# FILED August 21, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON JUNE SESSION, 1998
STATE OF TE NNE SSE E, ) C.C.A. NO. 02C01-9709- CR-00362 ) Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. CHRIS CRAFT CHARLES GOLDEN , ) JUDGE ) Appe llant. ) (First-Degree Mu rder)

ON APPEA L 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 Generaland Reporter Memphi s, TN PETER M. COUGHLAN Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243 WILLIAM L . GIB BONS Distri ct Attorney General PHILL IP GE RALD HAR RIS JERRY KITCHEN Assistants

Distri ct Attorneys General Criminal Just ice Complex, Sui te 301 201 Poplar Street Memphis, TN 38103
OPINION FILED ________________________ CONVICTI ON AFFIRMED ; REMANDED F OR RESENTENCING DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defendant, Charl es Golde n, pursu ant to Te nness ee Ru le of App ellate Procedu re 3(b), appeal s as of ri ght his conv iction of first-degree murder and sentence of life imprisonment wi thoutthe poss ibility of parole. D efenda nt asserts five clai ms of error: (1) t hat Defendant could have been guilty of only seco nd degree murder because he lacked the specifi c intent for fi rst-degree murder; (2) thatthe cour t should h ave gran te d Defendant’s r equested jury

instruct ion concerning his mental condit ion; (3)that thecourt improp erly instructed the jury concerning reasonabl e doubt; (4) that the co urt improperly instruc ted the jury
conc erning t he unavailab ility of a defense of dures s; and (5) that the co urt impro perly instructed the jury concerning when Defend ant would be el igiblefor release on parole if senten ced to life impri sonment . Although we af firm the convicti on, we remand for resentencing due to the inaccuracy o f the pa role eligibility jury instruc tion.

Defendant was indicted by th e Shelby C ounty Gran d Jury on October31, 1996, on a charge of f irst- degree murder in v iolati on of Tennessee Cod e Annotated § 39-13 -202. Ju dge C hris Craft o f the Cri minal Court for Shelby Coun ty appointed counselfor Defendant and presided ove r his tri al on March 17- 19, 1997. Fol lowing j ury verdi cts on guil t and sentenci ng, the court entered a judgment of convic

tion and sentence of life imprison ment w ithout the p ossibility of parole . Defe ndan t’s Motion for New Trial was over ruled on Apri l 18, 1997, and he time ly appea ls.-3- At trialthe State pr

esented proof t hat Defendant shot and kill ed Sergeant Deadrick Taylor, a de puty jai ler for the Shelby Count

y Sheriff’s Department, when Taylor returned to his home after wor k. S ergea nt Ta ylor arrive d hom e at his usual time ; but

befo re hewas ab le to ent er hi s hous e, De fendan t shot Tayl or besid e his car. The vi ctim’s wi fe heard her husba nd drive i nto the carpor t area and then heard “not hing but gunf ire.” As the gunfi re continued, she rushed outside but ini tially could not see anything b ut smoke. She then saw her husband crawling toward the house and she assisted him inside. Taylor di ed at the hospital approxima tely fort y minutes l ater of internal bl eeding cau sed by two gunshot wounds to the midsec tion—one which i njured ri b, liv er, colon, and s mall intesti ne; and another whic h injured rib, spi ne, and diaphragm. Both wounds
were of the type “generall y associated with a hi gh index of pain,” and each wound
was ca used b y a .38 ca liber bullet.

The State presented an inmate at t he ShelbyCoun ty jail, who testi fied that he and Defendant were member s of a gang called t he Traveling Vice Lords (TVL)

. The witness stated that t he gang was control led by Charl es Thompson, also incarcerated in the j ail, andthat members of the gang recei ve elevated rank and sta tus by follow ing Tho mpso n’s order s.

