        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON                FILED
                         DECEMB ER SESSION, 1998           April 26, 1999

                                                       Cecil Crowson, Jr.
                                                      Appellate Court Clerk
STATE OF TENNESSEE,               )   C.C.A. NO. 02C01-9803-CR-00082
                                  )
           Appellee,              )
                                  )   SHELBY COUNTY
V.                                )
                                  )
                                  )   HON . JOHN P. CO LTO N, JR.,
GARY ANTONIO JOHNSON,             )   JUDGE
                                  )
           Appe llant.            )   (SECO ND DE GREE MUR DER)



FOR THE APPELLANT:                    FOR THE APPELLEE:

CHARLES CURBO                         JOHN KNOX WALKUP
P.O. Box 322                          Attorney General & Reporter
Memphis, TN 38101-0322
                                      DOUGLAS D. HIMES
                                      Assistant Attorney General
                                      2nd Floor, Cordell Hull Building
                                      425 Fifth Avenu e North
                                      Nashville, TN 37243

                                      JOH N W. P IERO TTI
                                      District Attorn ey Ge neral

                                       DANIEL WOODY
                                       Assistant District Attorney General
                                       Criminal Justice Center, Suite 301
                                       201 Poplar Avenue
                                       Memphis, TN 38103




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION
       The Defenda nt, Gary Antonio Johnson, appeals as of right his conviction of

second degree murder following a jury trial in the Shelby County Crimina l Court.

The trial court sentenced Defendant as a Range I Standard Offender to twenty-two

(22) years in the Department of Correction. In this appeal, Defendant a rgues that

the trial court erred in its instruction on range of punishment. After a careful review

of the reco rd, we affirm the judgm ent of the tria l court.



       A brief summary of the facts reveals that during the morning of May 10, 1996,

Ray Lee, the victim, and his brother, Harold Lee, went to the “Chinese store” on the

corner of Trigg and W ellingto n to bu y a bee r. Defe ndan t (“Little Tony”) was on the

other side of the street in front of S & M Grocery.            The victim and Defendant

exchanged words. Shortly thereafter, gunfire erupted with Defendant firing two

pistols at the victim and the victim firing a rifle at Defendant. No one was injured

during th is incident.



       Two witnesses testified that after the morning incide nt, De fenda nt and his

uncle, Wa lter Farmer (“Little W alter”), drove by the home of victim’s mother at 406

Lucy in Memphis, Tennessee. Farmer called ten-year-old Corey House to the car

and told him that they had something for his brother, the victim. Defendant and

Farm er displaye d their we apon to the boy a nd then drove off.



       Later that same afternoon, the victim w as talking to James Weston near the

corner of Wellington and Cambridge. Weston’s rear window of h is car had been

shot-out by the victim in the morning gunfight. At some point, Defendant, his uncle,

                                            -2-
Anwar L. Odom (Lavell), and Greg Williams (“Little Greg”) pulled up in their car and

gunfire erupted again. This time the victim was hit by the gunfire and fell to the

ground. Defendant was shooting a .12 gauge pump shotgun during the gunfire

exchange . Defendan t and the other m en then fled the s cene in their car.



      The police recovered nine spent shotgun shells, eight nine-millimeter casings,

two spent bullets and one live nine-millimeter round. It was determined that the

victim was shot three times and d ied as a resu lt of thos e wou nds. T he victim

received one g unsh ot wou nd wh ich wa s a “fles h wou nd.” T he victim also had two

shotgun wounds which caused extensive damage to his lungs, heart, liver, spleen,

and intestines. T hese wou nds were tes tified to as being “very lethal.”



      On May 13, 1996, Defendant turned himself in to the police. Defendant was

advised of his cons titutional rights and the n gave th e officers a five page statem ent.

In his statement, Defendant confessed to shooting the victim three or four times.

Defendant described the early morning incident at Trigg and Wellington, and the

final shootout at Wellington and Cambridge. Defendant stated the following:

             So, me, Lavell, W alter, and Lil’ Greg, we were fixin’ [to] go
             up there and talk to my momma. Soon as we hit the
             corner, we see Ray Lee [victim] leaning in the door of the
             truck, and the other dude was leaning on the back bed of
             the truck. So, w hen we stoppe d, the other dude pointed
             at the little junkie car we were in. Then Ray [the victim]
             pulled out his pistol and git [sic] to shooting. We jumped
             out [of] the car righ t there. I just ran in the street and
             started shooting. He [the victim] fell an d we ran back to
             the car.


