        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                         JUNE SESSION, 1998                 FILED
                                                       August 21, 1998
STATE OF TE NNE SSE E,     )    C.C.A. NO. 02C01-9709-CR-00362
                           )                          Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
      Appellee,            )
                           )
                           )    SHELBY COUNTY
VS.                        )
                           )    HON. CHRIS CRAFT
CHARLES GOLDEN,            )    JUDGE
                           )
      Appe llant.          )    (First-Degree Mu rder)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

STEFFEN G. SCHREINER            JOHN KNOX WALKUP
369 N . Main                    Attorney General and Reporter
Memphis, TN
                                PETER M. COUGHLAN
                                Assistant Attorney General
                                425 5th Avenu e North
                                Nashville, TN 37243

                                WILLIAM L. GIBBONS
                                District Attorney General

                                PHILL IP GE RALD HAR RIS
                                JERRY KITCHEN
                                Assistants District Attorneys General
                                Criminal Justice Complex, Suite 301
                                201 Poplar Street
                                Memphis, TN 38103



OPINION FILED ________________________

CONVICTION AFFIRMED; REMANDED FOR RESENTENCING

DAVID H. WELLES, JUDGE
                                 OPINION

       The Defendant, Charles Golde n, pursu ant to Te nness ee Ru le of App ellate

Procedu re 3(b), appeals as of right his conviction of first-degree murder and

sentence of life imprisonment without the poss ibility of parole. D efenda nt asserts

five claims of error: (1) that Defendant could have been guilty of only second-

degree murder because he lacked the specific intent for first-degree murder; (2)

that the cour t should h ave gran ted Defendant’s requested jury instruction

concerning his mental condition; (3) that the court improp erly instructed the jury

concerning reasonable doubt; (4) that the co urt improperly instruc ted the jury

concerning the unavailab ility of a defense of dures s; and (5) that the co urt

impro perly instructed the jury concerning when Defendant would be eligible for

release on parole if senten ced to life imprisonment. Although we affirm the

conviction, we remand for resentencing due to the inaccuracy of the pa role

eligibility jury instruc tion.



       Defendant was indicted by th e Shelby C ounty Gran d Jury on October 31,

1996, on a charge of first-degree murder in violation of Tennessee Code

Annotated § 39-13 -202. Ju dge C hris Craft of the Criminal Court for Shelby

Coun ty appointed counsel for Defendant and presided over his trial on March 17-

19, 1997. Following jury verdicts on guilt and sentencing, the court entered a

judgment of conviction and sentence of life imprison ment w ithout the p ossibility

of parole . Defe ndan t’s Motion for New Trial was overruled on April 18, 1997, and

he time ly appea ls.




                                         -2-
       At trial the State presented proof that Defendant shot and killed Sergeant

Deadrick Taylor, a deputy jailer for the Shelby County Sheriff’s Department, when

Taylor returned to his home after work. Sergea nt Ta ylor arrive d hom e at his

usual time; but before he was able to enter his house, Defendant shot Taylor

besid e his car. The victim’s wife heard her husband drive into the carport area

and then heard “nothing but gunfire.” As the gunfire continued, she rushed

outside but initially could not see anything but smoke. She then saw her husband

crawling toward the house and she assisted him inside. Taylor died at the

hospital approxima tely forty minutes later of internal bleeding caused by two

gunshot wounds to the midsection—one which injured rib, liver, colon, and s mall

intestine; and another which injured rib, spine, and diaphragm. Both wounds

were of the type “generally associated with a high index of pain,” and each wound

was ca used b y a .38 ca liber bullet.



       The State presented an inmate at the Shelby Coun ty jail, who testified that

he and Defendant were members of a gang called the Traveling Vice Lords

(TVL) . The witness stated that the gang was controlled by Charles Thompson,

also incarcerated in the jail, and that members of the gang receive elevated rank

and sta tus by follow ing Tho mpso n’s order s.



