            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                        JANUARY SESSION, 1998




STATE OF TENNESSEE,         )
                            )    No. 02C01-9702-CR-00075
      Appellee              )
                            )    SHELBY COUNTY
vs.                         )
                            )    Hon. James C. Beasley, Jr., Judge
MICHAEL DINKINS,            )
                            )    (Aggravated assault;
      Appellant             )    Theft under $500)



For the Appellant:               For the Appellee:

Walker Guinn                     John Knox Walkup
Assistant Public Defender        Attorney General and Reporter
201 Poplar Street 2-01
Memphis, TN 38103                Elizabeth T. Ryan
                                 Assistant Attorney General
                                 Criminal Justice Division
A. C. Wharton, Jr.               450 James Robertson Parkway
District Public Defender         Nashville, TN 37243-0493


                                 William Gibbons
                                 District Attorney General

                                 Lee Coffee
                                 Asst. District Attorney General
                                 Criminal Justice Complex
                                 Suite 301, 201 Poplar St.
                                 Memphis, TN 38103



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                         OPINION



       The appellant, Michael Dinkins, was convicted by a Shelby County jury of

aggravated assault and theft of property under $500. The trial court imposed

consecutive sentences of four years for the aggravated assault conviction and

eleven months and twenty-nine days for the theft conviction. In this appeal as of

right, the appellant contends that: (1) the trial court erred by failing to properly

instruct the jury regarding eyewitness identification as required by Dyle; and (2) the

trial court erred by providing to the jury parole eligibility information.



       After a review of the issues, we affirm the judgment of the trial court.




                                       Background



       On December 13, 1995, Joseph Causley was on duty as a uniformed security

guard at the MegaMarket Supermarket located on Poplar Avenue in Memphis.

Sometime between 8:30 and 8:45 a.m., Causley, while observing surveillance

cameras from behind a two-way mirror, noticed “a male black pushing a shopping

cart [containing unbagged merchandise] through an [unmanned] cashier counter

and outside the door.” Causley followed the individual into the parking lot and

identified himself as a security officer. The individual knocked over the shopping

cart and fled. As Causley was placing the groceries back into the cart, the individual

“came up out of nowhere and rushed [him] with some sharp object and stabbed

[him] [in the abdomen].” Causley sprayed his attacker with pepper spray, which

seemed to have no effect on the individual. The assailant attempted to stab

Causley again, however, he was thwarted from a second attack when Causley drew

his firearm. The assailant then fled the scene.




                                            2
       Causley immediately returned to the security office inside the store where he

notified the police. The vicitim described his assailant as an African-American male

wearing a brown coat, black pants, and carrying a black duffle bag. W ithin five

minutes of the radio dispatch, Memphis Police Officer Tom Arnold observed a

person walking westbound on Poplar, approximately one-half block from the

MegaMarket, matching the description of the assailant. The suspect was arrested

and a “pat-down” of his person revealed a “pair of folding type scissors” in the right

pocket of his jacket. Officers then immediately transported the suspect back to the

MegaMarket for identification by Causley. Causley, who was waiting to be

transported to the hospital for treatment of his injuries, without hesitation, identified

the suspect as his assailant. The suspect was later identified as the appellant.



       At trial, evidence obtained from the MegaMarket videotape surveillance

camera corroborated Causley’s identification of the appellant as the perpetrator of

the crimes charged. Causley underwent surgery and spent two days in the hospital

for the injuries inflicted by the appellant. Based upon this evidence the jury found

the appellant guilty of aggravated assault and misdemeanor theft.




                        I. Failure to Provide Dyle Instruction



       In his first issue, the appellant argues that the jury was not properly instructed

on eyewitness identification. He raises as error the trial court’s failure to give the

Dyle instruction on identification. He concedes that the instruction submitted to the

jury in this case is similar in many respects to the instruction mandated by Dyle,

except that the instruction in the instant case omitted language that “[identification

testimony is an expression of belief or impression by the witness. . . .” State v. Dyle,

899 S.W.2d 607, 612 (Tenn. 1995). In response, the State correctly asserts that the

appellant failed to raise this issue in his motion for new trial, see Tenn. R. App. P.


