IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
JUNE SESSION, 1998 FILED August 21, 1998
STATE OF TE NNE SSE E, ) C.C.A. NO. 02C01-9709-CR-00362 ) Cecil Crowson, Jr.
Appellate C ourt Clerk
Appellee, )
)
) SHELBY COUNTY
VS. )
) HON. CHRIS CRAFT
CHARLES GOLDEN, ) JUDGE )
Appe llant. ) (First-Degree Mu rder)
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 Avenu e North
Nashville, TN 37243
WILLIAM L. GIBBONS
District Attorney General
PHILL IP GE RALD HAR RIS
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
OPINION
The Defendant, Charles Golde n, pursu ant to Te nness ee Ru le of App ellate Procedu re 3(b), appeals as of right his conviction of first-degree murder and sentence of life imprisonment without the poss ibility of parole. D efenda nt asserts five claims of error: (1) that Defendant could have been guilty of only second- degree murder because he lacked the specific intent for first-degree murder; (2) that the cour t should h ave gran ted Defendant’s requested jury instruction concerning his mental condition; (3) that the court improp erly instructed the jury concerning reasonable doubt; (4) that the co urt improperly instruc ted the jury concerning the unavailab ility of a defense of dures s; and (5) that the co urt impro perly instructed the jury concerning when Defendant would be eligible for release on parole if senten ced to life imprisonment. Although we affirm the conviction, we remand for resentencing due to the inaccuracy of the pa role eligibility jury instruc tion.
Defendant was indicted by th e Shelby C ounty Gran d Jury on October 31, 1996, on a charge of first-degree murder in violation of Tennessee Code Annotated § 39-13 -202. Ju dge C hris Craft of the Criminal Court for Shelby Coun ty 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 imprison ment w ithout the p ossibility of parole . Defe ndan t’s Motion for New Trial was overruled on April 18, 1997, and he time ly appea ls.
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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. Sergea nt Ta ylor arrive d hom e at his usual time; but before he was able to enter his house, Defendant shot Taylor besid e 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 approxima tely forty minutes later of internal bleeding caused by two gunshot wounds to the midsection—one which injured rib, liver, colon, and s mall 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 ca used b y a .38 ca liber bullet.
The State presented an inmate at the Shelby Coun ty 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 sta tus by follow ing Tho mpso n’s order s.
This witness a lso testified th at on the day of Sergea nt Taylor’s mu rder, Charles Thompson and another TVL member engaged in a fight with 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 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
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with Sergeant Taylor about the extended confinement and repeatedly declared, “You don’t kno w 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 nam e and s tating ang rily,
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 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 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 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 rgument just happe ned . . . .
Finally, this witness agreed on cross examination that if a member of the 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 witness who testified about events on the same day ou tside th e jail. The w itness was present when Verico Jackson received a telephone call, wh ich he answ ered in a bac k room alone . At this location—a house only a cou ple of stree ts from S ergean t Taylor’s re sidence —the witness saw several weapons, including a .25, .38, an SKS with a long clip, and a .22 with a scop e. W hen the phone call conclu ded, Ve rico called Defen dant,
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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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, “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 stop on Sergeant Taylo r’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 w itness heard “a lot of gunshots”— specifically, “about three regular gunshots . . . a lot of loud gunsh ots and then some m ore like quieter gun shots.” Later, the witness he ard Verico thank Defendant “for taking care of their business,” and Defendant stated, “[T]hat whore -ass nigger sh ouldn’t have go t my nigger jum ped 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 Taylo r. Defe ndan t stated that Ve rico told him killing Taylor was “Nation Business,” and when Defendant tried to “punk out and not do[] it,” Veric o 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 appro ximate ly 10:40 p.m., after waiting for Taylor to arrive at his home. Then, accord ing to De fendan t,
“Coo kie 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 th e side).
I turned and ran along the path to wh ere “Cook ie 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 K ansas . . . 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 murde r.
