IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FILED
December 4, 1998
STATE OF TENNESSEE, )
) Cecil Crowson, Jr.
NO. 02C01-9611-CR-00381
Appellate C ourt Clerk
Appellee, )
) SHELBY COUNTY
VS. )
) HON. ARTHUR T. BENNETT,
JASON M. WEISKOPF, ) JUDGE
)
Appellant. ) (First Degree Murder)
UPON REMAND FROM THE SUPREME COURT OF TENNESSEE
FOR THE APPELLANT: FOR THE APPELLEE:
LESLIE I. BALLIN JOHN KNOX WALKUP
MARK A. MESLER Attorney General and Reporter
200 Jefferson Avenue, Suite 1250
Memphis, TN 38103 ELIZABETH T. RYAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
THOMAS D. HENDERSON
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103
OPINION FILED:
REVERSED AND REMANDED
JOE G. RILEY,
JUDGE
OPINION
This case is again before the Court after remand from the Supreme Court of
Tennessee in light of its opinion in State v. King, 973 S.W.2d 586 (Tenn. 1998). The
issue upon remand is whether the trial court erred by instructing the jury that it could
“weigh and consider” the meaning of a sentence of imprisonment in arriving at its
verdict. Finding the jury charge given in this case and the jury charge given in King
significantly different, we again declare a due process violation. Therefore, we
reverse and remand for a new trial.
PROCEDURAL HISTORY
Defendant, Jason M. Weiskopf, was convicted by a Shelby County jury of
premeditated first degree murder and sentenced to life imprisonment. In his original
appeal to this Court he presented three issues for our review: (1) whether the
evidence was sufficient to support the conviction for premeditated first degree
murder; (2) whether the trial court erred in allowing into evidence photographs of the
victim’s body; and (3) whether the trial court erred in charging the jury on parole
eligibility. Although this Court found the evidence to be sufficient to support the
conviction and the photographs to have been properly admitted, this Court found the
jury instructions on parole eligibility to be in violation of due process. State v. Jason
M. Weiskopf, C.C.A. No. 02C01-9611-CR-00381, Shelby County (Tenn. Crim. App.
filed February 4, 1998, at Jackson).
Permission to appeal was granted by the Supreme Court of Tennessee, and
the case was “remanded to the Court of Criminal Appeals for reconsideration in light
of State v. King, 973 S.W.2d 586 (Tenn. 1998).” State v. Jason M. Weiskopf, No.
02C01-9611-CR-00381, Shelby County (Tenn. filed November 2, 1998, at Jackson).
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FACTS
In order to place the parole eligibility jury instructions in proper context, we
incorporate this Court’s statement of facts in our prior opinion.
The state’s proof revealed that the defendant and the victim
were both employed at the Ridgeway McDonald’s in Memphis. On
September 13, 1994, a day prior to the homicide, the defendant and
the victim had a verbal altercation in the cooking area. That night the
defendant told a fellow employee, Cornelius Buchanan, that he
intended to shoot the victim the next morning since he was tired of
being called “bitches and whores” by the victim.
The next morning at approximately 2:50 a.m., Mary Lee, the
opening manager for McDonald’s, arrived at the Ridgeway location to
prepare for the 5:00 a.m. opening. Both the defendant and the victim
were scheduled to report at 4:00 a.m.
Shortly before 4:00 a.m., Jafus Miller, another employee, heard
three (3) shots while he was sitting in his vehicle. He assumed,
however, that they were firecrackers. Lee also heard a noise about
that time, yet did not realize it was gunfire.
When the employees did not report to work at 4:00 a.m., Lee
tried to reach the defendant by phone and was told he had already left
for work. At approximately 4:15 a.m., the defendant called her and
actually arrived at work at 4:22 a.m.
Shortly thereafter, Miller discovered the victim’s body in the
McDonald’s parking lot. The victim had been shot once in the back and
twice in the face. The autopsy report revealed that the victim died as
a result of these gunshot wounds.
On the date of the shooting the defendant told Buchanan, “I told
you I was gonna kill Marquese.” Buchanan did not believe the
defendant. The following day the defendant again told Buchanan that
he had shot the victim. He stated that he had walked up to the victim
in the parking lot, shook his hand and apologized for the prior
altercation. When the victim turned his back, the defendant said, “You
mother f _ _ _ _ _ ” and shot the victim in the back. Defendant related
that the victim pled for his life just prior to defendant’s shooting him
twice in the face. The defendant stated, “the mother f _ _ _ _ _ s at
work will respect me now.” Defendant further stated he felt no guilt as
a result of the shooting.
The defendant was interviewed by the homicide division at
approximately 1:00 p.m. on the date of the homicide. He denied
shooting the victim.
Upon gathering other information, the authorities arrested
defendant on September 16, 1994. At the time of his arrest he stated
that he knew who “had snitched on him.” Upon being interrogated, the
defendant stated that he shot the victim because he was “messing with
me. He was going to shoot me eventually.” He stated that he waited
for the victim to arrive at McDonald’s prior to the shooting. He further
conceded that the victim was not armed with a weapon and made no
mention that the victim did anything to him just prior to the shooting.
