IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
FILED
July 6, 1998
STATE OF TENNESSEE ) FOR PUBLICATION
) Cecil Crowson, Jr.
Appellee ) FILED: JULY 6, 1998 Clerk
Appellate C ourt
)
V. ) SHELBY COUNTY
)
) HON. JOSEPH B. DAILEY,
HOWARD E. KING ) JUDGE
)
Appellant ) NO. 02-S-01-9703-CR-00021
For Appellant: For Appellee:
A. C. WHARTON, JR. JOHN KNOX WALKUP
Public Defender Attorney General and Reporter
WALKER GWINN MICHAEL E. MOORE
Assistant Public Defender Solicitor General
Memphis, Tennessee
LINDA A. ROSS
Associate Solicitor General
Nashville, Tennessee
WILLIAM L. GIBBONS
District Attorney General
DAVID C. HENRY
Assistant District Attorney
Memphis, Tennessee
OPINION
AFFIRMED BIRCH, J.
We granted permission to appeal under Tenn. R. App. P. 11
to Howard E. King, the appellant, in order to address the
constitutionality of Tenn. Code Ann. § 40-35-201(b)(2) (Supp.
1994),1 which requires trial courts to instruct juries regarding
parole and release eligibility when a jury instruction on the
sentencing range is requested by either party. Because we find
that the statute does not violate the separation of powers doctrine
or deprive the appellant of his due process right to a fair trial,
we conclude that the statute, as applied under the circumstances of
this case, is constitutional.
I
The appellant was indicted on a single count of
aggravated burglary.2 The State filed a notice of intent to seek
enhanced punishment pursuant to Tenn. Code Ann. § 40-35-202 (1990),
1
On May 1, 1998, Tennessee’s General Assembly passed Public
Chapter No. 1041, an amendment to § 40-35-201 which deletes
subsection (b) in its entirety and substitutes the following:
In all contested criminal cases, except for
capital crimes which are governed by the
procedures contained in TCA §§ 39-13-204 and
39-13-205, and as necessary to comply with
Article VI, Section 14 of the Constitution of
the State of Tennessee and TCA § 40-35-301,
the judge shall not instruct the jury, nor
shall the attorneys be permitted to comment at
any time to the jury, on possible penalties
for the offense charged nor all lesser
included offenses.
This amendment will apply to all trials occurring after the act’s
effective date.
2
One commits aggravated burglary who unlawfully enters a
habitation without consent of the owner with intent to commit
theft. Tenn. Code Ann. §§ 39-14-402 and 403 (1991). Aggravated
burglary is a Class C felony. Id.
2
on the grounds that the appellant is a persistent offender. Under
Tenn. Code Ann. § 40-35-107(c)(1990), a persistent offender faces
a Range III sentence, which prescribes a more lengthy sentence than
does Range I, the shorter sentencing range for standard offenders.
Prior to trial, the appellant filed a motion requesting
the trial court to instruct the jury on the range of punishment for
aggravated burglary and all lesser included offenses, pursuant to
Tenn. Code Ann. § 40-35-201(b)(1).3 At the same time, however, he
3
Tennessee Code Annotated § 40-35-201(b) provides:
(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
3
requested the trial court to refrain from instructing the jury on
parole eligibility, as required by Tenn. Code Ann. § 40-35-
201(b)(2) whenever an instruction is given under (b)(1). The trial
court granted the motion to instruct as to range of punishment, but
denied the motion to exclude an instruction on parole eligibility.
The case was thereafter tried, and at the conclusion of
all the proof, the jury was instructed as 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
than three (3) nor more
than fifteen (15) years.
You are further informed that
the minimum number of years a person
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.
4
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 0.35 yrs
& MAX CREDITS
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.
The jury found the appellant guilty of aggravated burglary. After
a sentencing hearing, the trial court sentenced him as a Range III
persistent offender to thirteen years in the Department of
Correction. The Court of Criminal Appeals affirmed the judgment of
the trial court.
