FILED

August 21, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JUNE SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9709-CR-00362

)

Appellee, )

)

) SHELBY COUNTY

VS. )

) HON. CHRIS CRAFT

CHARLES GOLDEN, ) JUDGE

)

Appellant. ) (First-Degree Murder)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF SHELBY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

STEFFEN G. SCHREINER JOHN KNOX WALKUP

369 N. Main Attorney General and Reporter

Memphis, TN

PETER M. COUGHLAN

Assistant Attorney General

425 5th Avenue North

Nashville, TN 37243

WILLIAM L. GIBBONS

District Attorney General

PHILLIP GERALD HARRIS

JERRY KITCHEN

Assistants District Attorneys General

Criminal Justice Complex, Suite 301

201 Poplar Street

Memphis, TN 38103

OPINION FILED ________________________

CONVICTION AFFIRMED; REMANDED FOR RESENTENCING

DAVID H. WELLES, JUDGE
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OPINION

The Defendant, Charles Golden, pursuant to Tennessee Rule of Appellate

Procedure 3(b), appeals as of right his conviction of first-degree murder and

sentence of life imprisonment without the possibility of parole. Defendant asserts

five claims of error: (1) that Defendant could have been guilty of only seconddegree murder because he lacked the specific intent for first-degree murder; (2)

that the court should have granted Defendant’s requested jury instruction

concerning his mental condition; (3) that the court improperly instructed the jury

concerning reasonable doubt; (4) that the court improperly instructed the jury

concerning the unavailability of a defense of duress; and (5) that the court

improperly instructed the jury concerning when Defendant would be eligible for

release on parole if sentenced to life imprisonment. Although we affirm the

conviction, we remand for resentencing due to the inaccuracy of the parole

eligibility jury instruction. 

Defendant was indicted by the Shelby County Grand Jury on October 31,

1996, on a charge of first-degree murder in violation of Tennessee Code

Annotated § 39-13-202. Judge Chris Craft of the Criminal Court for Shelby

County appointed counsel for Defendant and presided over his trial on March 17-

19, 1997. Following jury verdicts on guilt and sentencing, the court entered a

judgment of conviction and sentence of life imprisonment without the possibility

of parole. Defendant’s Motion for New Trial was overruled on April 18, 1997, and

he timely appeals. 
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At trial the State presented proof that Defendant shot and killed Sergeant

Deadrick Taylor, a deputy jailer for the Shelby County Sheriff’s Department, when

Taylor returned to his home after work. Sergeant Taylor arrived home at his

usual time; but before he was able to enter his house, Defendant shot Taylor

beside his car. The victim’s wife heard her husband drive into the carport area

and then heard “nothing but gunfire.” As the gunfire continued, she rushed

outside but initially could not see anything but smoke. She then saw her husband

crawling toward the house and she assisted him inside. Taylor died at the

hospital approximately forty minutes later of internal bleeding caused by two

gunshot wounds to the midsection—one which injured rib, liver, colon, and small

intestine; and another which injured rib, spine, and diaphragm. Both wounds

were of the type “generally associated with a high index of pain,” and each wound

was caused by a .38 caliber bullet. 

The State presented an inmate at the Shelby County jail, who testified that

he and Defendant were members of a gang called the Traveling Vice Lords

(TVL). The witness stated that the gang was controlled by Charles Thompson,

also incarcerated in the jail, and that members of the gang receive elevated rank

and status by following Thompson’s orders. 

This witness also testified that on the day of Sergeant Taylor’s murder,

Charles Thompson and another TVL member engaged in a fight with two other

inmates prior to Sergeant Taylor’s shift. All prisoners were “locked down” in their

cells at 1:00 p.m. that day, as is usual practice during a shift change; but when

Sergeant Taylor began his shift, the inmates remained locked down because of

the earlier fight. Once released from lock-down, TVL leader Thompson argued
1

 Verico Jackson is brother to Mario Jackson, the inmate who joined Charles Thompson

in the prison fight against two other inmates.

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with Sergeant Taylor about the extended confinement and repeatedly declared,

“You don’t know who the f_ _k I am.” 

