                IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                 AT NASHVILLE
                               MAY SESSION, 1997                              FILED
                                                                   NOVEMBER 17,1997
STATE OF TENNESSEE,                          )                        Cecil W. Crowson
                                             )         No. 01C01-9604-CC-00150
                                                                    Appellate Court Clerk
         Appellee                            )
                                             )         LINCOLN COUNTY
vs.                                          )
                                             )         Hon. CHARLES LEE, Judge
JERRY RAY COOPER,                            )
                                             )         (Murder-Second Degree)
         Appellant                           )


                                      SEPARATE CONCURRING


         I write separately to note my concurrence in the results, but for reasons other

than those articulated by the principal opinion.1 Notwithstanding the fact that the

appellant invited error by requesting that the so called “truth in sentencing”

instruction be given, I nevertheless find reversible error based upon the inherent

unconstitutionality of the statute as codified in Tenn. Code Ann. § 40-35-

201(2)(A)(i). Moreover, finding that the constitutional error complained of did

contribute to the resulting verdict, reversal is required. Chapman v. California, 386

U.S. 18, 87 S.Ct. 824 (1967).

         My reasons for finding the statute unconstitutional are two-fold. First, from a

practical perspective, placing parole information before the jury during the guilt

phase of a trial is akin to “the tail wagging the dog.” It is almost certain that this

information will input, either directly or indirectly, into the jury verdict. It is far-fetched

to believe that a juror, after being informed that the accused may gain parole

eligibility for a fifteen year sentence in 1.77 years, will not factor this information into

the deliberations and resulting verdict. This simply expects too much of the

“reasonable” juror.




         1
          W hile I am in agr eem ent w ith the resu lt, I am unab le to en tirely ag ree w ith the ma jority’s
characterization of the three year period of hostility between the victim and the defendant which
eventua lly culminate d in the victim ’s death. C ontrary to the majo rity’s portrayal, I find tha t both
parties were the aggressors on various occasions; both repeatedly armed themselves for mutual
comba t; and both were the subjects of various court orders. Evidenc ed by their verdict, the jury
resolved the conflicts in favor of the prosecution. Thus, on appeal, the evidence is reviewed in the
light most favorable to the State. I find, under this standard, that the State presented more than
sufficient evidence from which a “rational trier of fact” could have found the appellant guilty of
secon d degre e mu rder beyo nd a rea sonab le doubt.
         Second, from a legal perspective, I find that interjection of range of

punishment, coupled with the statutorily required minimum parole eligibility date,

sentence reduction credits and the governor's power to reduce prison overcrowding,

at the guilt phase of trial, may, as illustrated by the case sub judice, be so unduly

prejudicial to the determination of guilt that it renders the trial fundamentally unfair.

See TENN. CONST . art I, § 8; State ex. rel. Anglin v. Mitchell, 596 S.W.2d 779 (Tenn.

1980).

         The principal opinion, in finding the statute constitutional, relies solely upon

an unpublished opinion of this court, State v. King, No. 02C01-9601-CR-00032

(Tenn. Crim. App. at Jackson, Oct. 22, 1996), perm. to appeal granted, (Tenn. Mar.

10, 1997). In King, a panel of this court concluded that our supreme court’s holding

in State v. Farris, 535 S.W.2d 608 (Tenn. 1976), which held parole eligibility

instructions violative of due process, is inapplicable to an analysis of Tenn. Code

Ann. § 40-35-201, because Farris was decided at a time when sentencing was a

jury function. I must respectfully disagree with this interpretation. Moreover, with

regard to the challenged statute as amended in 1994, I find it prudent to

acknowledge that our supreme court has not specifically addressed its

constitutionality. Cf. State v. Cook, 816 S.W.2d 322 (Tenn. 1991).

         Justice Henry, speaking for the court in Farris, wrote concerning the dangers

of permitting the introduction of parole eligibility information:

         Jurors 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. Very heavily
         involved is the constitutional right of a defendant to a fair trial.

         . . . It tends to make a jury speculate on the length of time a convicted
         defendant will be required to serve and further tends to breed
         irresponsibility on the part of jurors premised upon the proposition that
         corrective action can be taken by others at a later date. A greater
         defect in the law stems from the fact that jurors tend to attempt to
         compensate for future clemency by imposing harsher sentences.

         The matter of the future disposition of a convicted defendant is wholly
         and utterly foreign to his guilt and is not a proper consideration by a
         jury in determining the length of his sentence.