II
The appellant contends that Tenn. Code Ann. § 40-35-
201(b)(2) violates two constitutional principles: separation of
powers and due process.4 As questions of law, we review these
4
In his application for permission to appeal, the appellant
also made a passing assertion that Tenn. Code Ann. § 40-35-
201(b)(2) violated his right to an impartial jury under Tenn.
Const. Art. I, § 9. However, the jury instruction given under
(b)(2) did not contain anything that would cause the jury to be
biased or prejudiced against the appellant. This assertion is
5
constitutional issues de novo with no presumption of correctness.
See State v. Winningham, 958 S.W.2d 740, 742-43 (Tenn. 1997); State
v. Lewis, 958 S.W.2d 736, 738 (Tenn. 1997).
A
We first address the separation of powers issue.
Article II, § 1 of the Tennessee Constitution provides:
The powers of the Government shall
be divided into three distinct
departments: the Legislative,
Executive, and Judicial.
Article II, § 2 provides:
No person or persons belonging to
one of these departments shall
exercise any of the powers properly
belonging to either of the others,
except in the cases herein directed
or permitted.
The separation of powers doctrine arises from the precept that
“[i]t is essential to the maintenance of republican government that
the action of the legislative, judicial, and executive departments
should be kept separate and distinct.” Richardson v. Young, 122
Tenn. 471, 492, 125 S.W. 664, 668 (1910). The Court of Appeals has
summarized the doctrine as follows:
In general, the “legislative power”
is the authority to make, order, and
repeal law; the “executive power” is
the authority to administer and
without merit.
6
enforce the law; and the “judicial
power” is the authority to interpret
and apply law. The Tennessee
constitutional provision prevents an
encroachment by any of the
departments upon the powers,
functions and prerogatives of the
others. The branches of government,
however, are guided by the doctrine
of checks and balances; the doctrine
of separation of powers is not
absolute.
State v. Brackett, 869 S.W.2d 936, 939 (Tenn. Crim. App. 1993)
(citations omitted). Thus, while the three branches of government
are independent and co-equal, they are to a degree interdependent
as well, with the functions of one branch often overlapping that of
another. Underwood v. State, 529 S.W.2d 45, 47 (Tenn. 1975).
“[B]ecause the defining powers of each department are not always
readily identified, recognizing an encroachment by one department
upon another is sometimes difficult.” Summers v. Thompson, 764
S.W.2d 182, 189 (Tenn.)(Drowota, J., concurring) cert. dismissed,
488 U.S. 977, 109 S. Ct. 523, 102 L. Ed.2d. 556 (1988).
According to the appellant, the Tennessee Legislature
violated the separation of powers doctrine by enacting Tenn. Code
Ann. § 40-35-201(b)(2), which, he contends, improperly encroaches
upon the judicial function of determining the law appropriate for
jury consideration in each case. Essentially, by enacting Tenn.
Code Ann. § 40-35-201(b)(1) & (2) the legislature has deemed
sentence and parole information relevant to the determination of
guilt or innocence. Yet, a trial judge is obligated, as part of
the judicial function, to afford a fair trial by determining
relevancy on a question-by-question basis. Moreover, relevance is
7
controlled by the Tennessee Rules of Evidence. A legislative
predetermination of relevancy, then, suggests a collision between
the judicial and legislative functions.
However, we have previously recognized that the first
subsection of the same statute, which provides for a range of
punishment instruction when requested by either party, is a proper
exercise of the legislative function. Tenn. Code Ann. § 40-35-
201(b)(1); State v. Cook, 816 S.W.2d 322, 326-27 (Tenn. 1991). The
addition of information on the shortest length of time a defendant
may serve is merely a refinement on that instruction. Admittedly,
the statute constitutes an overlapping of the legislative power
with that of the judiciary, and it may indeed be close to an
improper infringement. Yet, having already acknowledged the
authority of the legislature to provide a range of punishment
instruction, we must also acknowledge that an explanation of the
reality of early release and parole is no further an encroachment
into the judicial function. The jury must still decide the issue
of guilt or innocence, and the trial court must still decide the
ultimate sentence to be imposed. Therefore, we conclude that Tenn.