According to the witness, Thompson telephoned “Verico”1 following the

argument and asked why Sergeant Taylor had not yet been killed, calling Taylor

by name and stating angrily, 

What’s the mother-f_ _king hold-up? Why can’t you do what the 

f_ _k I tell you to do? 

. . .

When I tell you to kill the mother f_ _ker that’s what I mean, not

tomorrow, when I say it. . . . [Y]’all right over there with him and y’all

can’t get the mother f_ _ker.

. . .

I want to hear about it on the news tomorrow. 

The witness also testified, 

I didn’t understand what was going on for the fact he had just

got in an argument with the man, and then he hop on the phone. So

when he was telling—when he was saying all this, later on when we

got locked down I was in my cell I said to myself they must have

already been planning to kill the man because the argument just

happened . . . .

Finally, this witness agreed on cross examination that if a member of the TVL

gang failed to do what Thompson ordered, the person might be hurt or killed. 

The State presented another witness who testified about events on the

same day outside the jail. The witness was present when Verico Jackson

received a telephone call, which he answered in a back room alone. At this

location—a house only a couple of streets from Sergeant Taylor’s residence—the

witness saw several weapons, including a .25, .38, an SKS with a long clip, and

a .22 with a scope. When the phone call concluded, Verico called Defendant,
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Rory Haywood, and “Cookie Monster,” another TVL member, into the back room.

The four gang members and others present, including the witness, left this house

and Verico said, “Let’s go gang-banging.” Defendant, Verico, Rory, and “Cookie

Monster” drove away in a car; and the witness saw the car stop on Sergeant

Taylor’s street. “Cookie Monster” obtained the SKS and the .38 from under the

hood of the car and handed the .38 to Defendant. The two then walked away,

leaving Rory in the driver’s seat. About five minutes later, the witness heard “a

lot of gunshots”—specifically, “about three regular gunshots . . . a lot of loud

gunshots and then some more like quieter gunshots.” Later, the witness heard

Verico thank Defendant “for taking care of their business,” and Defendant stated,

“[T]hat whore-ass nigger shouldn’t have got my nigger jumped on.” 

Following his arrest, Defendant made a voluntary statement in which he

validated the above facts, except that Charles Thompson had called on April 18

with the order to murder Sergeant Taylor. Defendant stated that Verico told him

killing Taylor was “Nation Business,” and when Defendant tried to “punk out and

not do[] it,” Verico told him that he must do it because it was Nation Business.

Defendant came back to the house the next day, they discussed the plan as early

as 2:00 p.m., and they carried out the plan the evening of April 19 at

approximately 10:40 p.m., after waiting for Taylor to arrive at his home. Then,

according to Defendant,

“Cookie Monster” said, go on. So I walked up in back of

Sergeant Taylor. He was out of the car. I said, hey. And Sergeant

Taylor looked at me, and I fired three or four times toward Sergeant

Taylor holding the gun gangster style (meaning the gun was turned

toward the side instead of the traditional firing of the gun; it was

turned toward the side). 

I turned and ran along the path to where “Cookie Monster”

was with Rory. And “Cookie Monster” had the AK, and Rory had the

.25 automatic. And I passed the .38 to Rory. As I was running
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toward Kansas [Street] and “Cookie Monster” started firing the AK

as I was running. I ran up on Kansas . . . and Rico came out and

asked if the job was done. And I said, yeah.

At approximately 2:00 a.m., after the shooting, Defendant and others started

smoking [marijuana] and celebrating.” No one was “promoted” within the gang,

but Defendant heard rumors that Charles Thompson intended to pay him for the

murder. 

Later in his statem ent, Defendant said he wanted to tell Sergeant Taylor’s

wife that he was sorry for what happened and that he “did not shoot her

husband.” In addition,

I didn’t have no choice but to do what they thought I did

‘cause they said—they—if I didn’t they would go to my family or they

would shoot me right there. I was in fear of my life and my family’s

life if I didn’t participate in this act. 

I.