This witness a lso testified th at on the d ay of Sergea nt Taylor’s mu rder, Charles Thompson and another TVL memberengaged in a figh t wit h two other inmates prior to Sergean t Taylor’s shift. All prisoners we re “locke d dow n” in the ir cells at 1:00 p.m. that day, as is usual practice during a shi ft change; but when Sergeant Taylor began his shi ft, the in mates remai ned locke d down because of the earl ier fight . Once r eleas ed from lock- down, TVL leader Thompson argued1 Verico Jacksonis brother t o Mario Jackson, the inmate who joined Charles

Thompson in the prison fight against tw o other inmates. -4- with Sergeant Taylor

about the extended confinement and r epeatedly decl ared, “You don’t kno w who the f_ _ k I am.”
According to the wit ness, Thompson telephoned “ V erico” 1 followi ng the argument and asked why Sergeant Tayl or had not yet been kill ed, calli ng Taylor by nam e and s tating ang rily, What’s the mother-f

_ _king hold- up? Why can’t you do what t he 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 sa y it. . . . [Y]’all righ t over th ere with him a nd y’all can’t get the m other f_ _ker.

. . . I want to he ar abou t it on the ne ws tom orrow. The w itness also testified,

I didn’t understand what was going on for the fact he had just got in an argument with t he man, and then he hop on the phone. So when he was telli ng—when he was saying allthis, later on when we got locked dow n I was in my c ell I said to myself they m ust have already been plann ing to kill the man be cause the a rg u ment just happe ned . . . . Finally, this wi tness agreed on cr oss examinati on that if a member of th e TVL gang fa iled to do w hat Th omps on orde red, the p erson m ight be hu rt or killed.

The State presented another wit ness who testi fied about events on the
same day ou tside th e jail. The w it ness was present when Ver ico Jackson received a teleph one call, wh ich he answ ered in a bac k room alone . At this locati on—a house only a cou ple of stree ts from S ergean t Taylor’s re sidence —th e witness saw several weapons , incl uding a .25, .38, an SKS with a long cl ip, and
a .22 wi th a scop e. W hen the phone call conclu ded, Ve rico called Defen dant,-5-

Rory Haywood, and “Co oki e Mon ste r, ” an oth er TV L memb er, int o th e bac k ro om. The fourgang members and others present , incl uding the witness, lef t this house and Verico said, “L et’s go gang -bang ing.” D efend ant, Ve rico, R ory, an d “Co okie Monster” drove away in a car; and the witne ss saw the ca r s top on S ergeant Taylo r’s street. “Cookie Monster ” obtained t he SKS and the .38 fr om under the hood of the car and handed the .38 to Defendant. The t wo then wal ked away, leaving Rory

in the driver’s seat . Aboutfive minutes later, the w itness heard “a lotof gunshots”— specifica lly, “about thr ee regular gunsh ots . . . a lot of loud gunsh ots and then some m ore like quieter gun shots.” Later, the witness he ard Verico thank Defendant “ fortaking car

e of their business,”

and Defendant stated, “[T]hat whore -ass nigger sh ouldn’t have go t my nigger jum ped on.”

Fo llowinghis arrest, Defendant made a voluntar y statement in which h e validated the above facts, except that Charles Thompson had call ed on April 18 with the order to murder SergeantTaylo r. Defe ndan t stated that Ve rico told him kill ing Taylor was “Nat ion Business,” and when Defendant tried to “punk out and not do[] it,” Veric o told him that he must do it because i t was Nation Business. Defendant came back to the house the next day , they di scussed the plan as early
as 2:00 p.m ., a nd they carr ied out th e plan the eveni ng of April19 at appro ximate ly 10:40 p.m., after wai ting for Taylor to arrive at

his home. Then, accord ing to De fendan t,

“Coo kie Monster” said, go on. So I walk ed up in back of Sergeant Taylor. He was out of t he car. I said, hey. And Sergeant Taylor looked at me, and I f ired three or four times toward Sergeant Taylor holding the gun gangster style ( meaning the gun was turned toward the side i ns tead of the tradit ional fi ring of t he gun; it was turned toward th e side). I turned and ran alon g the path to wh ere “Cook ie Monster” was with Rory. And “Cookie Monster” had the AK, and Rory had the .25 aut omat ic. And I passed the .38 to Rory. As I was running-6- toward Kansas [Street] and “Coo kie M onster ” sta rted fir ing t he AK as I was runnin g. I ran up on K ansas . . . and Rico came out and asked if t he job was done. And I said, yeah. At approximatel y 2:00 a.m., after t he shoot ing, Defendant and others started smoking [marijuana]and celebrat ing.” No one was “ promoted” wit hin the gang, but Defendant heard r umors that Charl es Thompson intended to pay him for the murde r.

