State v. Green

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED
MARCH SESSION , 1998 October 12, 1998

Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9706-CR-00223
)
Appellee, )
)
) DAVIDSON COUNTY
VS. )
) HON . SETH N ORM AN
RACHEL MARIE GREEN, ) JUDGE
)
Appe llant. ) (Facilitation of Second Degree Murder;
) Facilitation of Attempted Second Degree
) Murder)

ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF DAVIDSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

JEFF REY A. De VAS HER (on ap peal) JOHN KNOX WALKUP
Assistant Public Defender Attorney General & Reporter

W END Y S. T UCK ER (a t trial) KATHY MORANTE
Assistant Public Defender Assistant Attorney General
425 5th Avenu e North
KAR L F. D EAN (at trial) Nashville, TN 37243
Metro Public Defender
VICTOR S. JOHNSON
1202 Stahlman Building District Attorney General
Nashville, TN 37201
STEVE DOZIER
Assistant District Attorney General
Washington Square, Suite 500
222-2n d Aven ue No rth
Nashville, TN 37201-1649

OPINION FILED ________________________

REVERSED; CONVICTIONS VACATED

DAVID H. WELLES, JUDGE
 OPINION

The Defendant, Rachel Marie Gree n, app eals a s of righ t pursu ant to R ule

3 of the Tennessee Rules of Appellate Procedu re. She was convicted by a

Davidson Coun ty jury of facilitation of second degree murder and facilitation of

attempted second degree m urder. 1 The trial court sentenced her as a Range I

standard offender to con current terms of ten years imprisonment for facilitation

of second degree murder and five years imprisonment for facilitation of attempted

second degree murder. In this appeal, the Defendant raises the following seven

issues for our consideration:

(1) that the trial court erred in denying the motion to suppress her
statement to police;
(2) that the trial court erred in effectively denying her motion for a bill
of particulars;
(3) that the evidence was legally insufficient to support the verdicts;
(4) that the trial court erred in den ying her reque st for a jury
instruction on the d efense of ne cessity;
(5) that the trial cou rt erred in reassembling the jury to repo rt guilty
verdicts after the jury had initially reported verdicts of not guilty;
(6) that the trial court erred in denying her motion for a mistrial due
to the manner in which the verdicts were received; and
(7) that the trial court erred in cha rging the jury with resp ect to
release eligibility pursuant to Tennessee Code Annotated § 40-35-
201(b)(2).

After reviewing the record and the thorough briefs submitted by both the

Defendant and the State, we conclude the “not guilty” verdict as announced by

the jury could not later be a ltered after discharge of the jury and after its

separation from the trial court to such a degree that outside contacts may have

been had. A lthoug h it is unfo rtunate that this result may ha ve been contrary to

the apparent inten tions of the jury, our law unquestionably disallows an alteration

of the verdict under the unique circumstances of this case. Although no other

1
Tenn. Code Ann. §§ 39-11-403, 39-13-210, 39-12-101.

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issues raised by the Defendant have merit, we must reverse the judgment of the

trial court and vacate the convictions.

We begin with a brief summary of the pertin ent facts. On the morning of

May 17, 1996, Detective Tim Mason received a telephone call from an individual

with information conc erning the wh ereab outs o f two pe ople allegedly wanted by

the police. Those two people, Jeffrey Swafford and the Defen dant, were sa id to

be located a t the River Retreat Apartments in Nashville. According to the

individual placing the teleph one call, Swafford and the Defendant were packing

and preparin g to leave town. After the telephone call, Detective Mason verified

that Swafford and the Defendant had outstanding warrants by running a

computer check. He the n ask ed De tective D avid M iller to ac com pany h im to the

River Retreat Apartments to serve the warrants. They arrived at the apartment

complex at approximately 9:00 that morning.

Upon arrival, they noticed that O fficer Paul Scurry was already at the

scene. They spo ke briefly with members of the management of the apartment

complex, who assured the officers that the unit leased by the Defendant was

occupied at that tim e. The officers then k nock ed on the do or to the Defe ndan t’s

apartm ent. After receiving no answer to their knocks, they obtained keys to the

apartment from the complex management. Officer Scurry attempte d to unlock

the door, bu t the officers w ere una ble to ope n it. At this poin t, Scotty Brandon,

the maintenance supervisor for the complex, began kicking the door in an attempt

to enter the apa rtment. Shortly after Brand on began kicking the doo r, they heard

a fema le voice — the Defe ndan t’s — call out from inside the apartm ent, “W ho is

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it?” By this time, approximately two to three minutes had passed since O fficer

Scurry first knocke d on the doo r.

In response to the Defendant’s question, Officer Scurry informed her that

he was a police officer. The Defendant called out asking to know what he

wanted. Officer Scurry then informed her that he had arre st warran ts for both her

and Jeffrey Swafford. The Defendant responded that she was in bed and needed

to get dres sed. Officer Scurr y told her to d o so qu ickly. Appro ximately tw o to

three more minu tes pa ssed , at whic h poin t the offic ers again began to kick the

door to the apartment. During the two to three minute wait, Kim Garner, the

occupant of the apartment adjacent to the Defendant’s, heard shuffling noises

coming from the Defendant’s bedroom, as if things were being move d. Sho rtly

thereafter, the Defendant removed a chair which was propped underneath the

door handle and opened the door to the apartmen t. She was take n into custody,

handcuffed, and seated in a chair in the living room of the apartmen t while the

officers checked the remaining rooms for Swafford.

During this time, Detective Mason asked the Defendant if Swafford was

there, acciden tally referring to him as “J immy” rather tha n “Jeffrey.” The

Defendant responded that she did not know “Jimmy Swafford.” Detective Mason

corrected himself, but the Defendant maintained that there was no one else in the

apartm ent. The officers so on discove red an attic a ccess in the ceiling o f a

bedroom closet . A she lf in the closet was broken and there was insulation on the

clothing, leading the officers to suspect that someone had climbed into the attic

recently. The ceiling was eight feet tall and the re was n othing in th e imm ediate

area to use to gain access to the attic. As a result, the officers asked the

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maintenance workers from the apartment com plex to bring them a ladder.

Detective Mason continued his c onversation w ith the Defend ant, telling her, “that

we felt like [Swafford] was up there ; that we did n’t want an ybody hu rt; if he had

any weap ons, s he ne eded to tell us; tha t we did n’t wan t him h urt; we didn’t want

her hurt; we didn’t wa nt us h urt.” Th e Def enda nt app eared calm and s imply

continue d to den y that anyo ne else w as pres ent in the a partme nt.

At this point, Detective Miller exited the apartment and circled around to the

other side of the buildin g in case Swafford attemp ted to escape through another

apartm ent. Officer Joe Brogdon replaced Detective Miller at the closet, waiting

with Officer Scurry for the lad der. Once they had the ladder, Officer Scurry called

up into the attic for anyone up there to come down. He received no response.

Officer Scurry clim bed into the attic and soon called down to Officer Brogdon that

he had located S wafford. Officer Brogdon then climbed into the attic. He

observed Swafford, ten to twelve feet away from the officers. Swafford spoke to

the officers in what Brogdon described as a “jerk voice,” repeatedly telling them

to “shoot me in the head, shoot me in the chest.” Officer Brogdo n did not have

his weapo n drawn but could not tell if Officer Scurry had his weapon drawn.

Scurry was talking to Swafford, ordering him to show his hands and to come

forward. Brogdon looked down to adjust his footing on the beams in the attic, at

which time g unfire e rupted . Brog don w as hit by a gunshot and fell back through

the attic access.

Once the gunfire erupted, Detective Mason led the Defendant outside the

apartm ent, where they took refuge behind a car. Detective Miller soon circled

around from the other side of the building and joined them behind the car. Officer

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Brogdon emerged from the apartment, helped by Scotty Brandon, the complex

maintenance supervisor. Detective Miller asked the Defendant how many guns

Swafford had. She replied that he had two handguns, a .380 and a 9 millimeter.

She was then secured in a patrol car and transported to police headquarters.

During her transport, the Defendant quietly sat in the back of the patrol car and

did not ap pear to b e upse t.

After the dep arture of the Defendant, numerous officers arrived on the

scene. Officers e ntered th e apartm ent on se veral occ asions in an attem pt to

rescue Office r Scur ry, but w ere tur ned b ack b y gunfir e. The y were eventu ally

able to confront Swafford in a bedroom of the apartment. Swafford was shot and

killed during the confrontation. Officers then located Scu rry in the attic. Scurry

had no pulse and was n ot breathing. Th ey attempted to revive Scurry but we re

unsu cces sful. Scurry was later pronounced dead, having suffered seven gunshot

wounds.

At trial, the State also offered the testimony of Casey Lawson, an

acquaintance of the De fendan t. Lawson was the individual who c alled Detective

Mason on the morning of the shooting to inform him of the whereabouts of

Swafford and the Defe ndant. Prior to his conversation with police, Lawson spoke

with the Defendant on numerous occasions. According to Lawson, the

Defendant had stated that “she just wasn’t going easy” if the police attempted to

serve the outsta nding warran ts on her.

The State also offered proof concerning an incident which occurred on May

16, 1996, the day before the shooting at the Defendant’s apartment. On May 16,

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Officer John N icholson attemp ted to serv e outstan ding wa rrants on the

Defendant and Sw afford at a Sonic re stauran t. Officer Nicholson approached a

car at th e resta urant. S waffor d was in the d river’s seat and the Defendant was

in the passenger’s seat. Upon questioning, Swafford gave Nicholson a false

name. Nicholson eventually frisked Swafford and found marijuana. As a result,

Nicholson ordered Swafford back to the patrol car. Swafford, however, fled the

scene with N icholson in pursuit. Swafford escaped after a short chase, and

Nicholson returned to the scene of the attempted arrest. As he returned, he

observed the Defendant fleeing by car, driving over a concrete island in the

process.

Finally, the State offered a statement made by the Defendant to police after

the shooting. As the shooting began, the Defendant was transported to police

headquarters. Once there , she was interviewe d by Detective K ent McAlister.

During the interview , the Defe ndant s poke b riefly about the May 16 Sonic

incident. She re coun ted es sentia lly the sa me e vents a s Office r Nich olson. In

explaining why she fled the scene, she stated that she was not supposed to be

with Swafford because of an order of protection she had previously secured

against him. She did admit, however, that approximately one hour after she fled

the Sonic, she beeped Swafford and thereafter picked him up not far from the

scene.