Later in his statem ent, Defendant said he wanted to tell Sergeant Taylo r’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 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 argument is that he lac ked the specific inte nt for first-
degree murd er and , therefo re, cou ld only have been convicted of second-degree 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 time he committed the offense. We read Defendant’s argument as presenting two separa te but related assertion s: First, the trial jud ge as a matter o f law should have excluded first-degree murder from the jury’s purview. Seco nd, a ju ry could not have conclud ed that D efenda nt was g uilty of first-degre e murd er.
W e examin e the sec ond as sertion first and co nclude that the S tate presented sufficient evidence to s upport his con viction 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 reaso nable doubt.” Tenn. R. App. P. 13(e). Conve rsely, 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 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 discrepancies exist between the testimony of the State’s witnesses and D efend ant’s statement concerning what day Charles Thompson made the telephone call “ordering” Sergeant Taylor’s assassination. This Court must resolve 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 presented by the conflict, Defendant’s statement actua lly tends to show greater premeditation a nd les s coe rcive influ ence , in suppo rt of the Sta te’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 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 action. Defendant stated that he went home on the evenin g of Ap ril 18 and returned midday on April 19, when he and others discussed the murder
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again and prepared to ambush Sergeant T aylor when he arrived home from work. Defendant stated that he then walked toward Taylor and immediately shot at him thre e or four tim es.
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 p erson or a third person is threatened w ith harm which is present, imm inent, impending and of such a nature to induce a well-grounded apprehension of dea th or se rious b odily 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. Fu rther, the desirability and urgency of avoiding the harm m ust clearly outweigh , according to ord inary standards of reasonableness, the harm sought to be prevented by the law pr oscribing the cond uct.
Tenn. Code A nn. § 39-11-5 04(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 ce rtainly entitled to conclud e that the desirability of avoiding gang retaliation d id not outw eigh the h arm of k illing Serge ant Ta ylor.
Havin g so concluded, w e also find that the trial jud ge was under n o 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
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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 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 presents an issue of fact d eterm inable by the jury, as the exclusive judges of the credibility of the witnesses in support of that defe nse, a nd of th e weig ht to be given th eir testimony.”) (citing Green v. State, 512 S.W .2d 641 (Tenn . Crim. App. 1974)).
In this case, we ha ve already concluded 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 the trial court was correct in a llowing the charge of first- degree murde r to be de cided by the jury.
II.
W e consider Defendant’s second and fourth issues together: that the court shou ld have granted his specific jury instruction and that th e cou rt impro perly instructed the jury on the unavailability of duress as a defense. G enerally, a jury
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 also State 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.
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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 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 addition, “[i]t is the duty of a trial judge to give a complete charge of the law applicable to the fac ts of a case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986) (citing State v. Thompson, 519 S.W .2d 789 , 792 (T enn. 19 75)); 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 wou ld withdraw from the jury’s consideration any issue or evidenc e which they are e ntitled to con sider.” 804 S.W .2d at 461 .
Defendant argues that the trial judge erred in instructing the jury that duress is “una vailable to a pe rson w ho inte ntiona lly, know ingly, or reckle ssly becomes involved in a situation in which it was probable that the person would be subjecte d to com pulsion.” The o ffensive instruc tion, ho weve r, is the second tenet of the statutory defense of du ress. Te nn. Co de Ann . § 39-11 -504(b). In order to justly d iscern when the de fense is available and proper, a jury must nece ssarily know when it is statuto rily unav ailable to a de fenda nt; and withou t this instruction, the trial court’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 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 M urder, the defendant may be convicted of the Law of Second Deg ree M urder if you find from a ll 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 in capa ble of fo rming 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 Murde r in the First Degree, 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 pre-requisite 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 influenced by fear for his life then you must find 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 instruction is not a clear and accurate statement of the law, and because the trial court indeed used an adequate instruction, we conclud e that the tria l court prop erly rejected its inclusion in the cha rge.
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 intoxica tion 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 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.
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First, no evid ence 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 diminish ed capac ity to simply a coercive situation, and we decline to do so now. Our legislature has pre scribe d, in pa instak ing de tail derived from the common law, precisely when a criminal defendant 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 instruction declares that a criminal defendant cannot be con victed of first-de gree m urder eve n when the app rehens ion of a threatened harm is not present, imminent, impending, or continuous. 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 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 posse sses the discretion to deny specifically 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 the 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 error lacks m erit.
