FILED

July 6, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

STATE OF TENNESSEE ) FOR PUBLICATION

)

Appellee ) FILED: JULY 6, 1998

)

V. ) SHELBY COUNTY 

)

) HON. JOSEPH B. DAILEY,

HOWARD E. KING ) JUDGE

)

Appellant ) NO. 02-S-01-9703-CR-00021

For Appellant: For Appellee:

A. C. WHARTON, JR. JOHN KNOX WALKUP 

Public Defender Attorney General and Reporter

WALKER GWINN MICHAEL E. MOORE

Assistant Public Defender Solicitor General

Memphis, Tennessee

LINDA A. ROSS

Associate Solicitor General

Nashville, Tennessee

WILLIAM L. GIBBONS

District Attorney General

DAVID C. HENRY 

Assistant District Attorney

Memphis, Tennessee

OPINION

AFFIRMED BIRCH, J.
1On May 1, 1998, Tennessee’s General Assembly passed Public

Chapter No. 1041, an amendment to § 40-35-201 which deletes

subsection (b) in its entirety and substitutes the following:

In all contested criminal cases, except for

capital crimes which are governed by the

procedures contained in TCA §§ 39-13-204 and

39-13-205, and as necessary to comply with

Article VI, Section 14 of the Constitution of

the State of Tennessee and TCA § 40-35-301,

the judge shall not instruct the jury, nor

shall the attorneys be permitted to comment at

any time to the jury, on possible penalties

for the offense charged nor all lesser

included offenses. 

This amendment will apply to all trials occurring after the act’s

effective date. 

2One commits aggravated burglary who unlawfully enters a

habitation without consent of the owner with intent to commit

theft. Tenn. Code Ann. §§ 39-14-402 and 403 (1991). Aggravated

burglary is a Class C felony. Id. 

2

We granted permission to appeal under Tenn. R. App. P. 11

to Howard E. King, the appellant, in order to address the

constitutionality of Tenn. Code Ann. § 40-35-201(b)(2) (Supp.

1994),1 which requires trial courts to instruct juries regarding

parole and release eligibility when a jury instruction on the

sentencing range is requested by either party. Because we find

that the statute does not violate the separation of powers doctrine

or deprive the appellant of his due process right to a fair trial,

we conclude that the statute, as applied under the circumstances of

this case, is constitutional. 

I

The appellant was indicted on a single count of

aggravated burglary.2 The State filed a notice of intent to seek

enhanced punishment pursuant to Tenn. Code Ann. § 40-35-202 (1990),
3Tennessee Code Annotated § 40-35-201(b) provides:

 (b)(1) In all contested criminal cases,

except for capital crimes which are governed

by the procedures contained in §§ 39-13-204

and 39-13-205, upon the motion of either

party, filed with the court prior to the

selection of the jury, the court shall charge

the possible penalties for the offense charged

and all lesser included offenses.

 (2)(A)(i) When a charge as to possible

penalties has been requested pursuant to

subdivision (b)(1), the judge shall also

include in the instructions for the jury to

weigh and consider the meaning of a sentence

of imprisonment for the offense charged and

any lesser included offenses. Such

instruction shall include an approximate

calculation of the minimum number of years a

person sentenced to imprisonment for the

offense charged and lesser included offenses

must serve before reaching such person's

earliest release eligibility date. Such

calculation shall include such factors as the

release eligibility percentage established by

§ 40-35-501, maximum and minimum sentence

reduction credits authorized by § 41-21-236

and the governor's power to reduce prison

overcrowding pursuant to title 41, chapter 1,

part 5, if applicable.

 (ii) Such instructions to the jury shall

also include a statement that whether a

defendant is actually released from

incarceration on the date when such defendant

is first eligible for release is a

3

on the grounds that the appellant is a persistent offender. Under

Tenn. Code Ann. § 40-35-107(c)(1990), a persistent offender faces

a Range III sentence, which prescribes a more lengthy sentence than

does Range I, the shorter sentencing range for standard offenders.

Prior to trial, the appellant filed a motion requesting

the trial court to instruct the jury on the range of punishment for

aggravated burglary and all lesser included offenses, pursuant to

Tenn. Code Ann. § 40-35-201(b)(1).3 At the same time, however, he
discretionary decision made by the board of

paroles based upon many factors, and that such

board has the authority to require the

defendant to serve the entire sentence imposed

by the court.

