# FILED
May 17, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE DECEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 03C01-9712-CR-00526 ) vs. ) Sullivan County ) HARRY DAVID JOHNSON, ) Honorable R. Jerry Beck ) Appellant. ) (First Degree Murder) ) FOR THE APPE LLANT: FOR THE APPELLEE: ROBERT C. NEWTON JOHN KNOX WALKUP 900 Anderson Street Attorney General & Reporter Bristol, TN 37620 ELIZABETH B. MARNEY PAUL R. WOHLFORD Assistant Attorney General 900 Anderson Street 425 Fifth Avenue North Bristol, TN 37620 2d Floor, Cordell Hull Bldg. Nashville, TN 37243-0493 GARY E. BREWER P.O. Box 2046 TERESA M.SMITH Morristown, TN 37816- 2046 JOSEPH EUGENE PERR IN

Asst. Di st. Attorney General

P.O. Box 526 Blountv

ille, TN 37617

OPINION FILED: _____________

AFFIRMED

JAMES CURWOOD

WITT, JR., JUDGE1 The jury was composed of Hambl en County residents altho ugh the

trial was conducted i n Sullivan County. The trial court ordered the H amblen County jury selec

tion in response to the defendant’s motion for change of venue. 2 OPINION

The defendant, Harry David Johnson, appeals his co nvi ction in the Sullivan County Criminal Co urt where a jury 1 found him guilty of the first d egree murder of his wife, Katherine Trotter Johnson . The trial court sentenced him to incarceration for life. In this appeal, the defendant raises the following issues:

1. the evidence of

premeditation and deliberation is insufficient to support the verdict of first degree murder; 2. the trial court erred in allowing the state to cr oss-exam ine defense witnesses about the defendant’s prior violent acts against the victim; 3. the trial court erred in instructing the jury about the range of punishment for the various deg rees of homicide; and 4. the trial c ourt fai led to give t he jury a spe cial instruction concerning the meaning of “passion.” Upon oral argument and our rev iew of the briefs, the record, and the law, we affirm the judgment of the trial court

.

The defendant and the victim lived in an A-frame residence in a lake community

on Friendship Road in Sull ivan County. The defendant is a pharmacist. The couple had two daughters , Whitney Johnson and Arin Bence Johnson, ages 20 and 22, respectively , at the time of trial. By all account s in the proof, the victim suffered from chronic alcoholism an d was given to bouts of intoxi cation despite several efforts to control her disease through rehabilitation. She was extremely intoxicated at the time of her death.

Arin Johnson testified for the defense that on J une 21, 199 5, the defendant came home and had some words with the victim in the kitchen, which is3

located on the middle floor of the three-level home. The defendant then went to the lower level and began folding blankets where he had been sleeping since “assault charges” were filed. Arin Johnson testified the defendant did not look like himself

. His eyes looked “black,” and he seemed sad, cold, distant, and depressed . His chin quivered. She had never seen him in tha t conditi on before . Howe ver, w hen she l eft to return to afternoon classes, the househol d was calm and there w as no reason for alarm.

Later

in the afternoon of June 21, Whitney Johnson went to the residence of her boyfriend, Bradley Jason Fields, and called h ome to tell her father that she was going to a meeting. Shebecame upset when the defendant hung up
on her. Because she was wor ried, she asked Fields’s mother and sister to

drive her home. When she arrived at the Johnson r esidence a half hour later, she found a note affixed to the door of the house, althoug h she did notread it at that time. She
was concerned about the welfare of the defendant, went to look for him, and found him at the rear

of the house seated in a swing with a shotgun propped up against
a tree nearby. She testified the defendant “wasn’t the person that I knew.” The defendant told her that had she not called earlier, she w

ould have found him dead. Theysat in the swing and talked for about 30 minutes. Bradley Jason F ields arrived and entered the Johnson home. Whi tney J ohnson joined him in the kitche n, and they began to make some tea. When they discovered they were out of sugar, the defendant drove to a store to buy sugar. When h e retur ned, Whitney Johnson made t ea, and she and Fields went to her bedroom to watch televisio n. Th e defendant was in the lower level of the house.

Sometime

later the de

fendant went from t he lowe r level to the third floor w here the victim’s bedroom was located. Whitney Johnson heard “a thunk” and went upstairs to see w hat happened. The victim was sitting on the bedroom floor, and the d efendant was sitting o n the edg e of t he b ed. The victim was “snarling” at the defen dant who had the “look of a black hole ty pe person.” The4

defendant became e nraged. He “smacked” the vic tim and said he was goi ng to shoot her. He left the room very quickly and went downstairs. As he came back very quickly from the low

er level with the shotgun, Whitney Johnson met him an d tried to get the gun away from him. She testified the defendant was “ screaming, out of control.” He loaded the g un and ran upstairs to the third-floor bedroom where the victim had remained. Whitney Johnson testified that only s econds elapsed between the defendant running upstairs and the firing of a shot.