III.
Defe ndan t’s next assignment of error is that the court improperly charged the jury that “abs olute certa inty” is not required to convict a criminal defendant beyond a reasonable doubt. The instruction as given reads:
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Rea sona ble doubt is that doubt engendered by an investigation of all the proof in the case and an inability, after such investigation, to let the m ind rest ea sily upon th e certainty o f guilt.
Reaso nable doubt doe s not mea n the doub t that may arise from possibility. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge, but m oral ce rtainty is required as to every proposition of proof requisite to constitute the 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 instruction 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., Jackson, M ar. 10, 19 98); State v. Jame s Earl Somerville, C.C.A . No. 02C 01-960 8-CC -00289 , Tipton Coun ty (Tenn. Crim. 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 requiring “moral certainty” was sufficient for due process especially when the concept w as differen tiated from “absolute certainty” before the jury). We see no reason to deviate from these decis ions. Absolute certainty is tantamount to one hundred percent certainty, which the 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 advising the jury during the sentencing phase of the trial: “A defendant who receives a sentence of imp risonm ent for life shall no t be elig ible for p arole c onsid eration until the defendant has served at least twenty-five (25) full calendar years of such senten ce.” At trial defendant contended that parole eligibility in structio ns “sh ould not be within the province of the jury” and are preju dicial to the d efenda nt. W e reject the arg ume nt that a parole eligibility ju ry instru ction is g enera lly
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unconstitutional in a sente ncing he aring. See generally State v. Cribbs, 967 S.W .2d 773 (Tenn . 1998).
Unfortunate ly, 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 paro le con sidera tion, this statuto ry calcu lation 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 specifically provide that a defendant with a life sentence will not be eligible for paro le until se rvice of “ a min imum of twen ty-five (25 ) full calendar 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 that the jury be instructed that a defendant receiving a life sen tence will not be elig ible 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.19 93). It is obvious that the legislatu re intended that the jury be in structe d as to parole eligibility as calculated by Tenn essee Code Annota ted § 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
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(15%) are allowa ble. As no ted by the State Attorney General, for crimes committed after Ju ly 1, 199 5, min imum releas e eligibility for a life sente nce is fifty-one (51) years and no t twenty-five (2 5) years. See Attorney General Opinion 97-098 (7-1-97). U nfortunately, 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 ted § 39-13-204 to coincide with the 1995 amendment to Tennessee Code Annotated § 40-35 -501. T he sta tutes p resen tly 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 (2 5) 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 ascerta in wheth er it was pre judicial to the defend ant.
W e are unable to conclude that the error was harmless in this case. The jury found that the state had esta blished the statuto ry aggravating circumstance of murder for remuneration. Tenn. Code Annotated § 39-13-20 4(i)(4). However, it was still within the jury’s discretion to sen tence the defend ant to eithe r life imprisonment or life without parole. Tenn. C ode Ann otated § 39-1 3-204(f)(2). At the time of sentencing the defendant was 22 years of age.3 He would be at
3 The testimony at the sentencing hearing indicated the defendant was 22, whereas the judgment indicates the age of 23.
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least 73 years of age be fore reach ing eligibility for rele ase for a straight life sentence under the fifty-one (51) year prov ision. The inaccurate jury instruction would a llow for pos sible relea se at age 47 for a life se ntence .
The choice between life without the possibility of parole and life with the possib ility of parole is one to be made by the jury u nder ou r senten cing statu te 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 wa s provided inaccurate inform ation as to senten cing. 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 m atter, have the sam e effective s entenc e as life with out parole. Howeve r, in this case we are unable to conclude the jury would still 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.
CONCLUSION
The conviction is affirmed. The case is remanded to the trial court for resente ncing for th e offense of first- degre e murd er.
__________________________
DAVID H. WELLES, JUDGE
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CONCUR:
__________________________
PAUL G. SUMMERS, JUDGE
___________________________
JOE G. RILEY, JUDGE