      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE               FILED
                          MAY 1997 SESSION
                                                     November 17, 1997

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
                               )
STATE OF TENNESSEE,            )
                               ) C.C.A. No. 01C01-9604-CC-00150
      Appellee,                )
                               ) Lincoln County
V.                             )
                               ) Honorable Charles Lee, Judge
                               )
JERRY RAY COOPER,              ) (Murder--Second Degree)
                               )
      Appellant.               )
                               )




FOR THE APPELLANT:                FOR THE APPELLEE:

Robert D. Massey                  Charles W. Burson
Roger N. Hays                     Attorney General & Reporter
209 West Madison Street
Pulaski, TN 37160                 Daryl J. Brand
                                  Assistant Attorney General
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  W. Michael McCown
                                  District Attorney General

                                  Weakley E. Barnard
                                  Assistant District Attorney General
                                  P.O. Box 787
                                  Fayetteville, TN 37334




OPINION FILED: ___________________


REVERSED AND REMANDED

PAUL G. SUMMERS,
Judge
                                    OPINION

      The appellant, Jerry Ray Cooper, was indicted for first degree murder in

Lincoln County and pled not guilty based on self defense.     In August 1995, a

jury found the appellant guilty of second degree murder. Judge Charles Lee

sentenced the appellant to eighteen years in the Tennessee Department of

Correction. The appellant presents six issues for our review:



         1. Whether the evidence was sufficient to convict the appellant
            of second degree murder and the jury’s verdict is therefore
            contrary to the law and the evidence.

         2. Whether the trial court erred by not requiring the district attorney
            general’s office to recuse itself from the prosecution of this case.

         3. Whether the trial court erred in its denial of the appellant’s
            request to withdraw the jury instruction with regard to
            sentencing ranges which included provisions concerning
            truth in sentencing.

         4. Whether the trial court erred in its instruction to the jury
            regarding possible release dates on the offense charged as
            well as lesser included offenses because the instruction included
            the possibility of the appellant being sentenced as a mitigated
            offender.

         5. Whether the verdict in this case should be set aside because
            the truth in sentencing statute and its resulting instructions are
            unconstitutional under the United States Constitution and
            the Tennessee Constitution.

         6. Whether the jury inappropriately considered the jury instructions
            given as relates to sentencing ranges and truth in sentencing.


      We respectfully reverse the judgment of the trial court and order that the

appellant be granted a new trial.



                                     I. Facts



      The facts of this case illustrate how violent episodes involving two men

fighting over a woman for a three-year period inevitably led to a deadly

resolution. In November 1991, Katie Womack and Henry Womack, the

deceased, divorced after twenty-four years of marriage. Included in the couple’s

divorce decree was a provision for Henry W omack to pay the $40,000 mortgage

on the house in which Katie Womack resided. Henry Womack apparently


                                        -2-
resented having to pay this mortgage. He would not only enter the house and

rummage through his ex-wife’s belongings, but he would also search through her

telephone bills and call the telephone numbers of men that she had supposedly

dated.



         In February 1992, Katie Womack met Jerry Ray Cooper, the appellant.

Mr. Cooper, a resident of Alabama, began dating Katie Womack and continued

to date her until the shooting of Henry Womack three years later.      In February

1992, Henry Womack told his ex-wife that if she went out with Jerry Cooper

again, he was going to quit paying the mortgage on the house. Henry Womack

subsequently became delinquent on two or three mortgage payments.



         In September 1992, Katie Womack and Jerry Cooper attended a go-cart

race in which Ms. Womack’s son, Matthew, was a participant. Henry Womack

was also at the go-cart track. Henry made the statement to Jerry that “you may

be her man now, but you will be my man,” and told Katie that he would kill that

son of a bitch [Jerry].   Katie, who was outside of the race track, tried to get back

into the races, but Henry blocked her from entering. Jerry Cooper interceded on

Katie’s behalf by asking the manager of the races to go to Henry and see that

Katie could return. Shortly thereafter, Jerry and Katie left the race track. Katie

told Jerry about Henry’s statement that he was going to kill him. Jerry Cooper

went to the authorities in Lincoln County and reported this threat. However,

Katie persuaded Jerry not to have a warrant issued for Henry because she

feared that her children would hate Jerry for having Henry arrested.



         The problems involving these three individuals continued. Sometime after

the first of the year in 1993, Henry tore up Katie’s earrings, which he assumed

were a gift from Jerry; he tore up a picture of Jerry and his kids that Katie had;

and once, he dumped out Katie’s purse, breaking her makeup and perfume onto

her outfit before her date with Jerry.




                                          -3-
       In July 1993, Henry told Katie that if she was going out with Jerry not to

come back to the house because he, Henry, was going to move back into the

house. Henry boxed up Katie’s clothes, traveled to Alabama, and dumped them

onto Jerry Cooper’s driveway. Katie spent the night at Jerry’s house, and when

she arrived at her house, Henry had moved back into the house.



       On one occasion when Jerry brought Katie home from a date, Katie had

trouble getting into her own house because Henry had locked the storm door.

While Jerry shined his car lights on the door so that Katie could see, Katie beat

on the door until Henry finally opened it. Henry, clad only in very brief

underwear, waved to Jerry as he backed out of the driveway.



       On July 31, 1993, Jerry brought Katie home from a date, and again she

had trouble getting into her house. Henry, who ran from behind the house,

chased Jerry away, threw something at his car, and then ran along beside his

car. Jerry Cooper did not stop. Although it is unclear who called first, Henry

spoke to Jerry, who was on his car phone, and wanted to know where Jerry was

located. Again, Jerry Cooper did not tell Henry Womack where he was. Henry,

with a shotgun in hand, left hunting for Jerry Cooper, but before he left, he took

all the phones out of Katie’s house, presumably so that Katie could not call Jerry

to warn him that Henry was looking for him. Unbeknownst to Henry, Katie had

hidden one phone in the house. Katie told Jerry that Henry had a shotgun when

he went looking for him.



