IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUARY SESSION, 1998

STATE OF TENN ESSEE, ) ) No. 02C01-9702-CR-00075 Appellee ) ) SHELBY COUNTY vs. ) ) Hon. James C. Beasley, Jr., Judge MICHAEL DIN KINS, ) ) (Aggr

avated ass

ault; Appellant ) Theft under $500)
For the Appellant : For the Appellee : Walker Guinn John Knox Walkup Assistant Public Defender Attorney General and Repor ter 201 Poplar Street 2-01 Memphis, TN 38103 Elizabeth T. Ry an Assistant Attorney Gener al Criminal Justice Div

ision A. C. Wharton , Jr. 450 James Robertson Parkwa y District Public Defender Nashville, TN 37243-0493
William Gibbons District Attorney General Lee Coffee Asst. District Attor

ney General Criminal Justice Comple x Suite 301, 201 Poplar St. Memphis, TN 38103

OPINION FILED: AFFIRMED
David G. Hay

es Judge2 OPINION
The appellant, Michael Dinki ns, was convicted by a Shelby County jur

y of aggravated assault an d theft of property under $500. The tr ial court imposed consecutive sentences of four y ears for the aggravated assault conviction and eleven months and twenty -nine days for the theft conv iction. In this appeal as o f right, the appellant contends that: (1) the trial court erred by failing to properly instruct the jury reg arding eye witness id entific ation as r equired b y Dyle ; and (2) the trial court erred by

providing to the jur

y parole eligibil ity information.

After a review of the iss ues, we affirm the judgment of the tr ial court.

Background
On December 13, 1995, Joseph Causl ey was on duty as a uniformed security guard at the MegaMarke t Supermarket located on Poplar Avenue in Memphis. Sometime between 8:30 and 8:45 a.m., Cau sley, while observing surveillance cameras from behind a two-w ay mirror, noticed “

a male black pushing a shoppi ng cart [containing unbagged merchandise] through an [unmanned] cashier counter and outside the door.” Causl ey followed the indiv idual into the parking l ot and identified himself as a security officer. The individual knocked over the shopping cart and fled. As Causley was placing the g roceries back into the car t, the individual “came up out of nowhere and rushed [him] with some sharp objec t and stabbed [him] [in the abdomen].” Causley sprayed his attacker with pepper spray, which seemed to have no effect on the indiv idual. The assailant attempted to s tab Causley again, how

ever, he was thwa rted from a second attack when Causley drew his firearm. The assailant then fled the scene.3 Causley immediately r

eturned to the security office inside the store where he notified the police. The vicitim described his assailant as an African -American male wearing a br own coat, black pan ts, and ca rrying a bla ck duff le bag. W ithin five minutes of the radio dispatch, Me mphis Police Officer Tom Arnold obser ved a person walking w

estbound on Poplar, approximat ely one-half block from the MegaMarket, matching the description of the assailant . The suspect was arrest ed and a “pat-down” of his per son revealed a “pair of foldi ng type scissors” in the right pocket of his jacket. Officers then immediately transported the suspect back to the MegaMarket for identification by Causley. C ausley, who was waiting to be transported to the hospital for treatment of his injuries, w ithout hesitation, identified the suspect as his assailant. The suspect was later identified as the appellant.
At trial, evidence obtained from the MegaMarket videotape surveillance camera corroborated Causley ’s identification of the appellant as the perpetrator of the crimes charged. Caus ley underwent surg ery and spent two day s in the hospital for the injuries inflicted by the appellant. Based upon this ev idence the jury found the appellant guilty of aggravated assault and mis demeanor theft.

I. Failure to Prov

ide Dyle Instruction
In his first issue, the appel lant argues that the jury was not properly i nstructed on eyewitness identification. He raises as er ror the trial court’s

failure to give the Dyle instruction on identificati on. He concedes that the instr uction submitted to the jury in this case is sim ilar in ma ny respect s to the in structio n manda ted by Dyle , except that the instructi on in the instant case omitted l anguage that “[identificati on testimony is an expression of belief or impression by the witness. . . .” State v. Dyle , 899 S.W.2d 607, 612 (Tenn. 1995). In response, the State correctly asserts that the appellant failed to raise this issue in his motion for new trial, see Tenn. R. App. P.1 State v. Dyle was released on May 15, 1995. The appel lant’ s trial began on June 25, 1996. 4 3(e), and that waiver

of this issue is mandated. Nonetheless, we find this iss ue proper for review on the merits because the supreme cou rt in Dyle made its ruling specifically applicable to all cases tried or o n appeal as or after the date of its release. 1 Dyle , 899 S.W.2d at 612; see also Tenn. R. App. P. 2; Tenn. R. Cr im. P. 52(b).