In her statem ent, the De fendant also recounted essentially the same

course of events leading up to the eruption of gun fire at her apartment as testified

to by the police officers on the scene. She awoke on the morning of May 17 to

the sound of someone attempting to kick in her door. She asked who was there

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and was informed that it was the police. She asked them to wait while she

dressed herse lf. Durin g this time, she told Swafford to hide in the attic and stated

that she would tell the police that he was not there. The Defe ndan t mad e this

decision beca use S waffor d had previo usly told her “that if they [the police] come

in on him like that again that he would shoot.” She then opened the door and

was taken into custody by the police. They asked her if “Jimmy” was there, and

she replied tha t she did n ot know “Jimm y.” Upon further questioning, she told the

officers that no one else was in the apartment. She admitted that she did not

inform the officers of the possibility that Swafford was armed or of his prior

statem ents of what he would do if confronted by police office rs attem pting to

arrest him. She maintained, however, that she was never asked those questions

directly. Once the gunfire erupted, she was escorted out of the apartment and

transported to police headquarters.

At the close of the State’s case-in-chief, the Defendant offered proof in her

defense. The principal proof offered was her own testimony. The Defendant,

twenty-one years old at the tim e of trial, b egan a relatio nship with Sw afford in

1994. She had known him for some time prior to beginning the relationsh ip. In

1995, the relationship became violent, beginning with verbal abuse and

escalating to physical abuse. According to the Defendant, Swafford at times

grabbed her hair, grabbed her throat, threw her to the floor, struck her face, and

hit her with a handgun; and he even raped her in October of 1995. The

Defe ndan t’s mother learned of the abuse and called the police. The Defendant

initially refused to press c harges becau se she was sca red of Swafford. In

January of 1996, however, she obtained an order of protection and a warrant for

Swa fford’s arrest based on telephon e harassment. She informed the police of

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Swafford’s whereabouts so that they could serve the warrant. At that time, she

told the police that Swafford might have weapons, that he was violent, and that

he wou ld not be e asy to arre st.

A short time after Swafford’s arrest, the Defendant discovered he was out

of prison. She called the p rison authorities, but they m aintained that Sw afford

was still incarcerated. Swaffo rd eve ntually d rove b y the D efend ant’s m other’s

home and threatened to kill them all. The Defendant called authorities in an

attempt to have the order of protection enforced, but they maintained that

Swafford was still in prison. The threats prompted the Defendant, in March of

1996, to move in to River Retreat Apartments with a longtime friend, Amy Tayse.

The Defendant hoped to evade Swafford by moving.

In spite of the move, Swafford located th e Defe ndant a nd beg an attem pts

to contact her, eventually showing up at her front door. At that point, the

Defendant “tolerated” Swafford. The Defendant testified that Swafford “was the

type of person that you just couldn ’t get rid of. He wouldn ’t — if he had his mind

made up, there wasn’t much you could do.” She admitted that she still had

feelings for Swafford but that their relationship was far from normal. She

described their relation ship at this point as “[a ] lot of drugs , a lot of gun s.”

Swafford was frequently under the influence of narcotics and often spoke of how

he wou ld kill the De fendan t and then kill himself.

She described the May 16 Sonic incident in much the same way as Officer

Nicholson. After Swafford fled from Officer Nicholson, the Defen dant m oved into

the driver’s seat an d drove a way from the scen e. Acco rding to the Defen dant,

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she fled the scene because she “didn’t want to have any part of having [Swafford]

go back to jail.” After h is relea se from jail in ear ly 1996, Swafford had threatened

that if the Defenda nt ever had him sent back to jail, he wo uld kill her.

With regard to her actions on the day of the shooting at her apartment, the

Defendant admitted that she told the police that no one else was present in her

apartm ent. The D efenda nt testified tha t she did so out of fear of Swafford.

According to the Defendant, when the police knoc ked o n her d oor, S waffor d held

a gun to her head and threatened to kill her if she revealed that he was there.

She told Swafford to hide in the attic. She assured him she would not tell the

police that he w as there . She then went to the living room and told the police that

she needed to put on clothes. When she returned to the bedroom, Swafford was

already most of the way into the attic. She did not know how he had been able

to get into the attic, nor did she see him carrying a gun into the attic. She

returned to the living roo m and opene d the fron t door, a t which time she was

taken into custody . In respon se to questioning, she told the police officers that

there was no one else in the apartment because, even though she was

surrounded by police officers, she still feared Swafford and the threats he had

made against her. Once gunfire erupted, she was escorted out of the apartment

and transported to police headquarters where she made a statement. During the

statem ent, she did n ot men tion the rec ent threa ts made against her by Swa fford

because she was afraid of him and what he might do to her if he thought she was

responsible for his capture.

On cross examination, the Defendant admitted Swafford had told her that

he would shoot if police officers attempted to arrest him. She also admitted that

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she believed Swafford was “crazy” enough to do so. Although she maintained

that she d id not a ctually see Swafford take a gun into the attic, she testified that

she knew it was probable that he had.

To corroborate her testimony about the ab usive n ature o f her rela tionsh ip

with Swafford , the Defe ndant o ffered the testimon y of Officer Steve Ray,

Detective Mike McCarty, and Amy Tayse. Officer Ray testified that he learned

of an alle gation of abuse from the Defendant’s mother in October of 1995. He

met with the Defendant and her mother at the Defendant’s mother’s home. Ray

stated that most of the information concerning the abuse came from the

Defe ndan t’s mother, while the Defendant said only that Swafford had not hit her

hard. Officer Ray testified that the Defendant did not want to prosecute Swafford.

Detective Mike McCarty testified that he spoke with the Defenda nt on Janua ry 23,

1996, about abuse perpetrated by Swafford . As a result of this conversation, the

Defendant obtained an order of protection and a warrant a gainst Swafford for

telephone harassment. The Defendant assisted in the arrest of Swafford by

revealing his location, and she warned the officers that Swafford might be armed.

Both Officer Ray and Detective McCarty testified that the Defendant made no

allegation that Sw afford had eve r raped her.

Amy Tayse, a longtime friend of the Defendant, corroborated the

Defe ndan t’s testimony concerning how Swafford contacted the Defendant

following his release from the January 1 996 arrest. Ta yse and the Defendant

moved into the River Retreat Apartments together in March of 1996. They

attempted to avoid Swafford but to no avail. Swafford began to come to their

apartment more often, prompting Tayse to move out two weeks before the

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shooting. Tayse testified that she did not like Swafford’s attitude and did not like

the Defendant’s attitude when she was around Swafford.

Tayse also testified conc erning an inc ident th at occ urred in the autumn of

1995. She recounted being called by the Defendant to a party a t Swa fford’s

sister’s home. Once there, they told Swafford that they were going to leave, but

Swafford refused to allow the Defenda nt to do so. Swa fford threw the Defendant

down on a bed in the home and Tayse left the room. She could hear the

Defendant screaming after she left. Swafford emerg ed from the room thirty to

forty-five minutes later with a smirk on his face. When Tayse entered the room,

the Defendant was flushed and ha d on no shirt. The buttons of the shirt she had

previous ly been w earing h ad bee n torn off.

The Defe ndan t was in dicted for facilitation of the first degree murder of

Officer Scurry and for facilitation of the attempted first degree murder of Officer

Brogdon. She was tried from March 10 to March 14, 1997. After considering the

proof presented at trial, the jury initially repo rted not g uilty verdicts o n both

counts, but was later re assem bled an d found the Defe ndant g uilty of the lesser

offenses of facilitation of second degree murder and facilitation of attempted

secon d degre e murd er. She n ow app eals to this C ourt.

In her first issue on appeal, the Defendant argues that the trial court erred

in denyin g the m otion to supp ress h er state men t to polic e. The Defe ndan t’s

argument focuses on the failure of Detective McAlister to inform her of the crimes

she was suspected of having committed. She contends that her lack of

knowledge of the suspected crimes rendered her Miranda waiver involuntary.

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Thus, she argues that her statement was admitted at trial in violation of her right

against self-incrim ination an d her righ t to couns el. See U.S. Const. amend. V;

U.S. Const. amend. VI; Tenn. Const. art. I, § 9.

Prior to trial, the De fendan t filed a mo tion to suppress her statement. The

trial court conducted a hearing on the motion to suppress on December 18, 1996.

The only witnes s to testify at tha t hearing was D etective McAlister. McAlister

testified that he responded to the scene of the shooting between 10:00 and 10:30

a.m. He received the assignment of taking an apartment mainte nance worker to

police headquarters for an interview. After that interview, he interviewed the

Defen dant. Prior to interviewing the Defendant, McAlister’s knowledge of the

shooting incident consisted on ly of knowing that officers had attem pted to serve

warran ts at the scene, gunshots had been exchanged, and one officer had been

taken to the hosp ital. McA lister wa s told to interview the Defendant, that she was

in the apa rtment w hen the gunfire eru pted, an d that she had ou tstandin g

warrants. McAlister requested the Defe ndant to execute a Miranda waiver form

because she was under arrest on the outstanding warrants . The Defendant

signed the Miranda waiver form and proceeded to give the statement which was

subs eque ntly introduced at her trial. At no time d id Detective McAlister inform the

Defendant that she was suspected of facilitating Swafford’s sho oting of Officers

Scurry and Brog don. In fact, it appears th at Detective Mc Alister, given his limited

knowledge of wha t had tra nspire d at the Defe ndan t’s apa rtmen t, was a ctually

unaware of the Defendant’s precise relationship to the shooting. McAlister did

testify that an investigator with the District Attorney General’s office was present

during the interview and had more information about the shooting than he d id.

The extent of this investigator’s knowledge of the shooting, however, is unknown.

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 After the hearing on the motion to suppress, the trial court denied the

motion. In so doing, the trial court found that Detective McAlister clearly informed

the Defendant that he intended to ask her about the shooting incident which had

occurred at her ap artmen t that mo rning. Only after informing her of this purpose

did he have the Defendant execute the Miranda waiver. Th e trial court fu rther

found that the videotape of the interview did not reveal any indication of coercion

on the part of Detec tive McAlister. Accord ingly, the trial court concluded that the

Defe ndan t’s Miranda waiver was voluntary and denied the motion to suppress her

statem ent.

In order to b e valid, a wa iver of Miranda rights must be volunta rily,

knowingly, and in telligen tly made . Miranda v. Arizona, 384 U.S. 436, 479, 86 S.