                                          3
3(e), and that waiver of this issue is mandated. Nonetheless, we find this issue

proper for review on the merits because the supreme court in Dyle made its ruling

specifically applicable to all cases tried or on appeal as or after the date of its

release.1 Dyle, 899 S.W.2d at 612; see also Tenn. R. App. P. 2; Tenn. R. Crim. P.

52(b).



         In State v. Dyle, the Tennessee Supreme Court promulgated an identity

instruction which must be given in those cases where identification is a material

issue and the instruction is requested by defense counsel. Id. The appellant

requested that the Dyle instruction be given. Thus, our sole inquiry is whether

identity is a material issue. “Identity will be a material issue when the defendant

puts it at issue or the eyewitness testimony is uncorroborated by circumstantial

evidence.” Dyle, 899 S.W.2d at 612, note 4. In the instant case, the appellant did

not argue that he was not at the crime scene or that his identity was mistaken. The

record reflects that the appellant presented no proof in his defense. Thus, he failed

to place his identity in issue. Moreover, the victim, Joseph Causley, was an

eyewitness to the commission of the offenses. His identification of the appellant as

the perpetrator was sufficiently corroborated by the videotape from the surveillance

camera of the MegaMarket. Cf. State v. Williams, 913 S.W.2d 462, 466 (Tenn.

1996) (holding that jury identification of defendant from surveillance photographs of

crime scene is both constitutional and sufficient to establish identity). Accordingly,

we conclude that the appellant’s identity was not a material issue requiring that the

Dyle instruction be given.



         Additionally, we find that had the requested Dyle instruction been given, the

instruction would have only served to strengthen the State’s identification testimony.

See State v. Bufford, No. 02C01-9509-CR-00275 (Tenn. Crim. App. at Jackson,



         1
             State v. Dyle was released on May 15, 1995. The appellant’s trial began on June 25,
1996.

                                                   4
Mar. 19, 1997). Finally, we are cognizant of the fact that this court has implicitly

approved this same challenged jury instruction on at least two prior occasions when

identity was not a material issue. See State v. Franklin, No. 02C01-9511-CR-00340

(Tenn. Crim. App. at Jackson, June 2, 1997); State v. Williams, No. 02C01-9512-

CR-00359 (Tenn. Crim. App. at Jackson, May 15, 1997). For the stated reasons,

we conclude that, not only was the Dyle instruction not mandated under the facts of

this particular case, but also that any error created by failing to give an instruction

containing the precise Dyle language had no effect on the outcome and was

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



                            II. “Truth in Sentencing” Instruction



        In his final issue, the appellant presents various challenges to the so-called

“Truth in Sentencing” instruction codified at Tenn. Code Ann. § 40-35-201(b) (1996

Supp.). Basically, the appellant avers that the instruction is unconstitutional in that it

violates, inter alia, the doctrine of separation of powers and his right to a fair trial

under the due process clause. Although a previous panel of this court, in State v.

King, No. 02C01-9601-CR-00032 (Tenn. Crim. App. at Jackson, Oct. 22, 1996),

perm. to appeal granted, (Tenn. Mar. 10, 1997), 2 has held the “Truth in Sentencing”

provision constitutional, for the reasons discussed herein, we conclude, pending

resolution of this issue by our supreme court,3 that the interjection of range of


        2
          See also State v. Palmer, No. 01C01-9604-CC-00150 (Tenn. Crim. App. at Nashville,
Nov. 20 , 1997); State v. Cooper, No. 01C 01-960 4-CC -00150 (Tenn . Crim. A pp. at Na shville, Nov ..
17, 1997 ); State v. Ho well, No. 01C01-9610-CR-00443 (Tenn. Crim. App. at Nashville, Nov.. 6,
1997); State v. Bradford, No. 01C01-9607-CR-00294 (Tenn. Crim. App. at Nashville, Sept. 30,
1997); State v. Gates, No. 01C01-9607-CR-00312 (Tenn. Crim. App. at Nashville, Sept. 30,
1997); State v. Majors, No. 01C 01-950 6-CR -00211 (Tenn . Crim. A pp. at Na shville, Jul. 30, 1 997).
But see State v. Weiskopf , No. 02C01-9611-CR-00381 (Tenn. Crim. App. at Jackson, Feb. 4,
1997); Cooper, No. 01C 01-960 4-CC -00150 (Hayes, J ., separa te conc urring); Cooper, No. 01C01-
9604-C C-001 50 (Sm ith, J., separ ate con curring).

