WPC ,cMCTABaFax"PDEF.PO WP_TV07806629USA)sportsallerxsIFWPTVWPC2 t[fSavBADADRVRcInfPACKSICNfPRT$  R{WP}10{WP}01Timesw{WP}11? Helvetica    {WP}12l6 Helvetica    8{WP}22PWP 6.0 captionM{WP}16 # >HP LaserJet 4SiHPPCL5MS,,,,,,0nLl\UNI(hH  Z 6Times New Roman Regular %X6 0(($HU:,|AZ"Arial Regularb- - 0(Ar8$X+XXXB XX+  0  HU :,  AZ"Arial Regular 0((2$ !   XlXXX & &X Xl   `   0  HU:,  AZ"Arial RegularNw@ eEEEӀ"4n~<$#3|xL>2 4  $ XC&XXX & &X XC&   `   3    Thetestimonyatthesentencinghearingindicatedthedefendantwas22,whereasthe `  judgmentindicatestheageof23. pqc x Y  $ XC&XXX & &X XC&   `   2    ݀Becauseduressisnotanaffirmativedefense,Defendantwasnotrequiredtoprove `  thedefensebyapreponderanceoftheevidence.Statev.Culp,900S.W.2d707,710(Tenn. :  Crim.App.1994).Heneedonlyhave fairlyraisedtheissueinordertorequirethetrialcourttosubmitthedefensetothejury.Id.;seealsoStatev.ScottyS.Davenport,C.C.A.No.01C01   9611CR00477,DavidsonCounty(Tenn.Crim.App.,Nashville,Feb.18,1998).Becausethetrialcourtinstructedthejuryonduress,weneednotdecidewhetherDefendantactuallymethisburdenofproductiononthedefense.&Level 1Level 2Level 3Level 4Level 55'M  !"  XsGXXXXXsG   Ad FILEDXsGX   August21,1998  CecilCrowson,Jr. XXsGAppellateCourtClerk HU:t,cAZ"Arial Regular_ AQ!"#%C<< C+ B dR 0D(3$ !  R 0D`(3$ !  R 0D($$   1  = D/''' dxd+ BP PdA D34 'dxd  HH  2$HH  Geneva  <Px443!#4$*$$*$ KK  Geneva  Geneva .,6 Geneva   inion Geneva  inion Geneva 4R3.5.2'3.5.2, 1996 Corel Corporation Limited,R3.5.2Created with WordPerfect 3.5.2.!a<[ t[!Corel WordPerfectxHH(FG(HH(d'hW\E JPSetBPJobNStylZwp60versWDat STR PtPt"WWɼ~ (` ~$ V ! qt+ F2  Wɤ Wɐ Wɔ ,Wɘ fWɌ Wɜ WɈ `W Wt W Wɰ .W$ TW( uWx W W, TW8 ,W@ eWD WH WL! CWT" W\# W`% EWh' Wp( WP W W˜3WԿ eWː{{WP}10{WP}11{WP}12{WP}22WP 6.0 caption{WP}16{WP}01"Hl.'  '" t[{WP}10 <<KK ..,,..,, t[Times۪HHl6HHHЫ  t[ Helvetica(d(    ٬A 7XXdXXd7A  t[  Times Э      t[ t[ t[0 '  '0( t[IN    THE COURT OF CRIMINAL APPEALS OF TENNESSEE$ '  '$Ϊҫ      t[M "h'P;'$' t[{WP}10 <<KK  t[Times t[V{WP}22 t[ Helvetica $Y@Y@Y@FILED$ 0$' '0F$$2' '$August 21, 199802@22' '0F@N Cecil Crowson, Jr.$N\'  '$  Appellate Court Clerk    0''  '0AT JACKSON'44AJUNE SESSION, 1998ANN[[hܪЫSTATE OF TENNESSEE, )C.C.A. NO. 02C019709CR00362$  hu'  '$$$$$$)0  uuu'  '0$Appellee,$$)0  '  '0$$$$$)  $$$$$)SHELBY COUNTY  VS. $$$$)$'  '$$$$$$)HON. CHRIS CRAFT0'  '0CHARLES GOLDEN, $)JUDGE0'  '0$$$$$)0'  '0$Appellant.$$)(FirstDegree Murder)0'  '00'  '0$'  '$QΪЫON APPEAL FROM THE JUDGMENT OF THE0'  '0^CRIMINAL COURT OF SHELBY COUNTY0'  '0++8ܪЫFOR THE APPELLANT:$$FOR THE APPELLEE:8EERSTEFFEN G. SCHREINER$JOHN KNOX WALKUPR_369 N. Main$$$Attorney General and Reporter_lMemphis, TNly$$$$$$PETER M. COUGHLANy$$$$$$Assistant Attorney General$$$$$$425 5th Avenue North  $$$$$$Nashville, TN 37243!!""$$$$$$WILLIAM L. GIBBONS##$$$$$$District Attorney General$$%%$$$$$$PHILLIP GERALD HARRIS&&$$$$$$JERRY KITCHEN''$$$$$$Assistants District Attorneys General(($$$$$$Criminal Justice Complex, Suite 301))$$$$$$201 Poplar Street**"$$$$$$Memphis, TN 38103++"/J,,/< //,,< Jܿ-LYܿ-LYOPINION FILED ________________________.Yf/fsCONVICTION AFFIRMED; REMANDED FOR RESENTENCING0s1DAVID H. WELLES, JUDGEV2 A2 ''V t[ͪЫ  t[ t[ t[ͬA 7dXXd7A " t[   Arial Regular"  t[ t[ͭOPINION 03'  '045$6' '$ t[ͪ  Ы t[ t[   t[$The Defendant, Charles Golden, pursuant to Tennessee Rule of@' 'fAppellate Procedure 3(b), appeals as of right his conviction of firstdegreeLmurder and sentence of life imprisonment without the possibility of parole. UDefendant asserts five claims of error: (1) that Defendant could have been guiltytof only seconddegree murder because he lacked the specific intent for first  degree murder; (2) that the court should have granted Defendants requestedjury instruction concerning his mental condition; (3) that the court improperlyinstructed the jury concerning reasonable doubt; (4) that the court improperly*instructed the jury concerning the unavailability of a defense of duress; and (5)3that the court improperly instructed the jury concerning when Defendant wouldbe eligible for release on parole if sentenced to life imprisonment. Although weaffirm the conviction, we remand for resentencing due to the inaccuracy of theparole eligibility jury instruction.  