Ct. 1602, 1 630, 16 L. Ed. 2d 694 (19 66); State v. Van Tran, 864 S.W.2d 465, 472

(Tenn. 1993), cert. denied, 511 U.S . 1046, 114 S. Ct. 1577, 128 L. Ed. 2d 220

(1994). The issue of voluntariness of the waiver must be decided based on the

totality of the circu mstan ces surr oundin g each particular c ase. Van Tran, 864

S.W.2d at 472-73 ; State v. Benton, 759 S.W.2d 427, 431-32 (Tenn. Crim. App.

1988). The findings of fact of the trial court on issues concerning the making of

a custodial statement are binding upon appellate review if there is any evidence

in the reco rd to sup port them . Van Tran, 864 S.W.2d at 473 (citing State v.

O’Guinn, 709 S.W.2d 561, 566 (Tenn. 1986), and State v. Chandler, 547 S.W.2d

918, 923 (T enn. 1977 )).

In the present ca se, the Defen dant argue s that the failure of Dete ctive

McAlister to tell the Defendant what offenses she was suspected of having

committed rendered h er Miranda waiver involuntary. In so arguing, the

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Defendant relies principally on a federal district court case from Montana, Schenk

v. Ellsworth , 293 F. Supp. 26 (D. Mon t. 1968). In Schenk, the court held that

because the defendant was not advised the reason for his detention and

questioning, waiver of his right to counsel was not knowing and intelligent.

Schenk, 293 F. Supp. at 29. The court continued stating that “when a perso n is

in custody and, for all practical purposes, charged with a crime, . . . then he must

be told of the crime he is suspected of having committed before a statement can

be taken.” Id. (citation omitted). The court noted that “it stands to reaso n that a

suspect canno t intelligently make the decision as to whether he wants counsel

if knowledge of the crim e susp ected is w ithheld from him.” Id. In support of her

reliance on Schenk, the Defendant also points out that this Court has recognized

that “a prisoner’s ignorance of the charge against him might conceivably be a

circumstance worthy of consideration with respect to the ‘totality of

circum stanc es.’” State v. Stearns, 620 S.W.2d 92, 95 (Tenn. Crim. App. 1981 ).

In considering the Defendant’s argument, we first note that this Court is not

bound by the Montana federal district court’s holding with regard to the

voluntariness of Miranda waivers. Instead, we are required to follow only the

applic able constitutional rulings of the Unite d States Supre me C ourt. See State

v. McKay, 680 S.W .2d 447 , 450 (T enn. 19 84), cert. denied, 470 U.S. 1034, 105

S. Ct. 1412 , 84 L. Ed . 2d 795 (1985); State v. Bowe rs, 673 S.W .2d 887, 889

(Tenn. C rim. App. 198 4).

W e believe the decision of the United States Supr eme Cour t in Colorado

v. Spring, 479 U.S. 564, 107 S. Ct. 851 (1987), is controlling on this issu e. In

Spring, the Court held that the failure of law enforcement officials to inform a

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suspect of all the pos sible sub jects of interrogation is not relevant to determining

whether the suspect voluntarily, knowingly, and intelligently waived his or her

Fifth Amendment privilege.

Furthermore, we believe that Tennes see case law is in accord with Spring.

In State v. Stearns, 620 S.W.2d 92 (Tenn. Crim. App. 1981), a case cited by the

Defendant in sup port of h er argu men t, this Co urt state d that “[t]h ough a priso ner’s

ignorance of the charge against him might conceivably be a circumstance worthy

of consideration with respect to the ‘totality of c ircum stanc es,’ Miranda v. Arizona

does not require the interrogating officers to advise a defendant of the nature of

the crim e unde r investigatio n.” 620 S .W.2 d 92, 95 (citations om itted).

Applying these pr inciples to the case sub judice, we conclude that the trial

court did not err in admitting the Defendant’s statement. It is clear from the

record that Detective McAlister did not tell the Defendant that she was or would

be charged with the criminal offenses of facilitating the murde r of Officer Scurry

and facilitating the attempted murder of Officer Brogdon. From our review of the

videotape of the interview, however, it is equa lly clear that McAlister did inform

the Defendant that he wanted to speak with her about the incident which had

occurred at her apartment earlier that morning. Thus, when the Defendant

executed the Miranda waiver, she was aware of the subject of the questioning.

After telling th e Def enda nt the s ubjec t of the q uestio ning, M cAliste r verba lly

advised her of h er con stitution al rights, the Defend ant herself read th e form

advising her of those rights, and she signed the form waiving those rights. The

record indicates that the Defendant was literate, h ad gra duate d from high s choo l,

and appeared coherent during questioning. Finally, there is no evidence in the

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record of any threat or coercion on the part of D etective McAlister. In that regard,

the Defend ant co ntend s that M cAliste r implie d she would be he ld inde finitely if

she did not submit to questioning. In particular, th e Defe ndant p oints to

McA lister’s respo nse to her qu estion abou t what w ould happ en if sh e did not wish

to make a statement. McAlister responded by making reference to her

outstanding warrants.

From our review of the record , however, we do not be lieve that Detective

McA lister’s response was threatening or coercive. The response must be

considered in the context of the conversation at that point. As McAlister was

informing the Defendant of her constitutional rights, the following colloquy

occurred:

Q. With that righ t [again st self-in crimin ation] in mind, do you wish
to waive that right and answer questions now?
A. I guess.
Q. W ell, it has either g ot to be a ye s or a no , it can’t be an I
guess.
A. And if I don ’t, what?
Q. If you don’t, then we can’t interview you and talk to you.
A. And what are they going to do, just hold me?
Q. I understand you have so me outsta nding warrants for
something, don’t you?

Considering the entire c olloquy, w e do no t believe tha t McAliste r’s comm ents

were threatening or coercive so as to suggest that the Defendant’s Miranda

waiver was involuntary. Rather, we believe McAlister’s reference to the

Defendant’s outstanding warrants was merely a simple response to the

Defe ndan t’s question of whether she would be held in custody if she did not wish

to make a statement. It is clear that imm ediately prio r to the refere nce to

outstanding warrants, McAlister told the Defendant that if she did not wish to

make a state men t, he co uld no t ques tion he r. The videota pe of th e interview

-17-
revea ls no indica tion of a threate ning or coercive mannerism on the part of

Detective McAliste r, nor doe s it show a reaction o n the pa rt of the Defendant

indicating that she fe lt threate ned o r coerc ed. W e sim ply cannot conclude that

McAlister’s reference to the Defendant’s outstanding warrants constituted a threat

or an attempt to coerce the Defendant into submitting to questioning.

According ly, after considering the totality of the circumstances, we believe

the record supports the trial court’s findings that the Defendant was aware of the

subject of the questioning prior to executing the Miranda waiver, that she was

advised of her constitutional rights, and that she waived those rights without any

threat or coercion. We therefore conclude that the State demonstrated the

Defend ant’s Miranda waiver and subsequent statement were voluntary and, thus,

the trial court did not err in denying the motion to suppress. The Defendant’s first

issue is w ithout me rit.

In her second issue on app eal, the Defen dant argue s that the trial court

erred by effectiv ely denyin g her m otion for a b ill of particulars. In order to

address this issue, we first examine the procedural history relating to the

Defe ndan t’s request for a bill of particulars. On September 30, 1996, the

Defendant filed a mo tion for a bill of p articulars pursuant to Rule 7(c) of the

Tennessee Rules o f Crimina l Proced ure. Th e motio n reque sted the S tate to

furnis h inform ation re gardin g the tim e of the offens es an d the m anne r in whic h

the Defendant was alleged to have facilitated the murde r and attemp ted murde r.

In other words, the Defendant sought to require the State to reveal which of her

actions constituted the “substantial assistance” necessary to prove the offense

-18-
of facilitation.2 On January 6, 1997, the State filed a response to the motion for

a bill of par ticulars. With reg ard to the reque st for information co ncerning the

time of the offenses, the State referred the Defen dant to its prior response to a

discovery reques t. With re gard to the request for information concerning the

manner in which th e Defe ndant w as allege d to have facilitated, the State

responded that the Defendant’s request was not proper because the function of

a bill of par ticulars is to apprise the Defendant of the offense charged, not provide

a means for broad discovery of the State’s theory of the case. On January 18,

1997, the Defendant filed a motion to compel a response to this latter request

contending that the State’s response was inadequate. After conducting a

hearing, the trial cou rt denie d the m otion to com pel. The Defendant now argues

that the trial court effectively denied her motion for a bill of particulars, thereby

depriving her of a fair trial in violation of the Fifth and F ourteen th Ame ndme nts

to the United States Constitution and Article One, Sections Eight and Nine of the

Tennessee Constitution.

Rule 7 of the Ten nessee R ules of Crimina l Procedure provides that “[u]pon

motion of the defendant the court may direct the filing of a bill of particulars so as

to adequa tely identify the offense charged.” Tenn. R. Crim. P. 7(c). The

purposes of a bill of particu lars are to provide the defendant with information

about the details of the cha rge if this is necessary to th e preparation of the

defense, to avoid prejud icial sur prise a t trial, and to ena ble the defendan t to

preserve a claim o f double je opardy. State v. Byrd, 820 S.W.2d 739, 741 (Tenn.

2
Criminal responsibility for the offense of facilitation of a felony lies where a person,
knowing that another individual intends to commit a specific felony but lacking the intent
required for criminal responsibility for the conduct of that individual under Tennessee Code
Annotated § 39-11-402(2), knowingly furnishes substantial assistance in the commission of the
felony. Tenn. Code Ann. § 39-11-403(a).

-19-
1991). The Advisory Commission Com ments to Rule 7(c) make it clear that the

bill of particula rs provision should b e cons trued to p rovide the defend ant with

knowledge of what he or she is charged with, not to provide bro ad discovery.

See also State v. Stephenson, 878 S.W.2d 530, 539 (Tenn. 1994). The test in

passing on a m otion for a b ill of particu lars is whether it is necessary that the

defendant have th e informati on sou ght in orde r to prepa re his defe nse an d to

avoid prejudicia l surprise. Id. at 539. A defend ant should be provided enough

information about the events charged so that h e or she may, with diligence,

adequ ately prep are for trial. Id.