        3
          We note that, regarding the present statute as amended in 1994, our supreme court has
not specifically addressed the constitutionality of this statute. Moreover, despite argument to the
contrary, State v. Cook, 816 S.W.2d 322 (Tenn. 1991), is not dispositive of the issue. In Cook,
permission to appeal was granted as to the limited issue of whether the trial court committed
prejudicial error by erroneously instructing the jury on the range of punishments of a Range I
offend er, where , in actuality, the de fendan t was a R ange II off ender. Cook, 816 S.W .2d at 324 .
Thus, the constitutionality of Tenn. Code Ann. § 40-35-201 (1990) was not before the court. The
supreme court held that this section “gives a defendant a claimable statutory right to have the jury

                                                  5
punishment, coupled with the statutorily required minimum parole eligibility date,

sentence reduction credits and the governor’s power to reduce prison overcrowding,

at the guilt phase of a trial, may be so unduly prejudicial to the determination of guilt

that it renders the trial fundamentally unfair. 4 5 See TENN. CONST . art I, § 8; State ex.

rel. Anglin v. Mitchell, 596 S.W.2d 779 (Tenn. 1980).



         Tenn. Code Ann. § 40-35-201(b) mandates that a trial court, in noncapital

cases, upon request of either party, charge the jury with possible penalties for the

offense charged as well as all lesser included offenses. In 1994, the Tennessee

General Assembly amended this provision by adding that the instruction shall also

include “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 the person’s earliest release eligibility date,” including

the release eligibility percentage, maximum and minimum sentence reduction

credits, the governor’s power to reduce prison overcrowding, and the statement that

“whether a defendant is actually released . . . is a discretionary decision made by

the board of paroles. . ..” Tenn. Code Ann. § 40-35-201(b)(2)(A)(i), -201(b)(2)(A)(ii)

(1994 Supp.) (emphasis added).




know the range of pu nishment applicable to the charges b efore deciding guilt or innocence.”
Cook, 816 S.W.2d at 326. Although, the court, in dicta, alluded that “the Legislature . . . has the
right a nd po wer to direc t the ju dicial p roce ss,” t here is no e xpre ss h olding as to the s tatute ’s
constitutionality. Accordingly, we conclude that reliance upon Cook for challenges made to the
constitution ality of Tenn . Code A nn. § 40- 35-201 (b), as am ended in 1994, is m isplaced .

         4
           W e ackn owledg e the trial cou rt’s extens ive discus sion of the statute pre sently at issu e.
In ac cord anc e with our h olding , the tr ial cou rt exp ress ed gr eat c onc ern o ver th e sta tute’s
unc ons titution ality, sp ecific ally refe renc ing th e irrele vanc e of p arole inform ation to the jury’s
determination of guilt. Nonetheless, the court noted that, if a party in a criminal proceeding
reques ted the ins truction, the statute req uired the c ourt to pro vide the ins truction.

         5
           Judge Riley, in his concurring position, concludes that the substitution of the language
“for your information” for the terms “weigh and consider” in the mandated instruction cures any
constitutional defect in the statute. We cannot agree with this position. Once a statute is found
unconstitutional, a member of the judicial branch cannot undertake to alter the instruction
promulgated by the statute in an effort to make it constitutional. This amounts to judicial
am end me nt of le gislat ion w hich violate s the sepa ration of po wers doct rine a s es tablis hed in
Article II, Section 2 of the Tennessee Constitution. While it is the province and duty of the
judiciary to interp ret the law, the legislative bra nch ha s the ex clusive po wer to for mula te the law.
See Ten nes see Valle y Auth ority v. H ill, 437 U.S. 153, 194, 98 S.Ct. 2279, 2301-02 (1978);
Richardson v. Young, 125 S.W . 664, 668 (Tenn. 1910).

                                                       6
        Since the beginning of statehood, Tennessee juries were required to fix

punishment in felony cases in addition to determining the guilt or innocence of the

accused. The Criminal Sentencing Reform Act of 1982 bifurcated these functions

and placed the sentencing determination with the trial judge. See Tenn. Code Ann.