      At trial, Defendant denied driving by the victim’s mother’s house on the

morning of the murder. As to the last shootout, Defendant stated that his group was

armed when they got into the car. He said he had a shotgun, Farmer had a .380

                                           -3-
caliber pistol, W illiams had a shotgu n, and Lavell had a nine -millim eter pis tol.

Defendant said he took a shotgun because he could shoot it better than the

automatics. Defendant denied that they went out lookin g for the victim . Defendant

admitted shooting the victim while the victim was on the ground because “he [the

victim] was shooting at me.” Defendant did reconfirm his previous statement given

to the police.   The jury found Defendant guilty of second degree murder. On

January 12, 1998, the trial court sentenced Defendant to twenty-two years as a

Range I Standard O ffender.



       In this appeal, Defendant specifically raises the following issue:

              Did the Trial Court err in charging the jury on the range of
              punishment with an inclusion of eligibility of
              parole/suspension of sentence included regarding range
              1 only, particularly when there was no written or oral
              request by either the state of [sic] the D efendant prior to
              the jury being selected or otherwise?


In Defe ndan t’s brief, he argues that he was prejudiced by the range of punishment

instruction in two respects: (1) “it did not explain both the minimum and maximum

credits, but only listed the maxim um cre dits;” and (2) it “did not instruct the jury that

the range of punishment for manslau ghter is 3 to 15 yea rs, but instructed the jury

that the range of punishment was 3 to 6 years.” Defendant further contends that the

trial court erred in even charging the jury with any range of punishment when neither

he nor th e State re queste d the instru ction pre-tria l as require d by statu te.



       At the tim e of De fenda nt’s trial, T enne ssee Code Anno tated s ection 40-35-

201(b) provided the following:

              (1) 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

                                             -4-
              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.

              (2)(A) (i) When a charge as to possible penalties has been
              requested pursu ant to s ubdivis ion (b)( 1), the ju dge s hall
              also include in the instructions for the jury to weigh and
              consider the me aning o f a senten ce of imp risonm ent for
              the offens e cha rged a nd an y lesser included offenses.
              Such instruction shall include an approxim ate calculation
              of the minimu m num ber of years a pe rson sente nced to
              imprisonment of the offense charged and lesser included
              offenses must serve b efore reach ing su ch pe rson’s
              earliest releas e eligib ility date. S uch c alcula tion sh all
              include such factors as the release eligibility percentage
              estab lished 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 autho rity to require the defendan t to serve
              the entire s entenc e impo sed by th e court.


       On May 1, 1998, Tennessee’s General Assembly passed Public Chapter No.

1041, an amendment to § 40-35-201, which deletes the foregoing subs ection (b) in

its entirety and provide s that th e trial co urt sha ll not inst ruct the jury on p ossib le

penalties for the offense charged nor lesser included offenses. This amendment

applies to all trials occu rring after the Act’s effec tive date.         H oweve r, since

Defe ndan t’s trial was held in 1997, the former subsection (b) applies. Our supreme

court has upheld the constitutionality of jury instructions given pursuant to former

Tennessee Code Annota ted sectio n 40-35 -201(b). State v. King, 973 S.W.2d 586

(Tenn. 19 98).


       The trial court’s instruction in the case sub judice on range of punishment

provided:

                                             -5-
            The jury will not attemp t to fix any sentence . However,
            you may weigh and consider the meaning of a sentence of
            imprison ment. The ra nge of punis hment for the crimes
            involved herein is as follows:

            The punishm ent for murde r in the first degre e is
            imprisonm ent for life in the penitentiary.

            The punishment for m urder in the se cond degre e is
            imprisonment in the penitentiary for not less than fifteen
            (15) nor more than twenty-five (25) years.

            The punishment for voluntary manslaughter is
            imprisonment in the penitentiary for not less than three (3)
            nor more than six (6) years.

            You are further informed that the minimum number of
            years a person sentenced to imprisonment for these
            offenses must se rve before reaching the earlies t release
            eligibility date is:

                            MURDER FIRST DEGREE

            A defendant who receives a sentence of imprisonment for
            life shall not be eligible for releas e until the defendant has
            served at least fifty-one (51) years of such sentence.

                          MURDER SECOND DEGREE

            A defendant convicted of murder in the Seco nd De gree is
            not eligible for early release.