       Two weeks later on August 14, 1993, Henry Womack was still living in

Katie Womack’s house. Katie was planning to see Jerry that evening, and Henry

told her that if she went it would be her last time. Katie called Jerry and told him

that she had better not go because she was afraid that something bad would

happen. Katie then suggested that she and Jerry meet beside an area church.




                                         -4-
      When Katie arrived, Jerry was parked beside the church, and Katie got

into Jerry’s car, an older model 280ZX. When Katie and Jerry came out onto the

road, Henry, who was in his truck, blocked the road. Jerry pulled around Henry’s

truck, and when he did, Jerry rolled down his window and asked what the

problem was. Henry then called Jerry a “yellow belly chicken shit son of a bitch.”

Jerry Cooper drove off. At this point, Henry supposedly threw something at Jerry

Cooper. As Katie and Jerry Cooper were headed in a direction away from

Henry, Katie testified that she heard at least three gunshots and feared that the

bullets might hit the car’s gas tank and blow up the car. She also testified that

Jerry Cooper was trying to get a hold on his gun but could not. Jerry turned

around and headed back toward Henry’s truck. As Jerry Cooper was driving

back toward Henry, Katie was dialing 911 on the car phone because she thought

Henry was coming after her. Henry Womack had fired four shots at Jerry

Cooper and Katie Womack. Katie testified that Jerry did not shoot at Henry

during the August 14th incident, and at no time that day did Jerry Cooper show

Henry Womack his gun. Katie testified that Jerry had carried a gun for as long

as she had known him. Although he did not shoot at Henry Womack or indicate

that he had a gun, Jerry Cooper did accidentally discharge his gun and shoot a

hole in the dashboard of his car. Jerry Cooper went that same day to the

authorities in Lincoln County, explained what had occurred, and secured a

warrant against Henry Womack.



       Several days later, a judge ordered Henry Womack to move out of Katie

Womack’s house. Also, Henry was arrested for aggravated assault and was

subsequently put on pretrial diversion with a memorandum of understanding that

restrained him from having contact with Jerry Cooper. During this time, Katie

discovered that Henry had a pistol. Although he had never owned a pistol

before, Henry had owned a shotgun; but he had not hunted with it in a number

of years. Katie found Henry’s pistol and hid it because she feared he would use

it on Jerry. The gun remained hidden until Henry demanded that the pistol be

returned to him, which Katie did.


                                        -5-
        On October 7, 1993, Jerry Cooper filed a civil suit against Henry Womack

for damages. There was an agreed order restraining Henry Womack from

“threatening, harassing, assaulting, or harming Jerry Cooper and vice versa.”



        On May 1, 1994, Jerry Cooper, who now knew that Henry Womack had a

pistol, came to Katie’s house, and she invited him inside. Jerry’s car was outside

the house. Shortly thereafter, at approximately 12:45 a.m., Henry came to the

door of Katie’s house and began to beat on it. Katie told him to leave. Henry

told her that he was not leaving until that gray headed son of a bitch [Jerry

Cooper] came out. Jerry Cooper had a gun inside the house, but he did not go

outside. Cooper, with a pistol in one hand, called 911 for help, all the while

keeping Henry in his eyesight. Jerry did not chase after Henry with the gun, and

he did not threaten Henry with the gun. By the time the authorities arrived, Henry

was gone. Jerry went to the authorities in Lincoln County, and they issued a

warrant for his arrest. As a result of this contact, a judge found W omack in

contempt of court for violating the restraining order and reserved judgment on the

issue of contempt, further ordering Jerry Cooper and Henry Womack not to visit

the property of Katie Womack without permission. The assault warrant was

dismissed by a Lincoln County General Sessions Judge because he felt no

assault had been committed. District Attorney General Mike McCown, who

represented the state at the appellant’s trial, was also the prosecutor in that

case.



        Despite all the problems they had encountered, Katie W omack and Jerry

Cooper continued to date. Henry would drive by public places that Katie and

Jerry would frequent. Because Katie and Henry’s daughter and granddaughter

resided in the same house with Katie, Katie told Henry that he could come to her

house any time he desired. By February 1995, the stress precipitated by his

problems with Henry Womack caused Jerry Cooper to seek medical treatment

for his nerves from Dr. Judy Isenberg, an Alabama doctor. During February


                                         -6-
1995, she treated him for anxiety and depression. On February 22, 1995, the

civil trial against Henry Womack was held, and on March 2, 1995, Jerry Cooper

was awarded $1,100 in damages against Henry Womack. In that judgment was

a permanent injunction restraining the parties from having any contact with each

other.



         On March 9, 1995, a little more than two weeks before the shooting, Jerry

Cooper, who had experienced back trouble for quite some time, underwent back

surgery. Dr. Ira Denton, who performed the surgery, testified that, in his opinion,

Jerry Cooper was incapable of running, fighting, or physically defending himself

on the day of the shooting.



         On March 24, 1995, the day before the shooting, Katie and Jerry went on

a date in Fayetteville, Tennessee before driving back to Alabama to spend the

night at Jerry’s house. Saturday morning, March 25, 1995, Jerry and Katie went

to Wal-Mart in Fayetteville to get a lawn mower and gas grill that Katie had put in

the lay-away. Katie and an employee at Wal-Mart, not Jerry Cooper, loaded the

grill and mower into Jerry’s truck. Around 11:00 a.m. Katie and Jerry arrived at

Katie’s house on Molina Road near Fayetteville to put away the lawn mower and

the gas grill. Jerry Cooper backed his truck past Katie’s driveway into the

backyard where a shed was located.



