# FILED
February 4, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON NOVEMBER 1997 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9611-CR-00381 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. ARTHUR T. BENNETT, JASON M. WEISKOPF, ) JUDGE ) Appellant. ) (First Degree Murder)

FOR THE APPELLANT : LESLIE I. BALLIN MARK A . MESLER 200 Jefferson Avenue, Suite 1250 Memphis, TN 38103 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter ELI ZABE TH T. RYAN Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General THOMAS D. H ENDERSON Assistant

District Attorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103

OPINION FI LED:

REVERSED AND

REMANDED

JOE G. RILEY, JUDGE2 O P I N I O N Defendant, Jason M. W eiskopf , was convic ted by a Sh elby C o unty jury of premeditated first degree murder and sent enced to life imprisonment. He presents the foll owing issue s for our r eview:

(1) whether the evidence was sufficient to support the conviction for premeditated first degree murder; (2) whether the trial cour t erred in allow in g the admission of photographs of the vi ctim's body; and (3) whether the trial court erred in charging the jury on parole eligibility

. Finding plain error in the parole eli gibility jury charge, we REVERSE the judgment of the trial court and remand for a new trial.

FACTS

The s tate’s proof revealed that the defendant and the victim wer e bo t h employed at the Ridgeway McDonald’s in Memphis. On September 13, 1994, a day prior to the homicide, the defendant and the v ictim had a verbal alter cation in the cooking area. That night the defendant tol d a fello w employee, Corneliu s Buchanan, that he intended to shoot the vi ctim the next morning since he was tired of being called “bitches and whores” by the v ictim. The next morning at approximatel y 2:50 a.m., Mary Lee, the opening manager for McDonald’s, ar rived at the Ridgew

aylocation to prepare for the 5:00
a.m. opening. Both the defendant and the victim were scheduled to repor t at 4:00
a.m. Shortlybefore 4:00 a.m., Jafus Miller, a nother emp loyee, heard three (3) shots while he wa s sitting in his vehicle. He assumed, however, that they were firecrackers. Lee also heard a noise about that time, yet did not realize it was gunfire. When the employees did not report to work at 4:00 a.m., Lee tr ied to reach the defendant by phone and was told h e had already left for work. At approximately3

4:15 a.m., the defendant called her and ac tually arrived at

work at 4:22 a.m. Shor tlythereafter, Miller discovered the victim’s body in the McDonald ’ s parking lot. The victim had been shot once in the back and twice in the face. The autopsy report revea led that the victim died as a result of these gunshot wounds. On the date of the shooting the defendant told Buchanan, “I told you I was gonna kill Marquese.” Buchanan did not believe the defendant.The following day the defendant again told Buchanan that he had shot the vi ctim. He stated that he had walked up to the vic tim in the parking lot, shook his hand and apologiz ed for the prior altercation. When the victim turned his back, the defendant said,“You mother f

__ _ _ _ ” and shot the victi m in the back. Defendant related that the victim pled forhis life just prior to defendant’s shooting him twi ce in the fac e . The defendant stated, “the mother f _

_ _ _ _ s atwork will r espect me now.” Defendant further stated he felt no guilt as a r esult of the shooting. The defendant was interview ed by the ho mi cide division at approximately 1:00 p.m. on the date of the homicide. He denied shooting the victim. Up on g athering other information, th e authorities arrested defendant on September

16, 1994. At the time of his arres t he stated t hat he knew who “had snitched on him.” Uponbeing interrogated, the defendant stated that

he shot the victim because he was “messing with me. He was going to shoot me eventually.” He stated that he waited for the victi m to arrive at McDona ld’s prior to the sh ooting. He further conceded that the vic tim was not

a rmed with a weapon and made no mention that the victim did anything to him just prior to the shootin g. The defendant stated he was simply afraid that the victim would eventually shoot him. Defendant also took the authorities to a dumpster

where he had thrown the murder weapon. The weapon was recover ed. The defense proof consisted of another fellow employee, Morris Robinson, who testified that both the defendant and vi ctim had threatened each other on pr ior occasions. He further

testified that the defendant had told him prior to tri al that he thought the victim w

as going for a gun at the time of the shooting. The defendant elected not to testify, and there was no further defense p roof.1 Tenn. Code Ann. § 39-13-202(a)(1) has now been amended to delete the