Laterin his statem ent, Defendant said hewanted to tel l Sergeant Taylo r’s wife th at he was sorry for what happened and that he “di d not shoothe r husband.” In addition,

I didn’ t have no choice but to d o wha t they tho ught I d id ‘cause they said—they —if I didn’t they

would go to m y family or they would shoot me right

there. I was in fear of my life and m y family ’s life if I didn’t participa te in this act.

I. Defe ndan t’s first

argu ment is that he lac ked the specific inte nt for firstdegree murd er and , therefo re, cou ld only have been convic ted of second-degre e murde r. He con tends tha t the defen se of dur ess ap plies to ne gate his in tent to kill because he fea red for his life an d the life of his fa mily at th e tim e h e committed the off

ense. We read Defendant’ s argument as present ing two separa te but related assertion s: First, the trial jud ge as a matter o f law shoul d have excluded fir

st-degr ee murder f rom the j ury’s purvi ew. Seco nd, a ju ry could not have conclud ed that D efenda nt was g uilty of first-degre e murd er.

We examin e the sec ond as sertion fi rst and co nclude that the S tate presented sufficient evidence to s upport his con viction by the jury. “[F]i ndings of-7-

guilt i n criminal actions whet her by the t rial cour t orjury shal l be set aside i f the evidence is insufficient to support the findi ng by the trier of fact of guilt beyond a
reaso nable doubt. ” Tenn. R. App. P. 13(e). Conve rsely, therefore, a j ury verdict shoul d stand so long as the evidence is suff icient to support t he findi ng o f guil t beyond a reasonable doubt . Defendant’ s convict ion destroyed his presumpti on of innocence and inst ated a presu mption of guilt in its plac e. See McBee v. State , 372 S.W .2d 173 , 176 (T enn. 19 63); see also State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992) ( citing State v. Grace , 493 S.W.2d 474, 476 (Tenn. 197 6), and State v . Brown , 551 S.W .2d 329 , 331 (T enn. 19 77)); State v. Tug gle , 639 S.W.2d 913, 91 4 (Ten n. 1982 ); Holt v. State , 357 S.W.2d 57, 61 (Tenn. 196 2).
Upon examination of

the record, it is

apparent that

some discrepancie s existbetween the testimony of t he State’s witnesses and D efend ant’s statement concerning what day Charles T h ompson made the telephone cal l “order ing” Sergeant Taylor’s assassinati on. This Court must re solve a ny con flicts in testimony

in favor of the jury verdict. See Tug gle , 639 S.W.2d at 914. How ever, with respect to

the issues pr

esented by the conflic t, Defendant ’s statement actua lly tends to show gr eater premedi tation a nd les s coe rcive influ ence , in suppo rt of the Sta te’s case
.

In this case, the State pr ovided ample evi dence by which a jury could fi nd thatDefendant acted with the requi site mens rea to c omm it first-degree mu rder. By Defe ndan t’s own statement, the gang decided to murder Sergeant Taylor on April 18, 1996. Me mbers discus sed w hat we apon s they w ould use and planned
a course of act ion. Defendant stated th at he went home on the evenin g of Ap ril 18 and returned mid day on April 19, when he and others di scussed the murder-8-

again and pre pared to ambush Se rgeant T aylor when he ar rived home fr om work. Defendant stated that he the n walked toward Tay lor and immediately shot at him thre e or four tim es.
Furthermore, the jury was entit led to fi nd Defen dant guil ty of f irst- degree murder despite hi s argument that the mur der was committed under the duress of believi ng that the TVL gang would killhim orhis famil y in retaliati on for faili ng to carry out