C<D<V$3Defendant was indicted by the Shelby County Grand Jury on Octoberj31, 1996, on a charge of firstdegree murder in violation of Tennessee CodeAnnotated  3913202. Judge Chris Craft of the Criminal Court for Shelbyt]County appointed counsel for Defendant and presided over his trial on March6 HV 61719, 1997. Following jury verdicts on guilt and sentencing, the court entered ajudgment of conviction and sentence of life imprisonment without the possibility ofparole. Defendants Motion for New Trial was overruled on April 18, 1997, andhe timely appeals. $$LV6M6P$At trial the State presented proof that Defendant shot and killed SergeantfDeadrick Taylor, a deputy jailer for the Shelby County Sheriffs Department,when Taylor returned to his home after work. Sergeant Taylor arrived home athis usual time; but before he was able to enter his house, Defendant shot$Taylor beside his car. The victims wife heard her husband drive into the carportbvarea and then heard  nothing but gunfire. As the gunfire continued, she rushed;outside but initially could not see anything but smoke. She then saw herhusband crawling toward the house and she assisted him inside. Taylor diedFat the hospital approximately forty minutes later of internal bleeding caused by.two gunshot wounds to the midsection"one which injured rib, liver, colon, andEsmall intestine; and another which injured rib, spine, and diaphragm. Bothwounds were of the type  generally associated with a high index of pain, andeach wound was caused by a .38 caliber bullet.  ZP[$/The State presented an inmate at the Shelby County jail, who testifiedthat he and Defendant were members of a gang called the Traveling Vice Lords6 ] 6*(TVL). The witness stated that the gang was controlled by Charles Thompson,'balso incarcerated in the jail, and that members of the gang receive elevated rankand status by following Thompsons orders. `NaNh$/This witness also testified that on the day of Sergeant Taylors murder,Charles Thompson and another TVL member engaged in a fight with two other;inmates prior to Sergeant Taylors shift. All prisoners were  locked down in theirUUcells 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 ofEthe earlier fight. Once released from lockdown, TVL leader Thompson arguedwith Sergeant Taylor about the extended confinement and repeatedly declared, You dont know who the f_ _k I am. ih8$j8R'  '$$`According to the witness, Thompson telephoned  Verico t[`{WP}11 t[ Helvetica   1     t[ t[ "Hl.' '" t[{WP}10 <<KK  t[Times t[${WP}12HHl6 t[ Helvetica $  1   Verico Jackson is brother to Mario Jackson, the inmate who joined Charles' 'Thompson in the prison fight against two other inmates.֭ following theRR' 'Uargument and asked why Sergeant Taylor had not yet been killed, calling Taylorby name and stating angrily, $mR'  '$ t[ͪ  Ы t[ t[   t[$Whats the motherf_ _king holdup? Why cant you do what the ;n '  ';$f_ _k I tell you to do? o$$. . .#p #$nWhen I tell you to kill the mother f_ _ker thats what I mean, nottomorrow, when I say it. . . . [Y]all right over there with him and yallcant get the mother f_ _ker.U s  s( U$$. . .#t   #$I want to hear about it on the news tomorrow. #u   #$v  +' '$ t[ͪ  Ы t[ t[   t[The witness also testified, 0w + E +''  '0 t[ͪ  Ы t[ t[   t[$$I didnt understand what was going on for the fact he had EA'  'just got in an argument with the man, and then he hop on thetphone. So when he was telling"when he was saying all this,""later on when we got locked down I was in my cell I said to myself]they must have already been planning to kill the man because theargument just happened . . . .#} E  #$~ ' '$N t[ͪ  Ы t[ t[   t[Finally, this witness agreed on cross examination that if a member of the TVL ' 'gang failed to do what Thompson ordered, the person might be hurt or killed.   $LThe State presented another witness who testified about events on theUUsame day outside the jail. The witness was present when Verico JacksonDDreceived a telephone call, which he answered in a back room alone. At this 8location"a house only a couple of streets from Sergeant Taylorsresidence"the witness saw several weapons, including a .25, .38, an SKSUUwith a long clip, and a .22 with a scope. When the phone call concluded,Verico called Defendant, Rory Haywood, and  Cookie Monster, another TVLUmember, into the back room. The four gang members and others present,Fincluding the witness, left this house and Verico said,  Lets go gangbanging. Defendant, Verico, Rory, and  Cookie Monster drove away in a car; and thewitness saw the car stop on Sergeant Taylors street.  