         While Jerry backed his truck up toward the shed, Katie went inside the

house, where her adult daughter, Christy Norman, was talking with her father,

Henry Womack. Henry was at Katie’s mother’s house, approximately two-tenths

of a mile east of Katie’s home. Katie spoke with Henry for a brief time, and Jerry

Cooper, who was outside, heard Katie “hollering, ‘Henry,’ he is leaving.” Katie

went outside and told Jerry to leave. Katie testified that Jerry responded that

Henry was supposed to leave him alone and that he was not leaving. Christy

Norman, the deceased’s daughter, testified that the amount of time that passed




                                         -7-
from the time Katie told Jerry to leave until Henry Womack arrived was five

minutes or less.



       Katie, along with some help from Jerry, unloaded the mower from the

back of the truck, and within minutes, Henry Womack drove quickly up the

driveway in a blue Datsun 280ZX car, a car similar to the 280ZX that Jerry

Cooper owned. According to Cooper, who is six feet, four inches in height, he

could see into the 280ZX; and he testified that Womack had a pistol in his right

hand which was held close to the side. Womack pulled past the driveway into

the backyard and just past Cooper’s pickup truck. The driver’s side door of each

vehicle was facing each other, about nine feet apart.



       According to Cooper, he feared that Womack was going to kill him,

despite all the court orders in effect for Womack to stay away from him. Cooper

got his .380 semi-automatic pistol from the seat of his truck and loaded the clip.

According to Cooper, Womack was coming out of his car when Cooper turned

around from loading his gun. Cooper testified that he thought Womack had a

pistol in his hand when he got out of his Datsun 280ZX, so he fired at W omack in

order to save his life. However, on cross-examination, Cooper admitted that he

did not actually see a gun when Womack got out of the car. Cooper fired five

shots rapidly.



       One bullet hit the dashboard, near the speedometer. One bullet hit above

the left rear tire. The remaining three shots hit Womack: one bullet broke his

right collarbone; one bullet punctured his right lung; and one bullet lodged in his

upper left arm bone. Dr. Charles Harlan, the medical examiner, testified that the

front chest wound, which punctured Womack’s right lung, was the fatal wound.

Therefore, although Womack apparently tried to run away from Cooper, Womack

was not shot from behind.




                                         -8-
      Katie Womack, the ex-wife of Henry Womack, and Christy Norman, Henry

Womack’s daughter, were at the scene of the shooting. According to Katie

Womack, Henry did not have a gun; and as Henry got out of his car, he did not

say anything to Jerry. Katie testified that she knocked Jerry’s arm as another

shot was fired, although Jerry Cooper disputed this testimony. Christy Norman,

who watched the events unfold from a sliding glass door in Katie’s house several

feet away, testified that her father, Henry, had nothing in his hands as he drove

into the backyard.



      After Henry Womack had been shot, Jerry Cooper left in his truck, and

started to telephone an attorney who had represented him in his civil suit against

Henry Womack. When he was unable to reach that attorney, he tried to reach

the attorney who had helped him obtain a divorce, but again, on a Saturday, he

was unable to reach an attorney. In the meantime, the sheriff’s department

arrived at the scene of the shooting. According to C. C. Thornton, a sheriff’s

deputy, Sheriff Tom Bean, who died before the appellant’s trial, found Henry

Womack’s .25 caliber pistol in the console between the bucket seats of his

Datsun 280ZX. The pistol and the clip, which was not in the pistol, were

underneath papers in the console. Deputy Thornton also testified that no

fingerprints were taken of any physical objects at the scene of the shooting or of

any of the three family members of the deceased who were present at the scene

of the shooting.



      Jerry Cooper, who threw his gun off a bridge into the Tennessee River,

called the sheriff’s department and turned himself in after speaking with a

Fayetteville attorney the following Monday.



                          II. Sufficiency of the Evidence



      First, the appellant argues that the evidence is insufficient to convict him

of second degree murder. The appellant maintains that because “the record is


                                        -9-
replete with previous threats, previous acts of violence, numerous orders of

various courts for Henry Womack, the deceased, to stay away from and have no

harassing type contact with the appellant, “ he should have been found guilty of

the lesser included offense of voluntary manslaughter, which requires “adequate

provocation sufficient to lead a reasonable person to act in an irrational manner.”



       The appellant concedes that whether a defendant is convicted of second

degree murder or voluntary manslaughter is typically a jury question. However,

appellant argues that his case is atypical because of the jury instruction that was

given regarding ranges of punishment. He contends that “the jury took into

consideration the sentencing ranges and truth in sentencing instruction for

voluntary manslaughter in rendering their verdict as opposed to looking at the

adequate provocation issue as is required.”



       The state, however, argues that the evidence is sufficient to convict the

appellant of second degree murder. The state maintains that there was no

evidence of any provocation on March 25, 1995, the day of the shooting, that

would warrant a finding of voluntary manslaughter and further asserts that the

evidence indicates that Jerry Cooper’s killing of Henry Womack was “knowing

and unprovoked,” thereby warranting his second degree murder conviction.



       Great weight is accorded jury verdicts in criminal trials. Jury verdicts

accredit the state’s witnesses and resolve all evidentiary conflicts in the state’s

favor. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Banes, 874

S.W.2d 73, 78 (Tenn. Crim. App. 1993). On appeal, the state is entitled to both

the strongest legitimate view of the evidence and all reasonable inferences which

may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978).

Moreover, guilty verdicts remove the presumption of innocence, enjoyed by

defendants at trial, and replace it with a presumption of guilt. State v. Grace, 493

S.W.2d 474 (Tenn. 1973). Appellants, therefore, carry the burden of overcoming

a presumption of guilt when appealing jury convictions. Id.

                                         -10-
       When appellants challenge the sufficiency of the evidence, this Court

must determine whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements

of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);

Tenn. R. App. P. 13(e); State v. Duncan, 698 S.W.2d 63 (Tenn. 1985). The

weight and credibility of a witness’ testimony are matters entrusted exclusively to

the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984);

Byrge v. State, 575 S.W.2d 292 (Tenn. Crim. App. 1978).