“deliberate” requirement. Tenn. Code Ann. § 39-13-202(a)(1)(1997). 4 SUFFICIENCY OF THE EVIDENCE

A In determining the sufficie ncy of the eviden ce, this court do es not reweigh or re-evaluate

the evidence. State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn.1978). A jury verdict appr

oved by th e trial judge accredits the state ’s witnesses and resolves all conflicts in favor o

f the state. State v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983). On appeal, the state is entitled to the strongest legitimateview of the evidence and all leg itim ate or rea sonable inferen ces which m ay be drawn there fro m. State v. Harris , 839 S.W.2d 54, 75 (Tenn.1992). This Court wi ll not disturb a verdict of guilt due to the sufficiency of the evidence unl ess the defendant demonstrates that the facts contained in the record and the inferences w hich may be drawn therefrom are insufficient, as a matter of law, for a rational tri er of fact to find the accused guilty bey ond a reasonable doubt. State v. Matthews , 805 S.W.2d 776, 780 (Tenn. Crim. App. 199 0). Accordi ngly, it is the appel late court’s duty to affirm the conviction if the ev idence, viewed under

these standards, was sufficient forany rational trier of fact to have found the essential element s of the offen ses beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e). B At the time of the homicide the premeditated first degree mur der statute required that the stat

e prove that

the mu rder w as “intentional, premeditated and deliberate.” Tenn. Code Ann. § 39-13-202(a)(1)(1991). 1 The necessary elements of first degree murder may be shown by circumstantial evidence. State v. Brown , 836 S.W.2d 530, 541 (Te nn. 1992). Prem editation requires “a previously formed design or intent to kill” and “the exercise of reflecti on and judgment.” State v. West , 844 S.W.2d 144, 147 (Tenn. 1992); Tenn. Cod e Ann. § 39-13-201(b)(2)(1991). Deliberation necessitates a finding that the defendant acted wi th a “cool purpose”5

and not from “passion or provo cation.” Tenn. Code Ann. § 39-13-201(b)(1)(1991) and Sentencing Commission Comment s. Once a homicide has been proven, the homicide is presumed to be murder in the second degree with the state having the burden of establishing pr emeditation and deliberation. State v. B rown , 836 S.W.2d at 543. In considering the elements of premeditation and deliberation , the court may consider s everal factors, includi ng the use of a d eadly weapon upon an unarmed v ictim, whether the kil ling was particularlycruel, declarations by the defendant of his intent t o kill the v

ictim, p lanning activity by the defendant prior to the killing, evidence concern ing th e defendant’s motive and the nature of the kil ling. State v. Bro wn , 836 S.W.2d at 541-542; State v. Pulliam , 950 S.W.2d 360, 36 7 (Tenn. Crim. App. 1996). C The evidence is suf

ficien t to support an intentional, pr emeditated and deliberate killing of the victim. The defendant and victim had a verbal altercation on the day prior to th e homi cide. On that same date the defendant told a co-worker that he intended to shoot the victim the next m orning. The victim was shot i n the back while unarmed and twi ce more in the face after pleading for his life. That
same date the defendant confessed to the killi ng to a co-worker a nd indicated no
remorse. Furthermore, defendant’s confessi on est ablishes an intentional, premeditated and deliberate murder that was not committed in s elf-defense. This issue is without merit.

PHOTOGRAPHS

In his second issue, defendant contends the trial court erred by allowing the state to introduce photographs that depict the victim lying in a pool of blood. More specifi cally, he contends the prejudicial effect of the photographs far outweighs any probative value. The admissibility of photogr aphs lieswithin the

sound discretion of the trial court whose ruling will no t be overturned on appeal ex cept upon a clear showing of6

an abuse of discretion. State v. Banks , 564 S.W.2d 947, 949 (Tenn. 1978); see also State v. Stephenson , 878 S.W.2d 530, 542 (Tenn. 1994); State v. Bordis , 905 S.W.2d 214, 226 (Tenn. Crim. App. 1995). Nevertheless, the photog raphs must be relevant to an issu e at trial with their p robative value outw eighing any prejudi cial effect that they may have upon the trier of fact. State v. Braden , 867 S.W.2d 750, 758 (Tenn. Crim. App. 1993). We, therefore , must first ly determine whether the photographs were re levant. Relevant evidence is evidence “having any tendencyto make the existence of any fact that is of consequence to the deter mination of the action more probable or less probable than it would be w ithout the evidence.” Tenn. R . Evid. 401. We conclu de the photographs were i ndeed relevant. The photograph s reveal the presence of a Krystal cup, paper bag and car keys ne ar the vict im's body. It is appare nt from the photographs that the victim had been shot while holdi ng these items. There was no w eapon. Since self-defense was an issue at trial, the photographs were rele

vant. Furthermore, the photographs were not particularly inflammatory and were not “closeups.” We conclude the trial court did not a buse its discre tion in finding that the probative valu e of the photographs outweig hed any prejudicial effect. This issue is without merit.