Cookie Monsterobtained the SKS and the .38 from under the hood of the car and handed the6  6I.38 to Defendant. The two then walked away, leaving Rory in the drivers seat. fAbout five minutes later, the witness heard  a lot of gunshots"specifically,DD about three regular gunshots . . . a lot of loud gunshots and then some morelike quieter gunshots. Later, the witness heard Verico thank Defendant  forfftaking care of their business, and Defendant stated,  [T]hat whoreass niggershouldnt have got my nigger jumped on.   $Following his arrest, Defendant made a voluntary statement in which het]validated the above facts, except that Charles Thompson had called on April18 with the order to murder Sergeant Taylor. Defendant stated that Verico toldUhim killing Taylor was  Nation Business, and when Defendant tried to  punk outDDand not do[] it, Verico told him that he must do it because it was NationUBusiness. Defendant came back to the house the next day, they discussedthe plan as early as 2:00 p.m., and they carried out the plan the evening of April19 at approximately 10:40 p.m., after waiting for Taylor to arrive at his home. Then, according to Defendant,$ '  '$ t[ͪ  Ы t[ t[   t[$$U Cookie Monster said, go on. So I walked up in back of '  'Sergeant Taylor. He was out of the car. I said, hey. AndSergeant Taylor looked at me, and I fired three or four times towardSergeant Taylor holding the gun gangster style (meaning the gunwas turned #  #$Utoward the side instead of the traditional firing of the gun; it was Lturned toward the side). $ffI turned and ran along the path to where  Cookie Monsterjwas with Rory. And  Cookie Monster had the AK, and Rory had6 >  6the .25 automatic. And I passed the .38 to Rory. As I wasrunning toward Kansas [Street] and  Cookie Monster started firingKKthe AK as I was running. I ran up on Kansas . . . and Rico cameout and asked if the job was done. And I said, yeah.#   #$ ' '$L t[ͪ  Ы t[ t[   t[At approximately 2:00 a.m., after the shooting, Defendant and others started A' 'smoking [marijuana] and celebrating. No one was  promoted within the gang,*but Defendant heard rumors that Charles Thompson intended to pay him for themurder.  $Later in his statement, Defendant said he wanted to tell Sergeant Taylorsnwife that he was sorry for what happened and that he  did not shoot herhusband. In addition,$l'  '$ t[ͪ  Ы t[ t[   t[$$jI didnt have no choice but to do what they thought I didl'  'cause they said"they"if I didnt they would go to my family orffthey would shoot me right there. I was in fear of my life and myfamilys life if I didnt participate in this act. #l #$' '$ t[ͪ  Ы t[ t[   t[0R' '0I. $Defendants first argument is that he lacked the specific intent for first  degree murder and, therefore, could only have been convicted of seconddegreemurder. He contends that the defense of duress applies to negate his intent tokill because he feared for his life and the life of his family at the time heffcommitted the offense. We read Defendants argument as presenting two;separate but related assertions: First, the trial judge as a matter of law should6 c 6Uhave excluded firstdegree murder from the jurys purview. Second, a jury couldnot have concluded that Defendant was guilty of firstdegree murder. $We examine the second assertion first and conclude that the Statepresented sufficient evidence to support his conviction by the jury.  [F]indings ofguilt in criminal actions whether by the trial court or jury shall be set aside if theevidence is insufficient to support the finding by the trier of fact of guilt beyond areasonable doubt. Tenn. R. App. P. 13(e). Conversely, therefore, a jury verdictshould stand so long as the evidence is sufficient to support the finding of guiltrbeyond a reasonable doubt. Defendants conviction destroyed his presumptionnof innocence and instated a presumption of guilt in its place. See McBee v.State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Evans, 838US.W.2d 185, 191 (Tenn. 1992) (citing State v. Grace, 493 S.W.2d 474, 476N(Tenn. 1976), and State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977)); State v.;Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); Holt v. State, 357 S.W.2d 57, 61(Tenn. 1962).  -$3Upon examination of the record, it is apparent that some discrepanciesexist between the testimony of the States witnesses and Defendants9statement concerning what day Charles Thompson made the telephone call ordering Sergeant Taylors assassination. This Court must resolve any33conflicts in testimony in favor of the jury verdict. See Tuggle, 639 S.W.2d at 914. 6  - 633However, with respect to the issues presented by the conflict, Defendants9statement actually tends to show greater premeditation and less coerciveinfluence, in support of the States case. -  '$UIn this case, the State provided ample evidence by which a jury couldFfind that Defendant acted with the requisite mens rea to commit firstdegreemurder. By Defendants own statement, the gang decided to murder SergeantTaylor on April 18, 1996. Members discussed what weapons they would use$and planned a course of action. Defendant stated that he went home on the;evening of April 18 and returned midday on April 19, when he and others.discussed the murder again and prepared to ambush Sergeant Taylor when he*arrived home from work. Defendant stated that he then walked toward Taylorand immediately shot at him three or four times.  '+$Furthermore, the jury was entitled to find Defendant guilty of firstdegreeUUmurder despite his argument that the murder was committed under the duress ofbelieving that the TVL gang would kill him or his family in retaliation for failing toOcarry out  Nation Business. As defined by the legislature and charged by thetrial court, $+'  '$ t[ͪ  Ы t[ t[   t[$]Duress is a defense to prosecution where the person or a third'  '@person is threatened with harm which is present, imminent,impending and of such a nature to induce a wellgrounded6   6@apprehension of death or serious bodily injury if the act is not done. The threatened harm must be continuous throughout the time theact is being committed, and must be one from which the personcannot withdraw in safety. Further, the desirability and urgency ofavoiding the harm must clearly outweigh, according to ordinaryrstandards of reasonableness, the harm sought to be prevented bythe law proscribing the conduct. # ? #$?L' '$ t[ͪ  Ы t[ t[   t[Tenn. Code Ann.  3911504(a). Here, the evidence as recounted aboveLh' 'demonstrates the lack of a present, imminent, impending, and continuous threatof harm. At best, the jury was presented a generalized apprehension that33Defendant or Defendants family might have been hurt somehow, at someffunknown point in the future. Even if the jury found a satisfactory threat of harm,it was certainly entitled to conclude that the desirability of avoiding gangretaliation did not outweigh the harm of killing Sergeant Taylor. L$Having so concluded, we also find that the trial judge was under no dutyt]to withdraw the charge of firstdegree murder in favor of lesserincluded homicideoffenses. Prior to exercising the function of thirteenth juror, a trial judge maytweigh the evidence only (1) to determine whether the State has profferedI%sufficient evidence, as a matter of law, for the jury to consider the charge; and](2) to determine whether a defendant has proffered sufficient evidence, as a'  '[nmatter of law, for the jury to consider the defense. t[`{WP}11 t[ Helvetica   2     t[4 t[M!, "Hl.' '"I% t[{WP}10 <<KK  t[Times t[${WP}12HHl6 t[ Helvetica $  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 thetrial court to submit the defense to the jury. Id.; see also State v. Scotty S. Davenport,C.C.A. No. 01C019611CR00477, Davidson County (Tenn. Crim. App., Nashville, Feb.18, 1998). Because the trial court instructed the jury on duress, we need not decide whetherDefendant actually met his burden of production on the defense.  M4֭ See, e.g., State v.N  > ' 'N9Underwood, 669 S.W.2d 700, 70203 (Tenn. Crim. App. 1984) ( The*defendants defense of alibi presented a factual issue for the jury to determine.);*State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982) ( The defenseof alibi presents an issue of fact determinable by the jury, as the exclusive$judges of the credibility of the witnesses in support of that defense, and of theUweight to be given their testimony.) (citing Green v. State, 512 S.W.2d 641(Tenn. Crim. App. 1974)).   $UIn this case, we have already concluded above that the State bore itstburden of persuasion; therefore, we must conclude that the State bore itsburden of production, and that the trial court was correct in allowing the charge offirstdegree murder to be decided by the jury.   ::TTn܀II.n$rWe consider Defendants second and fourth issues together: that theFcourt should have granted his specific jury instruction and that the courtt]improperly instructed the jury on the unavailability of duress as a defense. 6  > 6UUGenerally, a jury charge  should be considered prejudicially erroneous if it fails tofairly submit the legal issues or if it misleads the jury as to the applicable law. 'bState 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.2d531 (Tenn. 1977)). h$pIn addition,  [i]t is the duty of a trial judge to give a complete charge of thelaw applicable to the facts of a case. State v. Harbison, 704 S.W.2d 314, 319F(Tenn. 1986) (citing State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975));$see State v. Burkley, 804 S.W.2d 458, 461 (Tenn. Crim. App. 1990). This Courtalso stated in Burkley,  In delivering its charge, a court should guard against anLinstruction which would withdraw from the jurys consideration any issue orevidence which they are entitled to consider. 804 S.W.2d at 461. !h"8$Defendant argues that the trial judge erred in instructing the jury thatduress is  unavailable to a person who intentionally, knowingly, or recklessly'bbecomes involved in a situation in which it was probable that the person wouldbe subjected to compulsion. The offensive instruction, however, is the secondItenet of the statutory defense of duress. Tenn. Code Ann.  3911504(b). In؞order to justly discern when the defense is available and proper, a jury musttnecessarily know when it is statutorily unavailable to a defendant; and without6 ) " 6UUthis instruction, the trial courts charge would not have been a complete andaccurate statement of the law.  +82,2L$UUDefendant also appeals the trial courts failure to grant his request for aspecific jury instruction on the defense of duress. Defendants proposedinstruction was submitted as follows:$/L'  '$ t[ͪ  Ы t[ t[   t[$$Ladies and gentlemen of the jury, I further instruct you that in'  'regards to the Law of Second Degree Murder, the defendant mayUbe convicted of the Law of Second Degree Murder if you find from'ball the proof in the record that the defendants fear for his life soclouded his judgment that he was incapable of reason andmtherefore, was incapable of forming the necessary premeditatedFintent necessary to constitute the Law of Murder in the First Degree. The difference in Murder in the First Degree and Murder in the33Second Degree is that of premeditation. Before a defendant canbe convicted of Murder in the First Degree, he must have thet]mental capacity, free from any kind of outside influences, in order toUUhave the capacity to form the necessary criminal intent prerequisite to be guilty of Murder in the First Degree. $If you have reasonable doubt that the defendants mindwas so influenced by fear for his life then you must find the]defendant guilty of only Murder in the Second Degree. (Pirtle v.State, 28 Tenn. 663; (1989); State v. Keeds, 753 SW2d, 140(1985); State v. Adkins, 653 SW2d 708 (1983).#A #$B' '$E t[ͪ  Ы t[ t[   t[Because Defendant failed to  fairly raise the issue of his mental capacity,' 'I%because we find that his instruction is not a clear and accurate statement of thelaw, and because the trial court indeed used an adequate instruction, weconclude that the trial court properly rejected its inclusion in the charge. FJG G J$UAlthough it is somewhat unclear, the trial judge in this case assessed thattDefendant was, in essence, arguing diminished capacity by likening his fear ofharm to intoxication; and we will therefore address the issue as such. Ourt]legislature has mandated, and the courts of this state have recognized, thatffalthough intoxication is not a defense to prosecution, evidence of intoxicationUUcan negate a finding of specific intent to commit a crime. Defendant in this caseseems to contend that, although he cannot fulfill the requirements of a statutory/defense of duress, evidence of his duress can nevertheless negate his specificintent to commit murder. We cannot agree.  