 (B) On an annual basis, the department of

correction shall provide each judge exercising

criminal trial court jurisdiction with the

approximate calculation required in

subdivision (2)(a). Such calculation shall be

broken down to show the effect of each factor

used in making such calculation. If the

calculation provided by the department to the

judges changes because of a change in the law

or correctional policy, court intervention,

the governor's prison overcrowding policy or

any other such circumstance, the department

shall send a revised calculation to the judges

as such changes occur.

4

requested the trial court to refrain from instructing the jury on

parole eligibility, as required by Tenn. Code Ann. § 40-35-

201(b)(2) whenever an instruction is given under (b)(1). The trial

court granted the motion to instruct as to range of punishment, but

denied the motion to exclude an instruction on parole eligibility.

The case was thereafter tried, and at the conclusion of

all the proof, the jury was instructed as follows:

The jury will not attempt to

fix any punishment or sentence for

these offenses. However, for your

information only, you are informed

that the ranges of punishment as to

the offenses are as follows:

AGGRAVATED BURGLARY--

imprisonment for not less

than three (3) nor more

than fifteen (15) years.

You are further informed that

the minimum number of years a person
4In his application for permission to appeal, the appellant

also made a passing assertion that Tenn. Code Ann. § 40-35-

201(b)(2) violated his right to an impartial jury under Tenn.

Const. Art. I, § 9. However, the jury instruction given under

(b)(2) did not contain anything that would cause the jury to be

biased or prejudiced against the appellant. This assertion is

5

sentenced to imprisonment for these

offenses must serve before reaching

the earliest release eligibility

date (RED) is:

AGGRAVATED BURGLARY

3 YEARS

RED% 30%

RED% APPLIED 0.90 yrs

W/MAX CREDITS 0.59 yrs

SAFETY VALVE 0.54 yrs

SAFETY VALVE 0.35 yrs

& MAX CREDITS

Whether a defendant is actually

released from incarceration on the

date when first eligible for release

is a discretionary decision made by

the Board of Paroles and is based on

many factors. The Board of Paroles

has the authority to require a

defendant to serve the entire

sentence imposed by the Court.

The jury found the appellant guilty of aggravated burglary. After

a sentencing hearing, the trial court sentenced him as a Range III

persistent offender to thirteen years in the Department of

Correction. The Court of Criminal Appeals affirmed the judgment of

the trial court.

II

The appellant contends that Tenn. Code Ann. § 40-35-

201(b)(2) violates two constitutional principles: separation of

powers and due process.4 As questions of law, we review these
without merit. 

6

constitutional issues de novo with no presumption of correctness.

See State v. Winningham, 958 S.W.2d 740, 742-43 (Tenn. 1997); State

v. Lewis, 958 S.W.2d 736, 738 (Tenn. 1997). 

A

 We first address the separation of powers issue.

Article II, § 1 of the Tennessee Constitution provides:

The powers of the Government shall

be divided into three distinct

departments: the Legislative,

Executive, and Judicial.

Article II, § 2 provides:

No person or persons belonging to

one of these departments shall

exercise any of the powers properly

belonging to either of the others,

except in the cases herein directed

or permitted.

The separation of powers doctrine arises from the precept that

“[i]t is essential to the maintenance of republican government that

the action of the legislative, judicial, and executive departments

should be kept separate and distinct.” Richardson v. Young, 122

Tenn. 471, 492, 125 S.W. 664, 668 (1910). The Court of Appeals has

summarized the doctrine as follows: 

In general, the “legislative power”

is the authority to make, order, and

repeal law; the “executive power” is

the authority to administer and
7

enforce the law; and the “judicial

power” is the authority to interpret

and apply law. The Tennessee

constitutional provision prevents an

encroachment by any of the

departments upon the powers,

functions and prerogatives of the

others. The branches of government,

however, are guided by the doctrine

of checks and balances; the doctrine

of separation of powers is not

absolute. 

State v. Brackett, 869 S.W.2d 936, 939 (Tenn. Crim. App. 1993)

(citations omitted). Thus, while the three branches of government

are independent and co-equal, they are to a degree interdependent

as well, with the functions of one branch often overlapping that of

another. Underwood v. State, 529 S.W.2d 45, 47 (Tenn. 1975).

“[B]ecause the defining powers of each department are not always

readily identified, recognizing an encroachment by one department

upon another is sometimes difficult.” Summers v. Thompson, 764

S.W.2d 182, 189 (Tenn.)(Drowota, J., concurring) cert. dismissed,

488 U.S. 977, 109 S. Ct. 523, 102 L. Ed.2d. 556 (1988).

According to the appellant, the Tennessee Legislature

violated the separation of powers doctrine by enacting Tenn. Code

Ann. § 40-35-201(b)(2), which, he contends, improperly encroaches

upon the judicial function of determining the law appropriate for

jury consideration in each case. Essentially, by enacting Tenn.

