State v. Cook
| Decision Date | 05 August 1991 |
| Citation | 816 S.W.2d 322 |
| Parties | STATE of Tennessee, Appellee, v. Benedict Joseph COOK, III, Defendant-Appellant. 816 S.W.2d 322 |
| Court | Tennessee Supreme Court |
David E. High, Nashville, for defendant-appellant.
John E. Herbison, Paul J. Morrow, Jr., Nashville, for amicus curiae.
Charles W. Burson, Atty. Gen. and Reporter, Donna J. Hixon Smith, Asst. Atty. Gen., David L. Cooper, Asst. Dist. Atty. Gen., for State-appellee.
Benedict Joseph Cook, III, was convicted of three counts of aggravated rape and two counts of aggravated sexual battery. The alleged victim was under thirteen years of age at the times of the sexual abuse.
Because of the age of the victim, the offenses were aggravated by definition and called for enhanced punishment without the necessity of the filing by the State under Rule 12.3 Tenn.R.Crim.P. of a notice of intent to seek enhanced punishment. See T.C.A. Sections 39-2-603, 39-2-606 (1988 Supp.). Because the notice was not filed until five days before the case was set for trial, defense counsel filed a motion to strike the notice. The motion to strike was granted. During the dialogue between the Court and counsel, it is clear that the Court deemed it necessary for the State to file a notice of intent to seek enhanced punishment before Range II sentencing would apply, even though by definition the crimes as charged are aggravated. The trial proceeded on the assumption that the striking for lateness of the notice by the State to seek enhanced punishment resulted in Range I punishment being the appropriate sentence range in the event of convictions.
Counsel for the defendant filed a motion pursuant to the provisions of T.C.A. Section 40-35-201(b) asking the Court to instruct the jury on the possible punishment for all offenses charged in the indictments and all lesser included offenses. The motion was summarily granted. The Court obviously judged that Range II was inapplicable under the circumstances and charged the jury that the punishment for aggravated rape is imprisonment in the penitentiary for a period not less than twenty (20) years, nor more than forty (40) years; and that the punishment for aggravated sexual battery is a sentence of from five (5) to twenty (20) years in the penitentiary. The jury was specifically instructed that it did not set the punishment, and that the Court would set the punishment after a separate sentencing hearing.
The aforesaid "possible punishments" were the inapplicable Range I figures. The greater, but applicable, Range II possible sentences were not charged to the jury. The Range II penalties are forty (40) years to life for aggravated rape and twenty (20) years to thirty-five (35) years for aggravated sexual battery. T.C.A. Sections 39-2-603, 39-2-606 (1988 Supp.).
The Court sentenced the defendant to twenty-five (25) years on each of the three aggravated rape convictions; and seven (7) years on each of the two aggravated sexual battery convictions. All sentences were ordered served concurrently.
Both the defendant and the State appealed as a matter of right to the Court of Criminal Appeals. That court affirmed the convictions, and agreed with the State that the trial court erred in not sentencing the defendant as a Range II, especially aggravated offender. The Court of Criminal Appeals held that Range II sentences were mandated by T.C.A. Section 40-35-109(c) (1988 Supp.), and remanded for resentencing. Upon petition to rehear, the Court of Criminal Appeals addressed the issue of the erroneous instruction by the court to the jury regarding possible punishments by noting that inasmuch as sentencing is a function vested in the trial court, "any error here would be harmless."
Application for permission to appeal was made to this court by the defendant, and it was granted as to a single issue.
This court has ordered that on considering the application for permission to appeal and briefs filed in this case and the entire record, the application of Benedict Joseph Cook, III, is granted for consideration of the issue:
"Did the trial judge commit prejudicial error by instructing the jury on the range of punishments of a Range I offender, where the sentence range under which appellant must be sentenced is that of a Range II offender?"
The defendant contends that the appropriate procedure upon remand to the trial court is a new trial upon the issues of guilt, whereupon the jury could be instructed as to the appropriate Range II possible penalties; rather than simply have a new sentencing hearing to set Range II sentences.
It is the position of the defendant that knowing the applicable possible punishments is an appropriate and necessary matter of information for the jury to have and consider on the issue of guilt, where a motion has been made by the defendant under the provisions of T.C.A. Section 40-35-201(b) asking the court to instruct the jury on the possible punishment for all offenses charged in the indictments and all lesser included offenses.
The defendant submits that the erroneous failure of the trial judge to charge the jury correctly as to the possible punishments involves the deprivation of a substantial statutory right that "probably affected the jury's judgment". Defendant argues that had the jury been instructed on the correct sentencing range, since under Article I Section 19 of the Tennessee Constitution they were judges of both the law and the facts, "they could have exercised their discretion to convict of a lesser included offense". Since they were misinstructed that the consequences of their verdicts were less severe than they actually are, defendant states that this could have had a dramatic effect on their verdict.
Defendant argues that the range of punishment instruction upon motion was specifically retained by our Legislature in spite of the fact that jurors no longer retain the sentencing function, except in limited cases. Defendant cites in support of his position from Raybin, Tennessee Criminal Practice and Procedure, Vol. 11, Section 30.73, p. 157:
The defendant states that the erroneous instructions violated his right to a correctly charged jury and impaired his constitutional right to trial by jury. And he notes that had the jury exercised its discretion and found guilt of a lesser included offense because it deemed the punishment appropriate, this has historically been sanctioned by our appellate courts even where there was no evidence to establish the technical elements of the lesser offense found if the evidence supported conviction of a higher crime, per such cases as State v. Davis, 751 S.W.2d 167, 170 (Tenn.Crim.App.1988), and the cases cited therein.
The defendant asserts that the erroneous jury instructions violated the defendant's due process right to a fair trial by a fair tribunal and his right to trial by jury. He submits that a basic requirement of due process is a fair trial in a fair tribunal, citing Hearn v. Pleasure, 624 S.W.2d 556, 559 (Tenn.App.1981). He argues that a jury that is affirmatively misinformed as to the correct sentence range cannot satisfy the constitutional right to trial by jury and the due process requirements of a fair tribunal, that due process and fundamental fairness should prevent this fundamental error from being described as "harmless". Defendant cites Rule 36(b), Tennessee Rules of Appellate Procedure, which provides for relief from error that "would result in prejudice to the judicial process". Defendant argues that this error is clearly prejudicial to the judicial process, so cannot be said to be harmless.
The Tennessee Association of Criminal Defense Lawyers was permitted to file an amicus curiae brief in support of the position of the defendant-appellant.
The main thrust of the amicus' brief is that application of the harmless error rule is inappropriate in this case. Rule 36(b) of the Tennessee Rules of Appellate Procedure is quoted:
"(b) Effect of error.--A final judgment from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process." [Emphasis added.]
The amicus curiae chose to leave to the parties the question of whether the error in this appeal probably affected the judgment; and addressed their argument to the issue of prejudice to the judicial process, contending that the error in the instant case is of this systemic type. The argument is made that the harmless error analysis suggested by the Court of Criminal Appeals would have the effect of rendering T.C.A. Section 40-35-201(b) meaningless.
The argument is made that if the jury is mistakenly instructed that a conviction will result in a shorter sentence than in fact will be imposed, the likelihood of conviction of the crime charged in the indictment increases and the chance that the jury will convict of a lesser included offense decreases commensurately; and where the evidence makes out a close case, this danger is exacerbated.
It is further submitted that because T.C.A. Section 40-35-201(b) contains the mandate "shall", that a failure to follow the procedure set out therein is a due process constitutional right violation; and to be harmless error, it must be...
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