P# Q '$First, no evidence in the record exists to support a finding that DefendantUwas  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 ourLknowledge, has extended the doctrine of diminished capacity to simply acoercive situation, and we decline to do so now. Our legislature has prescribed,Fin painstaking detail derived from the common law, precisely when a criminal'bdefendant can be considered to lack the specific intent to commit an offense duento duress. See Tenn. Code Ann.  3911504. This instruction declares that acriminal defendant cannot be convicted of firstdegree murder even when theapprehension of a threatened harm is not present, imminent, impending, orfcontinuous. Therefore, Defendants requested instruction is not a fair, complete,6 +\' 6or accurate statement of the law. Finally, we find the trial courts instructions onduress and the mental state required for first and seconddegree murdersufficient. When  the matter ha[s] been fully and adequately covered in [the]general charge, a trial judge possesses the discretion to deny specificallyUrequested instructions. Bostick v. State, 360 S.W.2d 472, 477 (Tenn. 1962); seealso Edwards v. State, 540 S.W.2d 641, 649 (Tenn. 1976) ( It is not error torefuse a special request where the charge as given fully and fairly states theUUapplicable law.); State v. Blakely, 677 S.W.2d 12, 18 (Tenn. Crim. App. 1983). Defendants second claim of error lacks merit.e'?f?YIII.gYs$Defendants next assignment of error is that the court improperly chargedthe jury that  absolute certainty is not required to convict a criminal defendantbeyond a reasonable doubt. The instruction as given reads:$js'  '$ t[ͪ  Ы t[ t[   t[$$IReasonable doubt is that doubt engendered by anl'  'investigation of all the proof in the case and an inability, after suchinvestigation, to let the mind rest easily upon the certainty of guilt. LReasonable doubt does not mean the doubt that may arise frompossibility. Absolute certainty of guilt is not demanded by the lawFto convict of any criminal charge, but moral certainty is required asto every proposition of proof requisite to constitute the offense. #q  #$r  )' '$ t[ͪ  Ы t[ t[   t[(Emphasis added). 0s ) C )' '0Jt C ] Ct ] J$@Defendants argument must fail. We have in the past concluded that this]instruction is permissible and that there are no constitutional impediments to itsuse. See State v. Willie Taylor, C.C.A. No. 02C019702CR00080, ShelbyCounty (Tenn. Crim. App., Jackson, Mar. 10, 1998); State v. James EarlISomerville, C.C.A. No. 02C019608CC00289, Tipton County (Tenn. Crim.UApp., Jackson, Oct. 13, 1997); see also Pettyjohn v. State, 885 S.W.2d 364,36566 (Tenn. Crim. App. 1994) (concluding that requiring  moral certainty was3sufficient for due process especially when the concept was differentiated frombv absolute certainty before the jury). We see no reason to deviate from thesedecisions. Absolute certainty is tantamount to one hundred percent certainty,which the standard of  beyond a reasonable doubt does not require.   m!$$$!!ـIV.!!$]Defendants final issue for review is whether the trial court erred inadvising the jury during the sentencing phase of the trial:  A defendant whoreceives a sentence of imprisonment for life shall not be eligible for paroleconsideration until the defendant has served at least twentyfive (25) fulltcalendar years of such sentence. At trial defendant contended that parole*eligibility instructions  should not be within the province of the jury and are' 'prejudicial to the defendant. We reject the argument that a parole eligibility juryN"[ "[" ' 'Ninstruction is generally unconstitutional in a sentencing hearing. See generally"' 'State v. Cribbs,    967    S.W.2d    773    (Tenn. 1998).  !"""