       This witness a lso testified th at on the day of Sergea nt Taylor’s mu rder,

Charles Thompson and another TVL member engaged in a fight with two other

inmates prior to Sergean t Taylor’s shift. All prisoners we re “locke d dow n” in the ir

cells at 1:00 p.m. that day, as is usual practice during a shift change; but when

Sergeant Taylor began his shift, the inmates remained locked down because of

the earlier fight. Once released from lock-down, TVL leader Thompson argued

                                          -3-
with Sergeant Taylor about the extended confinement and repeatedly declared,

“You don’t kno w who the f_ _ k I am.”



       According to the witness, Thompson telephoned “Verico”1 following the

argument and asked why Sergeant Taylor had not yet been killed, calling Taylor

by nam e and s tating ang rily,

       What’s the mother-f_ _king hold-up? Why can’t you do what the
       f_ _k I tell you to do?
              ...
       When I tell you to kill the mother f_ _ker that’s what I mean, not
       tomorrow, when I sa y it. . . . [Y]’all righ t over th ere with him a nd y’all
       can’t get the m other f_ _ker.
              ...
       I want to he ar abou t it on the ne ws tom orrow.

The w itness also testified,

              I didn’t understand what was going on for the fact he had just
       got in an argument with the man, and then he hop on the phone. So
       when he was telling—when he was saying all this, later on when we
       got locked dow n I was in my c ell I said to myself they m ust have
       already been plann ing to kill the man be cause the a rgument just
       happe ned . . . .

Finally, this witness agreed on cross examination that if a member of the TVL

gang fa iled to do w hat Th omps on orde red, the p erson m ight be hu rt or killed.



       The State presented another witness who testified about events on the

same day ou tside th e jail.      The w itness was present when Verico Jackson

received a telephone call, wh ich he answ ered in a bac k room alone .              At this

location—a house only a cou ple of stree ts from S ergean t Taylor’s re sidence —the

witness saw several weapons, including a .25, .38, an SKS with a long clip, and

a .22 with a scop e. W hen the phone call conclu ded, Ve rico called Defen dant,



       1
          Verico Jackson is brother to Mario Jackson, the inmate who joined Charles Thompson
in the prison fight against two other inmates.

                                            -4-
Rory Haywood, and “Cookie Monster,” another TVL member, into the back room.

The four gang members and others present, including the witness, left this house

and Verico said, “L et’s go gang -bang ing.” D efend ant, Ve rico, R ory, an d “Co okie

Monster” drove away in a car; and the witne ss saw the ca r stop on Sergeant

Taylo r’s street. “Cookie Monster” obtained the SKS and the .38 from under the

hood of the car and handed the .38 to Defendant. The two then walked away,

leaving Rory in the driver’s seat. About five minutes later, the w itness heard “a

lot of gunshots”— specifically, “about three regular gunshots . . . a lot of loud

gunsh ots and then some m ore like quieter gun shots.” Later, the witness he ard

Verico thank Defendant “for taking care of their business,” and Defendant stated,

“[T]hat whore -ass nigger sh ouldn’t have go t my nigger jum ped on.”



       Following his arrest, Defendant made a voluntary statement in which he

validated the above facts, except that Charles Thompson had called on April 18

with the order to murder Sergeant Taylo r. Defe ndan t stated that Ve rico told him

killing Taylor was “Nation Business,” and when Defendant tried to “punk out and

not do[] it,” Veric o told him that he must do it because it was Nation Business.

Defendant came back to the house the next day, they discussed the plan as early

as 2:00 p.m ., and they carried out the plan the evening of April 19 at

appro ximate ly 10:40 p.m., after waiting for Taylor to arrive at his home. Then,

accord ing to De fendan t,

             “Coo kie Monster” said, go on. So I walked up in back of
       Sergeant Taylor. He was out of the car. I said, hey. And Sergeant
       Taylor looked at me, and I fired three or four times toward Sergeant
       Taylor holding the gun gangster style (meaning the gun was turned
       toward the side instead of the traditional firing of the gun; it was
       turned toward th e side).
             I turned and ran along the path to wh ere “Cook ie Monster”
       was with Rory. And “Cookie Monster” had the AK, and Rory had the
       .25 automatic. And I passed the .38 to Rory. As I was running

                                          -5-
      toward Kansas [Street] and “Cookie Monster” started firing the AK
      as I was running. I ran up on K ansas . . . and Rico came out and
      asked if the job was done. And I said, yeah.