“Nation Business.” As defined by t he legisl ature and charged by the trial court, Duress is a defense to prosecut ion where the p erson or a third person is threatened w ith harm which is pre se nt, imm inent, im pending and of such a natur e to induce a wel l-groun de d apprehension of dea th or se rious b odily injury i f the actis not done. The thr eat enedhar m m ust be c ontinuous t hroughout the t ime the act is being commit

ted, and must be one f rom which the pers on cannot withdraw in safety. Fu rther, t he desirabi lity and urgency of avoiding the harm m ust clearly outweigh , according to ord inary standards of

reasonableness, the harm sought to be pr evented by the law pr oscribing the cond uct. Tenn. Code A nn. § 39-11-5 04(a). Here, the evidence as re counted above demonstratesthe lack of a present, i mminent, impending, and continuous t hreat of harm. At be st , the jur y was presented a g eneralized apprehension t hat Defendant or Defendant’s family might have been hurt so m ehow , at some unknown point i n the futur e. Even if

the jury fou nd a sat isf actory thr eat of h arm, it was ce rtainly entitled to conclud e that th e de sirabil ity of avoiding gang retaliation d id not outw eigh the h arm of k illing Serge ant Ta ylor.

Havin g so conc luded, w e also find that the trial jud ge was under n o duty to withdraw

the charge of

first-degree murder i n favor of lesser-i ncluded homicide offenses. Prior to exercisi ng the funct ion of thi rteenth j uror, a t rial j udge may2 Because duress is no t an affirm ative defense, Defendant was not required to pr ove

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 “fairl

y raised” the issue i n order to re quire the trial court to submit thedefense to the jury. Id. ; see also State v. Scotty S. Davenport , C.C.A. No. 01C01- 9611-CR-00477, Davidson County (Tenn. Crim. App., Nashvil le, Feb. 18, 1998). Because the trial court instructed the jury on duress, w

e need not decide whe ther Defenda nt actually met his burden of production on the defens

e. -9- weigh the evidence only (1) to determine whet her the State has proffer ed suffic ientevidence, as a matter of law, f or the jur

y to consi der the charge; and (2) to determine whether a defendanthas proffer ed suffi cient evi dence, as a matter of law, for the jury to consider t he defense. 2 See, e.g. , State v. Underwood , 669 S.W.2d 700, 702-03 (Tenn. Crim. App. 1984) (“The defenda nt’s defense of ali bi presented a factual issu e for the jury to determ ine.”); State v. Crawfo rd , 635 S.W.2d 704, 7 05 (T enn. C rim. A pp. 19 82) (“T he de fense of alibi present s an issue of fact d eterm inable by the jur y, as the exclusive judges of t he credibil ity of the witnesses i n support of th at defe nse, a nd of th e weig ht to be given th eir testimony.”) (citi ng Green v. State , 512 S.W .2d 641 (Tenn . Crim. App. 1974) ).

In this case, we ha ve already conc luded a bove tha t the State bore its burden of persuasion; therefore, we must conclude tha t the State bore its burden of production, and that th e trialcourt was correct in a llowing the charge of firstdegree murde r to be de cided by the jury.

II. We consider Defendant’s second and fourth i ssues together : that the court shou ld have granted hi s specifi c jury i nstructi on a nd that th e cou rt impro perly instructed the jury

on the unavail abilit

y ofduress as a defense. G enerally, a jury-10-

charge “should be consi dered prejudi ciall y erroneousif it fails to fairl y submit the legal issues or if it misleads t he jury as to the applicab le 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 (Ten n. 1977)).