Defendant’s first argument is that he lacked the specific intent for firstdegree murder and, therefore, could only have been convicted of second-degree

murder. He contends that the defense of duress applies to negate his intent to

kill because he feared for his life and the life of his family at the time he

committed the offense. We read Defendant’s argument as presenting two

separate but related assertions: First, the trial judge as a matter of law should

have excluded first-degree murder from the jury’s purview. Second, a jury could

not have concluded that Defendant was guilty of first-degree murder. 

We examine the second assertion first and conclude that the State

presented sufficient evidence to support his conviction by the jury. “[F]indings of
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guilt in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the finding by the trier of fact of guilt beyond a

reasonable doubt.” Tenn. R. App. P. 13(e). Conversely, therefore, a jury verdict

should stand so long as the evidence is sufficient to support the finding of guilt

beyond a reasonable doubt. Defendant’s conviction destroyed his presumption

of innocence and instated a presumption of guilt in its place. See McBee v.

State, 372 S.W .2d 173, 176 (Tenn. 1963); see also State v. Evans, 838 S.W.2d

185, 191 (Tenn. 1992) (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1976),

and State v. Brown, 551 S.W .2d 329, 331 (Tenn. 1977)); State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982); Holt v. State, 357 S.W.2d 57, 61 (Tenn. 1962).

 

Upon examination of the record, it is apparent that some discrepancies

exist between the testimony of the State’s witnesses and Defendant’s statement

concerning what day Charles Thompson made the telephone call “ordering”

Sergeant Taylor’s assassination. This Court must resolve any conflicts in

testimony in favor of the jury verdict. See Tuggle, 639 S.W.2d at 914. However,

with respect to the issues presented by the conflict, Defendant’s statement

actually tends to show greater premeditation and less coercive influence, in

support of the State’s case. 

In this case, the State provided ample evidence by which a jury could find

that Defendant acted with the requisite mens rea to commit first-degree murder.

By Defendant’s own statement, the gang decided to murder Sergeant Taylor on

April 18, 1996. Members discussed what weapons they would use and planned

a course of action. Defendant stated that he went home on the evening of April

18 and returned midday on April 19, when he and others discussed the murder
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again and prepared to ambush Sergeant Taylor when he arrived home from

work. Defendant stated that he then walked toward Taylor and immediately shot

at him three or four times. 

Furthermore, the jury was entitled to find Defendant guilty of first-degree

murder despite his argument that the murder was committed under the duress

of believing that the TVL gang would kill him or his family in retaliation for failing

to carry out “Nation Business.” As defined by the legislature and charged by the

trial court, 

Duress is a defense to prosecution where the person or a third

person is threatened with harm which is present, imminent,

impending and of such a nature to induce a well-grounded

apprehension of death or serious bodily injury if the act is not done.

The threatened harm must be continuous throughout the time the

act is being committed, and must be one from which the person

cannot withdraw in safety. Further, the desirability and urgency of

avoiding the harm m ust clearly outweigh, according to ordinary

standards of reasonableness, the harm sought to be prevented by

the law proscribing the conduct. 

Tenn. Code Ann. § 39-11-504(a). Here, the evidence as recounted above

demonstrates the lack of a present, imminent, impending, and continuous threat

of harm. At best, the jury was presented a generalized apprehension that

Defendant or Defendant’s family might have been hurt somehow, at some

unknown point in the future. Even if the jury found a satisfactory threat of harm,

it was certainly entitled to conclude that the desirability of avoiding gang

retaliation did not outweigh the harm of killing Sergeant Taylor. 

Having so concluded, we also find that the trial judge was under no duty

to withdraw the charge of first-degree murder in favor of lesser-included homicide

offenses. Prior to exercising the function of thirteenth juror, a trial judge may
2

 Because duress is not an affirmative defense, Defendant was not required to prove

the defense by a preponderance of the evidence. State v. Culp, 900 S.W.2d 707, 710 (Tenn.

Crim. App. 1994). He need only have “fairly raised” the issue in order to require the trial court

to submit the defense to the jury. Id.; see alsoState v. Scotty S. Davenport, C.C.A. No. 01C01-

9611-CR-00477, Davidson County (Tenn. Crim. App., Nashville, Feb. 18, 1998). Because the

trial court instructed the jury on duress, we need not decide whether Defendant actually met

his burden of production on the defense. 