At approximately 2:00 a.m., after the shooting, Defendant and others started

smoking [marijuana] and celebrating.” No one was “promoted” within the gang,

but Defendant heard rumors that Charles Thompson intended to pay him for the

murde r.



      Later in his statem ent, Defendant said he wanted to tell Sergeant Taylo r’s

wife that he was sorry for what happened and that he “did not shoot her

husband.” In addition,

                I didn’t have no choice but to d o wha t they tho ught I d id
      ‘cause they said—they—if I didn’t they would go to m y family or they
      would shoot me right there. I was in fear of my life and m y family ’s
      life if I didn’t participa te in this act.



                                          I.

      Defe ndan t’s first argument is that he lac ked the specific inte nt for first-

degree murd er and , therefo re, cou ld only have been convicted of second-degree

murde r. He con tends tha t the defen se of dur ess ap plies to ne gate his in tent to

kill because he fea red for his life an d the life of his fa mily at th e time he

committed the offense.      We read Defendant’s argument as presenting two

separa te but related assertion s: First, the trial jud ge as a matter o f law should

have excluded first-degree murder from the jury’s purview. Seco nd, a ju ry could

not have conclud ed that D efenda nt was g uilty of first-degre e murd er.



      W e examin e the sec ond as sertion first and co nclude that the S tate

presented sufficient evidence to s upport his con viction by the jury. “[F]indings of



                                         -6-
guilt in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the finding by the trier of fact of guilt beyond a

reaso nable doubt.” Tenn. R. App. P. 13(e). Conve rsely, therefore, a jury verdict

should stand so long as the evidence is sufficient to support the finding of guilt

beyond a reasonable doubt. Defendant’s conviction destroyed his presumption

of innocence and instated a presu mption of guilt in its plac e. See McBee v.

State, 372 S.W .2d 173 , 176 (T enn. 19 63); see also State v. Evans, 838 S.W.2d

185, 191 (Tenn. 1992) (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 197 6),

and State v. Brown, 551 S.W .2d 329 , 331 (T enn. 19 77)); State v. Tug gle, 639

S.W.2d 913, 91 4 (Ten n. 1982 ); Holt v. State , 357 S.W.2d 57, 61 (Tenn. 196 2).



       Upon examination of the record, it is apparent that some discrepancies

exist between the testimony of the State’s witnesses and D efend ant’s statement

concerning what day Charles Thompson made the telephone call “ordering”

Sergeant Taylor’s assassination.       This Court must resolve a ny con flicts in

testimony in favor of the jury verdict. See Tug gle, 639 S.W.2d at 914. How ever,

with respect to the issues presented by the conflict, Defendant’s statement

actua lly tends to show greater premeditation a nd les s coe rcive influ ence , in

suppo rt of the Sta te’s case .



       In this case, the State provided ample evidence by which a jury could find

that Defendant acted with the requisite mens rea to c omm it first-degree mu rder.

By Defe ndan t’s own statement, the gang decided to murder Sergeant Taylor on

April 18, 1996. Me mbers discus sed w hat we apon s they w ould use and planned

a course of action. Defendant stated that he went home on the evenin g of Ap ril

18 and returned midday on April 19, when he and others discussed the murder

                                         -7-
again and prepared to ambush Sergeant T aylor when he arrived home from

work. Defendant stated that he then walked toward Taylor and immediately shot

at him thre e or four tim es.