PAROLE ELIGIB ILITY JURY CHA RGE

Defendant contends the trial court er red by charging

the jury as to

the range of punishment since hewithdrew his request for this charge. He further contends the jury charge setting forth the earliest re lease eligibility date was inaccurate. A Prior to trial both the defendant and the state filed a written request that the jury be charged as to range of punishment pursuant to Tenn. Code Ann. § 40-35- 201. Prior to the jury charge the defend ant objected to the charge; how ever, the state continued in its request that the charge be giv

en. Tenn. Code Ann. § 40-35-2 The defendant did not in the trial cour t nor does he i n this Court contend that the actual calculation of th

e earliest release e ligibility date was inaccurate based upon the statistical information furnished by the Department of Correction.This information is n ot a part of the record before us. 7 201(b)(1) provides that the rang e of punishment shall be charged “upon the motion of eit her party.”The trial court, therefore, d id not err by charg ing range of punishment even though the defendant had withdrawn his re quest.

B The trial cou r t charged the jury tha t the range of punishment for second degree murder was n ot less than 13.5 years nor more than 60 years with the earliest releas e eligibility dat e being 1.06 years. The r ange of punishment for voluntarymanslaughter was given at not less than 2.7 years nor more than 15 years with the earliest release el igibility date bei ng .21 years. Defendant cont ended at trial the earliest release eligibil itydate should have been twent y percent (20%) of 13.5 years or 2.7

years for second degree murder and twenty perc ent (20%) of

2.7 years or 0.5 years for vol untary manslaughter. It is obvious that the defendant based his argument

upon the twenty

percent (20%) release el igibility perce ntage for mitigated offenders as established by Tenn. Code Ann. § 40-35-501(b). However, Tenn. Code Ann. § 40-35-201(b)(2) (A)(i) provides that the jury charge on the “earliest release eligibility date”include not only the “r elease eligibility

percentage” established by

Tenn. Code Ann. § 40-35-501, but also certain sentence reduction creditsand the governor’s pow er to reduce prison over crowding. The Department of Correction is to peri odically provide each jud g e with these approximat e calculations. Tenn. Code Ann. § 40-35-201(b)( 2)(B). Defendant’s contention relating to the calcula

tion of the earliest release e ligibility date is without merit. 28 C
(1)
Although the defendant challe n ges the parole eligibility jury charge in this Court, he does not specifically base his contention upon constitutional grounds . In the trial court the de

f endant made a general objection to the parole eligibility jury charge on the basis of constitution al inf irmity; however, no specific constitutional basis was expressed. Acc ordingly, we ar

e constrained to concl ude that the constitutionality

of the parole eligibilit y jury ch arge has not been specifically presented as an issue for our r eview. Nevertheless, our “plain error rul e” provides that an err or affect ing the “substantial rights of the accused may be noticed at any time where necessary to do substan tial justi ce.” Ten n. R. Crim. P. 52(b). We fi nd the pa role eligib ility j ury charge, under the facts and circumstances of this case,contained such egregious and fundament

al erro r that it affected the fa irness a nd integrity of the judi cial proceedings; therefore, we find plain error. See State v. Stephenson , 878 S.W.2d 530, 553-554 (Tenn. 1994); State v. Adkisson , 899 S.W.2d 62 6, 639-640 (Tenn. Crim. App. 1994). (2)

Pursuantto Tenn. Code Ann. § 40-35-201(b)(1 ), the jury was instructed as to the range of punishment for the various offenses along with the earliest release eligibility dates. The jury was further instructed they c ould weigh and consider the meaning of a sentence of imprisonment. The function of a j ury in Tennessee is to determine guilt or innoce nce, notthe length of imprisonment. Tenn. Code Ann. § 40-35-201(a). As provided by statute, this j ury was im plicitly instruc ted that they could consider punishment in determining the guilt or innocence of the defendant. In short, they were told they could consider extraneo us information that had nothing whatever to do with guilt or innocence i n arriving at thei r verdict.9 Unquesti onably, this jury instruction is in violation of the Due Process Clause of the Fourteenth Amendment to the United States