B radle yJason Fields, who testified for the state, gave a s omewhat different account of the June 21 events. He stated that the victim was intoxicated and, in his opinion, could no t walk. He testified that after the defendant returne d from his errand in his car,the defendant played with the family dogs for severa l minutes and seemed calm. However , later the defendant went upstairs and threatened to kill the victi m. The defendant come down the stairs,passed Fields in the kitchen area, and proceeded to t he lower level to the gun cabinet. Fields followed him down the stairs, and the defendant said, “ I was going to ki ll that bitch.” The defendant obtained the shotgun and the box of shells and rambledabout the victim not getting his money and that he was going to kill her. Fie lds tried to stop him, and the defendant ordered Fields out of the way. Frighte ned, Fieldsstepped back, allowing the defendant to go upstairs. Fiel ds went to th e second floor and watched and heard the confrontation from the kitchen-great ro om area . The bedroom opened onto a balcony whi ch was visible through an atrium f rom the second-floor

kitchen-great room area.Fields testified that the defendant pulled the victim off the bed onto the floor, pointe d the gun at her, and told her he was going to kill her. The defendant told the v ictim she was not goi ng to get his money and that he was tired of livi ng the way he had been. Fields pleaded with him not to kill the victim. He descri bed the defendant looking at him and say ing that he had to do whathe had to do. During this time, the v ictim was

hollering Fields’s name. This situation continued for about five minutes before the defendant fired the fatal shot and came running downstair s. When the defendant reached the kitchen level, he5

began looking for the shells w hich Fields

had hidd en under a pillow. The defendant stated “I killed her,” laid the gun on a couch on the low er level, and left the

house.

Fields went upstairs and discovere d the victim had been shot in the head. The defendant drove off in his automobile b ut retu rned to the home a few minutes later at the

same time the first law enforcement officer arrived. This officer arrested th e defend ant and described the defendant as merel y standing in the driveway, not crying or shaki ng. The officer, whose weap on was drawn, three times ordered the def end ant to raise his hands before the defendant complied. The defendant spoke only to ask the officer if the officer knew who he w as.

The note which Whitney Johnson initial ly saw affixed to the door was introduced into evidence. It wasaddress ed to “Whit a nd Arin”

and was signed off by“Dad.” It expressed “frustrations of life in gener al” and stated that “I can’t fi x things that are unfixable. I lov e you both, but if the re is a base ment in hell, I can
assure y ou that you r mother will be firing the furnace!!” The note concluded, “I really haven’t plan ned for this but . . . things will work out. ”
During Arin Johnso n’s direct testimony as a defense witness, she mentioned that her father had been sl eeping on the lower floor “since the assault charge.”Before cross-examination,the trial court conducted a jury-out hearing

to rule on the state’s req uest to be allowed to ask the witness about the assault
c harge. The trial court granted the state’s request, and upon cross-examinatio n , Arin Johnson testified that in May 1995 the defendant had been c harged with assault against the victim. She testified that the d efendant re turned from jail, apologized to the family, told them it would not happen again, and then told Arin that he would kill her

mother before he would go back to j ail. Furthermore, Arin Johnson testified that her parents mutuall y drank and argued and that sometimes Arin had to physically inter

vene. The defendant continued to drink in front of the victim after6

she had under

gone re habili tation p rogram s and som etimes o ffe red alc oholic beverages

to the vic

tim. Arin Johnson stated that, on the day of her mother’s death,
s he had planned to take her mother out of the house for her safety but that th e victim was in no condition to leave. On r edirect examination, Ari n Johnson said that the d efendant had stopped talking to the daug hters. “If mom was sober, then everything

was fine, and if it wasn’ t, nobody said anything to each other.” She said that as the victim’s dr

inking got wors

e, the defendant’s did also.
During Whitney Johnson’s direct testimony as a defense witness, she stated that before the shooting the defendant was in “a rage that I have never seen before in my life.” Before the state’s cross-examination, the trial court held a jur yout hearing to determin e the adm issibilit y of evi dence of prior acts of domestic violence that were “a part of this family,” to sho w that the defendant’s rage pr ior to the shooting was not unprecedented. The trial cou rt granted the state’s r equest, and upon cross-examination before the jury, Whitney Johnson testified that she had pre viousl yseen the defendant in a similar r age. On that occasion, the defendant had assaulted the victim, and Arin Johnson had placed the victim in Arin’s car and
was about to drive her to the hospi tal. The defendant attacked the car w ith a sledge hammer and broke out the car windows with Arin and her mother seated inside.

At trial, the defense conceded that the defendant shot and killedthe victim but argued that the defendant was incapable of premeditation and/or deliberation. The defendant did not testify. The jury convicted hi m of first degree murder, and because the state had file d no notice of intent to seek the death penalty, the trial court imposed a life sentence without hol ding a sentencing hea ring.

I. Sufficiency of the Evidence. In the defendan t’s fi rst issue, he challenge s the sufficiency of the evidence to support findings of premeditati on and deliberation, necessaryelements7

of first degree murder.

