IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON JANUARY SESSION, 1998
STATE OF TENNESSEE, ) ) No. 02C01-9702-CR-00075 Appellee ) ) SHELBY COUNTY vs. ) ) Hon. James C. Beasley, Jr., Judge MICHAEL DINKINS, ) ) (Aggravated assault; Appellant ) Theft under $500)
For the Appellant: For the Appellee:
Walker Guinn John Knox Walkup Assistant Public Defender Attorney General and Reporter 201 Poplar Street 2-01 Memphis, TN 38103 Elizabeth T. Ryan Assistant Attorney General Criminal Justice Division A. C. Wharton, Jr. 450 James Robertson Parkway District Public Defender Nashville, TN 37243-0493
William Gibbons District Attorney General
Lee Coffee Asst. District Attorney General Criminal Justice Complex Suite 301, 201 Poplar St. Memphis, TN 38103
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, Michael Dinkins, was convicted by a Shelby County jury of
aggravated assault and theft of property under $500. The trial court imposed
consecutive sentences of four years for the aggravated assault conviction and
eleven months and twenty-nine days for the theft conviction. In this appeal as of
right, the appellant contends that: (1) the trial court erred by failing to properly
instruct the jury regarding eyewitness identification as required by Dyle; and (2) the
trial court erred by providing to the jury parole eligibility information.
After a review of the issues, we affirm the judgment of the trial court.
Background
On December 13, 1995, Joseph Causley was on duty as a uniformed security
guard at the MegaMarket Supermarket located on Poplar Avenue in Memphis.
Sometime between 8:30 and 8:45 a.m., Causley, while observing surveillance
cameras from behind a two-way mirror, noticed “a male black pushing a shopping
cart [containing unbagged merchandise] through an [unmanned] cashier counter
and outside the door.” Causley followed the individual into the parking lot and
identified himself as a security officer. The individual knocked over the shopping
cart and fled. As Causley was placing the groceries back into the cart, the individual
“came up out of nowhere and rushed [him] with some sharp object and stabbed
[him] [in the abdomen].” Causley sprayed his attacker with pepper spray, which
seemed to have no effect on the individual. The assailant attempted to stab
Causley again, however, he was thwarted from a second attack when Causley drew
his firearm. The assailant then fled the scene.
2 Causley immediately returned to the security office inside the store where he
notified the police. The vicitim described his assailant as an African-American male
wearing a brown coat, black pants, and carrying a black duffle bag. W ithin five
minutes of the radio dispatch, Memphis Police Officer Tom Arnold observed a
person walking westbound on Poplar, approximately one-half block from the
MegaMarket, matching the description of the assailant. The suspect was arrested
and a “pat-down” of his person revealed a “pair of folding type scissors” in the right
pocket of his jacket. Officers then immediately transported the suspect back to the
MegaMarket for identification by Causley. Causley, who was waiting to be
transported to the hospital for treatment of his injuries, without hesitation, identified
the suspect as his assailant. The suspect was later identified as the appellant.
At trial, evidence obtained from the MegaMarket videotape surveillance
camera corroborated Causley’s identification of the appellant as the perpetrator of
the crimes charged. Causley underwent surgery and spent two days in the hospital
for the injuries inflicted by the appellant. Based upon this evidence the jury found
the appellant guilty of aggravated assault and misdemeanor theft.
I. Failure to Provide Dyle Instruction
In his first issue, the appellant argues that the jury was not properly instructed
on eyewitness identification. He raises as error the trial court’s failure to give the
Dyle instruction on identification. He concedes that the instruction submitted to the
jury in this case is similar in many respects to the instruction mandated by Dyle,
except that the instruction in the instant case omitted language that “[identification
testimony is an expression of belief or impression by the witness. . . .” State v. Dyle,
899 S.W.2d 607, 612 (Tenn. 1995). In response, the State correctly asserts that the
appellant failed to raise this issue in his motion for new trial, see Tenn. R. App. P.
