Adams v. State

• Decision Date: 28 February 1977
• Parties: William ADAMS et al., Petitioners, v. STATE of Tennessee, Respondent.
• Court: Tennessee Supreme Court

Page 553

547 S.W.2d 553

William ADAMS et al., Petitioners, v. STATE of Tennessee, Respondent.

Supreme Court of Tennessee.

Feb. 28, 1977.

James H. Cummings, William H. Bryson, Marshall E. Duggin, Woodbury, for petitioner.

R. A. Ashley, Jr., Atty. Gen., William O. Kelly, Asst. Atty. Gen., Nashville, Guy R. Dotson, Dist. Atty. Gen., Murfreesboro, J. Barrett Melton, Jr., Asst. Atty. Gen., Woodbury, for respondent.

OPINION

HENRY, Justice.

This criminal action presents two questions:

1. Whether the holding of this Court in Farris v. State, 535 S.W.2d 608 (Tenn.1976) operates to invalidate the charge given by the trial judge with respect to parole eligibility, and other matters specified in § 40-2707, T.C.A.

2. Whether the holding of this Court in Gray v. State, 538 S.W.2d 391 (Tenn.1976) renders erroneous the action of the trial judge in imposing consecutive sentences.

I.

Each of the four petitioners was convicted on two counts of armed robbery and sentenced to serve not more than twenty (20) years. The statutory punishment for robbery accomplished by use of a deadly weapon is "imprisonment for life or for any period of time not less than ten (10) years." § 39-3901, T.C.A.

Thus the jury doubled the minimum sentence.

Petitioners stand convicted of the robbery of a female storekeeper in Readyville, in Cannon County. At the same time and place they robbed her male employee by taking money from his wallet.

This was a simple case of armed robbery with no aggravating circumstances, except the mere fact that the use of a deadly weapon is per se an aggravating circumstance. The legislature has expressly so recognized by providing a minimum penalty for simple robbery of five (5) years, and by enhancing (doubling) the minimum penalty when accomplished by the use of a deadly weapon.

Thus the posture of this case is that the punishment has been enhanced by the legislature; the minimum has been enhanced (doubled) by the jury; and, in addition, the trial judge enhanced (doubled) the sentences by decreeing that they run consecutively. The end result is that each defendant must serve a forty (40) year sentence for simple armed robbery, in a case involving essentially a single criminal episode. ¹

II.

Petitioners' assignment of error, based upon the Farris question, in the Court of Criminal Appeals, charges the trial judge with error in instructing the jury on parole and other considerations required by the last paragraph of § 40-2707, T.C.A., and sections cited therein because those laws are unconstitutionally vague and overbroad, and such charge could serve no other purpose than to confuse and bewilder the jury in their attempt to set punishment.

The same error is assigned in this Court. ²

In Farris :

(a) Three members of this Court held that § 2 of Chapter 163 of the Public Acts of 1973, which appears as the second paragraph in § 40-2707, T.C.A., was unconstitutional because its body was broader than its caption.

(b) Two of these members held the same act to be void because "impermissibly vague and impossible to apply."

One of these members agreed with holding (a), but disagreed with holding (b). Additionally, he would have held the act unconstitutional as a legislative invasion of the powers of the judiciary in violation of Article II, Sections 1 and 2 of the Constitution of Tennessee.

The remaining two members would have held the act to be free of any constitutional infirmity.

Thus, to the extent that the assignment in this case charges vagueness, Farris demands its rejection, if we restrict the assignment to that single, precise meaning and afford it no reasonable latitude.

The State correctly insists that the charge given by the trial judge predated the release of the Farris opinion. ³ We held, in Farris :

This decision will apply to these cases and to all others wherein convictions have not become final on the date of the release of this opinion. (Emphasis supplied). 535 S.W.2d at 614.

On petition to rehear, we said:

A careful reading of the phraseology used will clearly indicate that we were primarily concerned that this case not precipitate petitions for post-conviction relief. A "final conviction", as used in the main opinion, simply means those cases wherein jury verdicts have been returned but the usual appellate review, vis a vis post-conviction relief, has been completed.

Farris was decided on February 16, 1976 (main opinion). The instant case was argued in the Court of Criminal Appeals on January 5, 1976, and that court handed down its decision on August 4, 1976. Thus the instant case was in the "pipeline" of appellate review and the conviction had not become final. Farris is applicable.

However, we further held in Farris, that as a condition precedent to its limited retroactivity "appropriate assignments" must have been made.