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The defendant stated he was simply afraid that the victim would
eventually shoot him. Defendant also took the authorities to a
dumpster where he had thrown the murder weapon. The weapon was
recovered.
The defense proof consisted of another fellow employee, Morris
Robinson, who testified that both the defendant and victim had
threatened each other on prior occasions. He further testified that the
defendant had told him prior to trial that he thought the victim was
going for a gun at the time of the shooting.
The defendant elected not to testify, and there was no further
defense proof.
THE JURY CHARGE
The jury was charged as to the indicted offense of premeditated first degree
murder and the lesser offenses of second degree murder and voluntary
manslaughter. Pursuant to Tenn. Code Ann. § 40-35-201(b), the jury was instructed
as to the range of punishment for these offenses along with the earliest release
eligibility dates. The jury was instructed that the earliest release eligibility date for first
degree murder was 25 years; the earliest release eligibility date for second degree
murder was 1.06 years; and the earliest release eligibility date for voluntary
manslaughter was .21 years. Unlike the jury in King, the jury was specifically
instructed they could “weigh and consider the meaning of a sentence of
imprisonment.”
STATE V. KING
The Supreme Court of Tennessee in King found that the “for your information
only” parole eligibility jury instruction was not error; however, the Court appears to
have limited its ruling “as applied under the circumstances of this case...” 973
S.W.2d at 587. The Court further stated:
“Significantly, [the jurors] were additionally instructed that they
were not to attempt to fix punishment for the offense and that the
sentencing information was “for your information only.” When the trial
court explains, as it did here, that the sentencing, parole, and early
release information is not to be considered in the determination of guilt
or innocence, then certainly no due process violation has occurred.
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Id. at 592. The Court concluded that “under the circumstances presented we find
that the jury instruction given under Tenn. Code Ann. § 40-35-201(b)(2) did not
deprive the appellant of his due process right to a fair trial.” Id. (emphasis added)
We likewise conclude there is a glaring and pivotal difference in providing a
parole eligibility jury instruction “for your information only” versus instructing the jury,
as was done in the case sub judice, that the jury can “weigh and consider” sentencing
in arriving at the determination of guilt or innocence.
This glaring difference is evidenced in King by its reliance upon California v.
Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed. 2d 1171 (1983). Ramos upheld the
California practice of informing juries about the Governor’s power to commute a life
sentence without the possibility of parole. However, this jury instruction was given
during the penalty phase of a capital murder trial in which the jury had the
responsibility of sentencing. Thus, the Tennessee Supreme Court’s reliance upon
Ramos is understandable with reference to the “for your information only” jury
instruction. However, the Ramos jury instruction given at the penalty phase of a
capital murder trial to a jury that has the responsibility of sentencing may not be
compared to a jury instruction given during the guilt/innocence phase of a non-capital
case authorizing the jury to consider the meaning of a sentence where the jury has
no sentencing responsibilities.
We, therefore, conclude that King in no way sanctions a jury instruction which
authorizes the jury to “weigh and consider” the meaning of a sentence in arriving at
guilt or innocence. The sole function of the jury in this case was to determine guilt
or innocence, not the length of imprisonment. In essence, this jury was specifically
told they could consider extraneous information that had nothing whatever to do with
guilt or innocence in arriving at their verdict.
One accused of a crime is entitled to have his or her guilt or innocence
determined solely on the basis of the evidence introduced at trial and not other
circumstances not adduced as proof at trial. Taylor v. Kentucky, 436 U. S. 478, 485,
98 S.Ct. 1930, 56 L.Ed. 2d 468 (1978); Estelle v. Williams, 425 U.S. 501, 96 S.Ct.
1691, 48 L.Ed.2d 126 (1976).
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The nature of this error becomes evident when comparing the release eligibility
dates given in this case. The earliest release eligibility date for first degree murder
was given at 25 years, whereas for second degree murder and voluntary
manslaughter, it was given at 1.06 years and .21 years, respectively. When a jury
is told to “weigh and consider” the meaning of a sentence in arriving at a verdict, the
nature of the problem is perfectly obvious.
In this case it was readily apparent that the defendant unlawfully took the life
of the victim. The primary issue for the jury was whether this was a premeditated first
degree murder, second degree murder or voluntary manslaughter. Defense counsel
argued to the jury that the evidence, at most, supported a lesser offense. We know
not to what extent, if any, the jury considered the ridiculously low release eligibility
dates for second degree murder and voluntary manslaughter as compared to the
much higher release eligibility date for first degree murder. Nevertheless, we are
unable to conclude that this information had no impact upon the jury since the
primary issue was the degree of homicide. Accordingly, we are unable to find
harmless error.
CONCLUSION
We find the jury charge given in this case to be fundamentally different from
the jury charge given in King. The jury charge was in violation of the Due Process
Clause of the Fourteenth Amendment to the United States Constitution and Article
I, § 8 of the Constitution of Tennessee. Furthermore, being unable to find harmless
error under the circumstances of this case, we reverse and remand for a new trial.
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_____________________________
JOE G. RILEY, JUDGE
CONCUR:
____________________________________
GARY R. WADE, PRESIDING JUDGE
____________________________________
DAVID G. HAYES, JUDGE
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