-9-

weigh the evidence only (1) to determine whether the State has proffered

sufficient evidence, as a matter of law, for the jury to consider the charge; and (2)

to determine whether a defendant has proffered sufficient evidence, as a matter

of law, for the jury to consider the defense.2 See, e.g., State v. Underwood, 669

S.W.2d 700, 702-03 (Tenn. Crim. App. 1984) (“The defendant’s defense of alibi

presented a factual issue for the jury to determine.”); State v. Crawford, 635

S.W.2d 704, 705 (Tenn. Crim. App. 1982) (“The defense of alibi presents an

issue of fact determinable by the jury, as the exclusive judges of the credibility of

the witnesses in support of that defense, and of the weight to be given their

testimony.”) (citing Green v. State, 512 S.W .2d 641 (Tenn. Crim. App. 1974)). 

In this case, we have already concluded above that the State bore its

burden of persuasion; therefore, we must conclude that the State bore its burden

of production, and that the trial court was correct in allowing the charge of firstdegree murder to be decided by the jury. 

II.

We consider Defendant’s second and fourth issues together: that the court

should have granted his specific jury instruction and that the court improperly

instructed the jury on the unavailability of duress as a defense. Generally, a jury
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charge “should be considered prejudicially erroneous if it fails to fairly submit the

legal issues or if it misleads the jury as to the applicable law.” State v. Hodges,

944 S.W.2d 346, 352 (Tenn. 1997) (citing State v. Forbes, 918 S.W.2d 431, 447

(Tenn. Crim. App. 1995), and Graham v. State, 547 S.W.2d 531 (Tenn. 1977)).

In addition, “[i]t is the duty of a trial judge to give a complete charge of the

law applicable to the facts of a case.” State v. Harbison, 704 S.W.2d 314, 319

(Tenn. 1986) (citing State v. Thompson, 519 S.W .2d 789, 792 (Tenn. 1975)); see

State v. Burkley, 804 S.W.2d 458, 461 (Tenn. Crim. App. 1990). This Court also

stated in Burkley, “In delivering its charge, a court should guard against an

instruction which would withdraw from the jury’s consideration any issue or

evidence which they are entitled to consider.” 804 S.W.2d at 461. 

Defendant argues that the trial judge erred in instructing the jury that

duress is “unavailable to a person who intentionally, knowingly, or recklessly

becomes involved in a situation in which it was probable that the person would

be subjected to compulsion.” The offensive instruction, however, is the second

tenet of the statutory defense of duress. Tenn. Code Ann. § 39-11-504(b). In

order to justly discern when the defense is available and proper, a jury must

necessarily know when it is statutorily unavailable to a defendant; and without this

instruction, the trial court’s charge would not have been a complete and accurate

statement of the law. 

Defendant also appeals the trial court’s failure to grant his request for a

specific jury instruction on the defense of duress. Defendant’s proposed

instruction was submitted as follows:
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Ladies and gentlemen of the jury, I further instruct you that in

regards to the Law of Second Degree Murder, the defendant may be

convicted of the Law of Second Degree Murder if you find from all

the proof in the record that the defendant’s fear for his life so

clouded his judgment that he was incapable of reason and

therefore, was incapable of forming the necessary pre-meditated

intent necessary to constitute the Law of Murder in the First Degree.

The difference in Murder in the First Degree and Murder in the

Second Degree is that of pre-meditation. Before a defendant can be

convicted of Murder in the First Degree, he must have the mental

capacity, free from any kind of outside influences, in order to have

the capacity to form the necessary criminal intent pre-requisite to be

guilty of Murder in the First Degree. 

If you have reasonable doubt that the defendant’s mind was

so influenced by fear for his life then you must find the defendant

guilty of only Murder in the Second Degree. (Pirtle v. State, 28

Tenn. 663; (1989); State v. Keeds, 753 SW 2d, 140 (1985); State v.

Adkins, 653 SW2d 708 (1983).

Because Defendant failed to “fairly raise” the issue of his mental capacity,

because we find that his instruction is not a clear and accurate statement of the

law, and because the trial court indeed used an adequate instruction, we

conclude that the trial court properly rejected its inclusion in the charge. 