       Furthermore, the jury was entitled to find Defendant guilty of first-degree

murder despite his argument that the murder was committed under the duress

of believing that the TVL gang would kill him or his family in retaliation for failing

to carry out “Nation Business.” As defined by the legislature and charged by the

trial court,

       Duress is a defense to prosecution where the p erson or a third
       person is threatened w ith harm which is present, imm inent,
       impending and of such a nature to induce a well-grounded
       apprehension of dea th or se rious b odily injury if the act is not done.
       The threatened harm must be continuous throughout the time the
       act is being committed, and must be one from which the person
       cannot withdraw in safety. Fu rther, the desirability and urgency of
       avoiding the harm m ust clearly outweigh , according to ord inary
       standards of reasonableness, the harm sought to be prevented by
       the law pr oscribing the cond uct.

Tenn. Code A nn. § 39-11-5 04(a).        Here, the evidence as recounted above

demonstrates the lack of a present, imminent, impending, and continuous threat

of harm.       At best, the jury was presented a generalized apprehension that

Defendant or Defendant’s family might have been hurt somehow, at some

unknown point in the future. Even if the jury found a satisfactory threat of harm,

it was ce rtainly entitled to conclud e that the desirability of avoiding gang

retaliation d id not outw eigh the h arm of k illing Serge ant Ta ylor.



       Havin g so concluded, w e also find that the trial jud ge was under n o duty

to withdraw the charge of first-degree murder in favor of lesser-included homicide

offenses. Prior to exercising the function of thirteenth juror, a trial judge may



                                           -8-
weigh the evidence only (1) to determine whether the State has proffered

sufficient evidence, as a matter of law, for the jury to consider the charge; and (2)

to determine whether a defendant has proffered sufficient evidence, as a matter

of law, for the jury to consider the defense.2 See, e.g., State v. Underwood, 669

S.W.2d 700, 702-03 (Tenn. Crim. App. 1984) (“The defendant’s defense of alibi

presented a factual issu e for the jury to determ ine.”); State v. Crawfo rd, 635

S.W.2d 704, 7 05 (T enn. C rim. A pp. 19 82) (“T he de fense of alibi presents an

issue of fact d eterm inable by the jury, as the exclusive judges of the credibility of

the witnesses in support of that defe nse, a nd of th e weig ht to be given th eir

testimony.”) (citing Green v. State, 512 S.W .2d 641 (Tenn . Crim. App. 1974)).



       In this case, we ha ve already concluded a bove tha t the State bore its

burden of persuasion; therefore, we must conclude tha t the State bore its burden

of production, and that the trial court was correct in a llowing the charge of first-

degree murde r to be de cided by the jury.




                                               II.

       W e consider Defendant’s second and fourth issues together: that the court

shou ld have granted his specific jury instruction and that th e cou rt impro perly

instructed the jury on the unavailability of duress as a defense. G enerally, a jury


       2
           Because duress is not an affirmative defense, Defendant was not required to prove
the defense by a preponderance of the evidence. State v. Culp, 900 S.W.2d 707, 710 (Tenn.
Crim. App. 1994). He need only have “fairly raised” the issue in order to require the trial court
to submit the defense to the jury. Id.; see also State v. Scotty S. Davenport, C.C.A. No. 01C01-
9611-CR-00477, Davidson County (Tenn. Crim. App., Nashville, Feb. 18, 1998). Because the
trial court instructed the jury on duress, we need not decide whether Defendant actually met
his burden of production on the defense.

                                              -9-
charge “should be considered prejudicially erroneous if it fails to fairly submit the

legal issues or if it misleads the jury as to the applicab le law.” State v. Hodges,

944 S.W.2d 346, 352 (Tenn. 1997) (citing State v. Forbes, 918 S.W.2d 431, 447

(Tenn. Crim. App. 1995), and Graham v. State, 547 S.W.2d 531 (Ten n. 1977)).