In State v. Dyle , the Tennessee Supreme Court promulgated an identity instruction which must be given in those cases where identification is

a material issue and the instruction i s requested by defense counsel

. Id . The appellant requested that the Dyle instruction be giv en. Thus, our sole inquir y is whether identity is a material

issue. “Identity w

ill be a material issue when the defendant puts it at issue or the ey ewitness testimony i s uncorroborated by cir cumstantial evidence.” Dyle , 899 S.W.2d at 612, n ote 4. In the instant case, the appellant did not argue that he was not a t the crime scene or that his identity was mista ken. The record reflects that the appell ant presented no proof in his defense. Thus , he failed to place his identity i n issue. Moreover, the victim, Joseph Causl ey, was an eyewitness to the commis sion of the offenses. His identificati on of the appellant as the perpetrator was sufficiently corroborated by the videotape from the surveillance camera of the MegaMarket. Cf

. State v. Willia ms , 913 S.W.2d 462, 466 (Tenn. 1996) (holding that jury identification of defendant from survei llance photographs of crime sce ne is both constitu tional an d suffi cient to e stablish identity) . Accordin gly, we conclude that the appellant’s identity was not a material issue requ iring that the Dyle instruction be giv

en.
Additionally, we find that had the requested Dyle instruction been giv en, the instruction would hav

e only served to str

engthen the State’s identification testimony. See State v. Bufford , No. 02C01-9509-CR-00275 ( Tenn. Crim. App. at Jackson,2 See also State v. Palmer , No. 01C01-9604-CC-00150 ( Tenn. Crim. App. at

Nashvill e, Nov. 20 , 1997); State v. Cooper , No. 01C 01-960 4-CC -00150 (Tenn . Crim. A pp. at Na shville, Nov

.. 17, 1997 ); State v. Ho well , No. 01C01-9610-CR-00443 ( Tenn. Crim. App. at

Nashvill e, Nov.. 6, 1997); State v. Bradford , No. 01C01-9607-CR-00294 ( Tenn. Crim. App. at

Nashvill e, Sept. 30, 1997); State v. Gates , No. 01C01-9607-CR-00312 ( Tenn. Crim. App. at

Nashvill e, Sept. 30, 1997); State v. Majors , No. 01C 01-950 6-CR -00211 (Tenn . Crim. A pp. at Na shville, Jul. 30, 1 997). But see State v. Weiskopf , No. 02C01-9611-CR-00381 ( Tenn. Crim. App. at

Jackson, Feb. 4, 1997); Cooper , No. 01C 01-960 4-CC -00150 (Hayes, J ., separa te conc urring); Cooper , No. 01C01- 9604-C C-001 50 (Sm ith, J., separ ate con curring).

3 We note that, regardi ng the present statute as amended in 1994, our supr eme court has not specifi cally

addressed the const itutionalit y of thi s statute.Moreover, despite argument to t he contrary, State v. Cook , 816 S.W.2d 322 (Tenn. 1991), is not di spositi ve of the i ssue. In Cook , permission to app eal was granted as to the l imited i ssue of whether t he trial court committed prejudici al error

by erroneousl

y inst ructing the jury on the range of punishments of a Range I offend er, where , in actuality, the de fendan t was a R ange II off ender. Cook , 816 S.W .2d at 324

