IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL 1998 SESSION
August 12, 1998
Cecil W. Crowson
STATE OF TENNESSEE, * C.C.A. NO. 01C01-9704-CC-00158 Clerk
Appellate Court
APPELLEE, * DAVIDSON COUNTY
VS. * Hon. Thomas H. Shriver, Judge
JAMES C. NICHOLS, * (First Degree Murder)
APPELLANT.
CONCURRING OPINION
I concur in the result reached in this case; I write separately only to
address the parole eligibility jury instruction. In State v. King, ____ S.W.2d ____
(Tenn. 1998), our supreme court ruled that the charge on parole eligibility and early
release was acceptable for the primary reason that the jury was provided the
instruction on an "information only" basis. The charge in this instance is
distinguishable because the jury was directed to "weigh and consider the meaning of
a sentence of imprisonment" and then advised of release eligibility for each offense.
In my opinion, when the duty of the jury is to determine only whether the defendant
is guilty beyond a reasonable doubt, an instruction requiring consideration of release
eligibility violates due process. As Judge Joe G. Riley wrote in State v. Jason M.
Weiskopf, No. 02C01-9611-CR-00381, slip op. at 9 (Tenn. Crim. App., at Jackson,
Feb. 4, 1998), app. filed by state, May 6, 1998, it "allows consideration of
extraneous information, not adduced as proof [at trial], that in no way relates to [the]
determination of guilt or innocence."
Here, the jury was instructed to "weigh and consider" that the earliest
release eligibility for second degree murder was 2.95 years; for voluntary
manslaughter, 0.59 years; for reckless homicide, 0.39 years; and for criminally
negligent homicide, 0.2 years. If the proof of premeditation had not been
overwhelming, the error could not have been classified as harmless beyond a
reasonable doubt. Yet, several witnesses testified to prior threats the defendant had
made to the victim. The autopsy report indicated a tremendous amount of force
would be required to cause the types of injuries the victim sustained. Forensic
evidence suggested two of the knives had been washed after the stabbing. Under
those circumstances, I would conclude that the instruction did not affect the verdict.
__________________________________
Gary R. Wade, Judge