Although it is somewhat unclear, the trial judge in this case assessed that

Defendant was, in essence, arguing diminished capacity by likening his fear of

harm to intoxication; and we will therefore address the issue as such. Our

legislature has mandated, and the courts of this state have recognized, that

although intoxication is not a defense to prosecution, evidence of intoxication can

negate a finding of specific intent to commit a crime. Defendant in this case

seems to contend that, although he cannot fulfill the requirements of a statutory

defense of duress, evidence of his duress can nevertheless negate his specific

intent to commit murder. We cannot agree. 
-12-

First, no evidence in the record exists to support a finding that Defendant

was “so clouded [in] his judgment that he was incapable of reason”—in fact, the

evidence is wholly contrary. Second, no court of this state, to our knowledge, has

extended the doctrine of diminished capacity to simply a coercive situation, and

we decline to do so now. Our legislature has prescribed, in painstaking detail

derived from the common law, precisely when a criminal defendant can be

considered to lack the specific intent to commit an offense due to duress. See

Tenn. Code Ann. § 39-11-504. This instruction declares that a criminal defendant

cannot be convicted of first-degree murder even when the apprehension of a

threatened harm is not present, imminent, impending, or continuous. Therefore,

Defendant’s requested instruction is not a fair, complete, or accurate statement

of the law. Finally, we find the trial court’s instructions on duress and the mental

state required for first- and second-degree murder sufficient. When “the matter

ha[s] been fully and adequately covered in [the] general charge,” a trial judge

possesses the discretion to deny specifically requested instructions. Bostick v.

State, 360 S.W.2d 472, 477 (Tenn. 1962); see also Edwards v. State, 540

S.W.2d 641, 649 (Tenn. 1976) (“It is not error to refuse a special request where

the charge as given fully and fairly states the applicable law.”); State v. Blakely,

677 S.W.2d 12, 18 (Tenn. Crim. App. 1983). Defendant’s second claim of error

lacks merit.

III.

Defendant’s next assignment of error is that the court improperly charged

the jury that “absolute certainty” is not required to convict a criminal defendant

beyond a reasonable doubt. The instruction as given reads:
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Reasonable doubt is that doubt engendered by an

investigation of all the proof in the case and an inability, after such

investigation, to let the mind rest easily upon the certainty of guilt.

Reasonable doubt does not mean the doubt that may arise from

possibility. Absolute certainty of guilt is not demanded by the law to

convict of any criminal charge, but moral certainty is required as to

every proposition of proof requisite to constitute the offense. 

(Emphasis added). 

Defendant’s argument must fail. W e have in the past concluded that this

instruction is permissible and that there are no constitutional impediments to its

use. See State v. Willie Taylor, C.C.A. No. 02C01-9702-CR-00080, Shelby

County (Tenn. Crim. App., Jackson, Mar. 10, 1998); State v. James Earl

Somerville, C.C.A. No. 02C01-9608-CC-00289, Tipton County (Tenn. Crim. App.,

Jackson, Oct. 13, 1997); see also Pettyjohn v. State, 885 S.W.2d 364, 365-66

(Tenn. Crim. App. 1994) (concluding that requiring “moral certainty” was sufficient

for due process especially when the concept was differentiated from “absolute

certainty” before the jury). We see no reason to deviate from these decisions.

Absolute certainty is tantamount to one hundred percent certainty, which the

standard of “beyond a reasonable doubt” does not require. 

IV.

Defendant’s final issue for review is whether the trial court erred in advising

the jury during the sentencing phase of the trial: “A defendant who receives a

sentence of imprisonm ent for life shall not be eligible for parole consideration until

the defendant has served at least twenty-five (25) full calendar years of such

sentence.” At trial defendant contended that parole eligibility instructions “should

not be within the province of the jury” and are prejudicial to the defendant. We

reject the argument that a parole eligibility jury instruction is generally
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unconstitutional in a sentencing hearing. See generally State v. Cribbs, 967

S.W.2d 773 (Tenn. 1998). 