In additio n, “[i]t is the duty of a tri al judge to give a complete charge of t he law applicable to the fac ts of a case.” State v. Harbi so n , 704 S.W.2d 314, 319 (Tenn. 1986) (citi ng State v. Thompson , 519 S.W .2d 789 , 792 (T enn. 19 75)); see State v. Burkl ey , 804 S.W .2d 458, 461 (Tenn. Crim . App. 1990 ). This Court also stated in Burkley , “In del iveri ng its char ge , a court shoul d guard against an instruct ion which wou ld withdra w from t he jury’ s considerat ion any is sue or evidenc e which they are e ntitled to con sider.” 804 S.W .2d at 461
.
Defendant argues that the trialjudge erred i n instruc ting the j ury that duress is “una vailable to a pe rson w ho inte ntiona lly, know ingly, or reckle ssly becomes involved in a si tuation in which i t was probable that the perso n wo uld be subjecte d to com pulsion.” The o ffensive instruc tion, ho weve r, is the second tenetof the statutor

y defe nse of du ress. Te nn. Co de Ann . § 39-11 -504(b). In orderto justly d iscern when the de fense is availabl e a nd proper, a jury must
nece ssarily know when it is statuto rily unav ailable to a de fenda nt; and withou t this instruct ion, the trialcourt’s charge would not have been a comp lete and a ccurate statem ent of the la w.

Defendant also appea ls the trial court’s failure to grant his requ est for a spec ific jury instruction on the defense of duress
. Defendant’s pr oposed instructi on was submitted as follows:-11- Ladies and gentlemen of t he jury, I furt her instruct you that in regards to the Lawof Second Degree M urder, the defendant may be convictedof the La w of Secon d Deg ree M urder if you find from a ll the proof in the record t hat the defendant’s fear for his li fe so clouded his judgment t hat he was inc apable of reas on and therefor e, was in capa ble of fo rmin g the necessary pre- meditated intent necessary to constit ute the Lawof Murder i n the First Degree. The differ

ence in Mur der i n the First Degree and Murder in t he Second Degree is that of pre-meditation. Before a defendant can be convictedof Murde r in the First D egree, he must have the mental capacity, free from an y kind of ou tside influen ces, in ord er to have the capacity to form the necess ary criminal intent pr e-requisi te to be guilty of Murde r in the First D egree. If you ha ve rea sona ble doubt that the defendant’ s mind was so influen ced by f ear for hi s life then you must f ind the defendant guilty of only Mu rder in the S econd Degre e. ( Pirtle v. State , 28 Tenn. 663; (19 89); State v. Keeds , 753 SW 2d, 140 (1985); State v. Adkins , 653 SW 2d 708 (19 83). Because Defenda nt failed to “fairly raise” the issue of his m ental capacity, because we find that his instruct ion is not a clear and accur

ate statement

of the law, and beca use the tr ial co urt i ndeed used an a dequate i nstruct ion, we conclud e that the tria l court prop erly rejected its inclusion in the cha rge.
Although it is somewhat unclea r, the t rial j udge in thi s case assessed that Defendant was, in ess ence , ar gui ng di mi nished cap acity by likeni ng his fear

of harm to intox icatio n; and we wil l theref ore address the issue as suc h. Ou r legis lat ure has mandated, and the courts of t his state have recogniz ed, that although intoxica tion is not a defense to prosecuti on, evidence of intoxi cation can negate a findi ng of specific intent to commit a cri me. Defendant in this case
seem s to contend that , although he cannot fulfill the requirements of a s tatutory defense of duress, evidenc e of his du ress can neverthe less neg ate his spe cific intent to co mm it murde r. We canno t agree.-12- First, no evid ence in the record exists t o support a f inding t hat Defendant
was “so clouded [ in] his judgment thathe was incapable of reason”—in fact , the evidence is wholl y contrar y. Second, no cour

t ofthis state, t

o our knowledge, has extended the doctrine of diminish ed capac ity to simply a coercive s ituati on, and
we decline to do so now. Our leg islatu re h as pre scribe d, in pa instak ing de tail derived from the common law, pr ec isely when a criminaldefendant can be considered to lack the specific inte nt to com mit an off ense due to du ress. See Tenn. Code Ann. § 39-11-504. This inst ruction de cl ares that a c riminal defendant cannot be con victed of first-de gree m urder eve n when the app rehens ion of a threatened harm is notpresent, i mminent, impending, or continu ous. Therefore, Defe ndan t’s requested instruction is not a fair, co mplete , or accura te statement of the law. Finally, w e find th e trial co urt’s instruct ions on duress and t he mental state required f

