            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT NASHVILLE                FILED
                                APRIL 1998 SESSION
                                                                  August 12, 1998

                                                            Cecil W. Crowson
STATE OF TENNESSEE,                *      C.C.A. NO. 01C01-9704-CC-00158 Clerk
                                                          Appellate Court

       APPELLEE,                   *      DAVIDSON COUNTY

VS.                                *      Hon. Thomas H. Shriver, Judge

JAMES C. NICHOLS,                  *      (First Degree Murder)

       APPELLANT.



                              CONCURRING OPINION

              I concur in the result reached in this case; I write separately only to

address the parole eligibility jury instruction. In State v. King, ____ S.W.2d ____

(Tenn. 1998), our supreme court ruled that the charge on parole eligibility and early

release was acceptable for the primary reason that the jury was provided the

instruction on an "information only" basis. The charge in this instance is

distinguishable because the jury was directed to "weigh and consider the meaning of

a sentence of imprisonment" and then advised of release eligibility for each offense.

In my opinion, when the duty of the jury is to determine only whether the defendant

is guilty beyond a reasonable doubt, an instruction requiring consideration of release

eligibility violates due process. As Judge Joe G. Riley wrote in State v. Jason M.

Weiskopf, No. 02C01-9611-CR-00381, slip op. at 9 (Tenn. Crim. App., at Jackson,

Feb. 4, 1998), app. filed by state, May 6, 1998, it "allows consideration of

extraneous information, not adduced as proof [at trial], that in no way relates to [the]

determination of guilt or innocence."



              Here, the jury was instructed to "weigh and consider" that the earliest

release eligibility for second degree murder was 2.95 years; for voluntary
manslaughter, 0.59 years; for reckless homicide, 0.39 years; and for criminally

negligent homicide, 0.2 years. If the proof of premeditation had not been

overwhelming, the error could not have been classified as harmless beyond a

reasonable doubt. Yet, several witnesses testified to prior threats the defendant had

made to the victim. The autopsy report indicated a tremendous amount of force

would be required to cause the types of injuries the victim sustained. Forensic

evidence suggested two of the knives had been washed after the stabbing. Under

those circumstances, I would conclude that the instruction did not affect the verdict.



                                         __________________________________
                                         Gary R. Wade, Judge