                        VOLUNTARY MANSLAUGHTER

                                               3 YRS.
            RED%                               30%
            RED% APPLIED                       0.90 yrs.
            W/MAX CREDITS                              0.59 yrs.
            SAFETY VALVE                       0.54 yrs.
            S.V. & MAX CREDITS                 0.35 yrs.
            Wh ether a defen dant is actually released from incarceration on
            the date when first eligible for releas e is a discretionary decision
            made by the Boa rd of Paro le and is b ased o n man y factors. The
            Board of Parole has the authority to require a de fendant to serve
            the entire s entenc e impo sed by th e Cou rt.


      First, Defendant contends that the trial court erred in not instructing the jury

on the number of years before release eligibility based on the minimum credits.



                                          -6-
In compliance with the statute, the trial court informed the jury as to the shortest and

longest poss ible sentences as a Range I Standard Offender for each offense

charged to the jury. Additionally, the trial c ourt ins tructed the jury o n Def enda nt’s

earliest release eligibility date without credits applied, with maximum credits applied,

with the safety valve applied, and with both the maxim um cre dits and th e safety

valve applied. See Tenn. C ode Ann . § 40-35-201 (b)(2)(A)(i). Although the trial court

did not sp ecifica lly use th e phra se “m inimu m cre dits,” it did give the sentence without

credits, which is e ssentially the minim um. W e find that th e trial court tracked the

language of the statute and that the jury was properly instructed on range of

punish ment. See also King, 973 S.W.2d 586.



       Second ly, Defendant argues that the trial court should have instructed the jury

that the range of punishment for manslaughter is three to fifteen years, not three to

six years. The trial cou rt instructed the jury as to what punishmen t would be for a

Range I Standard Offender convicted of voluntary manslaughter (three to six years).

Defendant did no t qualify fo r an en hanc ed pu nishm ent ran ge, so the trial court

correc tly instructed the jury as to Rang e I pun ishm ent. D efend ant wa s even tually

convicted of second degree murder and sentenced as a Range I Standard O ffender.

We canno t see how the cour t’s instruction on voluntary manslaughter prejudiced

Defen dant, especially in light of the fact that had he been con victed of voluntary

manslau ghter, he would have bee n sen tence d as a Rang e I Stan dard O ffende r in

which case the trial court’s instru ction wou ld have b een ap plicable a nd corre ct. See,

e.g., State v. S mith, 926 S.W .2d 267 (Tenn . Crim. A pp. 199 5).



       Finally, the record indicates that neither party even requested a range of

punishment instruction prior to trial as required by Tenn. Code Ann. § 40-35-

                                             -7-
201(b)(1). However, the trial court engaged counsel in the following discussion prior

to closing arguments:

               The Court: Lawyers, did you get a copy of any of that [the
               charge ]?

               Mr. Cu rbo [D efend ant’s la wyer]: Y es, sir

               The Court: All right. We’re going to put the tim e amo unts
               -- amou nts of time and eve rything tha t
               people -- that the de fendan t could po ssibly get o n all of
               these various --

               Mr. Curbo [Defendant’s lawyer]: Are you talking about the
               full range, Judge?

               The Court: Um-hum.


         Counsel for Defendant did not object at anytime. Also, counsel made no

objection to the range of punishment instruction before or after it was given to the

jury. The first time counsel challenged the instruction was at the sentencing hearing,

and the n only as to the cons titutionality of the statute.



         The instruction in this case was accurate and Defendant has failed to show

any prejudice resulting from the instruction. In State v. Ray Vance, the rec ord did

not reflect that e ither part y filed a request for range of punishment prior to the

seating of the jury. C.C.A. No. 01C01-9610-CC-00425 , slip op. at 10, Stewa rt

Coun ty (Tenn . Crim. A pp., Nas hville, Dec. 3 , 1997), perm. to appeal denied (Tenn.

1998).     Nevertheless, a range of punishment instruction was charged without

objection. Id. In con cludin g that th e error was h armle ss, a p anel o f this Court stated

the following:

               W e fail to see how the instruction, which was available as
               a matter of right to either party and which contained no
               information which has been shown to be inaccurate,
               prejudice d the de fendan t.



                                             -8-
Id. As in Vance, any error in the case sub judice in charging range of punishment

absent the statuto rily requ ired req uest is harmle ss beyo nd a rea sonab le doub t. Id.;

Tenn. R . App. P. 36(b); T enn. R. Crim . P. 52(a).



       Based on all the foregoing, the judgment of the trial court is affirmed.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
JOHN EVERET T WILLIAMS, Judge




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