       The three-year history between these two men clearly indicates that the

appellant was undoubtedly provoked on numerous occasions. He repeatedly

sought help not only from law enforcement but also from the courts, and

unfortunately, in the end, he resorted to self help. The appellant based his

defense on self defense, not provocation; and the jury in Lincoln County chose to

believe the state’s witnesses, which included primarily the deceased’s ex-wife

and adult daughter. Because this jury as the triers of fact believed the evidence

sufficient to convict the appellant of second degree murder and not voluntary

manslaughter, we must uphold their verdict. The evidence is sufficient.




            III. Disqualification of the District Attorney General’s Office



       Second, the appellant argues that the trial court erred by not disqualifying

the district attorney general’s office from the prosecution of the appellant’s case.

The appellant asserts that a conflict of interest existed for the district attorney

general and his staff “due to the previous representation of the appellant [by the

district attorney general’s office] when he was the victim of crimes committed by

the deceased.” The appellant contends that “an appearance of impropriety”

                                         -11-
exists and “that once a defendant has shown a substantial relationship existing

between the pending case and the manner in which the prosecuting attorney was

previously representing in essence the defendant, that there should be a

presumption that the prosecuting attorney shared information and/or possessed

information which should not be divulged.” The appellant maintains that district

attorney general Mike McCown, in effect, represented him, and therefore, there

should be the presumption that McCown “shared information and/or possessed

information which should not be divulged.”



       The state argues, however, that the trial court properly refused to

disqualify the district attorney general’s office. First, the state argues that the

appellant filed his motion to disqualify ten days before the trial was scheduled to

begin, so disqualification of the district attorney general would have necessitated

a continuance. Therefore, the state maintains that the motion was not timely

filed under the local rules, and consequently, the trial court did not abuse its

discretion in denying the appellant’s motion.



       Second, the state argues that the motion to disqualify the district

attorney’s office was without merit because the appellant’s argument that the

district attorney general represented him in the aggravated assault charge

against Henry Womack is simply incorrect. The state maintains that because the

district attorney general represents the state, an attorney-client relationship

never existed between Mr. Cooper and district attorney general McCown.

Therefore, “the district attorney has no obligation, under law or the principles of

professional ethics, to preserve any confidences of Cooper’s.” The state also

notes that the assault case against Henry Womack was resolved more than a

year before the shooting of Womack, so there was no “‘confidence’

communicated by Cooper to the district attorney at any time, but certainly not

after January 1994.”



       The trial judge in this case apparently thought that the decision of whether

or not to disqualify the district attorney general’s office rested with the district


                                          -12-
attorney general himself. However, the decision to disqualify a district attorney

general or someone on his or her staff rests with the trial judge. State v. Tate,

925 S.W.2d 548, 549-50 (Tenn. Crim. App. 1995).



       Based upon the record before us, the appellant made a motion to

disqualify the district attorney general and his office, and the trial judge

mistakenly thought that he did not have the authority to disqualify the district

attorney general or his staff. Although Tate had not been decided at the time of

this case, the trial court can disqualify the district attorney general and his or her

staff if necessary. Tate , 925 S.W.2d at 549. However, the appellant did not

develop or present evidence, such as calling district attorney general McCown as

a witness, to support his argument. Therefore, this issue is without merit based

on the record before us. However, upon a new trial, this issue may be

addressed again if the appellant presents sufficient evidence to support his

argument that the district attorney general and his staff should be disqualified.

See State v. Tate, 925 S.W.2d 548 (Tenn. Crim. App. 1995).




       IV. Constitutionality of Tennessee Code Annotated § 40-35-201(b)



       The appellant’s issues three through six fall within the realm of jury

instructions and thus are intertwined. We will address each issue raised by the

appellant in his brief, but in an order different from that presented by the

appellant.



       At the center of issues three through six is Tenn. Code Ann. § 40-35-

201(b) (Supp. 1995), which follows:

          40-35-201. Issue of guilt and sentence to be tried separately --
       Instructing jury on possible sentences -- Parole considerations. --



                                         -13-
            ...

            (b)(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 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 pursuant to subdivision (b)(1), the judge shall also
            include in the instructions 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 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 authority to require the defendant to serve the entire
            sentence imposed by the court.
                (B) On an annual basis, the department of correction shall
            provide each judge exercising criminal trial court jurisdiction
            with the approximate calculation required in subdivision (2)(A).
            Such calculation shall be broken down to show the effect
            of each factor used in making such calculation. If the
            calculation provided by the department to the judges changes
            because of a change in the law or correctional policy, court
            intervention, the governor’s prison overcrowding policy or any
           other such circumstance, the department shall send a
           revised calculation to the judges as such changes occur .1


        The appellant asserts that this statute is unconstitutional on the grounds

that it allows the trial judge to charge the jury regarding the facts of a case, that it

violates the separation of powers doctrine of the Tennessee Constitution, and

that it is unconstitutionally vague. Furthermore, the appellant notes in his brief

that the trial court, at the time of the trial in August 1995, also believed that this

statute was unconstitutional because “the statute require[d] the jury to take

something into consideration which ha[d] nothing to do with guilt or innocence as

a factor for their deliberations.”         The trial court’s comments about the

constitutionality of the statute are addressed in Section VII.

        1
          This statute, which was amended in 1994 to add subsection (b)(2), provides for a jury
instruction regard ing a defendant’s r ange of punishm ent. This ame ndment beca me effectiv e on July
1, 1994, more tha n a year before the a ppellant’s trial.

                                                 -14-
       First, the appellant contends that Tenn. Code Ann. § 40-35-201(b) (Supp.

1995) violates Article VI, Section 9 of the Tennessee Constitution: “The Judges

shall not charge juries with respect to matters of fact, but may state the testimony

and declare the law.” Apparently, the appellant’s argument is that although a

trial court’s instruction regarding a range of punishment for a conviction does not

assume facts, a judge has to assume several facts when advising the jury of the

earliest possible release eligibility date of a defendant. For example, the

appellant argues that the court must consider facts in determining the sentence

range of the defendant, which could include mitigating and enhancing factors, in

advising the jury on the earliest release eligibility date, and thus, this violates

Article VI, Section 9.