3 3(e), and that waiver of this issue is mandated. Nonetheless, we find this issue
proper for review on the merits because the supreme court in Dyle made its ruling
specifically applicable to all cases tried or on appeal as or after the date of its
release.1 Dyle, 899 S.W.2d at 612; see also Tenn. R. App. P. 2; Tenn. R. Crim. P.
52(b).
In State v. Dyle, the Tennessee Supreme Court promulgated an identity
instruction which must be given in those cases where identification is a material
issue and the instruction is requested by defense counsel. Id. The appellant
requested that the Dyle instruction be given. Thus, our sole inquiry is whether
identity is a material issue. “Identity will be a material issue when the defendant
puts it at issue or the eyewitness testimony is uncorroborated by circumstantial
evidence.” Dyle, 899 S.W.2d at 612, note 4. In the instant case, the appellant did
not argue that he was not at the crime scene or that his identity was mistaken. The
record reflects that the appellant presented no proof in his defense. Thus, he failed
to place his identity in issue. Moreover, the victim, Joseph Causley, was an
eyewitness to the commission of the offenses. His identification of the appellant as
the perpetrator was sufficiently corroborated by the videotape from the surveillance
camera of the MegaMarket. Cf. State v. Williams, 913 S.W.2d 462, 466 (Tenn.
1996) (holding that jury identification of defendant from surveillance photographs of
crime scene is both constitutional and sufficient to establish identity). Accordingly,
we conclude that the appellant’s identity was not a material issue requiring that the
Dyle instruction be given.
Additionally, we find that had the requested Dyle instruction been given, the
instruction would have only served to strengthen the State’s identification testimony.
See State v. Bufford, No. 02C01-9509-CR-00275 (Tenn. Crim. App. at Jackson,
1 State v. Dyle was released on May 15, 1995. The appellant’s trial began on June 25, 1996.
4 Mar. 19, 1997). Finally, we are cognizant of the fact that this court has implicitly
approved this same challenged jury instruction on at least two prior occasions when
identity was not a material issue. See State v. Franklin, No. 02C01-9511-CR-00340
(Tenn. Crim. App. at Jackson, June 2, 1997); State v. Williams, No. 02C01-9512-
CR-00359 (Tenn. Crim. App. at Jackson, May 15, 1997). For the stated reasons,
we conclude that, not only was the Dyle instruction not mandated under the facts of
this particular case, but also that any error created by failing to give an instruction
containing the precise Dyle language had no effect on the outcome and was
harmless. Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).
II. “Truth in Sentencing” Instruction
In his final issue, the appellant presents various challenges to the so-called
“Truth in Sentencing” instruction codified at Tenn. Code Ann. § 40-35-201(b) (1996
Supp.). Basically, the appellant avers that the instruction is unconstitutional in that it
violates, inter alia, the doctrine of separation of powers and his right to a fair trial
under the due process clause. Although a previous panel of this court, in State v.
King, No. 02C01-9601-CR-00032 (Tenn. Crim. App. at Jackson, Oct. 22, 1996),
perm. to appeal granted, (Tenn. Mar. 10, 1997), 2 has held the “Truth in Sentencing”
provision constitutional, for the reasons discussed herein, we conclude, pending
resolution of this issue by our supreme court,3 that the interjection of range of
2 See also State v. Palmer, No. 01C01-9604-CC-00150 (Tenn. Crim. App. at Nashville, Nov. 20 , 1997); State v. Cooper, No. 01C 01-960 4-CC -00150 (Tenn . Crim. A pp. at Na shville, Nov .. 17, 1997 ); State v. Ho well, No. 01C01-9610-CR-00443 (Tenn. Crim. App. at Nashville, Nov.. 6, 1997); State v. Bradford, No. 01C01-9607-CR-00294 (Tenn. Crim. App. at Nashville, Sept. 30, 1997); State v. Gates, No. 01C01-9607-CR-00312 (Tenn. Crim. App. at Nashville, Sept. 30, 1997); State v. Majors, No. 01C 01-950 6-CR -00211 (Tenn . Crim. A pp. at Na shville, Jul. 30, 1 997). But see State v. Weiskopf , No. 02C01-9611-CR-00381 (Tenn. Crim. App. at Jackson, Feb. 4, 1997); Cooper, No. 01C 01-960 4-CC -00150 (Hayes, J ., separa te conc urring); Cooper, No. 01C01- 9604-C C-001 50 (Sm ith, J., separ ate con curring).
