            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                            SEPTEMBER 1998 SESSION
                                                         FILED
                                                       November 20, 1998

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
STATE OF TENNESSEE,                  )
                                     )   C.C.A. No. 02C01-9711-CR-00443
            Appellee,                )
                                     )   Shelby County
V.                                   )
                                     )   Honorable W . Fred Axley, Judge
RECO R. DOUGLAS,                     )
                                     )
            Appellant.               )   (First-degree felony murder)



FOR THE APPELLANT:                       FOR THE APPELLEE:


A C Wharton                              John Knox Walkup
Shelby County Public Defender            Attorney General & Reporter

Tony N. Brayton                          Marvin E. Clements, Jr.
Assistant Public Defender                Assistant Attorney General
201 Poplar Avenue, Suite 201             425 Fifth Avenue North
Memphis, TN 38103                        Nashville, TN 37243
   (on appeal)
                                         William L. Gibbons
Trent R. Hall                            District Attorney General
Assistant Public Defender
201 Poplar St., Ste. 2-01                Edgar A. Peterson IV
Memphis, TN 38103                        Assistant District Attorney General
   (at trial)                            201 Poplar Avenue, Suite 301
                                         Memphis, TN 38103



OPINION FILED:____________________



REVERSED AND REMANDED FOR A NEW TRIAL


PAUL G. SUMMERS,
Judge
                                       OPINION



               The defendant was charged with first-degree murder during the perpe-

tration of a robbery and convicted of that offense by a jury. He was sentenced to life

imprisonment. In this direct appeal the defendant raises the following issues:

               1. Whether the trial court erred in its instruction to the jury
               on release eligibility dates;

               2. Whether T.C.A. § 40-35-201(b)(2)(A)(I) (1997) is uncon-
               stitutional; and

               3. Whether the evidence is sufficient to support the ver-
               dict.

The state correctly concedes that this case must be reversed and remanded for a new

trial because the trial court committed reversible error in its instruction to the jury on

release eligibility dates.

                                           FACTS

               According to the defendant's statement to the police, he and a friend

named Dion decided on December 3, 1994, to rob “[a]nybody we see with something.”

They saw the victim's apartment door open and entered it. The victim, Jack Rouse,

“ran towards Dion” and the defendant shot him once in the stomach with a sawed-off

.410 shotgun. Dion then took the gun and hit Rouse in the head with the gun barrel.

The two assailants then took approximately nine dollars in change and the victim's

beeper and ran out of the apartment.



               Other proof established that the victim called his neighbors and 911.

The police and emergency medical personnel arrived and the victim was taken to the

hospital. He subsequently bled to death from a severed aorta caused by the shotgun

wound to the abdomen. Fifteen shotgun pellets were recovered from Rouse's

abdomen.




                                             -2-
                  Several days later the police found the defendant, recovered the victim's

beeper from his person and took his statement. The defendant's ex-girlfriend testified

at trial that the defendant had also confessed the murder and robbery to her after he

was in jail.

                                                  ANALYSIS

                  The defendant first contends that the trial court erred in its instruction to

the jury on parole eligibility dates.1 The trial court instructed the jury as follows:2

                  The jury will not attempt to fix any punishment or sentence
                  for [the defendant's] offenses. However, for your
                  information only, you are informed that the [range] of
                  punishment as to . . . Murder in the First Degree During the
                  Perpetration of a Robbery [is] imprisonment for life with
                  parole.

                  ...

                  You are further informed that the minimum number of
                  years a person sentenced to imprisonment for [this
                  offense] must serve before reaching the earliest release
                  eligibility date (RED) is:

                  ...