. Thus, the constitution alit y of Tenn. Code Ann. § 40-35-201 (1990)was not before the court. The supreme court held that this section “gives a defendant a claimable statutory right to have the jury 5 Mar. 19, 1997). Finally, we are cognizant of the fact that this court has implicitly approved this same challenged jury instruction on at least two prior occasions when identity was not a mater ial issue. See State v. Franklin , No. 02C01-9511-CR-00340 (Tenn. Crim. App. at Jackson, June 2, 1997); State v. Willia ms , No. 02C01-9512- CR-00359 (Tenn. Crim. App. at Jackson, May 15, 1997). For the stated reasons, we conclude that, not only was the Dyle instruction not mandated under the facts of this particular case, but also that any error created by failing to g ive an instruction containing the precise Dyle language had no effect on the outcome and w as harmless. Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).
II. “Truth in Sentencing” Instruction
In his final issue, the appell ant presents various cha llenges to the so-call ed “Truth in Sentencing” ins truction codified at Tenn. Code Ann. § 40-35-201(b) (1996 Supp.). Basically, the appellant avers that the instruction is unconstitutional in that it violates, inter alia , the doctrine of separation of pow ers and his right to a fai r trial under the due process clause. Although a previous panel of this court, in State v. King , No. 02C01-9601-CR-00032 (Tenn. Crim. App. at Jackson, Oct. 22 , 1996), perm. to appeal granted , (Tenn. Mar. 10, 1997), 2 has held the “Tr uth in Sentenc ing” provision constituti onal, for the reasons discusse d herein, we conclude, pendi ng resolution of this issue by our supreme court, 3 that the interjection of rang e ofknow the range of pu nishment applicable to the charges b efore deciding guilt or innocence.” Cook , 816 S.W.2d at 326. Although, t he court, i n dicta, alluded that “the Legislature .. . has t he right a nd po wer to direc t the ju dicial p roce ss,” t here is no e xpre ss h olding as to the s tatute ’s constitu tional ity . Accordingl y, we concl ude that rel iance upon Cook for chall enges made to the constitution ality of Tenn . Code A nn. § 40- 35-201 (b), as am ended in 1994, is m isplaced

.

4 W e ackn owledg e the trial cou rt’s extens ive discus sion of the statute pre sently at issu e. In ac cord anc e with our h olding , the tr ial cou rt exp ress ed gr eat c onc ern o ver th e sta tute’s unc ons titution ality, sp ecific ally refe renc ing th e irrele vanc e of p arole inform ation to the jury’s determinati on of guil t. Nonethel ess, the court noted that , if a pa rty i n a criminal proceeding reques ted the ins truction, the statute req uired the c ourt to pro vide the ins truction.

5 Judge Riley , in hi s concurring posi tion, concludes that

the substi tutionof the l anguage “for your

informati on” for the

terms “weigh and consi der” in t he mandated instruction cures any constitu tionaldefect in the stat ute. We cannot agree wit h this position. Once a statute i s found unconstit utional , a member of the judicial branch cannot undertake to al

ter the i nstructi on promulgated by the statute in an effor

t to make it const itutional. Thi s amounts to judi cial am end me nt of le gislat ion w hich violate s the sepa ration of po wers doct rine a s es tablis hed in Articl e II, Sect ion 2 of t he Tennessee Constitut ion. While i t is t he province and duty of the judiciary to interp ret the law, the legislative bra nch ha s the ex clusive po wer to for mula te the law. See Ten nes see Valle y Auth ority v. H ill , 437 U.S. 153, 194, 98 S.Ct. 2279, 2301-02 (1978); Richardson v. Y

oung , 125 S.W . 664, 668 (Tenn. 1910). 6 punishment, coupled with the statutorily requi red minimum parole eligibi lity date, sentence redu ction credits an d the governor’s po wer to reduce prison overcrowding, at the guilt phase of a trial, may be so unduly prejudicial to the determination of guilt that it renders the trial fundamentally unfair. 4 5 See T ENN
. C ONST
. art I, § 8; State ex. rel. Anglin v. Mitchell , 596 S.W.2d 779 (Te nn. 1980).
Tenn. Code Ann. § 40-35-201(b) mandates that a trial court, in no ncapital cases, upon request of either party, charge the jur y with possible pena lties for the offense charged as well as al l lesser included offenses. In 1 994, the Tennessee General Assembly amended this provision by adding that the instruction shall also include “ approximate calculation of the minimum number of years a person sentenced to imprisonment for the offense char ged and lesser included offenses must serve before reaching the person’s earliest r

elease eligibility

date ,” including the release eligibili

ty percentage, maximum and minimum sentence reduction credits, the governor

’s power to reduce pri son overcrowding , and the statement that “whether a defendant is actual ly released . . . is a discretionary deci sion made by the board of paroles. . ..” Tenn. Code Ann. § 40-35 -201(b)(2)(A)(i), -201(b)(2)(A)(ii) (1994 Supp.) (emphasis added).6 Each of these si x states has a bifurcated t rial p rocedure whereby after a det

ermination of guilt, a sepa rate sen tencing h earing is h eld befor e a jury with the jury determ ining the ap propriate punishment. Moreover , we note t hat, effective 1995,Virgini a has abolish ed parole. 7 Since the beginning of statehood, Tennessee juries were required to fix punishment in felony cases in addition to determining the g uilt or innocence of the accused. The Criminal Sentenci ng Reform Act of 1982 bifurcated these functions and placed the sentencing deter mination with the trial

