         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE            FILED
                            OCTOBER 1998 SESSION
                                                        December 31, 1998

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk

STATE OF TENNESSEE,     )
                        ) C.C.A. No. 01C01-9711-CR-00538
    Appellee,           )
                        ) Davidson County
V.                      )
                        ) Honorable W alter C. Kurtz, Judge
                        )
JAMES THOMAS JEFFERSON, ) (Resentencing: First Degree Murder)
                        )
    Appellant.          )




FOR THE APPELLANT:                  FOR THE APPELLEE:

Karl F. Dean                        John Knox Walkup
Metro Public Defender               Attorney General & Reporter

Jeffrey A. DeVasher                 Timothy Behan
Assistant Public Defender           Assistant Attorney General
1202 Stahlman Building              425 Fifth Avenue North
Nashville, TN 37201                 Nashville, TN 37243-0493

                                    Victor S. (Torry) Johnson III
                                    District Attorney General

                                    Roger Moore
                                    Assistant District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue North
                                    Nashville, TN 37201


OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge




                                OPINION
       The defendant was convicted by a jury of first degree premeditated

murder; the same jury simultaneously sentenced him to forty years incarceration.

On direct appeal this Court affirmed the defendant's conviction but remanded the

matter for resentencing. See State v. Jefferson, 938 S.W.2d 1, 23 (Tenn. Crim.

App. 1996). On remand the defendant was sentenced by a jury to life

imprisonment. In this direct appeal the defendant contends that the trial court

erred when it 1) denied his motion to impanel a jury to determine his guilt or

innocence; 2) admitted into evidence the minute entry from the prior trial which

showed the jury's verdict of guilty but from which had been redacted its

imposition of the forty year sentence; and 3) instructed the jury that the only

sentence it could impose was life imprisonment. Finding no merit in these

complaints, we affirm the judgment of the trial court.



       The defendant first contends that because this Court previously found the

convicting jury's verdict “void,” he is entitled to a new trial on the issue of his guilt

or innocence. He argues, “Since the jury at [his] 1993 trial was exposed to

inaccurate sentencing information, its verdict as to both guilt and innocence is

void.” We disagree. In the initial direct appeal of this matter this Court held as

follows:

              In this case, the verdict returned by the jury was void
              because the punishment set by the jury was below
              the minimum punishment for the offense of murder in
              the first degree. The trial court did not have the
              authority to change the jury's verdict from forty (40)
              years to confinement for life in the Department of
              Correction. Since the jury found the appellant guilty
              of premeditated murder and the evidence contained
              in the record supports the verdict, the verdict of the
              jury finding the appellant guilty of premeditated
              murder is affirmed. However, this case must be
              remanded to the trial court for a new sentencing
              hearing.

Jefferson, 938 S.W.2d at 23 (footnote omitted). Prior to so holding this Court

noted, but obviously declined to adopt, the defendant's argument that “if the

punishment was below the minimum punishment for murder in the first degree, .


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. . the judgment of the trial court [should be reversed] and remand[ed] for a new

trial.” Id. at 20. Clearly, then, this Court has already decided that the convicting

jury's verdict is not void in its entirety but only as to sentencing. Significantly, our

Supreme Court denied the defendant's application for permission to appeal from

this decision.



       On resentencing, the trial court denied the defendant's motion for a jury to

determine his guilt or innocence on the basis of the judicial doctrine of “the law of

the case.” The trial court was correct. As noted by our Supreme Court in

Clements v. Pearson,

                 <A ruling or decision once made in a particular case
                 by an appellate court, while it may be overruled in
                 other cases, is binding and conclusive both upon the
                 inferior court in any further steps or proceedings in
                 the same litigation and upon the appellate court itself
                 in any subsequent appeal or other proceeding for
                 review. A ruling or decision so made is said to be
                 “the law of the case.” '

352 S.W.2d 236, 237 (Tenn. 1961) (quoting Black's Law Dictionary, Third Ed.).

The doctrine applies to issues that were actually before the court as well as to

issues that were necessarily decided by implication, see Ladd v. Honda Motor

Co., 939 S.W.2d 83, 90 (Tenn. App. 1996), and it applies to decisions that the

Supreme Court has declined to review. Id. at 91. Clearly the doctrine applies

here and this issue is therefore without merit.



       The defendant next complains about the minute entry of the convicting

jury's verdict admitted into evidence at the resentencing. Upon the state's

motion and over the defendant's objection, the trial court ruled that the minute

entry should have redacted from it the jury's assessment of the defendant's

punishment at “forty years in the penitentiary.” The defendant claims that the

redacted document misled the sentencing jury and “falsely indicated” to it that

the convicting jury had not earlier sentenced the defendant. W e are

unpersuaded. The convicting jury's sentence of the defendant was clearly

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irrelevant in the context of his resentencing. “Evidence which is not relevant is

not admissible.” Tenn. R. Evid. 402. The only evidence of the prior jury's action

which was relevant in the context of the resentencing proceeding was its verdict

of guilt. The redacted minute entry accurately reflected that information. This

issue is without merit.



       Finally, the defendant contends that the trial court erred when it instructed

the jury, “The sentence for murder in the first degree is the sentence of life

imprisonment.” We disagree and return to this Court's earlier opinion in this

matter: “In summary, this Court is bound by the Supreme Court's decision in

Miller [v. State, 584 S.W.2d 758 (Tenn. 1979),] that the only possible punishment

for first degree murder is life imprisonment.” See Jefferson, 938 S.W.2d at 21.

Thus, the trial court did not err in so instructing the resentencing jury. This issue

is without merit.



       The judgment of the trial court is affirmed.




                                               __________________________
                                               PAUL G. SUMMERS, Judge


CONCUR:




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_____________________________
JOSEPH M. TIPTON, Judge




_____________________________
JOE G. RILEY, Judge




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