1 W hile I am in agr eem ent w ith the resu lt, I am unab le to en tirely ag ree w ith the ma jority’s characteri zation of the thr ee year peri od of hosti lit y between t he victi m and the defendant whi ch eventua lly culminate d in the victim ’s death. C ontrary to the majo rity’s portrayal, I find tha t both parties wer

e the aggressors onvarious occasi ons; both repe atedly armed themselves for mutual comba t; and both were the subjects of various court orders. Evidenc ed by their verdict, the jury resolved t he confli cts in fav or of the pr

osecution. Thus, on appeal, the eviden ce is revi ewed in the light most favorable t

o the State.I find,under thi s standard, that the Stat e presented more than suffici ent evidence from which a “rat ional t rier of fact” coul d have found the ap pellant guilt y of secon d degre e mu rder beyo nd a rea sonab le doubt. 

# FILED

November 17, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE MAY SESSION,

1997

STATE OF TENN ESSEE, ) ) No. 01C01-9604-CC-00150 Appellee ) ) LINCOLN COUNTY vs. ) ) Hon. CHARLES LEE, Judge JERRY RAY COOPER, ) ) (Murder-Second Deg ree) Appellant )

SEPARATE CONCURRING
I write separately

to note my concurrence in the results, but for reasons other than those articulated by the principal opinion. 1 Notwithstanding the fact that the appellant invite d error by requesting th at the so called “truth in senten cing” instruction be give n, I nevertheless find rev ersible error based upon the inherent unconstitutionality of the s tatute as codified in Tenn. Code Ann. § 40-35- 201(2)(A)(i). Moreover, finding that the constitutional error complained of did contribute to the resulting verdict, revers

al is required. Chapman v. California , 386 U.S. 18, 87 S.Ct. 824 (1967). My reasons

for finding the statute unc onstitution al are two-fold. Fir st, from a practical perspective, placing parole information before the jury during the guilt phase of a trial is akin to “the tail wagging the dog.” It is almost certain that this information will input, either directly or indirectly, into the jury verdict. I t is far-fetched to believe that a juror, after being informed that the accused may gain parole eligibility for a fifteen year sentence in 1.77 y ears, will not factor this information into the deliberations and resulting verdict. This s imply expects too much of the “reasonable” juror.2 Second, from a legal perspecti ve, I find that interjecti on of range of punishment, coupled with the statutorily requi red minimum parole eligibi lity date, sentence redu ction credits an d the governor's po wer to reduce prison overcrowding, at the guilt phase of trial,may, as illustrated by the case sub judice , be so unduly prejudicial to the determin ation of guilt that it render s the trial fundamentally unfair

. See T ENN
. C ONST
. art I, § 8; State ex. rel. Anglin v. Mitchell , 596 S.W.2d 779 (Tenn. 1980). The principal opinion, in findi ng the statute constitutional , relies solely upon an unpublished opinion of this cour t, State v. King , No. 02C01-9601-CR-00032 (Tenn. Crim. App. at Jackson, Oct. 22, 1996), perm. to appeal granted , (Tenn. Mar. 10, 1997). In King , a panel of this court concluded that our supreme court’s hol ding in State v. Farris , 535 S.W.2d 608 (Tenn. 1976), which held parol e eligibility instructions violative of due process, is in applicable to an analysi s of Tenn. Code Ann. § 40-35-201, because Farris was decided at a time when sentencing was a jury function. I must respectfully disagree w ith this interpretation. Moreover, with regard to the challenged statute as amended in 1994, I find it prudent to acknowledge that our su preme court has not specificall y addressed its constitutionality. Cf

. State v. Cook , 816 S.W.2d 322 (Te nn. 1991). Justice Henry, speaki ng for the court in Farris , wrote concerning the dangers of permitting the introducti on of parole eligibility information: Jurors should not be permitt ed to speculate on the length of sentences, discretionary parole, the accumulation of good and honor time and a whole conglomer ation of contingent events w hich, if they come to pass at all, will come to pass in the future. Very heavily involved is the constitutional right of a defendant to a fair trial. . . . It tends to make a jury speculate on the length of time a convicted defendant will be requir ed to serve and further tends t o breed irresponsibility