judge. See Tenn. Code Ann. §§ 40-35-201(1982); 40-35-203(a)(1982). Thus, in Te nnessee, as in most jurisdictions, the function of a jury in a criminal proceeding is limited to a determination of the defenda nt’s guilt or innocence based solely on the basis of evidence introduced at tr ial and not on extraneous conditions not adduced as proof at trial. See Taylor v. Kentucky , 436 U.S. 478, 485, 98 S.Ct. 1930, 1934 (1978) (citing Estelle v . Williams , 425 U.S. 501, 96 S.Ct. 1691 (1976 )). Parole is nothing more than post-conviction clemency; a condition subsequent to the accu sed’s conviction, offered as a rew ard for the good behavior of the convict. For a jur y to “consider and weigh”

parole eligibility

goes outside the facts of the case and is not germane to a determination of gui lt or innocence. Clearl y, an instruction on the law of parole constitutes an extr aneous condition which i s not substantive proof of the accused’s guilt or i nnocence.
It is interesting to no

te that no other jurisdiction in America, other than Tennessee, permits introduction of parole eligibility information at the guilt phase of the trial. Of the six s

tates that have retained jur y sentencing, i.e. , Arkansas, Kentucky, Missouri,Oklahoma, and Virginia, on ly three, Arkansas, Kentucky, and Texas, have found an instructi on on parole eligibili ty at the sentencingphase of the trial constitutional. 6 See Teague v. State , 946 S.W.2d 670 (Ark. 1997); Boone v. Commonwealth , 780 S.W.2d 615 (Ky. 1989); Johnson v. State , 800 S.W.2d 563 (Tex. App. 1990). Moreover, constitutional amendment in Te xas and statutory amendment in Arkansas and Kentucky were required before the jury could be instructed on these matters at the sentencing phase

. See, e.g. , T EX
. C ONST
. art. IV,8

§ 11(a) (amended November 7, 1989); Ark. Code Ann. § 16-97-10 3 (1995 Supp.); Ky. Rev. Stat. Ann. § 532.055 (Banks-Baldwin 1995). Additionally, these six jurisdictions have r

outinely rejected the i ntroduction of parole eligi bility information before the jury for a vari ety of reasons, including , but not limited to: violation of the separation of powers doctrine, i.e., the mandatory “truth-in-sentencing” instruction is an atte mpt by one branch (t he legisla tive) to dir ect anot her branc h (the jud iciary) to interfere with the pow ers of yet a third branch ( the executive), see, e.g. , Kemp v. State , 632 P.2d 1239 (Okla. Crim. App. 1981); Rose v. State , 752 S.W .2d 529 (T ex. Crim. App. 1987), superseded by constitutional amendment , Johnson , 800 S.W.2d at 563; Walker v. Commonwealth , 486 S.E.2d 126 (Va. App. 1997); and various aspects of fundamental fairness, for instanc e, speculation about a future event , see, e.g. , Huff v. Commonwealth , 763 S.W.2d 106 (Ky. 1988) (Leibson, J., dissenting) (citin g State v. Farris , 535 S.W.2d 608 (Tenn. 1976)); Walker , 486 S.E.2d at 126; extraneous condition to determination of guilt , see, e.g. , State v. Rollins , 449 S.W.2d 585 (Mo. 1970); Beans v. State , 54 P.2d 675 (Okla. Crim. A pp. 1936); a condition subsequent to conviction , see, e.g. , Cox v. State , 491 P.2d 357, 359 (Okla. Crim. App. 197 1); and relevancy , see, e.g. , Walker , 486 S.E.2d at 126.
Moreover, guidance by the Tennessee Supreme Court as to th e propriety of such instructions is pr

ovided in State v. Farris , 535 S.W .2d at 60 8. Justic e Henry, speaking for the court, in Farris , wrote: Jurors should not be permitt ed to speculate on the length of sentences, discretionary parole, the accumulation of good and honor time and a whole conglomer ation of contingent events w hich, if they come to pass at all, will come to pass in the future. Very heavily involved is the constitutional right of a defendant to a fair trial. . . . It tends to make a jury speculate on the length of time a convicted defendant will be requir ed to serve and further tends t o breed irresponsibility

on the part of jurors premised upon the proposition that corrective action can be taken by others at a lat er date. A greater defect in the law stems from the fact that jurors tend to attempt to compensate for future clemency by imposing harsher senten ces.9 The matter of the future disposition o f a convicted defendant is wholly and utte rly foreign to his guilt and is not a proper c onsidera tion by a jury in determining

the length of his sentence.
Farris , 535 S.W.2d at 614. Contrary to the holding in King , No. 02C01-9601-CR00032 (holdin g Farris inapplicable to the present issue), we conclude tha t subsequent statutory amendment fails to dissipate the consti tutional concerns expressed in Farris

.