When an accus ed challenges the sufficiency of the convicting evidence, this court must review the record to de termine if the evidence adduced at trial is sufficie nt “to support th e finding b y the t rier of fact of guilt beyond a
reas onable doubt.” Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and c ircum stantial evidence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

In determining the sufficiency of the convicting evidence, this court does not re-weigh or re-evaluate the ev idence. State v. Ma tthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this court substitute its inferences forthose drawn by the trier of fact from circumstantial eviden ce. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (195 6). To th e contrary, this cour t is required to afford the state the strongest legitimate view of the ev idence con tained i n the record, as well as all rea sonable and legitimate inference s which may b e drawn from the evidence. State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978).

Questions concerning the credibi lity of thewitnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evidence
are resolved by the tri er of fact, not this court. Id . In Sta te v. Grace , 493 S.W.2d 474 (Tenn. 1973), our

supreme court said: “A g uilty verdict by the jur

y, approved by the trial judge, accre

dits the testimony of

the witnesses for the State and resolves all conflicts in favor of the theory of the state.” Grace , 493 S.W.2d at 476.

Because a verdict of

guilt removes the pr

esumption of innocence and replaces it with a presumption of g uilt, the accused, as the appe llant, has the burden in this court of illustrating why the evidence is insufficient to support the verdicts returned by

the trier of fact. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn.8

1982). Th is cour

t will not dis turb a v erdict of guilt due to the sufficiency o f th e evidence unless the factscontained in the record are insufficient, as a matt er of law, fora rational trier of fact to find that the accused is guil ty beyo nd a reasonable doubt. Id

.

The defendant wasconvicted pursuant to Tenness ee Code Annotate d section 39-13-202(a)(1) (1991) (amended 1995) which defined first deg ree murder
as an “intentional, premeditated and deliberate killing

of another . . . .” In 1995, the legislature amended this statute by deleting the requirement that the kil ling be deliberate. 1995 Tenn. Pub. Acts, Ch. 460, § 1. The amendment was effective July 1, 1995, nine days after the killing of the vi ctim in the present case.

A homicide, once estab li shed, is presumed to be second deg ree murder. State v. B rown , 836 S.W.2d 530, 543 (Tenn. 1992). The state then has the burden ofp roving the elements of premedi tation and deliberation in or der to elevate the homicide to firs t degree murder. Id

.

A prem editated act is “one done after the exercise of reflectio n an d judgment.”Tenn. Cod e Ann . § 39-13-201(b)(2) (1991) (amended 1995). “‘Premeditation involves a previously formed design, or actual intenti on to kill.”’ Brown , 836 S.W .2d at 539 (quot ing Lewis v. State , 40 Tenn. 127, 147-48 (1859)) (italics added in Brown ). It is t he process ‘“of thinking about a proposed killing before engaging in the homicidal conduct.’” Id . at 541. “[N]o specific per iod of time need elapse between the defendan t’s formul ation of the design to kill and the execution of that plan . . .“ Id . at 543.

The pre-1995 statute also required that “the premeditated killing must also have been done deliberately , that is, with coolness and reflection.” Brown , 836 S.W.2d at 539. A deliberate act is “one performed with a c ool purpose.” Tenn. Code Ann. § 39-13-201(b)(1) ( 1991) (amended 1995). The cool purpose must be9

formed “in the absence of passion,” or if formed in pa ssion, it must be committed “after the passion has

subsided.” State v. Bullington , 532 S.W.2d 556, 559 (Tenn. 1976). “[D]elibe ration req uires some period of reflection, during which the mind is ‘free from the influence of excitement, or passion.”’ Brown , 836 S.W.2d at 540. It is the process of weig hing the wisdom of proceeding with the pl an, the manner of carryingout the killing, and the consequences w h ich may result

. Id . at 541. Deliberation requires “‘a cool mind that is capable of ref lection.”’ Id . It cannot be formed instanta neously. State v. West , 844 S.W.2d 144, 147 (Tenn. 1992); State v. Darnell , 905 S.W.2d 953, 96 2 (Tenn. Crim. App. 1995).

P rem editation and deliberation are separate and distinct elements, and the state is required to prove both in order to establish fir st degreemurder. See Brown , 836 S.W.2d at 542-43; West , 844 S.W.2d at 147. These elements present questionsfor the jury to decide. State v. Gentry , 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). However, because these elements e ntail pr oof of a state of mind about which there may be no direct evidence, “the cases have long recogniz e d that the necessary elements of fi rst-degree murder may be shown by circums tantial evidence.” Brown , 836 S.W.2d at 541; see als o Bullington , 532 S.W.2d at 560; State v. Carter , 970 S.W.2d 509, 516 (Tenn. Crim. App. 1997). Thus, premeditation and deliberation may be inferred from the cir cu mstances surro unding the killing. Gentry , 881 S.W.2d at 3. For instance, facts which might allow

a jury to infer either premeditation or deliberati on include: (1) facts abou t how and what the de fendant did prior to the actu al killing which show he was engaged in activity directed toward the killing, that is plannin g activity; (2) facts about the defendant’s prior relationship and conduct w ith the victim from which moti

ve may be inferred; and (3) facts about the nature of the killing from w hich it may be inferred that the manner of the killing was so particular and exacting that the defendant must have intentionally k

illed according to a pr

econceived design. State v. Bordis , 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995). In partic ular, Tennessee courts have identified some relevant circumstan ces: the use of a deadly weapon upon an unarmed v ictim; the fact that the kill ing was particularly

cruel; declaration by

the defendant of his intent to kill;and the making of preparations before the k illing for the p urpo se of concealing10 the crime. State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997), cert
. denied , ---- U.S. ---,118 S.Ct. 1536 (1998).