In support of her argument, the Defendant emphasizes that although the

bill of particulars is not intended as a means of broad discover y of the S tate’s

evidence and th eories of the c ase, “to the exte nt that in formati on is needed for

the proper purposes of the bill, it will be required even if the effect is disclosure

of evidence or o f theories.” State v. Hicks, 666 S.W.2d 54, 56 (Tenn . 1984).

W hile we agree with this principle, we believe that it still begs the question of

whether the info rmatio n in a p articula r case is needed for the proper purposes of

the bill. In other words, the central question remains whether it is necessary that

the defendant have the information sought in order to prepare the defense and

to avoid p rejudicial su rprise. See Stephenson, 878 S.W.2d at 539.

Applying these principles to the case at bar, we can only conclude that the

trial court did not err in denying the Defendant’s motion to compel. From our

review, the reco rd conta ins nothin g to indica te that the Defendant was un able to

prepare her defe nse or was unfairly surpris ed by th e State ’s evide nce a t trial.

The State’s theory with regard to the actions constituting “substantial assistance”

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focused on the Defe ndant’s d elaying of p olice entry in to the apa rtment, directing

Swafford to hide in the attic, lying to police about the presence of Swafford in the

apartment, concealing the distinct possibility that he possessed weapons, and

circumstantial evidence that she helped Swafford gain access to the attic and

attempted to conceal that he had done so. We believe tha t even with the denial

of the mo tion to compel, the Defendant was fully able to mount a defense against

this theory and did, in fact, do so. She readily admitted that she delaye d the entry

of the police into the ap artmen t, told Swafford to hide in the attic, and then lied

to police abou t Swa fford’s p resen ce in the apartment. The Defenda nt, however,

offered as explanation of why she had done so the abusive, threaten ing nature

of her relationship with Swafford. Similarly, she offered an explanation of why

she had not informed police that Swafford might possess weapons. With reg ard

to how Swafford gained access to the attic, the Defendant contradicted the

State ’s circumstantial evidence by directly denyin g that s he ha d any p art in

helping Swafford into the attic and offering an explan ation of how he might have

gained access by hims elf.

From this record, it does not appear that the Defendant was unprepared

to refute the State’s evidence by virtue of the de nial of h er mo tion to c omp el.

Given the manner in which events transpired on the morning of the shooting, any

defense proof would necessarily derive primarily from the Defendant’s own

testimony. At trial, the Defendan t was indeed able to attack the S tate’s theory

through her own testimony, with additional third-person corroboration of her

testimony about the nature o f her relation ship with Swafford . Although the jury

chose not to accredit her testimony, we do not believe that she was unprepared

to present a defense or unfairly surprised by the State’s evidence. In fact, the

-21-
thoroughness of her rebuttal of many aspects of the State’s theory indicates that

the D efend ant wa s fully pre pared for trial.

W e therefore conclude that it was not necessary that the Defend ant have

information concern ing which actions the State alleged to have constituted

“substantial assistance” in ord er to prepare her defe nse an d to avoid prejudicial

surprise. Thus, the trial court did n ot err in denying the De fendan t’s motion to

compel additional information in the State’s bill of particulars respon se. The

Defen dant’s se cond iss ue is witho ut merit.

In her third issue on appeal, the Defendant argues that the evidence was

legally insufficient to suppo rt her con victions. She contends that the evidence

failed to establish that she knowing ly furnished substantial ass istance to Swa fford

in his comm ission of secon d degree m urder and attempted second degree

murder. The thrust of the Defendant’s argument is that her conduct did not assist

Swafford because the police officers, in spite of what the Defendant said,

suspected that Swafford was in the apartment. She claims that there is no

indication that the police officers would have ac ted diffe rently o r that ev ents w ould

have tran spired diffe rently had her con duct be en differen t.

When an ac cuse d cha llenges the sufficiency of the convicting evidence,

the standard is whether, after reviewing the evid ence in the ligh t mos t favora ble

to the pro secu tion, an y ration al trier of fact could have found the essential

eleme nts of the crime beyond a reaso nable d oubt. Jack son v. V irginia, 443 U.S.

307, 319 (1979). Questions concerning the credibility of the witnesses, the

-22-
weight and va lue to b e given the evid ence , as we ll as all factual issues raised by

the evide nce, are resolved by the trier of fa ct, not this co urt. State v. Pappas,

-23-
754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or

reevalua te the evidence. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).

A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1973). On appeal, the State is entitled to the stron gest legitim ate

view of the evide nce an d all inferen ces there from. Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a presumption of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 1982); Grace, 493

S.W.2d at 476.

In the case sub judice, the Defendant was convicted of facilitation of

second degree murder and facilitation of attempted second degree murde r. The

relevant statutory provision states that “[a] p erson is crim inally res pons ible for the

facilitation of a felony if, knowing that another intends to comm it a specific felony,

but withou t the inte nt requ ired for c riminal responsibility under § 39-11-402(2), the

person know ingly furnishes substantial assistance in the commission of the

felony.” Tenn. C ode Ann . § 39-11-403 (a).

Reviewing the evid ence in the light most favorable to the State, we can

only conclude that the pro of was legally s ufficien t to sup port the Defe ndan t’s

convictions. The Defendant readily adm itted tha t Swa fford ha d prev iously to ld

her that he w ould sho ot if police office rs attem pted to ar rest him . She a lso

admitted that she believed Swafford was “crazy” en ough to do so. With re gard

-24-
to the Defe ndant’s c onduc t on the m orning o f the shooting, the State’s pro of,

taken in its m ost favora ble light, established that upon hearing the police at the

apartment door, the Defendant suggested to Swafford that he hide in the attic,

delayed the entry of the police officers to give Swaf ford tim e to hid e, and falsely

told the police that no one else was in the apartment. In addition, the Defendant

did not respond to Detective Mason’s requests that “if [Swafford] had any

weapons, she needed to tell us,” e ven tho ugh s he be lieved S waffor d prob ably

had a weap on with him in the attic. Finally, the State presented circumstantial

evidence that the D efenda nt helped Swafford gain acc ess to the attic or

attemp ted to conce al that he h ad don e so, or bo th. In that vein , the State

presented testimony that the eig ht-foot ceiling in the close t was too h igh to allow

access to the attic without assistance and that the on ly implements of assistance

were chairs from another room in the apartment or a folded ironing board leaning

in the close t. The State also presented testimony that a neighbor heard shuffling

sounds as if things were being m oved in the bed room du ring the time police w ere

waiting for the Defendant to put on clothing. The implication of this testimony

was that the Defendant had assisted Swafford in gaining access to the attic or

had concealed whatever implement he had used to do so.

Of course, the Defendant contra dicted som e asp ects o f the Sta te’s proof

and offered explanations for those actions to which she admitted. The resolution

of the conflicting testimon y, however, was a matter for the jury to resolve. The

jury resolved the issue against the Defe ndan t, finding her gu ilty. The Defe ndan t’s

contention that the record does not indicate any officer would have acted

differen tly had he r condu ct been different ign ores the testimon y of Detective

Mason, who sta ted tha t had th ey kno wn for s ure tha t Swa fford w as in th e attic

-25-
and armed, they would have waited for a SWAT team before entering the attic.

From our review of the record, we believe that the evidence was legally sufficient

to support the jury’s ve rdicts. The Defendant’s third issue is therefore without

merit.

In her fourth issue o n appeal, the D efendant arg ues that the trial court

erred in denying her requ est for a jury instruction on the defense of ne cessity.

The Defendant requested jury instructions on the defenses of duress and

necessity. In suppo rt of her req uest, the Defendant pointed out that the record

contained proof the Defendant was respo nsible for Swafford ’s arrest in January

of 1996. T he De fendan t testified that a fter his relea se, Swa fford threa tened to

kill her if she w as eve r again respo nsible for his arrest. She testified further that

on the morning of the shooting, Swafford pointed a gun at her and thre atened to

kill her if she revealed his location. As a result, she told Swafford to hide in the

attic and then falsely told the police officers that no one else was in the

apartme nt. She stated that she did not feel safe from Swafford in spite of the

presence of police officers because the police had failed to assure her protection

after sh e had Swaf ford ar rested only months e arlier. Based on the proof in the

record, the trial court granted the request for an instruction on duress but denied

the request for an instruction on necessity. The Defendant now contends that the

denial of a necessity instruction violated her right to a correct and comp lete jury

charge.

It is well-es tablish ed in Tennessee that the trial court has the duty of giving

a correct and complete charge of the la w app licable to the facts of the case and

that the defendant has the right to have every issue of fact raised by the evidence

-26-
and material to the defense submitted to the jury upon proper instructions by the

trial court. State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990), cert. denied, 498

U.S. 1007, 111 S. Ct. 571, 112 L. Ed. 2d 577 (19 90); State v. Bryant, 654 S.W.2d

389, 390 (T enn. 19 83); State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975)

(citing Poe v. S tate, 370 S.W.2d 488 (1963)). It is also clear that neither duress

nor nece ssity is an affirmative defen se. Rather, bo th are merely defenses and,

as a result, if evidence fairly raises either defense, the trial cou rt must submit the

defense to the ju ry and mus t instruc t the jury that an y reaso nable doubt on the

existence of the defens e require s acqu ittal. State v. Culp , 900 S.W.2d 707, 710

(Tenn. Crim. App. 1994); Tenn. Code Ann. §§ 39-11-203, -504, -601, -609.

As we stated above, the trial court did instruct the jury on the defense of

duress. The instruction read as follows:

Included in the defendant’s plea of not guilty is her plea that
her acts constituting the offense charged were the result of duress.
Duress is a defense to prosecution where:
(1) the defendant is threatened with harm which is
presen t, imminent, impending and of such a nature as
to induce a well-grounded apprehension of death or
serious bodily injury if the act is not done;
(2) the threatened harm is continuous throughout the
time the act is being committed;
(3) the harm is one from which the defendant cannot
withdraw in safety; and
(4) the desirability and urgency of avoidin g the harm
clearly outweigh, according to ordinary standards of
reasonableness, the harm sought to be prevented by
the law pr oscribing the cond uct.
“Present” means now existing; relating to the present time.
“Imminent” means near at hand; on the point of happening.
“Impending” means to be imminent and threatening.
“Serious bodily injury” mean s bodily injury which involves a
substantial risk of death; protracted unconsciousness; extreme
physical pain; protracted or obvious disfigurement; or protracted loss
or substantial impairment of a fun ction o f a bod ily member, organ or
mental facu lty.