or fir st- and second- degree murdersufficient. When “the matter ha[s] been full y and adequately covered in [

the] gene ral charge,” a t rial j udge posse sses the discretion to deny specif icall y requested instruction s. Bostick v. State , 360 S.W.2d 472, 477 ( Tenn. 1962 ); see also Edwa rds v. State , 540 S.W.2d 641, 64 9 (Ten n. 1976 ) (“It is not error to refuse a spe cial request whe re the charge as given fully and fairly states t he applicab le law.”); State v. Blake ly , 677 S.W .2d 12 , 18 (T enn. C rim. A pp. 19 83). D efend ant’s second claim of er ror lacks m erit.

III. Defe ndan t’s next assi gnment of error is that the court i mproperly char ged the jury that “abs olute certa inty ” i s not requi red to convi ct a cri minal defendant beyond a reasonable doubt. The instructi on as given reads:-13- Rea sona ble doubt is t hat doubt engendered by an investi gation of all the proof in t he case and an inabil ity, after such investi gation, to let the m ind rest ea sily upon th e certainty o f guilt. R easo nable doubt doe s not mea n the doub t that may ari se fro m possibility. Absolute certainty of guilt is not demanded by the lawto convictof any criminalcharge , but m oral ce rtainty is required as to every proposition of pr oof requisite to const itute t he offense. (Emp hasis ad ded).

Defe ndan t’s argument must fail. W e have in the pa st con clude d that th is instruct ion is permissible an d that there are no con stitutional im pedim ents to its
use. See State v. Willie Taylor , C.C.A. No. 02C01- 9702-CR-00080, Shelby Coun ty (Tenn. Crim. App ., Jac kson, M ar. 10, 19 98); State v. Jame s Earl Some rville , C.C.A . No. 02C 01-960 8-CC -00289 , T ipton Coun ty (Tenn. Cri m. App. , Jackson, Oct. 13, 1 997); see also Pettyjohn v. State , 885 S.W.2d 364, 365-66 (Tenn. Crim . App. 1 994) (c onclu ding that requiri ng “moral certainty” was suffi cient fordue process especi ally when t he co ncept w as differen tiated from “absolute certainty” beforethejur y). We see no reaso n todev iate fr om t hese decis ions. A bsolute certai nty i s tanta mount to onehundred per cent cer taint y, wh ich th e standa rd of “beyo nd a rea sonab le doub t” does n ot require
.

IV. Defe ndan t’s final issue for review is wh ether the trial court erred in adv ising the jury dur ing the sentencing phase of t he trial : “A defendant wh o receives a sentence of imp risonm ent for life shall no t be elig ible for p arole c onsid eration until the defendanthas served at least twenty-five (25) full calendar years of such senten ce.” At tri al defendant contended thatparole eligibility in structio ns “sh ould not be within the provi nce of the jury ” and are preju dicial to the d efenda nt. W e r eje ct the arg ume nt that a parole eligibility ju ry instru ction is g enera lly-14-

unconstit utional in a sente ncing he aring. Se e gene rally State v. Cribbs , 967 S.W .2d 773 (Tenn . 1998).

Unfortunate ly, the 25-year jury i nstructi on was inaccurate in thi s ca se. Although T ennessee Code Annotated § 39-13-204(e)(2) specificall y requires tha t the jury be instructed as to service of “at least twenty-five (25) f ull calendar years” before being eligible for paro le con sidera tion, this statuto ry calcu la t ion is
erroneo us.