Code Ann. § 40-35-201(b)(1) & (2) the legislature has deemed

sentence and parole information relevant to the determination of

guilt or innocence. Yet, a trial judge is obligated, as part of

the judicial function, to afford a fair trial by determining

relevancy on a question-by-question basis. Moreover, relevance is
8

controlled by the Tennessee Rules of Evidence. A legislative

predetermination of relevancy, then, suggests a collision between

the judicial and legislative functions. 

However, we have previously recognized that the first

subsection of the same statute, which provides for a range of

punishment instruction when requested by either party, is a proper

exercise of the legislative function. Tenn. Code Ann. § 40-35-

201(b)(1); State v. Cook, 816 S.W.2d 322, 326-27 (Tenn. 1991). The

addition of information on the shortest length of time a defendant

may serve is merely a refinement on that instruction. Admittedly,

the statute constitutes an overlapping of the legislative power

with that of the judiciary, and it may indeed be close to an

improper infringement. Yet, having already acknowledged the

authority of the legislature to provide a range of punishment

instruction, we must also acknowledge that an explanation of the

reality of early release and parole is no further an encroachment

into the judicial function. The jury must still decide the issue

of guilt or innocence, and the trial court must still decide the

ultimate sentence to be imposed. Therefore, we conclude that Tenn.

Code Ann. § 40-35-201(b)(2) does not violate the Separation of

Powers Clauses of the Tennessee Constitution. 

B

Next, we consider the appellant’s assertion that his

right to due process was violated. Article I, § 8 of the Tennessee

Constitution provides:
9

That no man shall be taken or

imprisoned, or disseized of his

freehold, liberties or privileges,

or outlawed, or exiled, or in any

manner destroyed or deprived of his

life, liberty or property, but by

the judgment of his peers or the law

of the land.

The Fourteenth Amendment, § 1, to the United States Constitution

provides:

[N]or shall any state deprive any

person of life, liberty, or

property, without due process of

law; nor deny to any person within

its jurisdiction the equal

protection of the laws. 

The appellant contends that Tenn. Code Ann. § 40-35-201(b)(2)

deprived him of the due process right to a fair trial in three

ways: (1) the statute is impermissibly vague, (2) the statute

requires a misleading jury instruction, and (3) the statute

requires a jury instruction on matters irrelevant to a defendant’s

guilt or innocence. 

Turning to the vagueness question, the appellant relies

on Farris v. State, 535 S.W.2d 608 (Tenn. 1976), to support his

contention that this provision is unconstitutionally vague and

impossible to apply. In Farris, two members of the Court found

that a statute requiring jury instruction on parole eligibility,

the powers and duties of the Board of Pardons and Paroles, the

effect of a prisoner's good behavior, and the allowance of good
5The majority of the Court struck down the provision in Farris

because the act was broader than its caption and thus

unconstitutional under Tenn. Const. Art. II, § 17. 

10

time credits was unconstitutionally vague.5 Id. at 612-13. That

statute provided:

It shall be the further duty of

the trial judge charging jurors in

cases of criminal prosecutions for

felony offenses to charge the said

jury as to the provisions of this

section and as to the provisions of

§§ 40-3612, 40-3613, 41-332 and

41-334, wherever applicable.

Tenn. Code Ann. § 40-2707 (1975). 

The difference between the above statute and Tenn. Code

Ann. § 40-35-201(b)(2) is readily apparent. An instruction given

pursuant to § 40-2707 provided no reasonable guidance as to the

ramifications of the parole system in any particular case, other

than to suggest that at some future date the defendant may receive

the benefits of parole. A jury was simply supplied with a mass of

general information, in the form of a statutorily-derived narrative

concerning the operation and possible effects of the parole system,

and was left to decipher that information and compute the length of

time a defendant would serve as best it could. In contrast, Tenn.

Code Ann. § 40-35-201(b)(2) does not leave a jury to speculate

about release eligibility dates, good time credits, and safety

valve release provisions. Rather, it requires the experts at the

Department of Correction to compute the figures so that the jury is

supplied with concrete, specific figures reflecting application of

the various factors relevant to release eligibility. Jurors are
11

not left on their own to decipher the intricacies of parole law.

We conclude that Tenn. Code Ann. § 40-35-201(b)(2) provides

explicit, objective, and unambiguous guidance sufficient to

overcome any allegation of vagueness.