We have reviewed a number of cases in which the def endants have challenged the sufficiency of the elements of premeditation and/or deliberation. In
cases in which th e appellate courts have affirmed the conviction of first degr ee murde r, th e defendant typically pro cured a weapon for the purpose of k illing the victim. See , e.g. , State v. Bush , 942 S.W.2d 489, 501 (Tenn. 1997), cert
. denied , --- U.S. ---, 118 S.Ct. 376

(1997); State v. Abr

ams , 935 S.W.2d 399, 401 (Tenn. 1996); State v. Bullington , 532 S.W.2d 556, 558 (Tenn. 1976); State v. Sharon Leming , No. 01C01-9704-CC-00151, sli p op. at 10 (Ten n. Crim. App., Nashvill e, Oct. 9, 1998); State v. Steven Tolbert , No. 03C01-9707-CR-00325, slip op. at 4, (Tenn. Crim. App., Knoxville, Oc t. 7, 1998), perm . app . denied (Tenn. 1999); State v. Calvin Lee Sneed , No. 03C01-9611-CR-00444, slip op. at 11 (Tenn. Crim. App., Knoxville, Jun. 12, 1998); State v. Glenn Bernard Ma nn , No. 02C01-9502-CC-00046, slip op. at 6 (Tenn. Crim. App., Jackson,Aug. 1 6, 199 6), aff’d , 959 S.W.2d 503 (Tenn. 1998), cert
. denied , -- - U.S. ---, 118 S.Ct. 2376 (1998); State v. Kendricks , 947 S.W.2d 875, 880 (Tenn. Crim. App. 199 6); see also State v. Fugate , 776 S.W.2d 541, 545 (Tenn. Crim. App. 1988). In many of th ese case

s, a his tory of strife between parties was present and /or an argumen t o r confrontation immediately preceded the fatal assault. Sharon Leming , slip op. at 5; Kendricks , 947 S.W.2d at 880; Fugate , 776 S.W.2d at 545.

Of the examined cases in w hich the appellate

courts reversed

the first degree murder co nviction b ecause p remedit ation or d eliberat ion wa s n ot establish ed, there was typically no procurement of a weapon for the pur pose of killing the victim. West , 884 S.W.2d at 148; Brown , 836 S.W.2d at 543; State v. Donald Wal lace , No . 01C01-9711-CC- 00526, sl ip op. at 10 (Tenn. Crim. App., Na shville, Sept. 30, 1998); State v. Schafer , 973 S.W.2d 269, 27 3 (Tenn. Cr im

.11

App. 1997); State v. Darnell , 905 S.W.2d 953, 962 (Tenn. Crim. App. 1995); State
v. Bordis , 905 S.W.2d 214 (Tenn. Crim. App. 1995); cf

. State v. Boyd , 909 S.W.2d 50, 55 (Tenn. Crim. App. 1995) (insufficient proof of premeditation and deliberation where defendant “reached her boiling point” with t he victim’s sexual harrassment of her and went toher car to retrieve gun before shooting, but not killing, the victim). These ca ses tend to follo w one of two patterns -- either ther e was no proof of

any facts from which ment al state co uld be inferred, or the proof establ ished that the defendant was incapable of either pr emeditation or deliberation or both.

With the foregoing principles and guidelin es in mi nd, we have carefully reviewed the evi dence of the defendant’s state of mind in the light most favorable to the state. This evidence i s of three types: (1) the eviden ce of the defendant’s prior statement ab o ut killing the vi ctim before he would return to jail; (2) the note
a uthor ed by the defendant; and (3) Fiel ds’s testimony about the cr ucial minutes before the shooting.

Fields’s testimo ny differs f r om -- or at least is more specific than -- Whitney Johnson’s testimony. According to Fields, the defendant threat ened to kill the victim during his first visit to the bedr oom that evening. The defendant said he would not allow the victim to get his money and that he was through liv ing the way he was living. The defendant then descended both levels to retrieve the gun and the shells from the gun cabinet. He told Fields, “I was going to kill that bitch,” and he continued “rambling” ov er and over again that Mrs. Johnson was not going to get his money and that he would ki ll her. When Fields tried to intervene, the defendant threatened him and ordered him out of the way. Fiel ds followed the defendant to the second floor where the kitchen i s located but did not follow t he defendant to the third floor to the victim’s bedroom. As the defendant climbe d the last stairflight, he again repeated that he intended to kill the vi ctim. Fields could see up through the atrium space onto the balcony and par tially through th e bedroom door. He could
see the defendant and the upper portion of the victim’s body. He saw the defendant12

pull the victim off the bed onto the floor. The defendant pointed the shotgun at her and told her that