                  RED %                                                 30%
                  RED % Applied                                         4.50 years
                  W[ith] Max[imum] Credits                              2.95 years
                  Safety Valve                                          2.70 years
                  Safety Valve & Max[imum] Credits                      1.77 years

The trial judge further instructed the jury with explanations for the terms “RED %,”

“RED % Applied,” “With Max[imum] Credits,” “Safety Valve,” and “Safety Valve &

Max[imum] Credits.” He then told the jury that “Whether a defendant is actually

released from incarceration on the date when first eligible for release is a discretionary

decision made by the Board of Paroles and is based on many factors. The Board of



         1
          T.C.A. § 40-35-201(b)(2)(A)(I) (1997) provides that “[w]hen a charge as to possible penalties has
been requested pursuant to subdiv ision (b)(1), the judge s hall also include in the in structions for the jury to
weigh and consider the meaning of a sentence of imprisonment for the offense charged and any lesser
included offenses. Such instruction shall include an approximate calculation of the minimum number of
years a person sentenced to imprisonment for the offense charged and lesser included offenses must serve
before reaching such person's earliest release eligibility date. Such calculation shall include such factors as
the release eligibility percentage established by § 40-35-501, maximum and minimum sentence reduction
credits authorized b y § 41-21-236 and the governor's po wer to reduce pris on overcrow ding pursuant to title
41, chapter 1, part 5, if app licable.”

         2
         The actual charge to the jury was not transcribed. The record contains a copy of the written
charge, however, from which we quote.

                                                       -3-
Paroles has the authority to require a defendant to serve the entire sentence imposed

by the Court.”



              As pointed out by the defendant, persons sentenced to life imprisonment

for first-degree murder must serve at least twenty-five full calendar years before

becoming eligible for parole. See T.C.A. § 40-35-501(h)(1). Furthermore, our criminal

code requires a trial court to instruct the jury in a first-degree murder case that a

defendant receiving a life sentence shall not be eligible for parole until he has served

at least twenty-five full calendar years of his life sentence. See T.C.A. § 39-13-

204(e)(2).



              In State v. Cook, 816 S.W.2d 322 (Tenn. 1991), the jury was mistakenly

instructed that the defendant's range of punishment was Range I when the

defendant's crimes were statutorily required to be sentenced at Range II. Our

Supreme Court held that T.C.A. § 40-35-201(b) “gives a defendant a claimable

statutory right to have the jury know the range of punishment applicable to the

charges before deciding guilt or innocence.” Id. at 326. It further held that this right

“would be lost if the defendant were to be sentenced to punishments greater than

what the jury finding guilt was instructed would be imposed” and that denying the

defendant this right “constitutes prejudice to the judicial process, rendering the error

reversible under Rule 36(b) T.R.A.P.” Id. at 327.



              In the instant case, the trial court did not err in its instruction to the jury

on range of punishment. However, the instructions did inform the jury that the

defendant could be released on parole in less than two years when he was, in fact,

ineligible for parole until after serving twenty-five years. This case is distinguishable

from those in which the defendant is eventually determined to be a Range II offender

but the jury was instructed on the minimum Range I sentence and the maximum

Range II sentence. See, e.g., State v. Smith, 926 S.W.2d 267, 271 (Tenn. Crim. App.


                                             -4-
1995). In those cases, the defendant may indeed become ineligible for a Range I

sentence upon later proof submitted at the sentencing hearing. At the time of trial,

however, such defendants' sentencing status has not been established and the state's

proof for a higher range may fail. In other words, in those cases, the instructed

minimum sentence is still a possibility. In this case, the defendant was ineligible for

parole before serving twenty-five years at the time of trial. Because the defendant

could not, under any circumstances, be eligible for release in 1.77 years, he was

subjected, in effect, to a greater sentence than that about which the jury was

informed.