       Second, the appellant also asserts that this statute violates Article II,

Sections 1 and 2 of the Tennessee Constitution, requiring the separation of

powers into three branches of government. Appellant argues that this statute

permits the legislature to invade the province of the judicial branch of the

government, which is charged with the responsibility of ensuring “that jury

instructions do not compromise the integrity of the jury.”



       Third, the appellant also argues that the statute is unconstitutionally

vague, citing Farris v. State, 535 S.W.2d 608 (Tenn. 1976). The appellant notes

that the court in Farris found the statute in that case vague because of the

speculative nature “with respect to certain powers and duties of the Board of

Pardons and Paroles, good behavior allowances, and the allowance of honor

time” in determining parole eligibility. Farris, 535 S.W.2d at 609. He asserts

that his case is analogous to Farris.



       The state, however, argues that Tenn. Code Ann. § 40-35-201(b) (Supp.

1995) is constitutional. The state maintains that this statute does not violate

Article VI, Section 9 of the Tennessee Constitution. The state asserts that this


                                         -15-
statute does not require factual assumptions because “[b]y referring to an

objective, abstract, indefinite person, rather than to the specific defendant, the

statute provides that the instruction not contain factual assumptions about the

particular defendant before the jury, but only information as to the absolute

minimum of time which any offender must serve for a given offense.” Also, the

state notes that the information supplied to the jury is furnished by the

Department of Correction pursuant to Tenn. Code Ann. § 40-35-201(b)(2)(B)

(Supp. 1995), and consequently, does not allow “speculation or assumption by

the trial judge.”



       The state further contends that the statute does not violate the separation

of powers of Article II, Sections 1 and 2 of the Tennessee Constitution, citing

State v. Cook, 816 S.W.2d 322 (Tenn. 1991). Our Supreme Court in Cook

observed that “[t]he Legislature . . . certainly has the right and power to direct the

judicial process. They have said that where a defendant wants his trial jury to

know the range of possible punishments resulting from convictions that he is

entitled to have that information conveyed to the jury.” Cook, 816 S.W.2d at 327.

Thus, the state asserts that Tenn. Code Ann. § 40-35-201(b) (Supp. 1995) does

not intrude upon the judicial process, and consequently, does not violate the

separation of powers doctrine of the Tennessee Constitution.



       With respect to the appellant’s argument that this statute is

unconstitutionally vague, the state argues that because only two members of the

Farris court found the statute “void for vagueness,” Farris is not authority for the

appellant’s argument that Tenn. Code Ann. § 40-35-201(b) is unconstitutional.



       This Court has held that Tenn. Code Ann. § 40-35-201(b) is

constitutional. State v. King, No. 02C01-9601-CR-00032 (Tenn. Crim. App. at

Jackson, Oct. 22, 1996), perm. app. granted, (Tenn. Mar. 10, 1997). In King,

this Court noted that at the time Farris was decided in 1976, a jury determined a

defendant’s sentence as well as his or her guilt. Id. at *3. Furthermore, as this


                                         -16-
Court in King noted, the Farris court stated that “[t]he error which we find in the

charge to the jury bears only upon the question of punishment and has no

relation to the jury’s finding of guilt or innocence.” Id. at *3 (citing Farris v. State,

535 S.W.2d 608, 614 (Tenn. 1976)). Like the court in King, I believe that

because the error in the jury instruction in Farris relates only to punishment and

not to guilt or innocence, Farris is not relevant to this case.



       Furthermore, this Court in King addressed the issue of whether Tenn.

Code Ann. § 40-35-201(b) (Supp. 1995) allows the legislature to intrude upon

the powers of the judiciary. In that case, this Court observed that “the statute

under consideration in Farris required the trial judge to instruct as regards to

parole eligibility at a time when sentencing was a jury function. . . . [Therefore,]

Farris’ applicability is limited under our current sentencing laws.” Id. at *4. Thus,

I conclude that Farris has limited applicability in this case as well.



       Accordingly, I conclude that Tenn. Code Ann. § 40-35-201(b) (Supp.

1995) is constitutional.



  V. Timing of Motion Pursuant to Tennessee Code Annotated § 40-35-201(b)



       The appellant argues that the trial court erred by not allowing him to

withdraw his request for the sentencing range instruction pursuant to Tenn. Code

Ann. § 40-35-201(b) (Supp. 1995). The pertinent part of the statute follows:

       (b)(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 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.


(emphasis added). The appellant contends that the trial court’s denial for his

request to withdraw the motion violates his due process rights by preventing him

from withdrawing his intent to exercise his statutory right for the jury to know the

range of punishment.


                                          -17-
       The state argues that the statute should be interpreted to give effect to the

legislature’s purpose and intent, and that the legislature clearly intended for a

request regarding a range of punishment to be made before the jury is selected.

Further, the state argues that no language in the statute permits a “conditional

motion,” regardless of whether the appellant had “reserved” the right to withdraw

the motion at a later time. Finally, the state notes that although the appellant

argues that his due process rights were affected by the trial court’s denial of his

request to withdraw the motion, he cites no authority for his argument.



       This Court has addressed the issue of when a motion pursuant to Tenn.

Code Ann. § 40-35-210(b) (Supp. 1995) may be made. We have held that “the

state [or defense] must be given notice of this request prior to jury selection so

that prospective jurors may be questioned about the effect that knowing the

possible punishment might have upon their verdict.” State v. McIntosh, No. 85-

27-III (Tenn. Crim. App. at Nashville, May 23, 1986) at *4; see also State v.