§§ 40-35-201(1982); 40-35-203(a)(1982). Thus, in Tennessee, as in most

jurisdictions, the function of a jury in a criminal proceeding is limited to a

determination of the defendant’s guilt or innocence based solely on the basis of

evidence introduced at trial and not on extraneous conditions not adduced as proof

at trial. See Taylor v. Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 1934 (1978)

(citing Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691 (1976)). Parole is nothing

more than post-conviction clemency; a condition subsequent to the accused’s

conviction, offered as a reward for the good behavior of the convict. For a jury to

“consider and weigh” parole eligibility goes outside the facts of the case and is not

germane to a determination of guilt or innocence. Clearly, an instruction on the law

of parole constitutes an extraneous condition which is not substantive proof of the

accused’s guilt or innocence.



        It is interesting to note that no other jurisdiction in America, other than

Tennessee, permits introduction of parole eligibility information at the guilt phase of

the trial. Of the six states that have retained jury sentencing, i.e., Arkansas,

Kentucky, Missouri, Oklahoma, and Virginia, only three, Arkansas, Kentucky, and

Texas, have found an instruction on parole eligibility at the sentencing phase of the

trial constitutional.6 See Teague v. State, 946 S.W.2d 670 (Ark. 1997); Boone v.

Commonwealth, 780 S.W.2d 615 (Ky. 1989); Johnson v. State, 800 S.W.2d 563

(Tex. App. 1990). Moreover, constitutional amendment in Texas and statutory

amendment in Arkansas and Kentucky were required before the jury could be

instructed on these matters at the sentencing phase. See, e.g., TEX . CONST . art. IV,


        6
           Each of these six states has a bifurcated trial procedure whereby after a determination of
guilt, a sepa rate sen tencing h earing is h eld befor e a jury with the jury determ ining the ap propriate
punishment. Moreover, we note that, effective 1995, Virginia has abolished parole.

                                                    7
§ 11(a) (amended November 7, 1989); Ark. Code Ann. § 16-97-103 (1995 Supp.);

Ky. Rev. Stat. Ann. § 532.055 (Banks-Baldwin 1995). Additionally, these six

jurisdictions have routinely rejected the introduction of parole eligibility information

before the jury for a variety of reasons, including, but not limited to: violation of the

separation of powers doctrine, i.e., the mandatory “truth-in-sentencing” instruction

is an attempt by one branch (the legislative) to direct another branch (the judiciary)

to interfere with the powers of yet a third branch (the executive), see, e.g., Kemp v.

State, 632 P.2d 1239 (Okla. Crim. App. 1981); Rose v. State, 752 S.W .2d 529 (Tex.

Crim. App. 1987), superseded by constitutional amendment, Johnson, 800 S.W.2d

at 563; Walker v. Commonwealth, 486 S.E.2d 126 (Va. App. 1997); and various

aspects of fundamental fairness, for instance, speculation about a future event,

see, e.g., Huff v. Commonwealth, 763 S.W.2d 106 (Ky. 1988) (Leibson, J.,

dissenting) (citing State v. Farris, 535 S.W.2d 608 (Tenn. 1976)); Walker, 486

S.E.2d at 126; extraneous condition to determination of guilt, see, e.g., State v.

Rollins, 449 S.W.2d 585 (Mo. 1970); Beans v. State, 54 P.2d 675 (Okla. Crim. App.

1936); a condition subsequent to conviction, see, e.g., Cox v. State, 491 P.2d

357, 359 (Okla. Crim. App. 1971); and relevancy, see, e.g., Walker, 486 S.E.2d at

126.



       Moreover, guidance by the Tennessee Supreme Court as to the propriety of

such instructions is provided in State v. Farris, 535 S.W .2d at 608. Justice Henry,

speaking for the court, in Farris, wrote:

       Jurors should not be permitted to speculate on the length of
       sentences, discretionary parole, the accumulation of good and honor
       time and a whole conglomeration of contingent events which, if they
       come to pass at all, will come to pass in the future. Very heavily
       involved is the constitutional right of a defendant to a fair trial.

       . . . It tends to make a jury speculate on the length of time a convicted
       defendant will be required to serve and further tends to breed
       irresponsibility on the part of jurors premised upon the proposition that
       corrective action can be taken by others at a later date. A greater
       defect in the law stems from the fact that jurors tend to attempt to
       compensate for future clemency by imposing harsher sentences.