he was going to kil l her. Fields tried t o dissuade the defendant by telling him i n a lo ud voice that he had “two wonderful daughters to live for . . . it wasn’t worth going to jail. A divorce would be easier. Everything I coul d think of.” Fields testified that the defendant, while standing on the balcony, “would look back at me.” The defendant said, in Fields’s words, that the defendant “had to do what he had to do, that his daughters wou ld be taken care of.” Fields made numerous pl eas, and the defendant would go “back wards and forwards,”

away from th e bedroom and then back inside. Fiv e minutes elapsed during Fields’ s pleas and the defendant’s movements in and out of the be droom. At som e point, Fields realiz ed that the defendant “had a loo k in his eyes, and . . . I kne w he was going to do it.” As Fields start ed to turn aw ay, the defendant shot the vic tim. He ran down the stairs, asked Fields w

here his shotgun shells were, and stated, “I ki lled her.”

On appeal, both sides

present plausible, formidable arguments. To be sure, the question of whether deliberation, in particular, was established beyond
a reasonable doubt is a close one. However, we hold t hat the defendant has not carried his appellate burden and that, i n t he li ght most favorable to the stat e, the evidence provides bases upon w hich the jury could infer that the defendant deliberated by weighing the wisdom and the consequence s of the homicide that he clearlyintended. Certainly, the defendant was emotional, but a cool purpose “is not synonymous

with a complete absence of emotion.” State v. Nathan Allen Cal lahan , No. 03C01-9507-CC-00203 , slip o p. at 12 (Tenn. Crim. App., Knox ville, Apr. 24, 1997), aff’d , 979 S.W.2d 577 (Tenn. 1998). The act was not p erformed instantaneously after he became climatically enraged. Two people--one of them the defendant’s daughter--tried to interven e and desperately pleaded with th e defendant to recons ider. D uring a fi ve-minu te interl ude, the defend ant appe ars to have pondered the murder of his wife. Perhaps no one will ever kn ow the defend ant’s true state of mind at the time he pulled th e trigger. A ll we can requir e is that the state prove sufficient

circumstances from which the jury can infer that the defendant13

premeditated and deliberated the murder beyond a reasonable doubt. In the present case, the state met this burden. The evidence is sufficient to support the conviction of first-degr

ee murder.

II The defendant challenges the trial co ur t’s jury-out determi nations which led to the st

ate eliciti ng testimony from defense witnesses on crossexamination that the defendant (1) smashedwindows in a car while the victim was seated inside, (2) committed an assa ult against the victim for which she obtained
a warran t, and (3) said he would ki ll the victim before he w ould return to jail. The record is somewhat confusing as to the purpose of this evidence. The

record of the trial court’s charge conference reflects tha t defense counsel thought thatthe crossexamination was allowed in order t o impeach the witnesses by contradicting their direct examination testimony. Although the trial court instructed the jury that the use of the testimony about the two ass au lt incidents was li mited to its effect on the credibility of the w

itnesses Arin and Whitney Johnson, the prior threat agains t the victim was used as substantive evidence.

The scope of cross-examination includes“any matter relevant to any issue in the case, including credibility,” ex

cept that the scope is limit ed to the subject matter of the direct examination w hen the wi tness is an adverse part y of the proponent. Tenn. R. Evid. 611(b). With this rule as a guide, the control of crossexamination is entru sted to the sound discretion of the trial court. See State v. Gaylor , 862 S.W.2d 546 (Tenn. Crim. App. 1992).
(A) First, we examine

the cross-examination of Ari n Johnson in which she testified that, after going to jail on an assault charge, the defendant said he would kill the victim before he woul d go to jail again. The t rial cour t st ated that such evidence was admissible as substantive evidence and did not include this evidence14

in the instruction on impeachment of witnesses.

In a ho micide p rosecution, prior threat s made by the defendant against the victim are admissi ble to show premeditation, intent, or the state of mind of the accused. State v. Ray , 880 S.W.2d 700, 704 (Tenn. Crim. App. 1993); State
v. Glebock , 6 16 S.W.2d 8 97, 905-06 (Tenn. Crim. App. 1981) ; Hull v. State , 553 S.W.2d 90, 93 (Tenn. Crim. App. 1977). The probative val ue of such evidence is high, especially in a case such as the present cas e where thethreat was recently made and the defend ant at trial challenged the presence of premeditation and deliberation. We conclude that the prior threat evidence was admi ssible.
(B) T he trial court instructed the jury that the purpose of the evidence about the May 1995 assault against the victim and the earlier incident of breaking the car windows w

as to “give . . . an explanation of the witness[es’] testimony and to test the strength or weakness of any witnesses’ testimony.” The court cautioned the jury that such evidence could not be used to reflect upon the “def endant’s character

or action in conformity w ith character or trait ,” and the court gave a general charge on impeaching the credibility of witnesses. The

court instructed the jurythat “a witness may be i mpeached by a careful cross-examination, involv ing the witness in contradictory, unreasonable and improbable statement s.”