Code Ann. § 40-35-201(b)(2) does not violate the Separation of
Powers Clauses of the Tennessee Constitution.
B
Next, we consider the appellant’s assertion that his
right to due process was violated. Article I, § 8 of the Tennessee
Constitution provides:
8
That no man shall be taken or
imprisoned, or disseized of his
freehold, liberties or privileges,
or outlawed, or exiled, or in any
manner destroyed or deprived of his
life, liberty or property, but by
the judgment of his peers or the law
of the land.
The Fourteenth Amendment, § 1, to the United States Constitution
provides:
[N]or shall any state deprive any
person of life, liberty, or
property, without due process of
law; nor deny to any person within
its jurisdiction the equal
protection of the laws.
The appellant contends that Tenn. Code Ann. § 40-35-201(b)(2)
deprived him of the due process right to a fair trial in three
ways: (1) the statute is impermissibly vague, (2) the statute
requires a misleading jury instruction, and (3) the statute
requires a jury instruction on matters irrelevant to a defendant’s
guilt or innocence.
Turning to the vagueness question, the appellant relies
on Farris v. State, 535 S.W.2d 608 (Tenn. 1976), to support his
contention that this provision is unconstitutionally vague and
impossible to apply. In Farris, two members of the Court found
that a statute requiring jury instruction on parole eligibility,
the powers and duties of the Board of Pardons and Paroles, the
effect of a prisoner's good behavior, and the allowance of good
9
time credits was unconstitutionally vague.5 Id. at 612-13. That
statute provided:
It shall be the further duty of
the trial judge charging jurors in
cases of criminal prosecutions for
felony offenses to charge the said
jury as to the provisions of this
section and as to the provisions of
§§ 40-3612, 40-3613, 41-332 and
41-334, wherever applicable.
Tenn. Code Ann. § 40-2707 (1975).
The difference between the above statute and Tenn. Code
Ann. § 40-35-201(b)(2) is readily apparent. An instruction given
pursuant to § 40-2707 provided no reasonable guidance as to the
ramifications of the parole system in any particular case, other
than to suggest that at some future date the defendant may receive
the benefits of parole. A jury was simply supplied with a mass of
general information, in the form of a statutorily-derived narrative
concerning the operation and possible effects of the parole system,
and was left to decipher that information and compute the length of
time a defendant would serve as best it could. In contrast, Tenn.
Code Ann. § 40-35-201(b)(2) does not leave a jury to speculate
about release eligibility dates, good time credits, and safety
valve release provisions. Rather, it requires the experts at the
Department of Correction to compute the figures so that the jury is
supplied with concrete, specific figures reflecting application of
the various factors relevant to release eligibility. Jurors are
5
The majority of the Court struck down the provision in Farris
because the act was broader than its caption and thus
unconstitutional under Tenn. Const. Art. II, § 17.
10
not left on their own to decipher the intricacies of parole law.
We conclude that Tenn. Code Ann. § 40-35-201(b)(2) provides
explicit, objective, and unambiguous guidance sufficient to
overcome any allegation of vagueness.
The appellant’s second due process argument is that the
jury instruction given under Tenn. Code Ann. § 40-35-201(b)(2) was
impermissibly inaccurate and misleading, thus depriving him of a
fair trial. The instruction at issue informed the jury as to the
shortest possible sentence for aggravated burglary under Range I
(three years), and the longest possible sentence under Range III
(fifteen years). The jury was additionally instructed that the
minimum portion of the sentence that a defendant must serve before
becoming eligible for parole is thirty percent, which is the
applicable percentage under a Range I sentence. Tenn. Code Ann. §
40-35-112. Once the sentence reduction credits and the safety
valve provisions were applied to the shortest sentence under Range
I, the shortest possible period of incarceration was approximately
four months.