                                            8
       The matter of the future disposition of a convicted defendant is wholly
       and utterly foreign to his guilt and is not a proper consideration by a
       jury in determining the length of his sentence.


Farris, 535 S.W.2d at 614. Contrary to the holding in King, No. 02C01-9601-CR-

00032 (holding Farris inapplicable to the present issue), we conclude that

subsequent statutory amendment fails to dissipate the constitutional concerns

expressed in Farris.



       It is inconceivable to assume that information regarding parole eligibility

information before the jury during the guilt phase of a trial will not have an effect, in

certain factual situations, on their finding the defendant guilty of the greater or lesser

offense. Clearly, it is improper for a jury to impose a harsher conviction than they

believe is merited by the proof presented for the sole purpose of having a defendant

serve a sentence they believe to be warranted. A jury is not to concern itself with

post-conviction events. We can find no rational basis for concluding that information

regarding parole eligibility is relevant to the jury’s consideration at a non-capital

criminal trial. But see California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446 (1983)

(holding that federal constitution does not prohibit capital sentencing jury from

considering governor’s power to commute life sentences).



       Parole is not a judicial function, rather it is an executive function. It is best

that the correctional authorities and not the jury be left to commence the process of

rehabilitation. A jury charge which instructs on punishment and parole eligibility will

invariably result in unjust verdicts and may prejudice either the accused or the

State’s right to a fair trial, depending upon the particular facts and circumstances of

the case. Accordingly, we find that the statutorily mandated jury instruction at the

guilt phase of trial violates due process as secured by Article I, Section Eight of the

Tennessee Constitution.




                                           9
       Having determined that the jury instruction mandated by § 40-35-201(b) is

unconstitutional, it remains that we must next determine the appropriate standard of

harm analysis to be applied to the facts of this case. Generally, appellate review of

error in criminal cases is a two-step process. First, the reviewing court determines

what, if any, error occurred in the trial. Second, the court must determine whether

the error requires reversal. In the present case, we are confronted with the issue of

whether the error of applying a constitutionally infirm statute is reversible error.



       The United States Supreme Court, in Chapman v. California, 386 U.S. 18,

23, 87 S.Ct. 824, 827 (1967), determined that all constitutional error is not harmful in

that there may be some constitutional errors, which in the setting of a particular

case, are so unimportant and insignificant that they may be deemed harmless, not

requiring reversal. See also State v. Bobo, 814 S.W.2d 353, 356 (Tenn. 1991).

The Court pronounced that the test to determine harmful error is whether “there is a

reasonable probability that the [error] complained of might have contributed to the

conviction .” Chapman v. California, 386 U.S. at 23, 87 S.Ct. at 827; see also

Bobo, 814 S.W.2d at 356. If the reviewing court finds that the complained

constitutional error did not affect the outcome of the trial, then the error is harmless.



       Applying this standard to the present case, the evidence points

overwhelmingly to the guilt of the appellant for the offense of aggravated assault by

the use of a weapon. The victim identified the appellant as the perpetrator. This

testimony was corroborated by the surveillance videotapes provided by the

MegaMarket security cameras. Additionally, five minutes after the victim notified law

enforcement officials of the incident, the appellant was located approximately one-

half block from the MegaMarket. Upon a search of the appellant’s person, police

officers discovered a pair of scissors in his right front pocket. These facts are not

challenged by the proof. Thus, there is no dispute as to the grade of assault

committed. We are led, beyond a reasonable doubt, to the conclusion that the


                                          10
statutory parole eligibility instruction made no contribution to the jury’s verdict.

Accordingly, any error in providing the unconstitutional instruction was harmless.

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




                                     III. Conclusion



       After a review of the record, we find that the trial court did not err by failing to

provide the Dyle instruction on identity. Moreover, although we find the statutorily

mandated jury instruction on parole eligibility unconstitutional, under the facts and

circumstances of the present case, we are unable to conclude that the instruction

constituted reversible error. Accordingly, the judgments of the trial court are

affirmed.



                                    ____________________________________
                                    DAVID G. HAYES, Judge



CONCUR:



________________________________
JOE B. JONES, Presiding Judge



________________________________
JOE G. RILEY, Judge




                                          11