“The credib ility

of awitness may be attack ed by any party . . . . “

Tenn. R. Evid. 607. Though not speci fically mentioned in the Rul es of Evidence, impeachmentby fa ct con tradiction is well -accepted. Neil P. Cohen et al., Tennessee Law ofEvidence § 607.3, at 338 (3d ed. 1995) (“The general rule is that counsel can challenge the accurac y of any

relevant facts during crossexamination.”)15 The defendant’s guilt of a May 199 5 assault is suggested by Ar in Johnson’s testimony that he a polo gized and told the family it would not happen again. This testimony was in response to the prose cutor’s qu estion about Ms. Johnson’s direct examination stat em ent that the defendant had been sleeping downstairs since “the assault cha rges.” This direct testimony w as equivocal and invited explor

ation. The witn ess did not specify whether the victim had charged the defendant or vice versa

. The defense put “the assault charg es” at issue. See State
v. Jones , 215 Tenn . 206, 217, 385 S.W.2d 80, 84-85 (1964) (defendant putting record at issue by

testifying on direct examination that he had never been indicted
or convicted provided b asis for admitting cross-examination about a prior “whisky violati on ”). Moreover, the elici ted evidence was arg uably admissible throug h the state’s case-in-chief as substanti ve evidence. Glebock , 616 S.W.2d at 905-06 (“The relations existing between the victim [of a viole nt assault] and the defendant prior to the commission of the crime ar e relevant. These relations indicate hostility toward the victim and a settled purpose to harm the victi m.”). Certainly, the crossexamination testimony was admissible for impeachment purpo ses.

The evidenc e of the car-window bre aking episode was also admissible through cross-examination. Whitney Johnson had testified that on the day of the homicide the defendant wasin a rage that she had nev erseen before. On crossexamination, she admitted that prior to Jun e 21, 1995, she had seen him in such a rage when he attackedArin Johnson’s car w ith the sledge hammer while Ar in and the victim were seated inside the car. Clearl y, this was fact-cont radiction impeachmentat work. See Lang v. State , 3 Tenn. Crim. App. 108, ---, 457 S.W.2d 882, 885 (1970). There was no er ror in allowing the cross-examination.

We realize that in both instances t he evide nce elicited on crossexamination impugns the defendant by implic ating him in prior badacts. See Tenn. R. Evid. 404(b); 608(b). However, the tri al court held jury-out hearings in both i nstances, see Tenn. R. Evid. 404(b)(1); 608(b)(1), and gave the jury limit in g2 For all trials occurring after May 18, 1998, “the judge shall not

instruct the jury, nor

shall the attorneys be per mitted to comment at any time to the jury, on possible pen alties for the offense charged nor al l lesser included offenses.” 1998 Tenn. Pub. Acts ch. 1041, § 2 , (amending Tenn. Code Ann. § 40-35-201(b)) (emphasis add ed). The trial in the pres ent case occurred May 12-14, 1997. 16 instructions

both as to the use of character ev idence and the limited purpose of impeachment. These precautions employed by the tria l cou rt are sufficient to protect the defendant against any inci dental “bad a c ts” effect of impeachment through fact contradiction.

III

In the defendant’s next issue, he c hallenges the trialcourt’ s jury instruction concerning the defendant’s eligibility for parole should he be convicted of any of the various gr ades of homicide. The instructi on was given at the state’s reque st a nd was based upon Tennessee Code Annot ated section 40-35-201(b) (1997) (amended 1998), as said Code sec tion existed at the time of the t rial in this
case. 2 Pa ragraph (b)(1) of this section authorized the tr ial court in non-capital cases, upon request by either party, to instruc t the j ury on the “possible penal ties forthe offens e charged and all lesser included o ffenses.” On ce the requ est is made, the trial court is requiredby paragraph (b)(2) to also instruct “the jury to weigh and consider th e me an ing of a sentence of imprisonment,” to provide “an approximatecalculation of the minimum number of years a person sentenc ed to imprisonment

for the offense char ge d and less er includ ed offe nses mus t serve before reaching such person’s earliest release eligibility dat e,” and to inform thejury about section 41-21-236 maximum and mi nimum sentenc e reduc tion credits and the governor’s powe r to reduce p rison ove rcrowding, whe re applicable. Tenn. Code Ann. § 40-35-201(b)(1), (2 ) (1997) (amended 1998). Paragraph (b) (2) was add ed to the statute in 1994. 1994 Tenn. Pub. Acts, ch . 847, §3. Prior to this amendment either party could request the “possible penalties.”17 In the pr esent case , the trial court held a c harge conference with counsel after the defense rested its case. In the c onference, the state mentioned its request to charge the jury pursuant to Co de section 40-35-201, as it exist ed at that time. The trial judge ind icated he would charge the ranges of the offenses but would not give the

jury theparagraph b(2) information. Defense counsel originally objected to any charge on penalti es. When the trial judge said he woul d give the release eligi bly time f or a life sentence and would give the Range I mini mum and maximum sentences for the lesser included off enses, defense counsel said there
was “no reason to complicate it any more than what it is.” The defense ag reed t o limiting the charge to the range i nformation as proposed by the court as a Hobson’s choice between a limit ed char ge and one that contained the formula i nformation. Specifi cally, the defendant did not waive i ts underlying objection to giving any charge.