The appellant’s second due process argument is that the

jury instruction given under Tenn. Code Ann. § 40-35-201(b)(2) was

impermissibly inaccurate and misleading, thus depriving him of a

fair trial. The instruction at issue informed the jury as to the

shortest possible sentence for aggravated burglary under Range I

(three years), and the longest possible sentence under Range III

(fifteen years). The jury was additionally instructed that the

minimum portion of the sentence that a defendant must serve before

becoming eligible for parole is thirty percent, which is the

applicable percentage under a Range I sentence. Tenn. Code Ann. §

40-35-112. Once the sentence reduction credits and the safety

valve provisions were applied to the shortest sentence under Range

I, the shortest possible period of incarceration was approximately

four months. 

The appellant contends that the above information was

misleading because the State had already filed a notice of intent

to seek enhanced punishment under Range III. Hence, the actual

minimum he was facing was ten years, not three, and the release

eligibility he was subject to was forty-five percent, not thirty

percent. Tenn. Code Ann. §§ 40-35-112(c) and -501(e) (1990).

Further, he argues that the safety valve provision should not have
12

been utilized in the jury instruction, because its application to

his sentence is uncertain. 

He compares his situation to State v. Cook, 816 S.W.2d

322, a case in which the defendant was convicted of multiple counts

of aggravated rape and aggravated sexual battery of a child under

the age of thirteen. Because of the age of the child, the offense

was statutorily deemed an “aggravated offense,” requiring

sentencing as a Range II offender. However, the State did not

timely file a notice of intent to seek enhanced punishment. The

trial court erroneously assumed that the State’s failure to file

such notice foreclosed the possibility of a Range II sentence and

instructed the jury only as to punishment under Range I. Id. at

323. This Court held that regardless whether the State had filed

the required notice of intent, the law required that the defendant

be sentenced as a Range II offender. Because the jury needed to

know the true range of punishment before deciding guilt or

innocence, the case was remanded for resentencing. Id. at 326-27.

We find Cook to be inapposite. The jury in Cook was not

instructed as to the proper range of punishment. The jury in this

case was properly instructed that the overall range of punishment

for aggravated burglary, from Range I to Range III, was three to

fifteen years. Furthermore, the instruction regarding “the minimum

number of years a person sentenced to imprisonment for these

offenses must serve before reaching the earliest release

eligibility date” was accurate, because the actual decision whether

to permit enhancement does not occur until after conviction at the
13

sentencing hearing. The minimum the appellant was facing at the

time the jury received this instruction was three years at thirty

percent, despite the fact that the State had filed a notice of

intent to seek enhanced punishment. This is in marked contrast to

the Cook case, where the defendant was statutorily ineligible for

any sentence less than Range II if convicted. 

We find the instant case more factually similar to State

v. Smith, 926 S.W.2d 267 (Tenn. Crim. App. 1995). The defendant in

Smith was charged with forgery, a Class E felony; thus, from Range

I to Range III the possible sentences were from one to six years.

Tenn. Code Ann. § 40-35-112. The State filed a notice of intent to

seek enhancement to Range II; if they were successful, Smith would

be facing two to four years. The trial court instructed the jury

that the defendant was facing one to four years. On appeal, the

Court of Criminal Appeals noted:

Whether the defendant qualified as

Range I or Range II depended upon

the proof offered at any subsequent

sentencing hearing. Thus, the jury

was aware of the possible range of

punishment that could have resulted

from their verdict. In our view,

the instructions were accurate. 

Id. at 271 (citation omitted). We likewise find the instructions

to be accurate in this case. While it might be more desirable to

have the jury informed as to the minimum sentences and their

respective release eligibility percentages in each range for which

the defendant qualifies, that is not what the statute requires. We

are reluctant to add another layer that would only complicate this

issue for the jury.
14

The appellant’s final argument is that parole

eligibility, sentence reduction credits, and related matters are

entirely irrelevant to the jury's ultimate function: the

determination of guilt or innocence. Therefore, he argues,

instructing juries on such matters violates his due process right

to a fair trial because the jury is allowed to base its decision on

facts other than those relating to guilt or innocence. However, we

disagree with the characterization of the sentencing and parole

information as entirely irrelevant. While it may not be relevant

in the strictest sense, it does have a measure of relevance. And

as we previously explained, the legislature has determined for us

the relevancy of sentencing and parole information. 

Moreover, providing the jury with such information does

not violate the appellant’s constitutional rights. In Shannon v.