-27-
 If evidence is introduced supporting the defense of duress,
the burden is on the state to prove beyond a reasonable doubt that
the defendant did not act from duress.
Any reasonable doubt on the issue of whether the defendant
acted from duress requires the defendant to be acquitted.
If you find from the proof that the de fenda nt acte d as a result
of duress or if you have a reasonable doubt as to whether or not the
defendan t acted as a resu lt of duress, then you must acq uit her.
This defense is unavailable to a p erson who intentionally,
knowingly, or recklessly becomes involved in a situation in which it
was probable that the person would be subjected to compulsion.
The standard sufficient to excuse criminal conduct is that the
compulsion must be immediate and imminently present and of such
nature to produce a well-grou nded fear of d eath o r seriou s bod ily
harm. In addition , there must be no re asona ble opp ortunity to
escape the compulsion without committing an offense.

This instruc tion is su bstan tially sim ilar to the applic able pattern jury instruction.

See T.P.I. — Crim. 40.03; Tenn. Code Ann. § 39-11 -504; State v. Robinson, 622

S.W.2d 62 (Tenn. Crim. App. 1980 ), cert. denied, 454 U.S. 1096, 102 S. Ct. 667,

70 L. Ed. 2d 6 36 (1981).

The defense of necessity is set forth at Tennessee Code Annotated § 39-

11-609. That section provides as follows:

Except as provided in §§ 39-11 -611 -- 39-11 -621, c ondu ct is
justified if:
(1) The pers on reason ably believes th e con duct is
immediately necessary to avoid imminent harm; and
(2) The desira bility and urgen cy of av oiding the ha rm cle arly
outweigh, according to ordinary standards of reasonableness, the
harm s ought to be preve nted by th e law pro scribing th e cond uct.

Tenn. Code Ann. § 39-11-609. The sentencing commission comments note that

the statutory provision codifies the common law defense of necessity and

excuses criminal conduct in those exceedingly rare situations where criminal

activity is an objectively reasonable response to an extreme situation.

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 As is apparent from the above-q uoted jur y instruction and statu tory section,

the defenses of duress and necessity are similar both in form and in the policy

supporting the availability of both defenses. Given that the sentencing

commission comments to the statutory section defining the defense of neces sity

point out that the section codifies common law, we believe we can look to a

common law distinction between the two defenses to aid our resolution of this

issue.

Common law historically distinguished between the defenses
of dures s and nece ssity. D uress was s aid to excuse criminal
conduct where the actor was under an unlawful threat of imminent
death or serious bo dily injury, which threat cau sed the actor to
engage in conduct violating the literal terms of the criminal law.
W hile the defense of duress covered the situation where the
coercion had its source in the actions of other human beings, the
defense of necessity, or choice of evils, traditionally covered the
situation where physical forces beyond the actor’s control rendered
illegal conduct the lesser of two evils. Thus, where A destroyed a
dike because B threatened to kill him if he did not, A would argue
that he acted under d uress, w hereas if A destroyed the dike in order
to protect more valuable property from flooding, A could claim a
defense of n ecessity.

United States v. Bailey, 444 U.S. 394, 409-10, 100 S. Ct. 624, 634, 62 L. Ed. 2d

575 (1980). A pplying this reason ing to the case at bar, we can only conclude that

the trial court did not err by instructing the jury on the defense of duress but

denying the D efendant’s req uest for a jury instruction on necessity.

Moreover, we note that the general policy supporting the existence of both

defenses was served by the duress instruction in the present case. The general

policy behind both defenses reflects a judgment that an individual acting under

threats or conditions wh ich a person o f ordinary firmness would have been

unab le to resist or re asona bly believing that crimin al action w as nec essary to

avoid a harm more s erious th an that soug ht to be pre vented b y the statute

-29-
defining the offense do es not dese rve criminal p unishm ent. See Bailey, 444 U.S.

at 410; Se ntencing Com mission Com ments to Tenn. Code Ann. §§ 39-11-504,

-609. In the case sub judice, the Defendant offered testimony that her actions on

the morning of the shooting were motivated by her fear of Swafford’s threats.

The jury instructions on duress provided the De fenda nt with a defen se, sh ould

the jury accredit her testimony, stemming from the policy described above. W e

believe the jury instruction on du ress adeq uately conveye d the policy and the

applic able defense. Accordingly, we conclude that the trial court d id not e rr in

denying the Defendant’s request to instruct the jury on the defense of ne cessity.

The D efenda nt’s fourth iss ue is witho ut merit.

In her fifth issue on appeal, the Defendant argues that the trial court erred

in reassem bling the jury to report guilty verdicts after the jury had initially reported

verdicts of not guilty. To address this issue, we must first recount the course of

events leading up to the rendering of verdicts of guilt for facilitation of second

degree murder and facilitation of attempted second degree murder. As stated

above, the Defendant was indicted on one count of facilitation of first degree

murder and one count of fac ilitation of attempted first degree murder. Her trial

took place from March 10 to March 14, 1997. The jury was sequestered during

trial. Presentation of proof was concluded on March 13, 1997, and the trial court

charged the jury with facilitation of first degree murder and facilitation of second

degree murder on count one, and facilitation of attempted first degree murder,

facilitation of attem pted s econ d deg ree m urder and fa cilitation of attempted

aggravated assault on count two. The jury began deliberations but we re una ble

to reach a verdict on March 13 and retired for the night. On March 14 they

-30-
resumed deliberatio ns and eventua lly notified the trial court that they had reached

a verdict.

The scenario which developed as the trial judge attempted to receive the

jury’s verdict w as qu ite asto nishin g and proba bly unp reced ented . Upon the jury’s

return to the courtroom, the trial judge told the foreperson that he would ask for

the jury’s verdict as to each count individually. The trial judge then asked the

foreperson what the verdict of the jury was a s to coun t one. The fore person

responded, “Not guilty.” The trial jud ge ask ed wha t the verdict w as as to count

two, and the foreperson again responded, “Not guilty.” The trial court confirmed

that the verdict was not guilty as to both counts, and the foreperson answered,

“That is correct.” All of the exchanges with regard to the verdicts were verbal.

It appears that the trial court did not employ written verdict forms. 3 The trial judge

thanked the juro rs for the ir service and, a s an e xpres sion o f appre ciation for their

involvement in a difficult trial, assured them that they w ould have three years of

exemption from jury service. He then dismissed the jury, telling them that the

court officers would acco mpa ny them to get th eir belongings. The jury then left

the jury box.

The courtroom was full of spectators, including a large number of police

officers in uniform and representatives from the media. The reaction to the not

guilty verdicts was audible and included crying. After being dismissed by the trial

court, the jury exited the courtroom by walking in front of the galle ry and ou t of a

door leading to a congested public area of the courthouse. From te stimon y at a

3
The utilization of written jury verdict forms, which apparently is common practice by
most criminal court judges in this state, would likely have prevented any problem concerning
the reporting of the verdict.

-31-
later hearing on a motion to dismiss, it appears that mos t of the ju rors, if no t all,

had left the c ourtro om b efore s ubse quen tly being called back in b y the trial cou rt.

It is unclea r whethe r all of the jurors had left the courtroom before being recalled.

Upon leaving the courtroom, the jurors walked into an area of the

courthouse which was open to the public. This area was quite congested as the

jurors exited the c ourtroom , with numero us attorneys an d mem bers of the m edia

presen t. The exiting jurors stretch ed ou t in a long line leading fro m the d oor to

the courtroom. It appears that the jury could have exited the courtroom by way

of another door which did not lead to an area of the courthouse open to the

public. Accord ing to affida vits subm itted at the late r hearing on the m otion to

dismiss, two court officers accompanied the jurors as they exited the courtroom.

The court officers stated that the jurors remained in their custody at all times

before being ca lled back into the courtroom. The court officers stated further that

the jurors were not subject to outside contact before being called back into the

courtroom.

As the jurors filed out of the courtroom, they walked past the prosecution

table. As one of the jurors walked by, one of the assistant district attorney

gene rals prosecuting the case noticed the juror shaking his head and saying “No

way.” After seeing this reaction, the assistant district attorney general asked the

trial court if the State could be heard. He then asked the trial judge if he was

going to poll th e jury, to which the trial ju dge re spon ded n egative ly since the

verdict had been not guilty. The assistant district attorney general then informed

the trial court of the juror reaction he had witnessed. At that point, the trial judge

said, “Brin g the jury ba ck. Righ t quick, catc h the jury.”

-32-
 The jurors were then reassembled in the courtroom, standing in a curving

line in front of the jury box an d the ga llery. At this po int, the trial court m erely

began to poll the jury. T he trial judg e explaine d that he was going to ask each

individual juror if the verdict announced by the foreperson, as to eac h sepa rate

count, was the verdict of the individual juror. The trial judge questioned seven

jurors, all of whom indicated that the not guilty verdicts announced by th e

foreperson were their verdicts as individuals. The eighth juror polled by the trial

court was the forepers on. When she was questioned by the trial judge, she

indicate d that there m ight be so me co nfusion a s to the verd ict. She sta ted, “I

think the confusion may be, on that we also con sidered Se cond De gree Murd er,

Attempt for Second Degree, Facilitation on Second Degree Murder and

Facilitation of Attempted Second Degree Murder. . . . We did vote on that count

as well, and reached a verdict on that.” At this point, the trial judge instructed the

jurors to again take their seats in the jury box.

The trial judge attempted to clarify that when he asked the jury their verdict

as to each count, they shou ld report not only on the indicted offense, but also on

any lesser offe nses the y had co nsidere d. The confusion persisted, h owever,

because the foreperson was unsure whether facilitation of second degree murder

and facilitation of attem pted se cond d egree m urder we re lesser o ffenses. In fact,

when the trial court again asked the foreperson, after the attempt to clarify the

confusion, what th e verd ict of the jury wa s, the fo reper son re plied th at she did

feel there was a clear ve rdict, given th e clarification provided by the trial co urt.

The trial judge then informed the jury that he could not accept the verdict and

would have to send them back to deliberate further. The trial judge re-read a

portion of the charge instructing the jury that they must first consider the indicted

-33-
offenses, and if they fo und the Defen dant no t guilty of those offenses , they

should then conside r lesser offenses . The confu sion appare ntly lingered after the

instructions, and the foreperson m ade one las t attempt to clarify the m atter.