It is inconceivable to

assume that information regardi ng parole eligibil ity information before the jury during the guilt phase of a trial will not have an eff ect, in certain factual situations, o n their finding the defendant gui lty of the greater or l esser offense. Clearly, it is improper for a jury to i mpose a harsher convicti on than they believe is merited by

the proof presented for the sole purp ose of having a defendant serve a sentence they bel ieve to be warranted. A jury is not to conc ern itself with post-conviction eve nts. We can find no rational basis for concludi ng that information regarding parole eli gibility is r elevant to the jury’ s consideration at a non-capi tal criminal trial. But see California v. Ramos , 463 U.S. 992, 103 S.Ct. 3446 (198 3) (holding that federal consti tution does not prohibit capital sentencing jury from considering governor’s power to commute life sentences).
Parole is not a judicial function, rather it is an executive function. It is best that the correctional author ities and not the jury be left to commence the process of rehabilitation. A jury charge which instructs on punishment and parole eligibility will invariably resul

t in unjust verdicts and may prejudice either the accused or the State’s right to a fair t rial, depending upon the particular facts and circumstanc es of the case. Accordingly, we find that the statutoril y mandated jury instr

uction at the guilt phase of trial v

iolates due process as secu red by Article I, Sec tion Eight of the Tennessee Constitution.10 Having determined that the jury instruction mandated by § 40-35-201(b) is unconstitutional, it remains that we must next determi ne the appropriate standard of harm analysis to be appli ed to the facts of this case. General ly, appellate revi ew of error in criminal cas

es is a two-step proc

ess. First, the rev

iewing court determi nes what, if any, error o

ccurred in the trial. Second, the court must determine w hether the error requires r

eversal. In the present case, we are confronted w ith the issue of whether the error of apply ing a constitutionally

infirm statute is rever

sible error.
The United States Supreme Court, i n Chapman v. California , 386 U.S. 18, 23, 87 S.Ct. 824, 827 (1967), determined that all con stitutional error is not harmful in that there may be some constitutional errors, whi ch in the setting of a partic ular case, are so unimportant and ins ignificant that they may be deemed harmless, not requiring rever

sal. See also State v. Bobo , 814 S.W.2d 353, 356 (Tenn. 1991). The Court pronounced that the test to determ ine harmful error is whether “there is a reasonable probability that the [error] complained of mig ht have contributed to the conviction .” Chapman v. California , 386 U.S. at 23, 87 S.Ct. at 827 ; see also Bobo , 814 S.W.2d at 356. If the reviewing c ourt finds that the complained constitutional error did not affect the outcom e of the trial, then the error is harmless.
Applying this standar

d to the present case, the ev idence points overwhelmingly

to the guilt of the appellant for the offense of aggravated assault by the use of a weapon. The victim identified the appe llant as the perpetrator. This testimony was corr

oborated by the survei llance videotapes prov ided by the MegaMarket security

cameras. Additionally , five minutes after the vic tim notified law enforcement officials of the incident, the appellant was located approximately onehalf block from the MegaMarket. Upon a search of the app ellant’s person, police officers discovered a pair of scissors in his ri ght front pocket. These facts are no t challenged by the proof. Thus, there is no dispute as to the grade of assault committed. We are led, beyond a reasonable doubt,to the conclusion that the11

statutory parole elig ibility instructi on made no contribution to the jur y’s verdict. Accordingly, any

error in providin g the unconstitutional ins truction was harmless

. See Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).

III. Conclusion

After a review of the rec ord, we find that the trial court did not err by fai ling to provide the Dyle instruction on identity. Moreover, although we find the statutorily mandated jury instructi on on parole eligibili ty unconstitutional, under the facts and circumstances of the present cas e, we are unable to conclud e that the instruction constituted reversible error. Accordingly, the judgments of the trial court are affirmed.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

________________________________ JOE B. JONES, Pres iding Judge

________________________________ JOE G. RILEY, Judge