Unfortunately, the 25-year jury instruction was inaccurate in this case.

Although Tennessee Code Annotated § 39-13-204(e)(2) specifically requires that

the jury be instructed as to service of “at least twenty-five (25) full calendar years”

before being eligible for parole consideration, this statutory calculation is

erroneous. 

An examination of both Tennessee Code Annotated §§ 39-13-204 and 40-

35-501 is necessary. Tennessee Code Annotated § 40-35-501 was amended in

1993 to specifically provide that a defendant with a life sentence will not be

eligible for parole until service of “a minimum of twenty-five (25) full calendar

years of such sentence.” Tennessee Code Annotated § 40-35-501(g)(1)(Supp.

1993). Also, in 1993 Tennessee Code Annotated § 39-13-204 was amended to

require that the jury be instructed that a defendant receiving a life sentence will

not be eligible for parole consideration until the defendant has served “at least

twenty-five (25) full calendar years of such sentence.” Tennessee Code

Annotated §39-13-204(e)(2)(Supp.1993). It is obvious that the legislature

intended that the jury be instructed as to parole eligibility as calculated by

Tennessee Code Annotated § 40-35-501. 

Effective July 1, 1995, Tennessee Code Annotated § 40-35-501 was

amended to deny release eligibility for those convicted of first-degree murder and

certain other crimes. Tennessee Code Annotated § 40-35-501(i)(1),(2)(Supp.

1995). Only certain sentence reduction credits not to exceed fifteen percent
3The testimony at the sentencing hearing indicated the defendant was 22, whereas the

judgment indicates the age of 23. 

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(15%) are allowable. As noted by the State Attorney General, for crimes

committed after July 1, 1995, minimum release eligibility for a life sentence is

fifty-one (51) years and not twenty-five (25) years. See Attorney General Opinion

97-098 (7-1-97). Unfortunately, Tennessee Code Annotated § 39-13-204 was

not amended to reflect this change. 

It immediately becomes apparent that the legislature in 1995 overlooked

amending Tennessee Code Annotated § 39-13-204 to coincide with the 1995

amendment to Tennessee Code Annotated § 40-35-501. The statutes presently

are in conflict; however, it is clear that the legislature intended to change the

minimum release eligibility date for a life sentence from twenty-five (25) years to

fifty-one (51) years. 

The homicide at issue was committed after July 1, 1995. We, therefore,

conclude that the trial court erred in informing the jury of the twenty-five (25) year

provision instead of the fifty-one (51) year provision. We now examine this error

to ascertain whether it was prejudicial to the defendant. 

We are unable to conclude that the error was harmless in this case. The

jury found that the state had established the statutory aggravating circumstance

of murder for remuneration. Tenn. Code Annotated § 39-13-204(i)(4). However,

it was still within the jury’s discretion to sentence the defendant to either life

imprisonment or life without parole. Tenn. Code Annotated § 39-13-204(f)(2).

At the time of sentencing the defendant was 22 years of age.3 He would be at
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least 73 years of age before reaching eligibility for release for a straight life

sentence under the fifty-one (51) year provision. The inaccurate jury instruction

would allow for possible release at age 47 for a life sentence. 

The choice between life without the possibility of parole and life with the

possibility of parole is one to be made by the jury under our sentencing statute

for first-degree murder. Tenn. Code Annotated § 39-13-204. It is a serious

responsibility. This Court is reluctant to substitute our judgment for that of the

jury where the jury was provided inaccurate inform ation as to sentencing. In

many instances, depending upon the age of the defendant, it would appear a

defendant sentenced to straight life under the fifty-one (51) year provision will, as

a practical matter, have the same effective sentence as life without parole.

However, in this case we are unable to conclude the jury would still have chosen

life without parole if it had been properly instructed. Thus, we cannot apply the

harmless error doctrine in this case. 

CONCLUSION

The conviction is affirmed. The case is remanded to the trial court for

resentencing for the offense of first- degree murder. 

__________________________ 

DAVID H. WELLES, JUDGE
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CONCUR:

__________________________

PAUL G. SUMMERS, JUDGE

___________________________

JOE G. RILEY, JUDGE