FOREPERSON: My question is, [the Defendant] was acquitted of
First -- facilitation of First Degree.
THE COUR T: Of First Degree.
FOREPERSO N: We, then, went to a lesser charge.
THE COU RT: A ll right.
FOREPERSON: Facilitation of Second Degree Murder and
Facilitation of Attempted Second Degree.
THE COURT: Yes. Did the jury make a decision as to those
charges?
FOREPERSO N: Yes, sir, we did.
THE COU RT: W hat is the decision as to that charge? First in Count
One wh at is the decision of the --
FORE PERS ON: Gu ilty.
THE COURT: Guilty as to Second Degree, is that what you’re telling
me?
FOR EPE RSO N: Tha t’s correct.

The trial court proceeded to poll the jury on whether their verdict was guilty of

facilitation of second degree murder in count one and guilty of facilitation of

attempted second degree murder in count two. Each juror responded

affirmatively.

W e have reviewed an audiotap e record ing of the ju ry reporting its verdict.

From our review, it appears that approximately thirty-five seconds passed

between the tim e whe n the tria l court firs t dism issed the jury a nd the time the

assistant district attorney asked the trial court if the State could be heard. An

additional fifteen seconds passed b efore the trial court orde red the court officers

to catch the jury and bring the m ba ck to th e cou rtroom . After th e trial co urt’s

order, approximately fifty-eight seconds passed b efore the jury was reassembled

in front of the jury box. T hus, th e time period betwe en the jury’s initial dismissal

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and the trial court’s order to reasse mble th em wa s fifty secon ds. Fifty-eight more

seconds passed before the jury was actually reassembled in front of the jury box.

The Defendant now argues that the trial court erred in reassembling the

jury after they had reported the not guilty verdicts. She asserts that after the jury

reported the not guilty verdicts, the trial court discharged them. She contends

that Tennessee law does not permit reassembly of the jury to amend or correct

a verdict in a substan tive man ner after th e jury has been d ischarge d. She argues

that reassem bling the jury, after their report of not guilty verdicts and discharge,

in order to e nter a findin g of guilt violate d double jeopardy and due process

protections. See U.S. Const. amend. V; U.S. Const. amend. XIV, § 1; Tenn.

Const. art. I, §§ 6, 8, 9, 10.

In its brief on appeal, the State agrees that when a jury is discharged, they

may not be reass embled to amend or correct their verdict in a su bstantive way.

See State v. Jefferson, 938 S.W.2d 1, 22 (Tenn. Crim. App. 1996). The State

contends, however, that the jury in the present case was not actually discharged

after reporting the initial not g uilty verdicts. A s a result, it was not error for the

trial court to reassem ble the jury to correct the verdicts. In su pport of its

contention that the jury wa s not a ctually discharged, the State argues that the

jurors remain ed in the c ustody o f court officer s, remained an undispe rsed un it,

and had no opportunity for outside contacts before being reassembled.

From these argum ents, it is clear that the key point of contention, and the

central question for our review, is whether the jury in the present case was

discharged after initially repo rting not gu ilty verdicts. If the jury was indeed

-35-
discharged, both the Defendant and the State agree that it was improp er to

reass emb le them to correc t or amen d the initial verdicts. Obviously, we are

presented with an unus ual ch ain of e vents in the rep orting of the verdicts. Not

surprisingly, there a re very fe w cas es de aling w ith suc h situa tions. There are,

however, a small number of reas onab ly similar cases both from Tennessee and

from other jurisdictions which contain concepts and principles useful for our

disposition of this issue.

There are several cases from other jurisdictions which confront the issue

raised here, nam ely the point at which a jury is considered discharged. Although

none of these cases exhibit the precise factual pattern of the case at bar, they do

highlight some of the chief concerns which enter into an analysis of the issue of

when a jury is discharged. We will therefore summarize some of these ca ses to

aid in our future discussion of Tennessee case law.

The first principle which we can glean from an examination of cases from

other jurisdictions is that the verbal discharge or dismissal of the jury by the trial

court does not render the jury discha rged fo r purpo ses o f subs eque nt reas sem bly

to correct or amen d a verdic t. For instance, a New Jersey case contains

language directly stating that “the words ‘the jury is discharged’ do not in

themselves terminate the ca se.” State v. Brande nburg, 120 A.2d 59, 61 (Hudson

Coun ty Ct. 19 56). As will become apparent from our later discussion of

additional cases, other jurisdictions are in accord with this principle.

This principle lea ds us to th e next log ical ques tion, namely w hat factors

other than the verbal dismissal of the jury come into play in determining whether

-36-
a jury has actu ally been d ischarge d. Cases from oth er jurisdiction s dem onstrate

two primary factors at issue in determining discharge. The first involves the issue

of separation from the presence and control of the trial court. The second

involves the issue o f outside contac ts or influence on the jury.

Branden burg is a prim e exam ple of a case highlighting these two factors.

In Branden burg, the jury foreperson reported that the jury had found the

defend ants not guilty. The trial court verbally dismissed the jury. In the

passageway outside the courtroom, some of the jurors indicated that the

foreperson had not reported the correct verdict. A court officer informed the trial

judge, who reass embled th e jury. The jury was reassembled approximately ten

minutes after the ir verbal dism issal. Id. at 60. The Branden burg court concluded

that the jury had been discharged and, thus, the reassembly was improper. The

principal reason behind this conclusion was that the jury had left the presence of

the trial court. Id. at 61-62. The court stated that “[o]nce a jury has been

discharged and they have gone out of the presence of the court, it would be a

dangerous procedure to have th em aga in deliberate upo n the case.” Id. at 61.

The court w ent on to state that “it is enough if [the jurors ] are out of the presence

of the court, regardless of the distance therefrom .” Id. at 62. The court also

noted that there w as “no ind ication from any source that the jury in the instant

case was coerce d or that they were intimidated.” Id. at 61. Yet the court pointed

out that “whether they had contact with others during the interval between

discharge and reass emb ling is im mate rial, for they did have an opportunity to do

so.” Id. at 62.

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 Emphasizing the factor concerning separation from the presence and

control of the trial cou rt is the Virgin ia case o f Melton v. Com monw ealth, 111 S.E.

291 (Va. 1922). In Melton, the jury returned a verdict of guilt of rape, but set the

punishment in the punishment range for attempted rape. The trial court did not

notice this inconsistency imm ediate ly and verbally dism issed the jury. The jurors

did not separate from each other, but did retire to the jury room accompanied by

a sheriff for the purpose of claim ing the ir attendance fees. The trial court soon

reassembled the jury to correct the inconsistency. The Melton court concluded

that the reassembly was improper because the jury had been discharged. The

court stated, “W hen the court announces their discharge, and they leave the

presence of the court, their functions a s jurors have en ded.” Id. at 291.

In a simil ar vein is the Texas case of We bber v. Sta te, 652 S.W.2d 781

(Tex. Crim. App. 1983). In Webber, the court read the verdict of the jury finding

the defendan t guilty of kidnaping and assessing p unishme nt at four years

imprisonm ent. The co urt then verbally dismissed the jury. Almo st imm ediate ly

the trial court discovered tha t the jury had signed an additional verd ict form

recommending that punishment be probated. The court inquired as to the validity

of this form, and the jurors indicated that it was m istakenly signed. T he trial court

then allowed the jury to return a verdict showing no recommendation for

proba tion. The Webber court concluded that it was not error to reconvene the

jury. The co urt noted that the jury had not been out of the presence of the trial

court wh en the e rror was n oticed an d they we re recon vened. Id. at 782.

Much the same is true of the Califor nia case of Peop le v. Po well, 221 P.2d

117 (Cal. Dist. Ct. App. 1950). In Powell , the jury informed the trial court that

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they had reached a verdict on both counts of an indictment as to one defendant

but could not agre e as to the other. Id. at 118. The trial court verbally dismissed

the jury, instructing them to hand the unused written verdict forms p ertaining to

the defendant on whom the jury could n ot agree to the clerk . Id. at 118-19. The

trial court then discover ed that the jury had in fa ct reache d a verdic t as to that

defendant on one of the two c ounts. T he trial cou rt reassembled the jury and

allowed them to render the verdict of guilt as to the one count. The Pow ell court

found no error, noting that “the jury were in the box and under the control of the

court” du ring the en tire time. Id. at 119.

Emphasizing the factor concerning outside contacts or influence on the jury

is the Massachusetts case of Commonwealth v. Brown, 323 N.E.2d 902 (Mass.

1975). In Brown, the jury returned verdicts of not guilty of murder but guilty of

armed entry. The trial judge verbally dismissed the jury, and a court officer

accompanied them bac k to the jury room . As they neared the jury room, the

foreperson of the jury informed the court officer that there was something wrong

with the verdicts . The trial court was informed and reassembled the jury. The

jury indicated that bec ause the clerk had re ad the charg es to th em in a different

manner than listed on the forms they had used, they had mistakenly reported not

guilty of murd er althou gh they h ad actu ally found g uilty as to m urder. Id. at 904.

On appeal, the Brown court found no error. The court noted that “[t]here had

been no comm ingling of the jurors with an y mem bers of the gen eral public.” Id.

The court specifically distinguished other cases finding e rror in reassem bly where

there had been “an opportu nity for outside influence .” Id. at 905 (emp hasis

added).

-39-
 One such case distinguished by the Brown court was Peop le v. Ru shin,

194 N.W.2d 718 (Mich. Ct. App. 1971). In Rush in, the jury return ed verdic ts of

not guilty and were verb ally dismissed by the trial court. The court clerk later

informed the trial court that one of the jurors expressed dissatisfaction with the

reported verdict. In response, two minutes after the jury had left the courtroom,

the trial court rea ssem bled the ju ry to clarify the ve rdict. Id. at 719. The Rush in

court found the reassem bly to be error. The court stated that “[o]nce the jury has

been officially discharged and left the c ourtro om, w e hold that it is er ror to re call

it in order to alter, amend or impeach a verdict in a criminal ca se.” Id. at 721. In

explaining the rationale behind its holding, the court stated that it “cannot

ascertain the influence to which the jury has be en sub jected afte r it has left the

courtroom , be it for two minutes o r two days.” Id. at 721-22.

Similarly, in State v. Fornea, 140 So. 2d 381 (La. 1962), the Louisiana

Supreme Court emphasized the issue of outside contacts as well as the control

of the trial court. In Fornea, the jury returned a verd ict of guilt of theft. After

polling, the trial cour t verbally dism issed the jury. Id. at 382. The trial court later

reassembled the jury and permitted them to return a verdict specifying the value

of the property ta ken in the theft. Id. at 382-83. Th e Fornea c ourt found no error,

noting that the jury remained in the box, and therefore under the control of the

trial court, after dismissal but prior to reas semb ly. Id. at 383. The court also

poin ted out that there was “no showing whatever . . . that any outsider had an

opportunity to talk with them [the jury] or they with him . . . .” Id.