Bowie, No. 86-212-III (Tenn. Crim. App. at Nashville, Mar. 12, 1987)



       In this case, the appellant wanted to withdraw his request well into the

trial. To allow the appellant to do so would prejudice the state’s case. Once the

appellant had been granted his request for the instruction, the state could rely on

the appellant’s request, which, as we have noted, must be made before the jury

is selected. If the trial court had allowed the appellant to withdraw his request

for the instruction, then time would have already passed for the state itself to

move for the instruction. Therefore, we conclude that the denial of the

appellant’s request to withdraw his motion was well within the trial court’s

discretion. This issue is without merit.



VI. Jury Instruction Regarding Possible Release Dates As A Mitigated Offender



       Next, the appellant argues that the trial court erred in instructing the jury

regarding the possible release dates on the offense charged and on lesser


                                           -18-
included offenses because the instruction included the possibility that the

appellant could be sentenced as a mitigated offender. The appellant contends

that the trial court erred by charging the jury that the appellant could be released

after 1.77 years. The appellant argues that the trial court erred and gave the

release eligibility date for a mitigated offender and not a Range I, standard

offender, which the appellant was determined to be.



         The state maintains that the trial court gave the correct release eligibility

dates for the appellant, who was determined to be a Range I, standard offender.

The state notes that the trial court used the calculations provided by the

Department of Correction pursuant to Tenn. Code Ann. § 40-35-201(b)(2)(B),

and thus instructed the jury that “the minimum number of years a person

sentenced to imprisonment for the offense of Murder in the Second Degree must

serve before reaching his earliest release eligibility date is 1.77 years.”

Although the number “1.77" appears in the box for mitigated offenders, it is not

listed as the minimum figure for a mitigated offender.



         Therefore, we agree with the state that the trial court did not err by

instructing the jury on the minimum release eligibility date for a mitigated

offender. We will, however, address the completeness of the trial court’s

instruction to the jury regarding sentencing in discussing the appellant’s next

issue.



    VII. Correct and Complete Jury Instruction Pursuant to Tennessee Code
                         Annotated § 40-35-201(b)


         The appellant’s final issue is that the jury inappropriately considered the

jury instructions given as relates to sentencing ranges and truth in sentencing.

He contends that the trial court, which on several occasions stated that it

believed that Tenn. Code Ann. § 40-35-201(b) (Supp. 1995) was

unconstitutional, attempted to correct the statute by deleting the language “weigh

and consider” and adding in its place “for information only.”      The appellant


                                           -19-
further argues that despite the trial court’s attempt to correct what it believed to

be an unconstitutional statute, the jury did consider the dates during their

deliberations, which is evidenced by the affidavit of attorney Hershell Koger. Mr.

Koger interviewed several jurors after the trial, and in his affidavit, he states that

the jury did, at least in some measure, discuss and consider the possible

sentences the appellant could receive for the offense charged and any lesser

included offenses.



       The appellant further argues that the trial court instructed the jury “in a

manner inconsistent with the statute as it [the trial court] attempted to correct the

unconstitutionality of the statute.” Therefore, the appellant argues that the jury

could not properly consider the sentencing ranges because the instruction was

incomplete. The trial court neglected to include in the jury charge Tenn. Code

Ann. § 40-35-201(b)(2)(A)(ii) (Supp. 1995):

          Such instruction 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 authority to require the
       defendant to serve the entire sentence imposed by the court.

The appellant argues that because the jury considered the truth in sentencing

information and because it did not receive the entire instruction provided in the

statute, his conviction should be reversed.



       The state, on the other hand, argues that the trial court correctly rejected

the affidavit of Mr. Koger because it “sets forth only hearsay statements of jurors,

which should not be considered as evidence of what occurred during jury

deliberations.” No juror was willing to sign an affidavit concerning the information

conveyed to Mr. Koger. The state further contends that had the jurors supplied

affidavits, the information in those affidavits would not be grounds to impeach the

jury’s verdict under Tennessee Rule of Evidence 606(b).



       With regard to the appellant’s argument that the trial court gave an

incomplete instruction under Tenn. Code Ann. § 40-35-201(b) by deleting

                                         -20-
subsection (b)(2)(A)(ii), the state asserts that this issue is waived because the

appellant did not raise it in his motion for new trial or his amended motion for

new trial. Notwithstanding waiver, the state argues that the omission of this

provision of the statute from the jury instruction “did not render the jury

instructions inaccurate, but at worst incomplete.”



        We will first address the trial judge’s comments about the

unconstitutionality of Tenn. Code Ann. § 40-35-201(b) (Supp. 1995) during the

trial and at the appellant’s hearing for a new trial. The trial judge stated during

the trial:

           Well, I am of the opinion that the truth in sentencing statute
        as it is written -- not the concept particulary [sic] -- but as it is
        written is unconstitutional because you will note a change from
        my instructions and the statute. The statute says that the jury
        shall consider it in their deliberations.
           In this court’s opinion to have the jury take in a matter that
        has nothing to do with guilt or innocence as a factor for their
        deliberations is unconstitutional. I have worded my charge so
        that the jury is not instructed, where requested on the range,
        that the jury -- that language I leave out of my charge. The
        concept I do not think is unconstitutional but the jury may
        be informed for their information only but the language of
        the statute is and I have in this court declared it unconstitutional.
        No one has taken it up.


        At the appellant’s hearing for a new trial, the trial judge responded to the

appellant’s argument that he be allowed to withdraw his request for a jury

instruction pursuant to Tenn. Code Ann. § 40-35-201(b) (Supp. 1995) in this

manner:

            THE COURT: Didn’t we have a hearing upon this before
        the trial began which the court expressed grave concerns both
        as to the constitutionality of the statute and didn’t the court say
        however, if you ask that I give it that I will have to use -- I will have
        to follow the law. I have grave concerns concerning the
        constitutionality of the statute. I would attempt to fashion
        instructions so as to make the truth in sentencing statute
        constitutional.
            Didn’t I relate to counsel for the defense before the trial
        started you are looking at me tellling [sic] them it may be days
        involved?


