# FILED April 26, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON DECEMB ER SESSION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9803- CR-00082 ) Appellee, ) ) SHELBY COUNTY V. ) ) ) HON . JOHN P. CO LTO N, JR., GARY ANT ONIO JOHNSON, ) JUDGE ) Appe llant. ) (SECO ND DE GREE MUR DER)

FOR THE APPELLANT : FOR THE APPELLEE : CHARLES CURBO JOHN KNOX WALKUP P.O. Box 322 Attorney General& Reporter Memphis, TN 38101-0322 DOUGLAS D. HIMES Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenu e North Nashvill e, TN 37243 JOH N W. P IERO TTI District Attorn ey Ge neral DANIEL WOODY Assistant Distri ct Attorney General Criminal Just ice Center, Suite 301 201 Poplar Avenue Memphis, TN 38103

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defenda nt, Gary Antonio Johnson, appeals as of right his convi ction of second degree murder fol lowing a j ury tri al in t he S helby Coun ty Crimina l Court. The trialcourt sentenced Defendantas a Range I Standard Offender totwenty-two (22) years in t he Department of Corr ection. In this

appeal, Defen dant a rgues that the trialcourt erred in its inst ruction on range of punis hment. After a careful review of the reco rd, we affirm the judgm ent of the tria l court.

A brief summary of

the facts rev

eals that during the morni ng of May 10, 1996, Ray Lee, thevi cti m, and his brother, Harold Lee, went to the “Chinese store” on t he
cornerof Trigg and W ellingto n to bu y a bee r. Defe ndan t (“Little Tony”) was on the others ide of thestreet i n front of S & M Grocery. The vi ctim and Defendant exchanged words. Short ly ther eafter, gu nfi re erupted with Defendant fir ing two pistols at the victim and the victim firing a rifl e at Defend ant. No one was i njured during th is incident.

Two witnesses testifi ed that after the m orning incide nt, De fenda nt and his uncle, Wa lter Farmer (“Little W alter”), drove by the home ofvicti m’s mother at 406 Lucy in Memphis, Tennessee. Farmer called ten-year- old Corey House to t he car and told hi m that they had s omething f or his brot her, the v ictim. Defendant and Farm er displaye d their we apon to the boy a nd then drove off.

Laterthat same afternoon, the victim w as talking to James Weston near the
cornerof Wellington andCambridge. Weston’s rear wind ow of h is car had been shot-out by the vi ctim in t he morning gunfi ght. At some poi nt, Defendant , his uncl e,-3-

Anwar L. Odom (Lavell), and Greg Williams (“Little Greg”) pulled up i n their car and gunfire erupted again. This ti me the vict im was hit b y the gunfi re and fellto the ground. Defendant was shoot ing a .12 gauge pump shotgun during the gunf i re exchange . Defendan t and the other m en then fled the s cene in their car.

The police recovered nine spent shotgun shells, eight ni ne-millimeter casings, two spent bull ets and one live nine-mil limeter r ound. It was

determined that

the victim was shot three times and d ied as a resu lt of thos e wou nds. T he victim received one g unsh ot wou nd wh ich wa s a “fles h wou nd.” T he victim also had two shotgun wounds which caused extensive damage to his lungs, heart, l iver, spleen, and intestines. T hese wou nds were tes tified to as being “very lethal.”

On May 13, 1996, Defendant turned himsel f in to the poli ce. Defendant was advised of his cons titutional rights and the n gave th e officers a five page statem ent. In his sta tement, Defendant confessed to shooting the vi ctim three or four t imes. Defend ant described t he early morni ng incident at Trigg and Welli ngton, and th e final s hootout at Welli ngton and Cambridge. Defendant state d the foll owing:

So, me, Lavell, W alter, and Lil’ Greg, we were fixin’ [ to] go up there and talk to my momma. Soon as w e hit the corner, we see Ray Lee [v ict im] leaning i n the door of t he truck, and the other

dude was leaning on t he back bed of the truck. So, w hen we stoppe d, the ot her dude pointe d at the little junkie car w e were in . Th en Ray [thevi cti m] pulled out his pi stol and gi t [sic] to shoot ing . We j ump ed out [of] the car righ t there. I just ran in the st reet and start ed sho oting. He [the victim] fell an d we ran back to the car.
At trial , Defendant deni ed drivi ng by the vi ctim’s mother’s house on the morning of the murder. As to the l ast shootout, Defendant stated th at his grou p was armed when they got i nto the car. He said he had a sho tgu n, F arme r had a .380-4-

caliber pistol, W illiams had a shotgu n, a nd Lav ell had a nine -millim eter pis tol. Defenda nt said he took a shotgun because he could shoot it better than the automatics. Defendant denied t hat they went out lookin g for the victim

. Defendant admitted shooting t he victi m while the vi ctim was on the gr ound because “he [t he vi cti m] was shooting at me.” Defendant di d reconfirm his previous statement gi ven to the poli ce. The j ury fou nd Defenda nt g uil ty of se cond degree mur der. On January 12, 1998, t he t rial court sentenced Defendant to twenty-t wo years as a Range I Standard O ffender.