The trial cour t then pro ceeded t o instruc t the jury that , although it would not attempt to fix any punishme nt, it could “weigh and consider the meaning of a sentence of imprison men t.” The trial court then proceeded to inform the jury that (1) if the defendantwere convicted of firs t degree murder, he woul d receive a lifesentence and would be elig ible for parole considerati on after serving 25

years; (2) if convicted of second degree murd e r, the defendant’s sentence woul d be set in a range between fifteen and 25 years; (3) if conv

icted of voluntary manslaughter, the defendant’s sentence would be set within a range between three and six years; (4) similarly, a range of between two and four years applied to reckless homicide; and (5) a range of between one a nd two year s applied to criminally negl igent homicide. The judg e instr ucted th e jury

with r espect t o each offe nse that ac tual release at a release eligibil ity date is a discretion ary decision of the Board of Paroles and that the Board has the autho rity to requi re the service of the entire court-imposed sentence.

The defendant challenges the constitutionality of Code section 40-35-18

201(b) as it existed at the ti me of trial. The state argues first that the defendant has waived any objection by agreeing to the “hy

brid” charge. The state al so argues the issue is settled by the supr eme c ourt’s decision in State v. King , 973 S.W.2d 586 (Tenn. 1997).

We agree that t he def endant may have waiv ed any claim that the “hybrid” charge is a violation of Code section 40-35-201(b) , but as noted above, the defendant did not waive any claim that the statute or the g iven charge contrav enes the state or federal constitution s. At the defendant’s insistence,the trial cour t specifically acknowledged when i t elicited t he agreement on giving the hybrid charge that the defend ant was no t waivi ng his “ Farr is claim.” See State v Farris , 535 S.W.2d 608 (Tenn. 19 76 ) (sustaining a constitutional challenge to former Tennes see Code Annotated section 40-2707(1975), which manda ted parole eligibility instructions, based upon the enactment being broader than its caption, see Tenn. const. art. II, § 7, wi th two members of the

court finding that

the enactment
was unconstitutionally v ague, Farris , 53 5 S.W .2d at 612-13).Therefore, we pr oceed to the heart of the issue--whether the c harge givenviolated pertinent constitutional provisions.

In King , th e defend ant requested an instruction on the “possible penalties” as contemplated by Code section 40-35-201(b)(1), but he as ked the trial court “to refrain from instructing the jury on parole eligibility, as re quired by Tenn. Code Ann. § 40-35-201(b)(2) w henever an instruction is given under (b)(1).” King , 973 S.W.2d at 587. T he trial co urt, howeve r, gave the full instruction as described in both paragraphs (b)(1) and (2). On appeal, King c laimed that paragraph(b)(2 ) and the instruction giv

en thereun der

violated both the state cons titutional separation of powe rs pro visions, Tenn. const. art . II, §§ 1, 2, and the state and federal constitutional due process provisions. U.S. const. amend 14, § 1; Tenn. const. art. I, § 8. The court held that the instr uction as given in King offended no constitutional provisions. It must be recognized, how ever, that in King (1) the trial court instr ucted19

the jury as t o a range between the short est possible sentence (Range I) and the longest possible sente nce (Range III), and (2) the trial court instructed the jury that the sentencing information wa s “for your informationonly” and disdained the “weigh and consider” formulation of parag raph (b)(2). King , 973 S.W.2d at 592.

In the present

case, the trial court i nstructed the jury that it would not be determining the se nte nce, but in giving range information, the trial court used the “weigh and consider ” phrase. Despite t his distinction between King and the presentcase, we hold that the instruc tion given viola

ted no constitutional provi sion.
First, we examine the trial c ou rt’s limiting the “possible penalties” information to Range I. Although the trial court in the present case did not charge the longer punishments that accompany sentencing in Ranges II (multiple offender) and III (persistent offender), ther e was no rea listi c possibility that the defendant would be sentenced in any range higher than Range I (standard offender). In King , the supreme court approved of this court’s pronouncement in State v. Smith , 926 S.W.2d 267, 271 (Tenn. Crim. App. 1995), that the jury was properly char ged on the full scope of the sentencing rang e r unning fro m the minimum in Range I to the maximum in Range II, the highest sentence forwhich Smith was el igible. King , 973 S.W.2d at 591. The jury was prope r ly instructed when it “‘was aware of the possible range of punishment th at could have resulted from their verdict.’” Id

. (quoting Smith , 926 S.W.2d at 271). Likewise, the jur y wasproperlyinstructed in the present case eventhough the higher punishments in Ranges II andIII were not charged. The jury was g iven the “p ossible ra nge of pu nishmen t that cou ld have resulted from their verdict.” Id

.