              Also, the jury in this case was instructed not only on the offense of first-

degree felony murder but also on the lesser offenses of reckless homicide and

criminally negligent homicide. As the Cook court recognized, “It is widely perceived by

those who observed the operations of our trial courts in previous times, when juries

had the additional responsibility of setting punishment, that often they seemed to find

guilt of a crime not necessarily most strongly suggested by the evidence, but one the

punishment for which suited their sense of justice in the case.” Cook, 816 S.W.2d at

326. In the instant case, it is conceivable that, had the jury known that a first-degree

murder conviction carried a minimum service of twenty-five years, it would have

chosen to convict the defendant of a lesser offense. Cf. State v. Winford Lee Pipkin,

No. 01C01-9605-CR-00210 (Tenn. Crim. App. filed Dec. 4, 1997, at Nashville) (where

no lesser offenses were charged to the jury, the trial court's failure to inform the jury

that the defendant would not be eligible for sentence reduction credits did not

constitute reversible error).



              In State v. Jerry Ray Cooper, No. 01C01-9604-CC-00150 (Tenn. Crim.

App. filed Nov. 17, 1997, at Nashville), this Court considered a jury charge given

pursuant to T.C.A. § 40-35-201(b) which included the minimum release eligibility date

but omitted the paragraph stating that the Board of Paroles has the authority to


                                            -5-
require the defendant to serve his entire sentence. As a result, the trial court had

thereby given “an inaccurate statement of the law and mis[led] the jury regarding the

likelihood of when [the] defendant would be released.” Accordingly, this Court

reversed the conviction and remanded the case for a new trial. 3



                 The instructional error committed in this case was similarly misleading to

the jury. The jury was informed that, even if it convicted the defendant of the greatest

offense with which he was charged, he could be paroled in less than two years.

Misinformation of that magnitude resulted in prejudice to the judicial process. See

T.R.A.P. 36(b). Accordingly, we have no choice but to reverse the conviction below

and remand this matter for a new trial.



                 In his next issue, the defendant challenges the constitutionality of the

statute under which a jury is instructed about the range of punishments for the

offenses charged, T.C.A. § 40-35-201(b)(2)(A)(I) (1997). Our Supreme Court has

recently addressed this issue and found the statute constitutional. State v. King, 973

S.W.2d 586, 592 (Tenn. 1998). This issue is, therefore, without merit.



                 Finally, we address the defendant's contention that the evidence is not

sufficient to sustain his conviction. A defendant challenging the sufficiency of the

proof has the burden of illustrating to this Court why the evidence is insufficient to

support the verdict returned by the trier of fact in his or her case. This Court will not

disturb a verdict of guilt for lack of sufficient evidence unless the facts contained in the

record and any inferences which may be drawn from the facts are insufficient, as a

matter of law, for a rational trier of fact to find the defendant guilty beyond a

reasonable doubt. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). We

must review the evidence in the light most favorable to the prosecution in determining



        3
          We note that two separate concurring opinions in this case reached this result based on finding the
statute unconstitutiona l.

                                                     -6-
whether “any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We do

not reweigh or re-evaluate the evidence and are required to afford the state the

strongest legitimate view of the proof contained in the record as well as all reasonable

and legitimate inferences which may be drawn therefrom. See State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978).



              Questions concerning the credibility of witnesses, the weight and value

to be given to the evidence, as well as factual issues raised by the evidence are

resolved by the trier of fact, not this Court. See id. A guilty verdict rendered by the

jury and approved by the trial judge accredits the testimony of the witnesses for the

state, and a presumption of guilt replaces the presumption of innocence. See State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1973).



              The proof in this case established that the defendant confessed at least

twice to the crime of which he was convicted. Testimony and physical evidence

corroborated these confessions. See Ashby v. State, 139 S.W. 872, 875 (1911)

(holding that confessions corroborated by other evidence, direct or circumstantial, will

support a conviction). The proof of the defendant's guilt is not only sufficient, it is

overwhelming. This issue is without merit.



              For the reasons set forth above, the defendant's conviction is reversed

and this matter is remanded for a new trial.




                                                  _____________________________
                                                  PAUL G. SUMMERS, Judge



                                            -7-
CONCUR:




___________________________
DAVID H. WELLES, Judge




___________________________
JOE G. RILEY, Judge




                              -8-