An examin ation of bo th Tennessee Code Annotated §§ 39-13-204 and 40- 35-501 is nece ssary. T enne ssee Code Anno tated § 40-35 -501 w as am ende d in 1993 to specifi cally pr ovide that

a defendant wi th a li fe sentence wi ll not be elig ible for paro le until se rvice of “ a min imum of twen ty-five (25 ) full c alenda r years of such sente nce.” Tennessee Code Annotated § 40-35-501(g) (1)(Supp. 1993). Also, in 19 93 Te nness ee Co de Ann otated § 39-13-2 04 was amen ded to require t hat the ju ry be inst ructed that a defendant receiving a life sen tence will not be elig ib l e for parole considerat ion until t he defendant has served “at least twenty-five (25) ful l calen dar y ears of such sentence.” Tennessee Code Annot ated §3 9-13-204(e )(2)(Supp.19 93). It is obvious that the legislatu re intended that the jury be in structe d as to parole eligibil ity as cal culated by Tenn essee Code Annota ted § 40 -35-501
.
Effective July

1, 1995 , Tennes see Code An notated § 40-35-501 was amended to deny release eligi bilit y for t hose convicted of fir st-degree murder

and certain other cri mes. Tennessee Code Annotated § 40- 35-501( i)(1), (2)(Supp. 1995). Only ce rtain sentence reducti on credits not to exceed fifteen percent3 The testimony at the sentenci ng hearing indicated the defendant was22, whereas the

judgment indicates the age of 23. -15- (15 %) are allowa ble. As no ted by the Sta te Attorn ey General, f or crimes committed after Ju ly 1, 199 5, min imum releas e eli gi bility for a life sente nce is fift y-one (51) years and no t twenty-five (2 5) years. See Attorney General Opinion 97-098 (7-1-97). U nfortu nate ly, Tennessee Code Annotated § 39-13-204 was not am ended to reflect this c hange
.

It imm ediate ly beco mes appa rent tha t the leg islature in 1995 overlooked amending Tenn essee Code Annota te d § 39-13-204 to coi ncide wit h the 1995 amendment to Tennessee Code Annotated § 40-35 -501. T he sta tutes p resen tly
are in confl ict; howev er, it is clear that the l egislat ure inten ded to change the minimum release eligi bilit y date for

a life sentence fr

om twenty-five (2 5) years to fifty-one (51 ) years.

The homicide at i ssue was com mitt ed after July 1, 1995. We, ther efore, conclude that the t rial court err ed in informing the jury of the twenty-five(25) year provisi on instead of

the fif ty-one (51)yearprovisi on. We now examine this error to ascerta in wheth er it was pre judicial to the defend ant.

We are unable to concl ude that the error washarmless in t his case. The jury found that the state had esta blished the statuto ry aggravating circumstance of murder for r

emuneration. Tenn. Code Annotated § 39-13-20 4(i)(4). However, it was still within the jury’ s discret ion to sen tence the defend ant to eithe r life imprisonmentor lif

e without par

ol e. Tenn. C ode Ann otated § 39-1 3-204(f)(2). At the time of

sentencing t he defendant was 22 year s of age. 3 He would be at-16-

least 73 years of age be fo re reach ing eligibility for rele ase for a straight life sentence under the fifty-one (51) year prov ision. The inaccurate j ury inst ruction would a llow for pos sible relea se at age 47 for a life se ntence
.

The choice between l ife wit hout the possi bi lit y of parol e and life with the p ossib il ity of parole is one to be made by the jury u nder ou r senten cing statu te forfirst-degree murder. Tenn. Code Anno tated § 39-13-204. I t is a ser ious responsibility. This Court i s reluctant to s ubstitute our judgment for that of the jury where the jury wa s pro vided inacc urate inform ation as to senten cing. In many instances, depending upon the age of the defendant , it woul d a pp ear a defendantsentenced to strai ght lif e under the fifty-one (51) year provisi on will, as a practical m atter, have the sam e effective s entenc e as life with out parole. Howeve r, in thi s case we are unable t o conclude the j ury would st ill have chosen life witho ut paro le if it had been prope rly instructed. Thus, we cannot apply the harmle ss error d octrine in th is case.

CONCLUSI ON

The convicti on is aff irmed. The case i s remanded to the trialcourt for resente ncing for th e offense of first- degre e murd er.

__________________________ DAVID H. WELLES , JUD GE-17-

CONCUR:

__________________________ PAUL G. SUMMERS, JUDGE

___________________________ JOE G. RILE Y, J UDGE