        Later at the hearing for a new trial, the trial judge stated:

           With regard to the other issues raised, the court has
        some concern and expressed those concerns about
        40-35-201. The nature of the court’s concerns will be

                                           -21-
      borne out in the transcript of the hearing which was had in
      this matter. I believe that the court informed counsel
      for the defense it prohibited the State on their motion
      for asking for a range of punishment and it is not the
      range of punishment -- not the numbers that bothers the
      court. It is the statute which says that the jury will be
      instructed that they -- for the jury to weigh and consider
      the meaning of a sentence of imprisonment for the
      offense charged and any lesser included offenses.
          The statute says that the judge shall include in its
      instructions for the jury to weigh and consider. Well, I
      do not understand why a jury is to consider something
      that has nothing to do with the guilt or innocense [sic] of
      the defendant. To tell the jury they shall consider it
      causes the court some great concern. Consequently the
      court altered that language and told the jury that these
      numbers involved was for their information only. Did not
      tell them that they shall consider it.
          Counsel for the defense is caught in a catch 22. He
      says well, we believe the jury considered this. If they
      did they were only following the law. It says they shall
      consider it. This court didn’t instruct them to consider it.
          The legislature missed the public concern about
      truth in sentencing. Rather than informing the juries
      as to what the sentence was what they ought to do is
      change the law so that a sentence is what it says it is.
      Three years is three years or 15 years is 15 years and
      not 1.77 years.
          I cannot find that the court has committed error. The
      court as well as it could brought its concerns to the
      attention of trial counsel. The court changed the law
      or changed or - - did not follow the instructions
      in the statute in an effort to make sure that the jury
      considered only the matters that touched upon the
      defendant’s guilt or innocence. So I do not know
      any more that the court could do. . . .
         The court will ask, gentlemen, as an exhibit to
      this proceeding since you all did not introduce--
      that the sentencing range by class which was given
      to the court by the Department of Corrections dated
      6-29-94 which I would ask that a copy of that be made
      an exhibit to these proceedings so that the court of
      appeals will know from whence those numbers came from.

          ...


          There are-- the sentencing issues will be an interesting
      matter for the court of appeals to address. We attempted
      to get a case that was perhaps not quite as serious as this
      one to frame these issues so that they could rule upon
      that statute. I do not believe however that the statute--
      in the court’s mind the statute has some severe problems
      but the court did not follow the statute in it’s [sic] charge
      to the jury.


      This Court has held that Tenn. Code Ann. § 40-35-201(b) (Supp. 1995) is

constitutional. See Section IV for that discussion.




                                       -22-
          With respect to the jury charge pursuant to Tenn. Code Ann. § 40-35-

201(b) (Supp. 1995), the trial judge’s comments while hearing pretrial motions

follow:

               THE COURT: You are aware that the legislature in their
          truth in sentencing requires the court to charge on the first
          possible time that a person could be released. That is what
          the court has been doing on -- I know on a recent case that we
          had that was an aggravated assault case it worked out to like
          51 days. I want you to be aware that is what the court
          charges. I break mine down in days. I think it is easier
          to understand than .1 years.
               MR. MASSEY: Yes, sir, I understand that. W hile we
          are on jury instructions, Judge, if you don’t mind me
          asking would there be a point in time where defense
          counsel could get a copy of what you would be
          charging?
               THE COURT: Yes, somewhere close to the State’s case
          the court will provide both parties with a proposed charge.
          Of course a lot of things at that juncture I don’t know how to
          charge. Whether your client is going to take the stand or
          not, but generally after the close of the State’s case I
          am in a position to formulate a proposed charge which I
          will give both parties a rough draft copy to inspect and
          most of the time depending upon progress of the trial I
          will provide the parties with a final draft before it is
          charged to the jury.
               MR. MASSEY: Yes, sir. As far as requested charges
          just so I don’t miss any deadlines I know if we have any
          is it the court’s preference that we go ahead and get the
          requested charges filed immediately so that you could
          see what we were requesting? I looked at the local
          rules. I didn’t see anything in there about instructions.
               THE COURT: There used to be a local rule here
          that you had to have those in within five days
          preceding the trial. I understand that during the course
          of the trial that things change. I do not require that
          any more since I have the use of a computer system
          it is not as onerous on the trial court to develop a set
          of charges.
               If it is something -- I would appreciate and it is not
          required-- if it is something that-- especially if you want
          to deviate from the pattern jury instructions that you
          file those in advance if you can to give me an
          opportunity to do a little research before the court
          makes a ruling on that.
               I also charge for your information if you want to
          start looking now, I generally charge the plain
          language charges that you will find in the most
          recent addition [sic] of the pattern jury instructions.


          The Tennessee Pattern Jury Instruction2, Criminal No. 43.11 for the range

of punishment follows:


          2
         The com ment accom panying this pattern jury ins truction advises the trial judge to “refer to
the charts provided by the Department of Correction and accompanying notes for information
concerning the calculation of the minimum sentence.” Tennessee Pattern Jury Instruction, Criminal
No. 43.11, cmt. 1.

                                                  -23-
          The jury will not attempt to fix any sentence. However,
       you may weigh and consider the meaning of a sentence of
       imprisonment. The range of punishment for the crime(s)
       involved herein is as follows:

           (Charge range of punishment as set forth in the
           Sentencing Act.)

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

           (Insert appropriate minimum sentence as set forth by
           the Department of Correction grid.)

          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 Parole and is based on many
       factors. The Board of Parole has the authority to require a
       defendant to serve the entire sentence imposed by the Court.



(emphasis added).