In the instant case, Judge Russell, joined by Judge Walker, after referring to our requirement that the question be "timely and properly raised", and with respect to the above quoted assignment, held that "nothing in this assignment properly put the trial judge on notice of the defect found by our Supreme Court." Judge Russell also cites textbook law and cases supporting the general proposition that assignments must be as specific and certain as the nature of the error complained of will permit.

Judge Daughtrey, in a separate concurring opinion, stated:

I am of the opinion that the rationale employed by Judge Russell in overruling the appellants' assignment of error based on the Farris violation which occurred at the trial of this case is excessively technical and narrow. I would instead endorse the view expressed by Judge Duncan writing to this issue in Jackson v. State, 539 S.W.2d 337, (cert. denied July 6, 1976) (Tenn.Crim.App.1976).

Judge Daughtrey concurred with "some reluctance" and stated that she would dissent but for the fact that in Jackson, and in an unreported case, Judge Russell reached the same results on the same Farris issue and this Court denied certiorari. Because of this she felt that she "must assume that the Supreme Court is satisfied with Judge Russell's position on this question."

This assumption overlooks two significant circumstances and considerations.

First, as pointed out by former Chief Justice Grafton Green, in Bryan v. Aetna Life Ins. Co., 174 Tenn. 602, 130 S.W.2d 85 (1939):

We have repeatedly pointed out that a mere denial by this court of a writ of certiorari to the Court of Appeals does not commit us to all the views expressed in a particular opinion. We are primarily concerned on such application with the result reached. (Emphasis supplied). 174 Tenn. at 611, 130 S.W.2d at 88.

We reaffirm Justice Green's holding.

Secondly, on petition to rehear in Farris, we held unanimously ⁴ that

the fact that a trial judge, prior to the release of our opinion, may have charged the jury on parole considerations does not necessarily mean that the error is reversible or that we will follow the Farris procedure. (Emphasis supplied). 535 S.W.2d at 622.

Since Farris this Court, on certiorari consideration, has consistently considered each case on an ad hoc basis. When, in our opinion, the Farris charge affected the length of the sentence we have taken corrective action; when we have felt that it had no effect we have rejected the petition for certiorari. We point out that certiorari is not a writ of right, but of discretion. It is to be borne in mind that basically Farris is prospective in application, ⁵ but as to those cases wherein the conviction has not become final and where appropriate assignments have been made, the Farris rule is applicable.

In Jackson v. State, supra, the defendant was convicted of a "vicious killing of an innocent robbery victim", according to the majority, and "a brutal murder", according to the concurring opinion. We agreed, and denied the writ, or phrasing it in accordance with Justice Green's language, we were primarily concerned with the result reached.

In Jackson, the petitioner asserted the unconstitutionality of § 40-2707, T.C.A., contending that it violated the separation of powers clause of the Constitution of Tennessee. (Art. II, Sections 1 & 2).

The Jackson court overruled this assignment on the basis that it was not sufficient to activate the Farris rule. In so doing, the Court analogized our disposition of the assignment of Farris himself with the Jackson assignment. This analogy is faulty in its basic premise.

Farris assigned as error:

The trial court erred in instructing the jury regarding the doubling of the minimum punishment, said law which authorizes such a change (sic) is unconstitutional. 535 S.W.2d at 622.

As pointed out on petition to rehear in Farris, this assignment was directed solely at the first paragraph of § 40-2707, T.C.A., which was not changed one iota by Farris and remains intact. In other words, it did not raise what has come to be known as a "Farris issue."

Further reference to Farris will reveal that we did consider and grant relief to a co-defendant in that case, Roosevelt Lewis, whose assigned error on motion for a new trial asserted the unconstitutionality of § 40-2707, T.C.A., on the basis of the charge being (1) confusing to the jury, (2) an invasion of the province of the jury and (3) conferring excessive power upon the jury.

The Lewis argument that the caption was overbroad was first made in a consolidated supplemental brief filed in this Court, wherein an appropriate assignment was made for the first time.

Yet we granted Lewis relief, and but for the gravity of the offense and our determination that the Farris charge did not affect the result of the trial, we would have granted relief in Jackson. Then and now we approve the results reached in Jackson, but not the reasoning.

In Jackson, Judge Duncan, in a concurring opinion, on petition to rehear, stated:

To me, the instant case is similar to the Farris companion case of Roosevelt Lewis v. State, where the Supreme...