       In addition, “[i]t is the duty of a trial judge to give a complete charge of the

law applicable to the fac ts of a case.” State v. Harbison, 704 S.W.2d 314, 319

(Tenn. 1986) (citing State v. Thompson, 519 S.W .2d 789 , 792 (T enn. 19 75)); see

State v. Burkley, 804 S.W .2d 458, 461 (Tenn. Crim . App. 1990 ). This Court also

stated in Burkley, “In delivering its charge, a court should guard against an

instruction which wou ld withdraw from the jury’s consideration any issue or

evidenc e which they are e ntitled to con sider.” 804 S.W .2d at 461 .



       Defendant argues that the trial judge erred in instructing the jury that

duress is “una vailable to a pe rson w ho inte ntiona lly, know ingly, or reckle ssly

becomes involved in a situation in which it was probable that the person would

be subjecte d to com pulsion.” The o ffensive instruc tion, ho weve r, is the second

tenet of the statutory defense of du ress. Te nn. Co de Ann . § 39-11 -504(b). In

order to justly d iscern when the de fense is available and proper, a jury must

nece ssarily know when it is statuto rily unav ailable to a de fenda nt; and withou t this

instruction, the trial court’s charge would not have been a comp lete and a ccurate

statem ent of the la w.



       Defendant also appea ls the trial court’s failure to grant his requ est for a

spec ific jury instruction on the defense of duress.            Defendant’s proposed

instruction was submitted as follows:

                                          -10-
              Ladies and gentlemen of the jury, I further instruct you that in
       regards to the Law of Second Degree M urder, the defendant may be
       convicted of the Law of Second Deg ree M urder if you find from a ll
       the proof in the record that the defendant’s fear for his life so
       clouded his judgment that he was incapable of reason and
       therefore, was in capa ble of fo rming the necessary pre-meditated
       intent necessary to constitute the Law of Murder in the First Degree.
       The difference in Murder in the First Degree and Murder in the
       Second Degree is that of pre-meditation. Before a defendant can be
       convicted of Murde r in the First Degree, he must have the mental
       capacity, free from an y kind of ou tside influen ces, in ord er to have
       the capacity to form the necess ary criminal intent pre-requisite to be
       guilty of Murde r in the First D egree.
              If you ha ve rea sona ble doubt that the defendant’s mind was
       so influenced by fear for his life then you must find the defendant
       guilty of only Mu rder in the S econd Degre e. (Pirtle v. State, 28
       Tenn. 663; (19 89); State v. Keeds, 753 SW 2d, 140 (1985); State v.
       Adkins, 653 SW 2d 708 (19 83).

Because Defenda nt failed to “fairly raise” the issue of his m ental capacity,

because we find that his instruction is not a clear and accurate statement of the

law, and because the trial court indeed used an adequate instruction, we

conclud e that the tria l court prop erly rejected its inclusion in the cha rge.



       Although it is somewhat unclear, the trial judge in this case assessed that

Defendant was, in essence, arguing diminished capacity by likening his fear of

harm to intoxication; and we will therefore address the issue as such.             Our

legislature has mandated, and the courts of this state have recognized, that

although intoxica tion is not a defense to prosecution, evidence of intoxication can

negate a finding of specific intent to commit a crime. Defendant in this case

seems to contend that, although he cannot fulfill the requirements of a s tatutory

defense of duress, evidenc e of his du ress can neverthe less neg ate his spe cific

intent to co mm it murde r. We canno t agree.




                                         -11-
       First, no evid ence in the record exists to support a finding that Defendant

was “so clouded [in] his judgment that he was incapable of reason”—in fact, the

evidence is wholly contrary. Second, no court of this state, to our knowledge, has

extended the doctrine of diminish ed capac ity to simply a coercive situation, and

we decline to do so now. Our legislature has pre scribe d, in pa instak ing de tail

derived from the common law, precisely when a criminal defendant can be

considered to lack the specific inte nt to com mit an off ense due to du ress. See

Tenn. Code Ann. § 39-11-504. This instruction declares that a criminal defendant

cannot be con victed of first-de gree m urder eve n when the app rehens ion of a

threatened harm is not present, imminent, impending, or continuous. Therefore,

Defe ndan t’s requested instruction is not a fair, co mplete , or accura te statement

of the law. Finally, w e find th e trial co urt’s instructions on duress and the mental

state required for first- and second-degree murder sufficient. When “the matter

ha[s] been fully and adequately covered in [the] general charge,” a trial judge

posse sses the discretion to deny specifically requested instruction s. Bostick v.