Constitution and Articl e I, § 8 of the Constitution of Tennessee. One accused of a crime is entitl ed to have his or her guilt or innocence determined solel y on the basis of the eviden ce introduced at trial and not other circumstances not adduced as proofat trial. Taylor v. Kentucky , 436 U.S. 478, 485, 98 S.Ct. 1930, 56 L.Ed.2d 468 ( 1978); Estelle v . Williams , 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). Advisi ng a jury that it can consider punishmentallows considerati on of extraneous information, not adduced as proof, that in no way relates to their determination of guilt or innocence. Since the earliest release eli gibi lity date for some offenses seems ri diculously low, consideration of such information could be prejudi cial to a defendant.
(3)

Erroneous jury inst ruction s are subject to a harmless error analysis. Rose
v. Clark , 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986); State v. Bush , 942 S.W.2d 489, 505 (Tenn. 1997); State v. Belser , 945 S.W.2d 776, 782 ( Tenn. Crim. App. 1996). Under the facts and circ umstance s of this case, however, we are unable to conclude that the error was harmless. At trial it was abundantly clear that the defendant unlawfully took the l ife of the victim. The primary issue for the jury was whether this was a premeditated first degree murder, second degree m urder or voluntary manslaughter. In final argumentdefense counsel contended the evidence , at most, supported a lesser offense. The jury was then charged by the trial court that the earliest release eligibility date for first degree murder was twenty-five (25) years; the earliest release eligibility date for second degree murder w as 1.06 yea rs; and the earliest release eligibility date for vol untary ma n slaughter was .21 years. The jury was also instructed that they coul d weigh and consider this sentencing information. We have no way of knowing w hether the jury did in fact consider this sentencing information in thei r determina tion of guilt. Thus, we do not know10

whether the ridiculously l ow, earliest release eligibility dat

es of 1.06 years and .21 years for second degree murder and voluntary manslaughter, as compared to the earliest release eligibility dat e of twenty-five (25)

years for first degree murder, had any affect upon, or

was even discussed by, the jury. Nevertheless, we are unable to conclude that this informa tion had no impac t upon th e jury si nce the primary question for the jury i n this case was the deg ree of homicide

.
(4)

A member of th is panel, Judge Ha yes, has previously concluded that the parole eligibility j ury instruction is unconstitutional. See State v. Cooper , C.C.A. No. 01C01-9604-CC-00150, Linc oln County (Tenn. Crim. A pp. filed November 17, 19 97 , at Nashville) (Hay

es, J., Concurring) . The other two (2) members of this panel ha ve previouslyuphe l d the constitutionality of the parole eligibilit y jury instruction. See State v. David Palmer , C.C.A. No. 01C01-9607-CR-0 0285 , Davidson County ( Tenn. Crim. App. filed November 20, 1997, at Nashville); State v. William K. Howell , C.C.A. No. 01C01-9610-CR-0044 3, Dav idson County (Tenn. Cri m. App. filed November 6, 1997, at Nashv ille); State v. Dwjuan L. Bradford , C.C.A. No. 01C01- 9607-CR-00294, Davidson County (Tenn.Crim. App. filed September 30, 1997,at Nashville). However, the precise issue of telli ng the jur y they could consider irrelevant

information in determining g uilt or innocence was not raised in these latter three (3) cases.
(5)

In spite of the fact that the evidence is sufficien t to sustain a verdict o f pre meditated first degree murder, the parole eligibility jury instruct io n unconstitutionally informed the jury that they could consider extra neou s and irrelevant

information in determining g uilt or innocence. This er ror was indeed egregious

and fundamental. Since we are unabl e to determine under the facts and11

circumstances

of this case whether or not it had any impact upon the jury’s verdi ct, the only remedy is the granting of a new tri al.

CONCLUSION

For the abo ve re asons, the judgment of the trial court is reversed an d the case remanded for a new trial.

________________________________ JOE G. RILEY, JUDGE

CONCUR:

GARY R. WA

DE, JUDGE

DAVID G. HA

YES, JUDGE