3 We note that, regarding the present statute as amended in 1994, our supreme court has not specifically addressed the constitutionality of this statute. Moreover, despite argument to the contrary, State v. Cook, 816 S.W.2d 322 (Tenn. 1991), is not dispositive of the issue. In Cook, permission to appeal was granted as to the limited issue of whether the trial court committed prejudicial error by erroneously instructing the jury on the range of punishments of a Range I offend er, where , in actuality, the de fendan t was a R ange II off ender. Cook, 816 S.W .2d at 324 . Thus, the constitutionality of Tenn. Code Ann. § 40-35-201 (1990) was not before the court. The supreme court held that this section “gives a defendant a claimable statutory right to have the jury
5 punishment, coupled with the statutorily required minimum parole eligibility date,
sentence reduction credits and the governor’s power to reduce prison overcrowding,
at the guilt phase of a trial, may be so unduly prejudicial to the determination of guilt
that it renders the trial fundamentally unfair. 4 5 See TENN. CONST . art I, § 8; State ex.
rel. Anglin v. Mitchell, 596 S.W.2d 779 (Tenn. 1980).
Tenn. Code Ann. § 40-35-201(b) mandates that a trial court, in noncapital
cases, upon request of either party, charge the jury with possible penalties for the
offense charged as well as all lesser included offenses. In 1994, the Tennessee
General Assembly amended this provision by adding that the instruction shall also
include “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 the person’s earliest release eligibility date,” including
the release eligibility percentage, maximum and minimum sentence reduction
credits, the governor’s power to reduce prison overcrowding, and the statement that
“whether a defendant is actually released . . . is a discretionary decision made by
the board of paroles. . ..” Tenn. Code Ann. § 40-35-201(b)(2)(A)(i), -201(b)(2)(A)(ii)
(1994 Supp.) (emphasis added).
know the range of pu nishment applicable to the charges b efore deciding guilt or innocence.” Cook, 816 S.W.2d at 326. Although, the court, in dicta, alluded that “the Legislature . . . has the right a nd po wer to direc t the ju dicial p roce ss,” t here is no e xpre ss h olding as to the s tatute ’s constitutionality. Accordingly, we conclude that reliance upon Cook for challenges made to the constitution ality of Tenn . Code A nn. § 40- 35-201 (b), as am ended in 1994, is m isplaced .
4 W e ackn owledg e the trial cou rt’s extens ive discus sion of the statute pre sently at issu e. In ac cord anc e with our h olding , the tr ial cou rt exp ress ed gr eat c onc ern o ver th e sta tute’s unc ons titution ality, sp ecific ally refe renc ing th e irrele vanc e of p arole inform ation to the jury’s determination of guilt. Nonetheless, the court noted that, if a party in a criminal proceeding reques ted the ins truction, the statute req uired the c ourt to pro vide the ins truction.
5 Judge Riley, in his concurring position, concludes that the substitution of the language “for your information” for the terms “weigh and consider” in the mandated instruction cures any constitutional defect in the statute. We cannot agree with this position. Once a statute is found unconstitutional, a member of the judicial branch cannot undertake to alter the instruction promulgated by the statute in an effort to make it constitutional. This amounts to judicial am end me nt of le gislat ion w hich violate s the sepa ration of po wers doct rine a s es tablis hed in Article II, Section 2 of the Tennessee Constitution. While it is the province and duty of the judiciary to interp ret the law, the legislative bra nch ha s the ex clusive po wer to for mula te the law. See Ten nes see Valle y Auth ority v. H ill, 437 U.S. 153, 194, 98 S.Ct. 2279, 2301-02 (1978); Richardson v. Young, 125 S.W . 664, 668 (Tenn. 1910).