The appellant contends that the above information was
misleading because the State had already filed a notice of intent
to seek enhanced punishment under Range III. Hence, the actual
minimum he was facing was ten years, not three, and the release
eligibility he was subject to was forty-five percent, not thirty
percent. Tenn. Code Ann. §§ 40-35-112(c) and -501(e) (1990).
Further, he argues that the safety valve provision should not have
11
been utilized in the jury instruction, because its application to
his sentence is uncertain.
He compares his situation to State v. Cook, 816 S.W.2d
322, a case in which the defendant was convicted of multiple counts
of aggravated rape and aggravated sexual battery of a child under
the age of thirteen. Because of the age of the child, the offense
was statutorily deemed an “aggravated offense,” requiring
sentencing as a Range II offender. However, the State did not
timely file a notice of intent to seek enhanced punishment. The
trial court erroneously assumed that the State’s failure to file
such notice foreclosed the possibility of a Range II sentence and
instructed the jury only as to punishment under Range I. Id. at
323. This Court held that regardless whether the State had filed
the required notice of intent, the law required that the defendant
be sentenced as a Range II offender. Because the jury needed to
know the true range of punishment before deciding guilt or
innocence, the case was remanded for resentencing. Id. at 326-27.
We find Cook to be inapposite. The jury in Cook was not
instructed as to the proper range of punishment. The jury in this
case was properly instructed that the overall range of punishment
for aggravated burglary, from Range I to Range III, was three to
fifteen years. Furthermore, the instruction regarding “the minimum
number of years a person sentenced to imprisonment for these
offenses must serve before reaching the earliest release
eligibility date” was accurate, because the actual decision whether
to permit enhancement does not occur until after conviction at the
12
sentencing hearing. The minimum the appellant was facing at the
time the jury received this instruction was three years at thirty
percent, despite the fact that the State had filed a notice of
intent to seek enhanced punishment. This is in marked contrast to
the Cook case, where the defendant was statutorily ineligible for
any sentence less than Range II if convicted.
We find the instant case more factually similar to State
v. Smith, 926 S.W.2d 267 (Tenn. Crim. App. 1995). The defendant in
Smith was charged with forgery, a Class E felony; thus, from Range
I to Range III the possible sentences were from one to six years.
Tenn. Code Ann. § 40-35-112. The State filed a notice of intent to
seek enhancement to Range II; if they were successful, Smith would
be facing two to four years. The trial court instructed the jury
that the defendant was facing one to four years. On appeal, the
Court of Criminal Appeals noted:
Whether the defendant qualified as
Range I or Range II depended upon
the proof offered at any subsequent
sentencing hearing. Thus, the jury
was aware of the possible range of
punishment that could have resulted
from their verdict. In our view,
the instructions were accurate.
Id. at 271 (citation omitted). We likewise find the instructions
to be accurate in this case. While it might be more desirable to
have the jury informed as to the minimum sentences and their
respective release eligibility percentages in each range for which
the defendant qualifies, that is not what the statute requires. We
are reluctant to add another layer that would only complicate this
issue for the jury.
13
The appellant’s final argument is that parole
eligibility, sentence reduction credits, and related matters are
entirely irrelevant to the jury's ultimate function: the
determination of guilt or innocence. Therefore, he argues,
instructing juries on such matters violates his due process right
to a fair trial because the jury is allowed to base its decision on
facts other than those relating to guilt or innocence. However, we
disagree with the characterization of the sentencing and parole
information as entirely irrelevant. While it may not be relevant
in the strictest sense, it does have a measure of relevance. And
as we previously explained, the legislature has determined for us
the relevancy of sentencing and parole information.
Moreover, providing the jury with such information does
not violate the appellant’s constitutional rights. In Shannon v.
United States, 512 U.S. 573, 114 S. Ct. 2419, 129 L. Ed.2d 459
(1994), the United States Supreme Court held that federal courts
are not required to instruct non-sentencing juries on the actual
consequence of a “not guilty by reason of insanity” verdict; the
Court did not hold that it would be unconstitutional to do so.