                                            2
Farris, 535 S.W.2d at 614. Contrary to the holding in King, subsequent statutory

amendment fails to dissipate the constitional concerns expressed in Farris.

        The function of a jury in a criminal proceeding is limited to a determination of

the defendant’s guilt or innocence based solely on the basis of evidence introduced

at trial and not on extraneous conditions not adduced as proof at trial. See Taylor v.

Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 1934 (1978) (citing Estelle v. Williams,

425 U.S. 501, 96 S.Ct. 1691 (1976)). Parole is nothing more than post-conviction

clemency; a condition subsequent to the accused’s conviction, offered as a reward

for the good behavior of the convict. For a jury to “consider and weigh” parole

eligibility goes outside the facts of the case and is not germane to a determination of

guilt or innocence. Clearly, an instruction on the law of parole constitutes an

extraneous condition which is not substantive proof of the accused’s guilt or

innocence.

        Of significant importance is the fact that, despite diligent research, I have

been unable to locate any other jurisdiction in America, other than Tennessee, that

permits the introduction of parole eligibility information at the guilt phase of the trial.

Of the six states that have retained jury sentencing, i.e., Arkansas, Kentucky,

Missouri, Oklahoma, and Virginia, only three, Arkansas, Kentucky, and Texas, have

found an instruction on parole eligibility at the sentencing phase of the trial

constitutional.2 See Teague v. State, 946 S.W.2d 670 (Ark. 1997); Boone v.

Commonwealth, 780 S.W.2d 615 (Ky. 1989); Johnson v. State, 800 S.W.2d 563

(Tex. App. 1990). Moreover, constitutional amendment in Texas and statutory

amendment in Arkansas and Kentucky were required before the jury could be

instructed on these matters at the sentencing phase. See, e.g., TEX . CONST . art. IV,

§ 11(a) (amended November 7, 1989); Ark. Code Ann. § 16-97-103 (1995 Supp.);

Ky. Rev. Stat. Ann. § 532.055 (Banks-Baldwin 1995). Additionally, these six

jurisdictions have routinely rejected the introduction of parole eligibility information

before the jury for a variety of reasons, including, but not limited to: violation of the


        2
           Each of these six states has a bifurcated trial procedure whereby after a determination of
guilt, a sepa rate sen tencing h earing is h eld befor e a jury with the jury determ ining the ap propriate
punishment. Moreover, we note that, effective 1995, Virginia has abolished parole.

                                                    3
separation of powers doctrine, i.e., the mandatory “truth-in-sentencing” instruction is

an attempt by one branch (the legislative) to direct an another branch (the judiciary)

to interfere with the powers of yet a third branch (the executive), see, e.g., Kemp v.

State, 632 P.2d 1239 (Okla. Crim. App. 1981); Rose v. State, 752 S.W .2d 529 (Tex.

Crim. App. 1987), superseded by constitutional amendment, Johnson, 800 S.W.2d

at 563; Walker v. Commonwealth, 486 S.E.2d 126 (Va. App. 1997); and various

aspects of fundamental fairness, for instance, speculation about a future event, see,

e.g., Huff v. Commonwealth, 763 S.W.2d 106 (Ky. 1988) (Leibson, J., dissenting)

(citing Farris, 535 S.W.2d at 608); Walker, 486 S.E.2d at 126; extraneous condition

to determination of guilt, see, e.g., State v. Rollins, 449 S.W.2d 585 (Mo. 1970);

Beans v. State, 54 P.2d 675 (Okla. Crim. App. 1936); a condition subsequent to

conviction, see, e.g., Cox v. State, 491 P.2d 357, 359 (Okla. Crim. App. 1971); and

relevancy, see, e.g., Walker, 486 S.E.2d at 126.

       Parole is not a judicial function, rather it is an executive function. It is best

that the correctional authorities and not the jury be left to commence the process of

rehabilitation. A jury charge which instructs on punishment and parole eligibility will

invariably result in unjust verdicts and may prejudice either the accused or the

State’s right to a fair trial, depending upon the particular facts and circumstances of

the case. Accordingly, I find that the statutorily mandated jury instruction which

requires the jury to “weigh and consider the meaning of a sentence of imprisonment

for the offense charged” at the guilt phase of trial violates the appellant’s

constitutional right to due process as secured by Article I, Section Eight of the

Tennessee Constitution.




                                    ____________________________________
                                    DAVID G. HAYES, Judge




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