6 Since the beginning of statehood, Tennessee juries were required to fix
punishment in felony cases in addition to determining the guilt or innocence of the
accused. The Criminal Sentencing Reform Act of 1982 bifurcated these functions
and placed the sentencing determination with the trial judge. See Tenn. Code Ann.
§§ 40-35-201(1982); 40-35-203(a)(1982). Thus, in Tennessee, as in most
jurisdictions, the function of a jury in a criminal proceeding is limited to a
determination of the defendant’s guilt or innocence based solely on the basis of
evidence introduced at trial and not on extraneous conditions not adduced as proof
at trial. See Taylor v. Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 1934 (1978)
(citing Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691 (1976)). Parole is nothing
more than post-conviction clemency; a condition subsequent to the accused’s
conviction, offered 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. Clearly, an instruction on the law
of parole constitutes an extraneous condition which is not substantive proof of the
accused’s guilt or innocence.
It is interesting to note that no other jurisdiction in America, other than
Tennessee, permits introduction of parole eligibility information at the guilt phase of
the trial. Of the six states that have retained jury sentencing, i.e., Arkansas,
Kentucky, Missouri, Oklahoma, and Virginia, only three, Arkansas, Kentucky, and
Texas, have found an instruction on parole eligibility at the sentencing phase of the
trial constitutional.6 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 Texas 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., TEX . CONST . art. IV,
6 Each of these six states has a bifurcated trial procedure whereby after a determination 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 that, effective 1995, Virginia has abolished parole.
7 § 11(a) (amended November 7, 1989); Ark. Code Ann. § 16-97-103 (1995 Supp.);
Ky. Rev. Stat. Ann. § 532.055 (Banks-Baldwin 1995). Additionally, these six
jurisdictions have routinely rejected the introduction of parole eligibility information
before the jury for a variety of reasons, including, but not limited to: violation of the
separation of powers doctrine, i.e., the mandatory “truth-in-sentencing” instruction
is an attempt by one branch (the legislative) to direct another branch (the judiciary)
to interfere with the powers 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 (Tex.
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 instance, speculation about a future event,
see, e.g., Huff v. Commonwealth, 763 S.W.2d 106 (Ky. 1988) (Leibson, J.,
dissenting) (citing State v. Farris, 535 S.W.2d 608 (Tenn. 1976)); Walker, 486
S.E.2d at 126; extraneous condition to determination of guilt, see, e.g., State v.
Rollins, 449 S.W.2d 585 (Mo. 1970); Beans v. State, 54 P.2d 675 (Okla. Crim. App.
1936); a condition subsequent to conviction, see, e.g., Cox v. State, 491 P.2d
357, 359 (Okla. Crim. App. 1971); and relevancy, see, e.g., Walker, 486 S.E.2d at
126.
Moreover, guidance by the Tennessee Supreme Court as to the propriety of
such instructions is provided in State v. Farris, 535 S.W .2d at 608. Justice Henry,
speaking for the court, in Farris, wrote:
Jurors should not be permitted to speculate on the length of sentences, discretionary parole, the accumulation of good and honor time and a whole conglomeration of contingent events which, 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 required to serve and further tends to breed irresponsibility on the part of jurors premised upon the proposition that corrective action can be taken by others at a later date. A greater defect in the law stems from the fact that jurors tend to attempt to compensate for future clemency by imposing harsher sentences.
8 The matter of the future disposition of a convicted defendant is wholly and utterly foreign to his guilt and is not a proper consideration by a jury in determining the length of his sentence.