State, 360 S.W.2d 472, 477 (Tenn. 1962); see also Edwa rds v. State , 540

S.W.2d 641, 64 9 (Ten n. 1976 ) (“It is not error to refuse a spe cial request whe re

the charge as given fully and fairly states the applicab le law.”); State v. Blake ly,

677 S.W .2d 12 , 18 (T enn. C rim. A pp. 19 83). D efend ant’s second claim of error

lacks m erit.



                                          III.

       Defe ndan t’s next assignment of error is that the court improperly charged

the jury that “abs olute certa inty” is not required to convict a criminal defendant

beyond a reasonable doubt. The instruction as given reads:




                                         -12-
              Rea sona ble doubt is that doubt engendered by an
       investigation of all the proof in the case and an inability, after such
       investigation, to let the m ind rest ea sily upon th e certainty o f guilt.
       Reaso nable doubt doe s not mea n the doub t that may arise from
       possibility. Absolute certainty of guilt is not demanded by the law to
       convict of any criminal charge, but m oral ce rtainty is required as to
       every proposition of proof requisite to constitute the offense.

(Emp hasis ad ded).



       Defe ndan t’s argument must fail. W e have in the pa st con clude d that th is

instruction is permissible an d that there are no con stitutional im pedim ents to its

use. See State v. Willie Taylor, C.C.A. No. 02C01-9702-CR-00080, Shelby

Coun ty (Tenn. Crim. App., Jackson, M ar. 10, 19 98); State v. Jame s Earl

Somerville, C.C.A . No. 02C 01-960 8-CC -00289 , Tipton Coun ty (Tenn. Crim. App.,

Jackson, Oct. 13, 1 997); see also Pettyjohn v. State, 885 S.W.2d 364, 365-66

(Tenn. Crim . App. 1 994) (c onclu ding that requiring “moral certainty” was sufficient

for due process especially when the concept w as differen tiated from “absolute

certainty” before the jury). We see no reason to deviate from these decis ions.

Absolute certainty is tantamount to one hundred percent certainty, which the

standa rd of “beyo nd a rea sonab le doub t” does n ot require .



                                            IV.

       Defe ndan t’s final issue for review is wh ether the trial court erred in advising

the jury during the sentencing phase of the trial: “A defendant who receives a

sentence of imp risonm ent for life shall no t be elig ible for p arole c onsid eration until

the defendant has served at least twenty-five (25) full calendar years of such

senten ce.” At trial defendant contended that parole eligibility in structio ns “sh ould

not be within the province of the jury” and are preju dicial to the d efenda nt. W e

reject the arg ume nt that a parole eligibility ju ry instru ction is g enera lly

                                            -13-
unconstitutional in a sente ncing he aring. See generally State v. Cribbs, 967

S.W .2d 773 (Tenn . 1998).



      Unfortunate ly, the 25-year jury instruction was inaccurate in this case.

Although Tennessee Code Annotated § 39-13-204(e)(2) specifically requires that

the jury be instructed as to service of “at least twenty-five (25) full calendar years”

before being eligible for paro le con sidera tion, this statuto ry calcu lation is

erroneo us.



      An examin ation of bo th Tennessee Code Annotated §§ 39-13-204 and 40-

35-501 is nece ssary. T enne ssee Code Anno tated § 40-35 -501 w as am ende d in

1993 to specifically provide that a defendant with a life sentence will not be

eligible for paro le until se rvice of “ a min imum of twen ty-five (25 ) full calendar

years of such sente nce.” Tennessee Code Annotated § 40-35-501(g)(1)(Supp.