United States, 512 U.S. 573, 114 S. Ct. 2419, 129 L. Ed.2d 459

(1994), the United States Supreme Court held that federal courts

are not required to instruct non-sentencing juries on the actual

consequence of a “not guilty by reason of insanity” verdict; the

Court did not hold that it would be unconstitutional to do so.

Rather, the decision was primarily based on the fact that the

federal statute governing the insanity defense did not authorize

such an instruction. Id. at 580-87, 114 S. Ct. at 2425-28, 129 L.

Ed.2d at 467-71. In this case, however, the statute not only

explicitly authorizes the jury instruction, but indeed requires it.

 
15

The United States Supreme Court considered the

constitutional ramifications of a similar jury instruction in

California v. Ramos, 463 U.S. 992, 103 S. Ct. 3446, 77 L. Ed.2d

1171 (1983). In that case, the Court upheld California's practice

of informing juries about the Governor’s power to commute a life

sentence without the possibility of parole to a life sentence with

the possibility of parole, even though it was the jury who imposed

the sentence. The defendant asserted that the instruction was

unconstitutional because it was irrelevant to the sentencing

decision and too speculative an element for the jury’s

consideration. The Court disagreed and found that the jury’s

consideration of possible commutation was not prohibited by the

United States Constitution. The Court concluded that “the wisdom

of the decision to permit juror consideration of possible

commutation is best left to the States.” Id. at 1014, 103 S. Ct at

3460, 77 L. Ed.2d at 1189.

The people of this State, through the members of the

General Assembly, have indicated a desire for truth in the

sentencing process. Tennessee Code Annotated § 40-35-201(b)(2) is

a reflection of that desire. As a matter of policy, the

legislature has decided that the sentencing information is relevant

because jurors are better off having concrete information on these

issues rather than being left to speculate on their own. The

rationale for permitting an instruction on the range of punishment,

even though the jury does not impose the sentence, is that in

reality, “jurors will consider punishment anyway and without

direction may speculate to the possible detriment of a defendant.
16

If nothing else, the instruction impresses upon the jurors the

consequences of a guilty verdict.” 11 David Raybin, Criminal

Practice and Procedure § 30.73 (1985). 

The jurors in this case were properly instructed that the

State must prove each element of the charged offense beyond a

reasonable doubt. Significantly, they were additionally instructed

that they were not to attempt to fix punishment for the offense and

that the sentencing information was “for your information only.”

When the trial court explains, as it did here, that the sentencing,

parole, and early release information is not to be considered in

the determination of guilt or innocence, then certainly no due

process violation has occurred. A jury is presumed to have

followed the law as instructed. State v. Harris, 839 S.W.2d 54, 72

(Tenn. 1992). We have no reason to suspect that the jury failed to

heed the instructions given by basing its verdict on irrelevant

considerations. While some may prefer a “pure” system where juries

are wholly unaffected by considerations other than those strictly

relevant to guilt or innocence, the reality is that jurors bring

their experience and knowledge into the courtroom with them. We do

not quarrel with those who feel it is better for them to be

accurately informed rather than left to speculate. 

Finally, because Tennessee’s trial courts no longer

operate under a system of jury sentencing, an instruction under

Tenn. Code Ann. § 40-35-201(b) does not permit a jury to impose a

sentence based on how much time they speculate that a defendant

will actually serve. As this Court stated in Farris, “[a] greater
17

defect in the law stems from the fact that jurors tend to attempt

to compensate for future clemency by imposing harsher sentences.”

535 S.W.2d at 614; see also State v. Johnson, 698 S.W.2d 631, 632

(Tenn. 1985), cert. denied, 476 U.S. 1130, 106 S. Ct. 1998, 90 L.

Ed.2d 679 (1986). Now that the judge imposes the sentence, the

risk of such compensation no longer exists. In sum, under the

circumstances presented we find that the jury instruction given

under Tenn. Code Ann. § 40-35-201(b)(2) did not deprive the

appellant of his due process right to a fair trial. 

III

We conclude that Tenn. Code Ann. § 40-35-201(b)(2) does

not violate the Separation of Powers Clauses of the Tennessee

Constitution. Neither is the statute impermissibly vague, nor does

it require a misleading jury instruction. Additionally, we are

satisfied that the jury based its verdict upon the law and

evidence, in accordance with the instructions of the trial court.

Thus, we find that neither the Due Process Clause of the United

States nor the Tennessee Constitution was violated by the jury

instruction given pursuant to the statute. The convictions and

sentence imposed by the trial court are affirmed.

______________________________

ADOLPHO A. BIRCH, JR., Justice

CONCUR:

Anderson, CJ.

Drowota, Holder, JJ.

Reid, S.J.