Farris, 535 S.W.2d at 614. Contrary to the holding in King, No. 02C01-9601-CR-
00032 (holding Farris inapplicable to the present issue), we conclude that
subsequent statutory amendment fails to dissipate the constitutional concerns
expressed in Farris.
It is inconceivable to assume that information regarding parole eligibility
information before the jury during the guilt phase of a trial will not have an effect, in
certain factual situations, on their finding the defendant guilty of the greater or lesser
offense. Clearly, it is improper for a jury to impose a harsher conviction than they
believe is merited by the proof presented for the sole purpose of having a defendant
serve a sentence they believe to be warranted. A jury is not to concern itself with
post-conviction events. We can find no rational basis for concluding that information
regarding parole eligibility is relevant to the jury’s consideration at a non-capital
criminal trial. But see California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446 (1983)
(holding that federal constitution does not prohibit capital sentencing jury from
considering governor’s power to commute life sentences).
Parole is not a judicial function, rather it is an executive function. It is best
that the correctional authorities and not the jury be left to commence the process of
rehabilitation. A jury charge which instructs on punishment and parole eligibility will
invariably result in unjust verdicts and may prejudice either the accused or the
State’s right to a fair trial, depending upon the particular facts and circumstances of
the case. Accordingly, we find that the statutorily mandated jury instruction at the
guilt phase of trial violates due process as secured by Article I, Section Eight of the
Tennessee Constitution.
9 Having determined that the jury instruction mandated by § 40-35-201(b) is
unconstitutional, it remains that we must next determine the appropriate standard of
harm analysis to be applied to the facts of this case. Generally, appellate review of
error in criminal cases is a two-step process. First, the reviewing court determines
what, if any, error occurred in the trial. Second, the court must determine whether
the error requires reversal. In the present case, we are confronted with the issue of
whether the error of applying a constitutionally infirm statute is reversible error.
The United States Supreme Court, in Chapman v. California, 386 U.S. 18,
23, 87 S.Ct. 824, 827 (1967), determined that all constitutional error is not harmful in
that there may be some constitutional errors, which in the setting of a particular
case, are so unimportant and insignificant that they may be deemed harmless, not
requiring reversal. See also State v. Bobo, 814 S.W.2d 353, 356 (Tenn. 1991).
The Court pronounced that the test to determine harmful error is whether “there is a
reasonable probability that the [error] complained of might have contributed to the
conviction .” Chapman v. California, 386 U.S. at 23, 87 S.Ct. at 827; see also
Bobo, 814 S.W.2d at 356. If the reviewing court finds that the complained
constitutional error did not affect the outcome of the trial, then the error is harmless.
Applying this standard to the present case, the evidence points
overwhelmingly to the guilt of the appellant for the offense of aggravated assault by
the use of a weapon. The victim identified the appellant as the perpetrator. This
testimony was corroborated by the surveillance videotapes provided by the
MegaMarket security cameras. Additionally, five minutes after the victim notified law
enforcement officials of the incident, the appellant was located approximately one-
half block from the MegaMarket. Upon a search of the appellant’s person, police
officers discovered a pair of scissors in his right front pocket. These facts are not
challenged by the proof. Thus, there is no dispute as to the grade of assault
committed. We are led, beyond a reasonable doubt, to the conclusion that the
10 statutory parole eligibility instruction made no contribution to the jury’s verdict.
Accordingly, any error in providing the unconstitutional instruction was harmless.
See Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).
III. Conclusion
After a review of the record, we find that the trial court did not err by failing to
provide the Dyle instruction on identity. Moreover, although we find the statutorily
mandated jury instruction on parole eligibility unconstitutional, under the facts and
circumstances of the present case, we are unable to conclude that the instruction
constituted reversible error. Accordingly, the judgments of the trial court are
affirmed.
____________________________________ DAVID G. HAYES, Judge
CONCUR:
________________________________ JOE B. JONES, Presiding Judge
________________________________ JOE G. RILEY, Judge