We now examine the effect of the charge given in the present case, i ncluding th e effect of the trial court’s use of the “weigh and consider” statut ory language instead of the “information only” language actually used in King

.20 In Stat e v. Jason M. Weiskopf , No. 02C01-9611-CR-00381 ( Tenn. Crim

. App., Jackson, Feb. 4, 1998) ( Weiskopf I ), a panel of this court foun d constitutional error in the use of a paragraph (b)(2) jury ins truction that used the “weigh and consider” language.Our supreme court, granted Weiskopf’s applica tion fo rp ermission to appeal for the purpos e of remanding the case to this c ourt “for reconsideration in light of” King

. State v. Jason M. Weiskopf (Tenn., Jackson, Nov. 2, 1998) (per curiam order). Upon reconsideration, this court held that the “weigh and consider” mandate given to the jury distinguished Weiskopf from King

. State
v. Jason M. Weiskopf , No. 02C01-9611-CR-00381, slip op. at 5 (Tenn. Crim. Ap p., Jackson, Dec. 4, 1998) ( Weiskopf II ), pet
. for perm . app . filed (Tenn., Feb. 3, 1999).

The Weiskopf II court interpreted the due process determination in King to be limited to cases in w hich the “for information only ” language was

used, based upon the supreme court’s statement that nodue process violation occurred “un derthe cir cumstances.” King , 973 S.W.2d at 592. The Weiskopf II court concluded “[t]here is a glaring and pivot al difference” in using one locution versus the other. Weiskopf II , slip op. at 5. In Weiskopf , a first degree murder case, the jurywas instructed “t hat t he earliest release elig ibility date for first d egree murder
was 25 years; the earliest release eligibility date for second degree mur der was 1.06 years; and the earliest release el igibility date for v oluntary manslau ghter w as .21 years.” Weiskopf II , slip op. at 4. This court said, “Wh en a jury is told to ‘weigh and consider’ the meaning of a sent ence in arriving a t a verdict, the nature of the problem is perfectly obvious.” Weiskopf II , slip op. at 6. The court hel d that the instruction given v

iolated the due process prov isions of both the federal and state constitutions. Id

.

Although the trial court in the present case told the jury to w eigh and consider the penalty information the court imparted, that

information was limited to the paragraph (b)(1) information, with the excep tion that the trial court stated that the relea se eligibility date for first degree murder w as 25 years. With thi s21

exception, none of the paragraph (b)(2) information was giv

en. We conclude that, just as Weiskopf was disti nguishable from King , the present

case is distinguishable from Weiskopf . The charge in the present c ase contained none of the paragraph (b)(2) information that would disparage the selection of lesser inclu ded off enses. We hold that, under the circumst a nc es of the present case, the general rationale of King controls. The defendant h as failed to establish that any constitutional principles invali date the procedures used in the pr esent case.

III

In his fi nal issue, the defendant complains abou t the trial court’s refusal to give to the jury the defendant’s requested charg e on the meani ng of “passion.” The requested charge says: (a) In order for a killing to constitute murder in the firs t d egree, the killing must be performed with a cool purpose, and the cool purpose must be formed and the deliberate intenti on conceived in the mind of the accused, in the absence of passion, to take the l ife of the person slain. (b) “Passion” means an y of the human emotions known as anger, rage, sudden resentment or fervor which renders the mind incapable of cool reflection. The trial court acknowled ged that the requested l anguage w as extract

ed from State
v. Bullington , 532 S.W.2d 556 (Tenn . 1 976); however, the cour t stated that the Tennessee Pattern Instruction charge would be sufficient. The trial court charged the jury as follows: For you to find the defendant guilty of this offe nse, the state must have proven beyonda reasonable doubt the exist ence of the following essential elements:

. . . (3) that the killing w

as deliberate. A deliberat e killing is one done -- one performed with cool purpos e; . . . .

. . . The mental state of the accused at the ti me he allegedly decided to kill must be carefully co n sidered in order to determi ne whether the acc used was sufficiently free from ex citement and passion as to be capable of preme ditation . If the d esign to ki ll wa s for med with deliberation and premeditation, it is immaterial that the accused may22 have bee n i n a state of passion or excitement when the design w as carried into effect. Furthermore, p remeditat ion can be found if the decision to kil l i s first formed during the heat of pas sion, but the accused commits the act after the pas sion has subsided.

The defendant is entitled to a complete an d correct charge of the law. State v. Teel , 793 S.W.2d 236, 249 (Tenn. 1990), including the law governing the issues raised by

the evidence. State v. Zirkle , 910 S.W.2d 874, 892 (Tenn. Crim. App 1995). A court commits no er ror by refusing a special charge if the instru ctions given impart a corr

ect, full and fair statement of the appli cable law. Id

.

In the present

case, the trial court adequately instructed the jury on the meaning of the applicable elements of first degree mu rder. The charg e as given explained the role of pass ion o n the issue of deliberation. Ther e was no need to augmentthe court’s instructi on with language that explained the common term “passion.” See State v. Bennett , 798 S.W.2d 783, 79 0 (Tenn. Crim. App. 1990).

V
In conclusion, we find no reversible error and affirm the judgment of the trial court.

________________________________ JAMES CURW OOD WIT T, JR., Judge

CONCUR:

_____________________________ DAVID G. HAYES, Jud ge

_____________________________ JERRY L. SMITH, Jud ge23