Finally, the W ashing ton case of State v. Edwards, 552 P.2d 1095 (Wash.

Ct. App. 1976), emphasizes the importance of outside contacts or influence in the

-40-
determination of wheth er a jury ha s been discharg ed. In Edwards, the jury

reported that they were deadlocked. The trial court declared a mistrial and

verba lly dismissed the jury. The jury then left the courtroom and entered the

adjacent jury room, with the ba iliff following th em. Id. at 1096. After entering the

jury room, one of the jurors informed the bailiff that they had reached a verdict as

to one count, but not the other, and asked if that circumstance made any

difference. The bailiff informed the trial judge, who reassembled the jury and

accepted their verdict of guilt on the one co unt. Id. at 1097. The Edwards court

found no error. The court stated that a “discharge will occur in fact when a jury

is permitte d to pass from the sterility of the co urt’s contro l and allowed to

separa te or dispe rse an d min gle with outsid ers. In s uch c ases , conta mina tion is

presumed even though the jurors may not have taken advantage of the

opportu nity to discuss the ca se.” Id. (emph asis add ed). In the case before them,

however, the court noted that the jury cou ld not pos sibly have been s ubjected to

even the opportunity for outside influence because the door leading outside from

the jury room w as locke d, with only th e jurors ins ide. Id. The court concluded

that

a trial judge’s verbal disch arge of the jury after receiving their verdict
in a criminal case, does not preclude a later correction of the verdict
to conform to the actual finding where the jury has not separated or
dispersed, but has remained sequestered and insulated from any
outside influence and the correction is not one of substance
resulting from further deliberations on the merits of the cause.

Id.

From ou r examination o f the above cases, it is clear that both separation

from the pres ence a nd con trol of the trial co urt and the possibility of outside

contac ts or influence are im portant elem ents in the determ ination of whethe r a

-41-
jury has b een d ischa rged. T his circumstance is not surprising, given the obvious

relation ship between the two factors. Our research reveals that the majority of

cases perm itting rea ssem bly of the jury have done so where the jury remained

in the courtroom or even in the jury box itself, and hence in the presence and

control of the tria l court, fo llowing verbal dism issal. See, e.g., Webber, 652

S.W.2d at 782; Pow ell, 221 P.2 d at 119 ; Fornea, 140 So . 2d at 383 ; Summ ers

v. United States, 11 F.2d 583, 58 6 (4th Cir. 1 926), cert. denied, 271 U.S. 681, 46

S. Ct. 632, 7 0 L. Ed. 1 149 (19 26). W hen the jury has left the presence of the trial

court after verbal dismissal, most cases permitting reassembly of the jury do so

only if the jury had no opp ortunity for outside con tact or influence . See, e.g.,

Edwards, 552 P.2d at 1098 ; Brown, 323 N.E .2d at 904 -05; People v. McNeeley,

575 N.E.2d 926, 929 (Ill. App. Ct. 1991). With this background from other

jurisdictions, we turn now to Tennessee law on the issue.

The principal Tennessee case dealing with this issue is Clark v. S tate, 97

S.W.2d 644, (1936). In Clark, the defen dant wa s tried with th ree cod efenda nts

on multiple charges. After deliberating, the jury reported to the trial court that

they were d eadlo cked . As a re sult, the trial cou rt decla red a m istrial an d verb ally

dismissed the jury. Id. at 644. T wo days later, the de fendan t filed a mo tion to

reass emb le the jury for purposes of enterin g a not gu ilty verdict with res pect to

the cha rges ag ainst him . Id. at 644-45. The defendant’s motion was based on

his discovery after the dis missa l of the jury tha t the jury had , in fact, found him not

guilty as to all charges. They did not so report, how ever, becaus e they were

under the impression that they had to reach a verdict as to all four codefendants.

Id. at 645.

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 The supreme court, while recognizing “the plausibility of the appeal made

to the court’s sense of practical justice,” nevertheless found it improper to

reassemble the jury for the purpose of entering a correct verdict. Id. at 644. In

support of its decision, the court stated the following:

An invariably followed rule, supported not only by precedent, but the
soundest reason, grounded on universal knowledge of human
nature , is the ru le that after the discharge of a jury in a felony case
and the separation of the jurors to such a degree that outside
contac ts may have been even momentarily had, the members of
that jury may not be reconvened for the taking of any action
whatever involving the fate of the accused.

Id. at 646 (emphasis added). The court went on to note the following:

It is urged on the petition to this court that “it was a very short
time” only, after the discharge of the jury, and that “all of the jurors
had not left the Court building” when “counsel informed the Court as
to this error of the foreman in reporting an erroneous finding of the
jury.” Neither exactly how long a time, nor how many had left the
building, appea rs, but flexibility in time of separation is incom patible
with the enforc eme nt of this rule.

Id. (emph asis add ed). Finally, the court also specifically mentioned the

importance of the ju ry’s bein g out o f the pre senc e of the trial cou rt after th eir

verbal disc harge. Id.

From our read ing, the pla in langua ge of Clark emph asizes b oth separation

from the presence of the trial court and the opportunity for outside contacts or

influence as factors in the determination of whether a jury has been discharged.

This approach comp orts with the approa ch taken by man y other jurisd ictions with

regard to determining jury discharge. See, e.g., Branden burg, 120 A.2d at 61-62;

Webber, 652 S.W .2d at 782 ; Fornea, 140 So. 2d at 383.

After careful consideration, we conclude that the jury in the case at bar had

indeed been discharged after reporting the initial not guilty verdic ts and before

-43-
reassembling in the courtroom to correct the initial verdicts by re porting ve rdicts

of guilt of lesser offenses. It is clear from the re cord that most, if not all of the

jurors exited the courtroom, and the presence of the trial court, after the trial court

verba lly dism issed them . It is also clear that the area to which the jurors exited

was open to and occupied by members of the general public, interested in and

reacting to the outcome of the case. We believe these circumstances

demo nstrate separation of those jurors from the trial court to such a degree that

mom entary outside c ontacts m ay have b een ha d. See Clark, 97 S.W.2d at 646.

Although very little time ela psed b efore the jury was re assem bled, Clark

spec ifically stated that “flexibility in time of separation is incompatible” with the

application of the stan dard an nounc ed in that c ase. Id. As su ch, we can o nly

conclude that the jury was discharged upon e xiting the courtroom, and the

presence of the trial court, into an area occupied by the general public.

The State urges both that the jurors were not out of the control of the trial

court because they were accompanied by court officers and that, according to

affidavits submitted by those court officers, the jurors were not subjected to any

outside contacts or influenc e. With regard to the second contention, we believe

the plain lang uage o f Clark renders the argument immaterial. Clark does not

speak of the existence or lack of actual contact, but rather focuses on whether

outside contacts may have be en had . Clark, 97 S.W.2d at 646. This language

is in accord with several cases from other jurisdictions , finding the relevant inqu iry

to be the possibility of outside contact o r influence . See, e.g., Branden burg, 120

A.2d at 62 (stating whe ther jurors had co ntact with others between dismissal and

reass emb ly was imm aterial, for the jurors did have the opportun ity to do so);

Fornea, 140 So. 2d at 383 (holding reassembly not erroneous w here record

-44-
demonstrated no outsider ha d the oppo rtunity to talk with the jurors or vice

versa); Edwards, 552 P.2d at 1097 (stating that discharge occurs where jurors

pass from co urt’s contro l and are allowed to mingle w ith outsiders, regardless of

whether actual contacts took place). In the case sub judice, when the dismissed

jurors exited the courtroom into an area of the courthouse occupied by mem bers

of the general public, clearly the possibility of outside contact or influence existed.

The State also contends that the jurors were not out of the control of the

trial court because court officers accompanied them outside the courtroom. The

Defen dant, on the other h and, argues that the presence of court officers was

irrelevant because, upon discharge, the relationship between the jurors and the

court officers was that of third p ersons . See Melton v. C omm onwea lth, 111 S.E.

291 (Va. 1922). We are not prepared to state that the prese nce of court officers

with the jury is irrelevant to a determination of whether a sequestered jury has

been d ischarge d. In the case at bar, however, we do not believe the presence

of court officers with the jurors who exited the courtroom alters our conclusion

that the jury was discharged.

First, even though the jurors were accompanied by court officers, the jurors

were not given the customary admonishments by the trial court to guard them

against improp er influenc e. See People v. Thornton, 202 Cal. Rptr. 448, 454,

(Cal. Ct. App. 1984) (noting the importance of the admonitions which guard the

jury’s judgment from outside influence when the jury leaves the presence of the

trial court). Second, even if we were to conclude that the presen ce of the court

officers amounts to some type of continued control by the trial court, the jurors

were nevertheless exposed to the possibility of outside contact or influence when

-45-
they exited the c ourtroom into an area of the courthouse occupied by the general

public. Had the jurors in the case at bar exited the courtroom through the door

leadin g into the area unoccupied by the general public, the effect of

accompaniment by the court officers m ight be significantly different. See

Com monw ealth v. Brown, 323 N.E.2d 902, 904-0 5 (Mass. 1975) (holding

reass emb ly permissible where jurors remained in control of trial court by virtue

of being in custody of court officers and having no opportunity for outside

influence).

Thus, having considered the principles set forth in Clark, along with

contextual background from cases in other jurisdictions, we conclud e that the jury

in the pres ent case was disc harged after repo rting not gu ilty verdicts and be fore

being reassembled to amend or correct their verdicts. The State agrees with the

Defendant that “once a jury in a felony case has been discharged and outside

contac ts may have occurred, the jury may not be reconvened for the purpose of

taking further action involving the a ccused.” State v. Stephenson, 878 S.W .2d

530, 554 (Tenn. 1994). As a result, we conclude it was error for the trial court to

reass emb le the jury and permit e ntry of guilty verd icts after the jury had reported

not guilty verdicts and be en disch arged. T he not g uilty verdicts reported by the

jury, coupled with the discharge of the jury, concluded the Defend ant’s jeopardy.

See Green v. United States, 355 U.S. 184, 188, 78 S. Ct. 221, 223-24, 2 L. Ed.