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

the length of his sentence.2 Each of these si x states has a bifurcated t rial p rocedure whereby after a det

ermination of guilt, a sepa rate sen tencing h earing is h eld befor e a jury with the jury determ ining the ap propriate punishment. Moreover , we note t hat, effective 1995,Virginia has abolish ed parole. 3 Farris , 535 S.W.2d at 614. Contrary to the holding in King , subsequent statutory amendment fails to dissipate the cons titional concerns expr

essed in Farris

. The function of a jury in a cri minal proceeding is li mited to a determination of the defendant’s guilt or innoc ence based solely on the basis of evidence introduced at trial and not on extraneous conditions n ot adduced as proof at trial. See Taylor v. Kentucky , 436 U.S. 478, 485, 98 S.Ct. 19 30, 1934 (197 8) (citing Estelle v . Williams , 425 U.S. 501, 96 S.Ct. 1691 (1976) ). Parole is nothing mor e than post-conviction clemency; a condition subsequent to the accused’s conviction, off ered as a reward for the good behavior of the convict. For a jury to “consider and weigh” parole eligibility goes outside the facts of the case and is not germane to a determination of guilt or innocence. Cl early, an instructio n on the law of parole constitutes an extraneous condition w hich is not substantive proof of the accused’s guilt or innocence. Of signif icant imp ortance is the fa ct that, d espite di ligent res earch, I h ave been unable to locate any other jurisdiction in Ameri ca, other than Tennessee, that permits the introduction of paro le eligibility information at the guilt phase of the trial. Of the six states that hav e retained jury sentenci ng, i.e. , Arkansa s, Kentu cky, Missouri, Oklahom a, and Vir ginia, on ly three, A rkansas, Kentuck y, and Texa s, have found an instruction on parole el igibility at the sentencingphase of the trial constitutional. 2 See Teague v. State , 946 S.W.2d 670 (Ark. 1997); Boone v. Commonwealth , 780 S.W.2d 615 (Ky. 1989); Johnson v. State , 800 S.W.2d 563 (Tex. App. 1990). Moreover, constitutional amendment in Te xas and statutory amendment in Arkansas and Kentucky were required before the jury could be instructed on these matters at the sentencing phase

. See, e.g. , T EX
. C ONST
. art. IV, § 11(a) (amended November 7, 1989); Ark. Code Ann. § 16-97-10 3 (1995 Supp.); Ky. Rev. Stat. Ann. § 532.055 (Banks-Baldwin 1995). Additionally, these six jurisdictions have r

outinely rejected the i ntroduction of parole eligi bility information before the jury for a vari ety of reasons, including , but not limited to: viol ation of the4

separation of powers doctri ne, i.e. , the mandatory “truth-in-sentencing” instruction is
an attem pt by one b ranch (th e legislat ive) to dire ct an ano ther bran ch (the ju diciary) to interfere with the pow ers of yet a third branch ( the executive), see, e.g. , Kemp v. State , 632 P.2d 1239 (Okla. Crim. App. 1981); Rose v. State , 752 S.W .2d 529 (T ex. Crim. App. 1987), superseded by constitutional amendment , Johnson , 800 S.W.2d at 563; Walker v. Commonwealth , 486 S.E.2d 126 (Va. App. 1997); and various aspects of fundamental fairness, for instanc e, speculation about a future eve nt, see, e.g. , Huff v. Commonwealth , 763 S.W .2d 106 (Ky. 1988 ) (Leibson, J., di ssenting) (citing Farris , 535 S.W.2d at 608); Walker , 486 S.E.2d at 126; extraneous c ondition to determination of guilt, see, e.g. , State v. Rollins , 449 S.W.2d 585 (Mo. 197 0); Beans v. State , 54 P.2d 675 (Okla. Crim. A pp. 1936); a condition subseq uent to conviction, see, e.g. , Cox v. State , 491 P.2d 357, 359 (Okla. Cri m. App. 1971); and relevancy, see, e.g. , Walker , 486 S.E.2d at 126. Parole is not a judicial function, rather it is an executive function. It is best that the correctional author ities and not the jury be left to commence the process of rehabilitation. A jury charge which instructs on punishment and parole eligibility will invariably resul

t in unjust verdicts and may prejudice either the accused or the State’s right to a fair t rial, depending upon the particular facts and circumstanc es of the case. Accordingly, I find that the statutorily mandated jury instruction which requires the jury

to “weigh and consid er the meaning of a sentence of impris onment for the offense charged” at the guilt phase of trial violates the appellant’s constitutional right t

o due process as secured by Article I, Section Eig ht of the Tennessee Constitution.

____________________________________ DAVID G. HAYES, Jud ge