Rather, the decision was primarily based on the fact that the
federal statute governing the insanity defense did not authorize
such an instruction. Id. at 580-87, 114 S. Ct. at 2425-28, 129 L.
Ed.2d at 467-71. In this case, however, the statute not only
explicitly authorizes the jury instruction, but indeed requires it.
14
The United States Supreme Court considered the
constitutional ramifications of a similar jury instruction in
California v. Ramos, 463 U.S. 992, 103 S. Ct. 3446, 77 L. Ed.2d
1171 (1983). In that case, the Court upheld California's practice
of informing juries about the Governor’s power to commute a life
sentence without the possibility of parole to a life sentence with
the possibility of parole, even though it was the jury who imposed
the sentence. The defendant asserted that the instruction was
unconstitutional because it was irrelevant to the sentencing
decision and too speculative an element for the jury’s
consideration. The Court disagreed and found that the jury’s
consideration of possible commutation was not prohibited by the
United States Constitution. The Court concluded that “the wisdom
of the decision to permit juror consideration of possible
commutation is best left to the States.” Id. at 1014, 103 S. Ct at
3460, 77 L. Ed.2d at 1189.
The people of this State, through the members of the
General Assembly, have indicated a desire for truth in the
sentencing process. Tennessee Code Annotated § 40-35-201(b)(2) is
a reflection of that desire. As a matter of policy, the
legislature has decided that the sentencing information is relevant
because jurors are better off having concrete information on these
issues rather than being left to speculate on their own. The
rationale for permitting an instruction on the range of punishment,
even though the jury does not impose the sentence, is that in
reality, “jurors will consider punishment anyway and without
direction may speculate to the possible detriment of a defendant.
15
If nothing else, the instruction impresses upon the jurors the
consequences of a guilty verdict.” 11 David Raybin, Criminal
Practice and Procedure § 30.73 (1985).
The jurors in this case were properly instructed that the
State must prove each element of the charged offense beyond a
reasonable doubt. Significantly, they 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. A jury is presumed to have
followed the law as instructed. State v. Harris, 839 S.W.2d 54, 72
(Tenn. 1992). We have no reason to suspect that the jury failed to
heed the instructions given by basing its verdict on irrelevant
considerations. While some may prefer a “pure” system where juries
are wholly unaffected by considerations other than those strictly
relevant to guilt or innocence, the reality is that jurors bring
their experience and knowledge into the courtroom with them. We do
not quarrel with those who feel it is better for them to be
accurately informed rather than left to speculate.
Finally, because Tennessee’s trial courts no longer
operate under a system of jury sentencing, an instruction under
Tenn. Code Ann. § 40-35-201(b) does not permit a jury to impose a
sentence based on how much time they speculate that a defendant
will actually serve. As this Court stated in Farris, “[a] greater
16
defect in the law stems from the fact that jurors tend to attempt
to compensate for future clemency by imposing harsher sentences.”
535 S.W.2d at 614; see also State v. Johnson, 698 S.W.2d 631, 632
(Tenn. 1985), cert. denied, 476 U.S. 1130, 106 S. Ct. 1998, 90 L.
Ed.2d 679 (1986). Now that the judge imposes the sentence, the
risk of such compensation no longer exists. In sum, 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.
III
We conclude that Tenn. Code Ann. § 40-35-201(b)(2) does
not violate the Separation of Powers Clauses of the Tennessee
Constitution. Neither is the statute impermissibly vague, nor does
it require a misleading jury instruction. Additionally, we are
satisfied that the jury based its verdict upon the law and
evidence, in accordance with the instructions of the trial court.
Thus, we find that neither the Due Process Clause of the United
States nor the Tennessee Constitution was violated by the jury
instruction given pursuant to the statute. The convictions and
sentence imposed by the trial court are affirmed.
______________________________
ADOLPHO A. BIRCH, JR., Justice
CONCUR:
Anderson, CJ.
Drowota, Holder, JJ.
Reid, S.J.
17