within the applicable range of fifteen to twenty-
              five years after review of all the relevant factors.
                      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 Pardons
              and Paroles and is based on many factors. The Board of
              Pardons [and Paroles] has the authority to require a
              defendant to serve the entire sentence imposed by the
              Court.

(Emphasis added). Only the range of sentence, maximum fine, and the release

eligibility dates were changed when the trial court provided these instructions on the

lesser included offenses.



              The defendant, who claims that the portions of the instructions should

not have been charged to the jury, relies upon Article I, Sections 8, 9, 17, and 19,

Article II, Sections 1 and 2, and Article VI, Section 19 of the Tennessee Constitution

and the Fifth, Sixth, and Fourteenth Amendments to the U. S. Constitution in

challenging the constitutionality of the amendment to the statute. More specifically,

the defendant insists that the portions of the 1994 amendment requiring "an

approximate calculation of the minimum" sentence as opposed to the exact

                                           4
sentence is unconstitutionally vague because it invites a jury to speculate as to

punishment. Without any citation to authority, the defendant also complains that the

statutory provision precludes a fair and impartial jury by mandating instruction of

only the minimum number of years to be served without any reference to the

maximum. Finally, the defendant contends that the statute is an infringement by the

legislature on judicial powers. Article II, Section 1, of course, divides the powers of

government into three departments while Article II, Section 2 prohibits any branch

from exercising "any of the powers properly belonging to ... the others...." Tenn.

Const. art. II, § 2.



                 The defendant bases his arguments on the holding in Farris v. State,1

535 S.W.2d 608 (Tenn. 1976), a case in which a plurality of our supreme court ruled

that a 1973 statute permitting the jury to compute the time a prisoner would serve

required undue speculation on the part of the jury. In Farris, three of the justices

concluded that the 1973 statute violated Article II, Section 17 of our state

constitution in that the subject matter of the act was not adequately set out in the

caption but only two of those justices could agree that the statute requiring a charge

to the jury on the parole procedure was "impermissibly vague and impossible to

apply." 535 S.W.2d at 613. Justice Ray Brock concurred that the act was invalid

because the subject matter was not expressed in the caption but rejected the notion

that the statute was unconstitutionally vague. Justice Brock stood alone in his

conclusion that the requirement that trial judges charge juries on parole eligibility

also violated Article II, Sections 1 and 2 of the Tennessee Constitution as an

infringement upon judicial powers. Id. The final two justices comprising the 1976

court would have upheld the constitutionality of the act. The position of three of the


        1
        The statute in Fa rris required the trial judge to instruct the jury on parole procedures and
sentencing. From this information, a jury could theoretically compute or estimate the time to be
served. 535 S.W .2d at 609.

                                                    5
five justices on the vagueness issue was reflected in the dissent of Justice William

Harbison:

              There is absolutely no evidence in any of the records
              before this Court that the jury had the slightest difficulty
              in understanding or applying the statutes in question, and
              it is clear from listening to the legislative debates on this
              Act that the General Assembly felt it necessary and
              proper for jurors to be allowed to have a general
              understanding of parole procedures.

              There had been a long line of cases in this state, as well
              as in other states, in which jurors had repeatedly asked
              questions of the trial judge as to the effect of a sentence
              which they had under consideration.

Farris, 535 S.W.2d at 617.


              Challenges to legislative acts based upon vagueness are founded in

the terms of Article I, Section 8 of the Tennessee Constitution guaranteeing "the

judgment of his peers or the law of the land." The concepts of due process of law

have been derived from this provision. See State v. Bobo, 727 S.W.2d 945 (Tenn.

1987); McCarroll's Lessee v. Weaks, 2 Tenn. 215 (1814). So, when standards

established by statute "'cannot be determined with reasonable definiteness that any

particular act is disapproved,'" it fails. Donathan v. McMinn County, 213 S.W.2d

173, 176 (Tenn. 1948) (quoting State v. Lanesboro Produce & Hatchery Co., 21

N.W.2d 792, 795 (Minn. 1956)). An ordinary person who exercises ordinary

common sense must sufficiently understand the statute so as to be able to comply.

Big Fork Mining Co. v. Tenn. Water Quality Control Bd., 620 S.W.2d 515 (Tenn.

App. 1981); Williams v. State Dep't of Health and Env't, 880 S.W.2d 955 (Tenn.

App. 1994).