$Unfortunately, the 25year jury instruction was inaccurate in this case. mAlthough Tennessee Code Annotated  3913204(e)(2) specifically requiresthat the jury be instructed as to service of  at least twentyfive (25) full calendarLyears before being eligible for parole consideration, this statutory calculation iserroneous. "#U#U#o$9An examination of both Tennessee Code Annotated  3913204 and4035501 is necessary. Tennessee Code Annotated  4035501 wasamended in 1993 to specifically provide that a defendant with a life sentencewill not be eligible for parole until service of  a minimum of twentyfive (25) fullcalendar years of such sentence. Tennessee Code Annotated  4035  ff501(g)(1)(Supp. 1993). Also, in 1993 Tennessee Code Annotated  3913204was amended to require that the jury be instructed that a defendant receiving a*life sentence will not be eligible for parole consideration until the defendant hasserved  at least twentyfive (25) full calendar years of such sentence.  Tennessee Code Annotated 3913204(e)(2)(Supp.1993). It is obvious thatUUthe legislature intended that the jury be instructed as to parole eligibility ascalculated by Tennessee Code Annotated  4035501. J #o$ $$ Jܿ$$$Effective July 1, 1995, Tennessee Code Annotated  4035501 wast]amended to deny release eligibility for those convicted of firstdegree murder and`certain other crimes. Tennessee Code Annotated  4035501(i)(1),(2)(Supp.1995). Only certain sentence reduction credits not to exceed fifteen percent(15%) are allowable. As noted by the State Attorney General, for crimesv'committed after July 1, 1995, minimum release eligibility for a life sentence is fifty ' ' one (51) years and not twentyfive (25) years. See Attorney General Opinion%m' 'r97098 (7197). Unfortunately, Tennessee Code Annotated  3913204 wasnot amended to reflect this change.  $%%%$qIt immediately becomes apparent that the legislature in 1995 overlooked3amending Tennessee Code Annotated  3913204 to coincide with the 1995amendment to Tennessee Code Annotated  4035501. The statutesUpresently are in conflict; however, it is clear that the legislature intended to/change the minimum release eligibility date for a life sentence from twentyfive(25) years to fiftyone (51) years. %&q&q&$@The homicide at issue was committed after July 1, 1995. We, therefore,Iconclude that the trial court erred in informing the jury of the twentyfive (25) year6 && 6'bprovision instead of the fiftyone (51) year provision. We now examine this errorto ascertain whether it was prejudicial to the defendant. &'''$I%We are unable to conclude that the error was harmless in this case. TheLjury found that the state had established the statutory aggravating circumstanceof murder for remuneration. Tenn. Code Annotated  3913204(i)(4). However,;it was still within the jurys discretion to sentence the defendant to either life*imprisonment or life without parole. Tenn. Code Annotated  3913204(f)(2). At'  'DDthe time of sentencing the defendant was 22 years of age. t[`{WP}11 t[ Helvetica   3     t[ t[ "Hl.' '" t[{WP}10 <<KK  t[Times t[${WP}12HHl6 t[ Helvetica $  3  The testimony at the sentencing hearing indicated the defendant was 22, whereas' 'the judgment indicates the age of 23. ֭ He would be at'' 'Oleast 73 years of age before reaching eligibility for release for a straight life.sentence under the fiftyone (51) year provision. The inaccurate jury instructionwould allow for possible release at age    47 for a life sentence.     '( ( ('$UThe choice between life without the possibility of parole and life with thepossibility of parole is one to be made by the jury under our sentencing statute;for firstdegree murder. Tenn. Code Annotated  3913204. It is a seriousresponsibility. This Court is reluctant to substitute our judgment for that of the jurywhere the jury was provided inaccurate information as to sentencing. In manyEinstances, depending upon the age of the defendant, it would appear a6 (((' 6Udefendant sentenced to straight life under the fiftyone (51) year provision will, asFa practical matter, have the same effective sentence as life without parole. However, in this case we are unable to conclude the jury would still havechosen life without parole if it had been properly instructed. Thus, we cannotapply the harmless error doctrine in this case.  (')U$)U)o' '$$CONCLUSION;)o).)o' ';))$The conviction is affirmed. The case is remanded to the trial court forresentencing for the offense of first degree murder. ))$))'  '$ t[ͪ  Ы t[ t[   t[$$$$$$__________________________ 0)))'  '0$$$$$$DAVID H. WELLES, JUDGE)*  * * **% *%*2 *2*? *?*L*L*Y*Y*fCONCUR:*f*s*s*****__________________________**PAUL G. SUMMERS, JUDGE******___________________________**JOE G. RILEY, JUDGEJ** ** Jܿ*+