In this appeal, Defendant specifi cally r

aises the following issue: Did the TrialCourt err i n charging t he jury on t he range of punishment with an incl usion of el igi bility o f parole/susp ension of se ntence incl uded regarding r ange 1 only, parti cularly when there was n o writte n or oral req uest by either the state of [sic] the D efendant pri or t o the jury being selected or otherwi se?
In Defe ndan t’s brief, he argues that he was prejudi ced by the range of punishment instruct i on in twores pect s: ( 1) “ it didnot exp lai n bot h th e mi nimu m and maximum credits, but only listed the maxim um cre dits ;” and (2) it “di d not inst ruct the j ury that the ran ge of

puni shme nt for manslau ghter is 3 to 15 yea rs, but instructed the jury thatthe range of p unishment was 3 to 6 years. ” Defendant f urther contends that

the trialcourt err

ed in even chargi ng the jury with any r

ange of punishment when neit her he nor th e State re queste d the instru ction pre-tria l as require d by statu te.

At the tim e of De fenda nt’s trial, T enne ssee Code Anno tated s ectio n 40- 35- 201(b) provi ded the fol lowing:

(1) In all co ntested criminal cases, except for capit

al crimes which are governed by the procedur es contained in §§ 39-13-204 and 39-13-205, upon the moti on of either-5- party, filed with the court prior to the selecti on of the jury, the court shal l charge th e possible penalties for the offense charged and all lesser i ncluded offenses. (2)(A) (i) When a charge as to possibl e penalti es has been r eq uested pursu ant to s ubdivis ion (b)( 1), the ju dge s hall also include i n the inst ructions for the j ury to wei gh and co nsider

the me aning o f a senten ce of imp risonm ent fo r the offens e cha rged a nd an y le sse r included offenses. Such instruct ion shallinclude an approxim ate calculat ion of the minimu m num ber of years a pe rs o n sente nced to imprisonmentof the off ense charged and lesser i ncluded offensesmust serve b efore reach ing su ch pe rson’s earli es t releas e eligib ility date. S uch c alcula tion sh all includesuch fac tors as therelease el igibil ity per centage estab lis he d by § 40-35-501, maximum and minimum sentence reduction credits a uthorized by § 41-21-236 and the gover nor’ s power to reduce prison over crowding pursuant to t itle 41, chapter 1, p art 5, i f applicable. (ii) S uch instruct ions to t he jury shal l also i nclude a statementthat whether a defendant i s actuall y released from incarcerat ion on thedate when such defendant is fir st eligible forrelease is a discr etionary decision made by t he board of paroles based upon many f actors, and thatsuch board has the autho rity to require the defendan t to serve the entire s entenc e impo sed by th e court.
On May 1, 1998, Tennessee’ s General Assembly passedPublic Chapter No. 1041, an amendment to § 40-35-201, which deletes the foregoing subs ection (b) in its entiret

y an d p rovide s that th e trial co urt sha ll not inst ruct the jury on p ossib le penalties

for the offense charged nor l esser included offenses. Th is amendment appli es to all trials occu rring after the Act’s effec tive date. H oweve r, sinc e Defe ndan t’s trial was held in 1997, the former subsection (b) appl ies. Our supr eme court has upheld the constituti onality of j ury instruct ions g iv en pursuant to former Tennessee Code Annota ted sectio n 40-35 -201(b). State v. King , 973 S.W.2d 586 (Tenn. 19 98).
The trialcourt’s instruct ion in t he case sub judice on range ofpunishment provided:-6- The jury wi ll not

attemp t to fix any sentence . However, you may weigh and consider t he meaning of a sentence of imprison ment. The ra nge of punis hment for the c rimes involved herein i s as follows: The punishm ent for murde r in the firs t degre e is imprisonm ent for life in the penitentiary. The puni shm ent for m urder in the se cond degre e is imprisonmentin the peni tentiar y for not l ess than fi fteen (15) nor more than twenty-five (25) years. The punishment for voluntar

y manslaug h ter is imprisonmentin the penitentiary for not less than t hree (3) nor more than six (6) years. You are further

informed that

the minimum number of years a p e rson sentenced to imprisonment for these offensesmust se rve before reaching the earlies t releas e eligibil ity date i s:

MURDER FIRST DEGREE A defendantwho receives a sentence of impris onment for life shall not

be eligi ble for

releas e until the defendant has served at l east fif

ty-one (51)years of suc h sentence. MURDER SECOND DEGREE A defendantconvicted of murder in t he Seco nd De gree is not elig ible for

early release. VOLUNTARY MANSLAUGHTER

3 YRS

. RED% 30% RED% APPLIED 0.90 yrs. W/MAX CREDITS 0.59 yrs. SAFETY VALVE 0.54 yrs. S.V. & MAX CREDI TS 0.35 yrs. Wh ether a defen dant is actuall y released f rom incarcerat ion on the date when fi rst eli gible fo r releas e is a discret ionary deci sion made by the Boa rd of Paro le and is b ased o n man y factors. The Board of Parole hasthe authority to require a de fendant to serve the entire s entenc e impo sed by th e Cou rt. First, Defendant contends tha t the t rial court erred in not instructing the jury on the number of years before release eli gibilit y based on the minimum credits.-7-

In compliance wit h the stat ute, the t rial cour t informed the jury as

to the shortest and longest poss ible sentences as a Range I Standard Offender for each offense charged to the j ury. Addi tiona lly, t he trial c ourt ins tructed the jury o n Def enda nt’s earliest release el igibil ity date without c redits appl ied, wit h maximum credits appl ied, with the safet

y valve appl ied, an d wi th both the maxim um cre dits and th e safety valve applied. See Tenn. C ode Ann . § 40-35-201 (b)(2)(A)(i). Although the trial court did not sp ecifica lly use th e phra se “m inimu m cre dits,” it did give the sentence wi thout credits, which is e ssentially the minim um. W e find that th e trial court t racked the language of the statute and that the ju ry was properly instructed on range of punish ment. See also King , 973 S.W.2d 586.

Second ly, Defendant argues that the trial court should have instructed the jury thatthe range of p unishment for manslaughter i s three to fifteen years, not three to six years. The trial cou rt instructed the jury a s to what pu nishmen t would be for a Range I Standard Offender convicted of voluntary manslaughter (threeto six years). D efendantdid no t qualify fo r an en hanc ed pu nishm ent ran ge, so the tria l court
correc tly ins truct ed the jury as to Rang e I pun ishm ent. D efend ant wa s even tually convictedof second degree murder and sentenced as a Range I Standard O ffender. We canno t see how the cour t’ s instruc tion on vol untary manslaughter prejudi ced Defen dant, especiall y in light of the fact that had he been con victed of voluntary manslau ghter, he would ha ve bee n sen tence d as a Rang e I Stan dard O ffende r in which case the trial court’s instru ction wou ld have b een ap plicable a nd corre ct. See , e.g. , State v. S mith , 926 S.W .2d 267 (Tenn . Crim. A pp. 199 5).
Finally, the recor d indicates that nei ther part y even requested a range of puni shme nt ins tructi on prior to trialas required by Tenn. Code Ann. § 40-35--8-

201(b)(1). However, the trial court engaged counsel i n the foll owing discussi on prior to closing arguments:

The Court: Lawyer

s, did you g et a copy of a ny of that [the charge ]? Mr. Cu rbo [D efend ant’s la wyer]: Y es, sir The Court: All ri ght. We’re going to put the tim e amo unts -- amou nts of time and eve rything tha t people -- that the de fendan t could po ssibly get o n all of these various -- Mr. Curbo [Defendant’ s lawyer] : Are you ta lking about the full r ange, Judge? The Co urt : Um- hum.
Cou nsel for

Def enda nt d id n ot o bje ct at an yt ime. Als o, couns el m a de n o objecti on to the range of punishment i nstructi on before o r af ter it was given to the jury. The firsttime counsel c hallenged t he instruc tion was at

the sentenci ng hearing, and the n only as to the cons titutionality of the statute.

T h e instruct ion in t his case was accur ate and Defendant has failed t o show any prejudice result ing from the inst ruction . In State v. Ray Vance , the rec ord did not reflect that e ith er part y file d a request for range of puni shment prior t o the seating of the j ury. C.C.A. No. 01C01-9610 -C C-00425 , slip op. at 10, Stewa rt Coun ty (Tenn . Crim. A pp., Nas hville, Dec. 3 , 1997), perm. to appeal denied (Tenn. 1998). Nevertheles s, a range of pun ishment instruct ion was charged wi thout objecti on. Id . In con cludin g that th e error was h armle ss, a p anel o f this Court stated the foll owing:

We fail to see how theinstruct ion, which was avai lable as a mat te r of ri ght to eit her party and which contai ned no inf o rmation which has been shown to be inaccurate, prejudice d the de fendan t.-9-

Id
. As in Vance , any erro r in the case sub judice in chargi ng range of puni shment absent the statuto rily requ ired req uest is harmle ss beyo nd a rea sonab le doub t. Id .; Tenn. R . App. P. 36(b); T enn. R. Crim . P. 52(a).

Based on all t he foregoing, the judgment of the tri al court i s affirmed.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Presiding J udge

___________________________________ JOHN EVERET T WILLIAMS, Judge