2d 199 (1957). Accord ingly, we be lieve her su bsequ ent con victions violate

doub le jeopardy and due process protections, requiring us to reve rse and vacate

those convictions.

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 In her sixth issue on appeal, the Defendant makes an alternative argument

regarding her fifth issue. She argues that if the reassembly of the jury to amend

or correc t the no t guilty ve rdicts d id not viola te dou ble jeopardy and due process

protections so as to require vacating her convictions, the manner in which the

guilty verdicts were ren dered at least m erited granting a mistrial. Having

concluded that the reassembly of the jury was improper and did vio late do uble

jeopardy and due process protections, requiring reversal of the convictions, we

deem it unne cess ary to a ddres s whe ther the man ner in which the verdicts w ere

rende red m erited a mistria l.

In her seventh issue on a ppeal, the De fendant argu es that the trial court

erred in charging the jury with respect to release eligibility pursuant to former

Tennessee Code Annotated § 40-30 -201(b)(2). 4 She contends that the

instruction formerly required by § 40-35-201 (b)(2) is unconstitutional for a number

of reasons. First, citing to Farris v. Sta te , 535 S.W .2d 608 (T enn. 1976), she

claims that the instruction is unconstitutionally vague. Second, she argues that

the instruction violates due process. Third, she contends that the instruction

violates separa tion of pow ers princip les, citing to the concurring opinion of Justice

4
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.

-47-
Brock in Farris, 535 S.W.2d at 615. This issue has b een a divisive o ne for th is

court. 5

Former Tennessee Code Annotated § 40-35-201(b)(1) provided that upon

the motion of eithe r party, th e trial co urt in all criminal cases, excepting those for

capital offens es, sh all cha rge the jury on th e pos sible p enaltie s for the indicted

offense and all lesser offenses. The section under attack in the case at bar is §

40-35-201 (b)(2), which mandated the inclusion of release eligibility information

as part of the § 40-35-201(b)(1) charge on possible penalties:

When a charge as to possible penalties has been requested
pursuant to subdivis ion (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 includ e an ap proxima te
calculation of the minimum number of years a person senten ced to
imprisonment for the offense charged and lesser included offenses
must serve before reach ing su ch pe rson’s earliest rele ase eligib ility
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 governo r’s powe r to reduce prison overcr owdin g purs uant to title
41, chapter 1, part 5, if applicable.
(ii) Such instruction s to the jury shall also include a statement
that wheth er a de fenda nt is act ually released from incarceration on
the date w hen s uch d efend ant is firs t eligible for release is a
discretionary decisio n made by the board of paroles based upon
many factors, and that such board has the authority to require the
defend ant to serv e the en tire senten ce imp osed b y the cou rt.

5
See State v. Robert Anthony Payne a/k/a Anthony Jordan, C.C.A. No. 01C01-9701-
CR-00031, Davidson County (Tenn. Crim. App., Nashville, June 17, 1998; State v. Robert H.
McCurdy, C.C.A. No. 03C01-9706-CR-00232, Union County (Tenn. Crim. App., Knoxville, Mar.
23, 1998); State v. Michael Dinkins, C.C.A. No. 02C01-9702-CR-00075, Shelby County (Tenn.
Crim. App., Jackson, Mar. 12, 1998); State v. Jason M. Weiskopf, C.C.A. No. 02C01-9611-CR-
00381, Shelby County (Tenn. Crim. App., Jackson, Feb. 4, 1998); State v. Jerry Ray Cooper,
C.C.A. No. 01C01-9504-CC-00150, Lincoln County (Tenn. Crim. App., Nashville, Nov. 17,
1997) (principal opinion with two concurring opinions); State v. Dwjuan L. Bradford, C.C.A. No.
01C01-9607-CR-00294, Davidson County (Tenn. Crim. App., Nashville, Sept. 30, 1997); State
v. Curtis Lee Majors, C.C.A. No. 01C01-9602-CR-00076, Davidson County (Tenn. Crim. App.,
Nashville, July 30, 1997); State v. Howard E. King, C.C.A. No. 02C01-9601-CR-00032, Shelby
County (Tenn. Crim. App., Jackson, Oct. 22, 1996), aff’d (Tenn. 1998).

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Tenn. Code Ann. § 40-35-201(b)(2)(A) (emphasis added). The statute also

required the Department of Correction to furnish trial judges w ith the app roximate

calculation of release eligibility referred to in § 40-3 5-201(b )(2)(A)(i). Id. § 40-35-

201(b)(2)(B).

In the case sub judice, the State requested that the trial court charge the

jury on po ssible pena lties. The Defendant objected to that part of the charge

pertaining to release eligibility, namely the part required pursuant to § 40-35-

201(b)(2). The trial court overruled the Defendant’s objection and charged the

jury according to the mandates of the statute. The trial court’s instructions to the

jury on possible penalties comported with the requirem ents of the statutory

provision and tracked the language of the pattern jury instruction . See T.P.I. —

Crim. 43.11. In particular, the trial court instructed the jury that they could “weigh

and consider” the meaning of a sentence of imprisonment and then defined the

various possible sentences of imprisonment applicable to the Defendant’s case.

In that vein, the trial court instructed the jury with regard to count one that

facilitation of first degree murder carried a ran ge of fifteen to twenty-five years

imprison ment, with the earliest release eligibility date, based on the minimum

sentence, being 2.96 years. The trial court instructed the jury that facilitation of

second degree murder carrie d a rang e of eight to twelve yea rs impriso nmen t,

with the earlies t release e ligibility date, based on the minimum sentence, being

1.58 years. With regard to count two, the trial court instructed the jury that

facilitation of attempted first degree murder carried a range o f eight to twelve

years, with release eligibility at 1.58 years. With regard to facilitation of

attempted second degree murder, the range was three to six years, with release

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eligibility at 0.60 years. Fina lly, with regard to facilitation of attempted aggravated

assault, the range was one to two years, with release eligibility at 0.21 years.

Our supreme court recently provided us with instructions and guidance on

this issue in the cas e of State v. Howard E. King, No. 02-S-01-9703-CR-00021,

Shelby County (Tenn., Jackson, July 6, 1998) (to be published). In King, our

supreme court held that former Tennessee Code Annotated § 40-35-201(b)(2)

did not violate the separation of powers clauses of the Tennessee Constitution.

Id. at 8. The court also found tha t the statute was n ot imp ermis sibly vag ue, did

not mandate a misleading jury instruction, and did not require a jury instruction

on matters irrelevant to a Defen dant’s gu ilt or innocen ce. Id. at 17. The co urt

concluded that the jury instr uction given in King violated the due process clause

of neither th e United States n or the T ennes see Co nstitution. Id.

As we have noted, in the case at bar, the trial court instructed the jury that

it could “weigh and consider” the meaning of a sentence of imprisonment for the

offense charged and any lessor included offenses. In contrast, the King

instruction charged the jury that the ranges of punish ment a nd relea se eligibility

dates were for its in formatio n only. Id. at 4. In King, although the su preme co urt

stated that it was significant that the jury had been instructed that the sentencing

information was “for your information only,” the court specifically stated that

sentencing and parole information had a “measu re of rele vance ” to the ju ry’s

function in determ ining guilt or in nocen ce. Id. at 14. The court further noted that

“the legislature has determined for us the relevancy of sentencin g and parole

information.” Id.

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 The challenged jury instruction was mandated by the legislature. The

constitution ality of the statute has been upheld by our supreme court. The

supreme court rejected the argument that sentencing and parole information are

entirely irrelevant to th e jury’s func tion of dete rmining guilt or innoc ence. W e

therefore conclude tha t the trial judge did not err by giving the jury instruction

manda ted by former T ennesse e Code A nnotated § 4 0-35-201(b )(2).6

CONCLUSION

Confusion and un certainty co ncernin g the jury ve rdict is obvious. One

thing is certain — the jury announced a verdict of “not guilty” in open court and

the trial judge accepted the verdict and dismissed the jury. We conclude that

reassembling the jury for further proceedings offended due process and violated

the Defendant’s constitutional protection from being twice put in jeopardy for the

same offense.

Although hindsight is a perfect tool, it would appear a number of unique

happenings led to this result. Written verdict forms were not utilized although

they are not sp ecifically requ ired by T ennes see law . After the foreperson

unm istaka bly annou nced a not guilty verdict as to both counts, the trial judge

unde rstand ably took that ve rdict at face value. The jury was not polled nor asked

if that was th e verdict of a ll jurors. Yet, amazingly, even after the trial judge took

the verdict and dismissed the jury, no juror immediately indicated that was not the

6
A panel of this court recently divided on the issue of whether the inclusion of the
“weigh and consider” language violated the Defendant’s due process rights. State v. James
C. Nichols, C.C.A. No. 01C01-9704-CR-00158, Davidson County (Tenn. Crim. App., Nashville,
Aug. 12, 1998); see also State v. Adrian Wilkerson and Steven Murphy, C.C.A. No. 01C01-
9610-CR-00419, Davidson County (Tenn. Crim. App., Nashville, Aug. 26, 1998); State v.
Marcus L. Nelson, C.C.A. o. 01C01-9707-CR-00237, Davidson County (Tenn. Crim. App.,
Nashville, Aug. 27, 1998).

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verdict. Although the state could have immediately requested that the jury be

polled as to the not guilty verdict, as allowed by Tenn. R. Crim. P. 31(d), this was

not done . It would appe ar that o nly one juror, after leaving the jury box, indicated

some kind of problem. Upon noticing the juror, the prosecutor then asked if the

jury was to be polled. The trial judge declined to do so since it wa s “a not guilty

verdict.” Had a ny of the above things been done differen tly, it would appear the

present problem would have been avoided. Yet, we reemphasize the observation

is based upon h indsight.

Thus, this unusual scenario unquestionably requires the application of the

law prohibiting reassembly of the jury to announce a different verdict. Assuming

the jury had agreed to the guilty verdict as was finally announced, it is indeed

unfortun ate that this verdict can n ot be re cogn ized d ue to th is unusual factual and

procedural scenario. We would hope such a scenario does not again find its way

into a Tennessee courtroom.

W e are therefore compelled to reverse the judgment of the trial court and

vacate the Defendant’s convictions.

____________________________________
DAVID H. WELLES, JUDGE

CONCUR:

___________________________________
JOSEPH M. TIPTON, JUDGE

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___________________________________
JOE G. RILEY, JUDGE

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