1993). Also, in 19 93 Te nness ee Co de Ann otated § 39-13-2 04 was amen ded to

require that the jury be instructed that a defendant receiving a life sen tence will

not be elig ible for parole consideration until the defendant has served “at least

twenty-five (25) full calendar years of such sentence.”            Tennessee Code

Annotated §39-13-204(e )(2)(Supp.19 93).         It is obvious that the legislatu re

intended that the jury be in structe d as to parole eligibility as calculated by

Tenn essee Code Annota ted § 40 -35-501 .



       Effective July 1, 1995, Tennessee Code Annotated § 40-35-501 was

amended to deny release eligibility for those convicted of first-degree murder and

certain other crimes. Tennessee Code Annotated § 40-35-501(i)(1),(2)(Supp.

1995). Only certain sentence reduction credits not to exceed fifteen percent

                                         -14-
(15%) are allowa ble.     As no ted by the State Attorney General, for crimes

committed after Ju ly 1, 199 5, min imum releas e eligibility for a life sente nce is

fifty-one (51) years and no t twenty-five (2 5) years. See Attorney General Opinion

97-098 (7-1-97). U nfortunately, Tennessee Code Annotated § 39-13-204 was

not am ended to reflect this c hange .



       It imm ediate ly beco mes appa rent tha t the leg islature in 1995 overlooked

amending Tenn essee Code Annota ted § 39-13-204 to coincide with the 1995

amendment to Tennessee Code Annotated § 40-35 -501. T he sta tutes p resen tly

are in conflict; however, it is clear that the legislature intended to change the

minimum release eligibility date for a life sentence from twenty-five (2 5) years to

fifty-one (51 ) years.



       The homicide at issue was committed after July 1, 1995. We, therefore,

conclude that the trial court erred in informing the jury of the twenty-five (25) year

provision instead of the fifty-one (51) year provision. We now examine this error

to ascerta in wheth er it was pre judicial to the defend ant.



       W e are unable to conclude that the error was harmless in this case. The

jury found that the state had esta blished the statuto ry aggravating circumstance

of murder for remuneration. Tenn. Code Annotated § 39-13-20 4(i)(4). However,

it was still within the jury’s discretion to sen tence the defend ant to eithe r life

imprisonment or life without parole. Tenn. C ode Ann otated § 39-1 3-204(f)(2).

At the time of sentencing the defendant was 22 years of age.3 He would be at



       3
      The testimony at the sentencing hearing indicated the defendant was 22, whereas the
judgment indicates the age of 23.

                                          -15-
least 73 years of age be fore reach ing eligibility for rele ase for a straight life

sentence under the fifty-one (51) year prov ision. The inaccurate jury instruction

would a llow for pos sible relea se at age 47 for a life se ntence .



       The choice between life without the possibility of parole and life with the

possib ility of parole is one to be made by the jury u nder ou r senten cing statu te

for first-degree murder. Tenn. Code Annotated § 39-13-204. It is a serious

responsibility. This Court is reluctant to substitute our judgment for that of the

jury where the jury wa s provided inaccurate inform ation as to senten cing. In

many instances, depending upon the age of the defendant, it would appear a

defendant sentenced to straight life under the fifty-one (51) year provision will, as

a practical m atter, have the sam e effective s entenc e as life with out parole.

Howeve r, in this case we are unable to conclude the jury would still have chosen

life witho ut paro le if it had been prope rly instructed. Thus, we cannot apply the

harmle ss error d octrine in th is case.



                                   CONCLUSION




      The conviction is affirmed. The case is remanded to the trial court for

resente ncing for th e offense of first- degre e murd er.



                                           __________________________
                                           DAVID H. WELLES, JUDGE




                                           -16-
CONCUR:



__________________________
PAUL G. SUMMERS, JUDGE


___________________________
JOE G. RILEY, JUDGE




                              -17-