              This court has addressed the vagueness and due process challenges

presented here in at least two other cases. In State v. Howard E. King, No. 02C01-

9601-CR-00032 (Tenn. Crim. App., at Jackson, Oct. 22, 1996), app. granted (Tenn.,


                                           6
Mar. 10, 1997), a panel of this court ruled that the plurality view in Farris would not

apply because since that ruling, the state has changed from jury- to judge-

sentencing. Slip op. at 7. In State v. Curtis Lee Majors, No. 01C01-9602-CR-00076

(Tenn. Crim. App., at Nashville, July 30, 1997), a separate panel determined that

the 1994 amendment was not unconstitutionally vague. In distinguishing the ruling

in Farris, Judge David H. Welles wrote as follows:

              Juries were provided with information that invited them to
              speculate about sentences because no approximation
              was provided. The Farris court concluded that "[j]urors
              should not be permitted to speculate on the length of
              sentences, discretionary parole, the accumulation of
              good and honor time and a whole conglomeration of
              contingent events which, if they come to pass at all, will
              come to pass in the future."

              Subsequently, the legislature has attempted to remedy
              this by supplying the estimated figures to juries rather
              than leaving them on their own to calculate parole
              eligibility [citing Tenn. Code Ann. § 40-35-201].

                                          ***

              As a result, juries are provided with a figure with a caveat
              that the actual time served may vary. Although an
              "approximate," we feel that this figure provides sufficient
              definition and is not unconstitutionally vague.
              Furthermore, jurors are protected from the wide open
              speculation that was apparent with the statutory section
              considered in Farris.

Majors, slip op. at 13-14 (citations omitted).



              In our view, the 1994 amendment passes the vagueness test.

Certainly, this newer enactment is no less definitive than the statute under

consideration in Farris, which would have been upheld by a majority of the justices

sitting in 1976 had the enactment been properly captioned.



              The panel in Majors also addressed the due process challenge made

by this defendant to the constitutionality of Tenn. Code Ann. § 40-35-201(b)(2):


                                            7
               The Defendant also charges that the calculation of the
               minimum number of years to be served unfairly misleads
               the jury because the actual time served may be longer.
               Therefore, he argues that he has been deprived of due
               process and the right to a fair and impartial jury. We
               disagree. He claims that the suggestion of the parole
               eligibility dates may vary due to decision by the Board of
               the Paroles "based on many factors" invites the jury to
               speculate. However, we do not believe this differs
               substantially from the charge of the "possible penalties
               for the offense charged and all lesser included offenses."
               Tenn. Code Ann. § 40-25-201(b)(1).

                                             ***

               The legislature has seen fit to provide juries with
               comprehensive information about the sentencing scheme
               when either party requests such an instruction. The
               Defendant complains that the jury was unfairly informed
               of the earliest release date, but the latest release date
               has also been provided. It is possible that the Defendant
               could be sentenced to [the maximum], of which the jury
               was informed, and serve the entire term while
               incarcerated. Thus, the maximum sentence was charged
               as well. We cannot conclude that the defendant has
               been deprived of due process in this case.

Id., slip op. at 15-16 (citation omitted).



               The panel in Majors also considered the separation of powers

argument:

               The Defendant next asserts that the relevant portions of
               the statute are a constitutionally impermissible
               encroachment on the judicial function by the legislature.
               We disagree. Some functions of the three departments
               of state government are necessarily overlapping and
               interdependent. We believe this is particularly true in our
               criminal justice system. See e.g., Lavon v. State, 586
               S.W.2d 112, 115 (Tenn. 1979); Underwood v. State, 529
               S.W.2d 45, 47 (Tenn. 1975); Woods v. State, 130 Tenn.
               100, 169 S.W. 558 (1914).

Id., slip op. at 14-15.



               Our supreme court has held that "[t]heoretically, the legislative power

is the authority to make, order, and repeal[;] the executive, that to administer and


                                              8
enforce[;] and the judicial, that to interpret and apply, laws." Richardson v. Young,

125 S.W. 664, 668 (Tenn. 1910) (quoted with approval in Underwood v. State, 529

S.W.2d 45, 47 (Tenn. 1975)). Our court has recently acknowledged that the

"authority to grant paroles is not judicial in nature but is administrative." Monroe E.

Davis v. Jimmy Harrison, Warden, No. 02C01-9607-CC-00242, slip op. at 3 (Tenn.

Crim. App., at Jackson, Jul. 2, 1997) (citing Woods v. State, 169 S.W. 558 (Tenn.

1914)). Nevertheless, our supreme court has observed, "it is impossible to preserve

perfectly the theoretical lines of demarcation between the [three] branches of

government." Underwood, 529 S.W.2d at 47. "There is necessarily a certain

amount of overlapping. The three departments are interdependent." Id. From all of

this, we must conclude that the statute did not infringe upon the powers reserved for

the judiciary under the state or the federal constitution.



              Accordingly, the judgment must be affirmed.



                                           __________________________________
                                           Gary R. Wade, Judge

CONCUR:



______________________________
David H. Welles, Judge



_______________________________
Curwood Witt, Judge




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