       In the case sub judice, the trial court’s instruction to the jury regarding

ranges of punishment pursuant to Tenn. Code Ann. § 40-35-201(b) (Supp. 1995)

follows:

           The Jury will not attempt to fix any punishment or sentence,
       as by law this is a matter that now addresses itself to the Court.
       However, for you [sic] information only, you are informed that
       the ranges of punishment as to the crimes involved herein are
       as follows:
           As to the offense of Murder in the First Degree, this
       offense is punishable by imprisonment in the penitentiary for
       life. The minimum number of years a person sentenced to
       imprisonment for the offense of Murder in the First Degree
       must serve before reaching his earliest release eligibility
       date is 25 years.
           As to the offense of Murder in the Second Degree, this
       offense is punishable by imprisonment in the penitentiary
       for a determinate sentence of not less than fifteen (15) years
       nor more than twenty-five (25) years and in addition thereto, the
       Jury may impose a fine in any amount not greater than fifty
       thousand dollars ($50,000). The minimum number of years
       a person sentenced to imprisonment for the offense of Murder
       in the Second Degree must serve before reaching his earliest
       release eligibility date is 1.77 years.
           As to the offense of Voluntary Manslaughter, this offense is
       punishable by imprisonment in the penitentiary for a determinate
       sentence of not less than three (3) years nor more than six (6)
       years and in addition thereto, the Jury may impose a fine in any
       amount not greater than ten thousand dollars ($10,000). The
       minimum number of days a person sentenced to imprisonment
       for the offense of Voluntary Manslaughter must serve before
       reaching his earliest release eligibility date is 138 days.




                                         -24-
       This Court addressed a similar question regarding a jury instruction

pursuant to Tenn. Code Ann. §§ 40-35-201(b)(1), -(b)(2)(A)(I) in State v. King,

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

app. granted, (Tenn. Mar. 10, 1997). The jury instruction given in that case

follows:

           The jury will not attempt to fix any punishment or sentence
        for these offenses. However, for your information only, you
       are informed that the ranges of punishment as to the offenses
       are as follows:

          AGGRAVATED BURGLARY--imprisonment for not less
       that [sic] three (3) years nor more than fifteen (15) years.

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

             AGGRAVATED BURGLARY               3 YEARS
             RED %               30%
             RED % APPLIED          0.90 yrs.
             W/MAX CREDITS           0.59 yrs.
             SAFETY VALVE           0.54 yrs.
             SAFETY VALVE & MAX CREDITS      0.35 yrs.

           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 Paroles has the
       authority to require a defendant to serve the entire
       sentence imposed by the Court.


       This Court held in King that the trial court did not err in its jury instruction,

finding that “[t]he trial court followed the requirements of the applicable statute as

to what must be included in an instruction considering punishment of a

defendant.” Id. at *3.



       A defendant has a constitutional right to a correct and complete charge of

the law. State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). A defendant has a

right to have every issue of fact raised by the evidence and material to his or her

defense submitted to the jury on proper instructions. Poe v. State, 370 S.W.2d

488, 489 (Tenn. 1963). This Court must review the entire charge and only

invalidate it if, when read as a whole, it fails to fairly submit the legal issues or




                                          -25-
mislead the jury as to the applicable law. State v. Phipps, 883 S.W.2d 138, 142

(Tenn. Crim. App. 1994).



       Based upon the record before us, the trial court obviously believed that

Tenn. Code Ann. § 40-35-201(b) (Supp. 1995) was unconstitutional, and as the

appellant noted in his brief and as the trial court stated in its own comments, the

trial court attempted to “correct” the statute. However, in its attempt to “correct”

the statute, the trial court failed to give a correct and complete jury instruction

pursuant to the statute or Tennessee Pattern Jury Instruction, Criminal No. 43.11

regarding the range of punishment.



       Unlike the trial court in King, the trial court in this case failed to charge the

jury pursuant to Tenn. Code Ann. § 40-35-201(b)(2)(A)(ii), a provision of the

statute beneficial to the appellant. This subdivision of the statute, when included

with the other information required by the statute, clearly indicates that whether

an individual is released from incarceration on his earliest release eligibility date

is “a discretionary decision made by the board of paroles.” To completely delete

this subdivision of the statute from the jury instruction undoubtedly gives an

inaccurate statement of the law and misleads the jury regarding the likelihood of

when a defendant would be released. Also, the trial court, unlike the court in

King, stated only the lowest number in the grid (i.e., the number of years,

including the safety valve and maximum credits if applied) as the earliest

release eligibility date. Consequently, I conclude that the trial court erred in its

instruction to the jury pursuant to Tenn. Code Ann. § 40-35-201(b) (Supp. 1995)

because the jury instruction misled the jury as to the applicable law.



       I must note that the trial court in King not only included the subdivision in

the statute that states whether a defendant is actually released from

incarceration is a discretionary decision by the Board of Parole based on many

factors, but also included all the information provided in the Department of

Correction grid, thereby giving a far more accurate picture of the defendant’s



                                         -26-
likelihood of release from incarceration than did the jury instruction given in this

case.



        With respect to the state’s contention that this issue is waived and that the

jury instruction was “at worst incomplete,” I must note that the appellant’s failure

to raise this issue in his motion for new trial does not waive this issue. This

Court may, pursuant to Tennessee Rule of Criminal Procedure 52(b), notice “[a]n

error which has affected the substantial rights of an accused . . . at any time,

even though not raised in the motion for a new trial or assigned as error on

appeal, in the discretion of the appellate court where necessary to do substantial

justice.” Because the jury instruction as given failed to conform to the statute or

the pattern jury instruction and thereby misled the jury as to the applicable law, I

find plain error in the jury instruction. Having found plain error, I, therefore, need

not address the issue of impeaching the jury’s verdict.



                                    VIII. Conclusion



        We respectfully reverse the judgment of the trial court and order that the

appellant be granted a new trial.




                                          -27-
                                    ______________________________
                                    PAUL G. SUMMERS, Judge


CONCUR:



(Separate Concurring Opinion)
______________________________
DAVID G. HAYES, Judge



(Separate Concurring Opinion)
______________________________
JERRY L. SMITH, Judge




                                 -28-
