          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON



STATE OF TENNESSEE,                        )
                                           )
       Appellee,                           ) C. C. A. NO. 02C01-9412-CR-00281
                                           )
vs.                                        ) SHELBY COUNTY

ANDRE S. BLAND,
                                           )
                                           ) No. 93-03638-41
                                                                       FILED
                                           )
       Appellant.                          )                         May 1, 1996

                                                                      Cecil Crowson, Jr.
                                                                       Appellate Court Clerk

                                     ORDER



              This matter is before the Court upon the state's petition for a

rehearing of the Court's opinion in the above-captioned cause. In its petition, the

state asserts, pursuant to T.R.A.P. 39(a)(4), that this Court's dicta in footnote 11

of its opinion addressed an issue relying "upon matters of fact or law upon which

the parties have not been heard and that are open to reasonable dispute."

              In footnote 11 of the opinion in this case, we noted that the trial

court's instruction on deliberation was "arguably misleading and partially

erroneous" in that it informed the jury "it is immaterial that the accused may have

been in a state of passion or excitement when the design [to kill] was carried into

effect." We cited to State v. Brooks, 880 S.W.2d 390 (Tenn. Crim. App. 1993),

noting that the instruction "appears to be out of context . . . and the emphasized

phrase should not have been included." We concluded, however, that any error

in the instruction was merely harmless because of the "overwhelming" proof of

deliberation in the record and the fact that the overall instruction was "clearly

distinguishable" from the instruction held to be erroneous in Brooks.



              The state claims that because the instruction in the present case is

substantially different from the instruction held to be erroneous in Brooks, any

comparison between the two is unwarranted. Specifically, the state asserts that

the instruction in the case sub judice sufficiently distinguishes between the
elements of premeditation and deliberation. While the Court in Brooks based its

holding in part upon the instruction's failure to delineate between the two

elements, our reference in footnote 11 to the Brooks instruction was not

addressed to the distinction between these two elements. The instruction in the

present case correctly noted the difference between premeditation and

deliberation. Rather, the instruction on deliberation misconstrued the fact that

deliberation requires "that the act be one committed with 'a cool purpose' and

without passion or provocation." T.C.A. § 39-13-201(b)(1) and Sentencing

Commission Comments.



              Accordingly, while we acknowledge the state's comments

distinguishing Brooks from the present case, we do not believe the dicta

asserted in footnote 11 contravenes the Court's holding in Brooks. Although we

concluded that any error in the instruction was merely harmless, we raised the

issue simply to bring it to the attention of the Supreme Court and all interested

parties. It is hereby ORDERED that the state's petition for a rehearing is without

merit and is, therefore, respectfully denied.



              Even though we have denied the state's petition based upon the

merits therein, we are not certain this Court has the requisite jurisdiction to enter

such a ruling. Although T.R.A.P. 39(b) provides that a party may file a petition

for rehearing within ten (10) days after entry of judgment in the case, T.C.A. §

39-13-206(a)(1) (1995 supp.) specifically states that "[u]pon the affirmance by

[this court of a case in which the death penalty was imposed], the clerk shall

docket the case in the supreme court and the case shall proceed in accordance

with the Tennessee Rules of Appellate Procedure." Accordingly, there appears

to us to be a conflict between the rules and the statute, which could affect the

jurisdiction of this Court. Nonetheless, even if we have jurisdiction over the

state's petition for rehearing, we would still deny the petition on its merits.




                                           2
ENTER, this the ___ day of April, 1996.




                   ____________________________________
                   PAUL G. SUMMERS, JUDGE




                   ____________________________________
                   DAVID H. WELLES, JUDGE




                   ____________________________________
                   WILLIAM M. BARKER, JUDGE




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