Advocacy in DUI Cases - Law Firm Hollins, Wagster, Weatherly & Raybin, P.C. Attorneys Nashville, Tennessee

APPELLATE ADVOCACY IN DUI AND

DUI RELATED CASES

David L. Raybin 2002

DAVID L. RAYBIN

Hollins, Wagster, Weatherly & Raybin, P.C.

Suite 2200, Fifth Third Center

424 Church Street

Nashville, Tennessee 37219

(615) 256-6666

HWYLAW.COM

1. INTRODUCTION

A. Why appeal

1. Help client

2. Get some respect

3. Do better second time around

4. Integrity of system

5. Change the law, trials have little precedential value — appeals do.

B. Attitude

1. Spend time looking out windows.

2. Be aggressive

3. The other side

C. Know procedure. Appellate courts have procedural problems in many

appeals; do not let the procedural problems detract from the merits of your case.

D. Know the law; your “tools”

E. Know developing issues (waiver)

F. Retroactive application See e.g. Sampson v. State, 553 S.W.2d 345 (insanity).

Discussion of retroactivity Rules: When the Supreme Court releases an opinion involving an entirely new doctrine of law, the Court frequently articulates how that doctrine will impact pending cases and appeals. For example, in State v. Dyle, 899 S.W.2d 607 (Tenn. 1995), the Supreme Court discussed a new jury instruction on witness identification. At page 612, the Court held that “this ruling is applicable to cases now on appeal and those cases tried after the release of this opinion.” This meant that the opinion was given “pipeline” application.

In State v. Walker, 905 S.W.2d 554 (Tenn. 1995), the Court held that persons under criminal sentence who present themselves for incarceration but are turned away by the sheriff, may consider the sentence satisfied under certain circumstances. The Supreme Court held, at page 557, that “we are also persuaded that the rule announced today should be prospective only and should apply only to cases tried or retried after the date of this opinion and in cases on appeal in which the issue has already been raised.”

In State v. Enochs, 823 S.W.2d 539 (Tenn. 1991), the Court found that the thirteenth juror rule applied to all cases which were pending on direct review at the time the rule was reinstated and became effective. Lawyers who raised the issue prior to the release of Enochs, obtained a new trial for their clients after Enochs was rendered. See e.g., State v. Barone, 852 S.W.2d 216, 218 (Tenn. 1993).

This “pipeline” doctrine is not limited only to criminal cases. In McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), the Supreme Court adopted new rules regarding comparative fault. At page 58, the Court held that the opinion would apply to “all cases tried or retried after the date of this opinion and all cases on appeal in which the comparative fault issue has been raised at an appropriate stage in the litigation.” Identical language can be found in McClung v. Delta Square Partnership, 937 S.W.2d 891, 905 (Tenn. 1996) (landlord liability for crimes committed against innocent third parties by criminals on the premises); Broadwell v. Holmes, 871 S.W.2d 471, 477 (Tenn. 1994) (parental immunity); and Hataway v. McKinley, 830 S.W.2d 53, 60 (Tenn. 1992) (the “lex loci delicti” choice of law doctrine in a wrongful death action).

On occasion a Court neglects to articulate how a decision will “run” and must resolve the question in a later appeal:

“We are constrained to note, however, that the absence of language directing the retroactivity of the Jordan decision was a product of oversight rather than the result of a judicial decision to limit Jordan to prospective application only. ... We hold that Jordan [loss of consortium damages were recoverable under wrongful death statute] applies retroactively to: (1) all cases tried or retried after the date of our decision in Jordan; and (2) to all cases pending on appeal in which the issue decided in Jordan was raised at an appropriate time. We are aware that our holding will require retrial of some cases and the expenditure of additional judicial resources. Still, we cannot perpetuate denial of retroactive application of Jordan when that result was not our intention.”

Hill v. City of Germantown, 31 S.W.3d 234, 240 (Tenn. 2000). More frequently the appellate courts give a new decision pipeline application even without an express decision articulating retroactivity. For example, State v. Rickman, 876 S.W.2d 824 (Tenn. 1994) (limitations on proof-of-other-crimes in child sex abuse cases) did not articulate how it would apply in the future. Yet, the Supreme Court itself applied Rickman to pipeline appeals. See e.g. State v. McCary, 922 S.W.2d 511 (Tenn. 1996), and State v. Dutton, 896 S.W.2d 114 (Tenn. 1995), as did this Court in State v. Woodcock, 922 S.W.2d 904 (Tenn. Crim. App. 1995). See also State v. Stokes, 24 S.W.3d 303 (Tenn.2000) (State v. Burns applied to determine lesser- included offense in case which was in appellate "pipeline" prior to release of Supreme Court's Burns opinion).

G. Fees for appellate work; client relations

2. TYPES OF APPEALS

A. Rule 8, T.R.A.P. (bond matters)

B. Rule 3, T.R.A.P. (appeals as of right)

1. Defendant: conviction, habeas corpus, revocation of probation, extradition and post-conviction; (parole and prison problems go to Ct. of Appeals, Slagle v. Reynolds, 845 S.W.2d 167 (Tenn. 1992).

2. State: dismissal of indictment, judgment of acquittal, arresting judgment, remanding a child to juvenile court.

C. Rule 37, Tenn. R. Crim. P. (guilty pleas) via Rule 3, T.R.A.P.

1. Certified question with consent of state (with plea bargain) Rule 37(b)(2)(i), Tenn. R. Crim. P. EXCEPTION : CAN NOT appeal a certified question as of right, where client pleads guilty pursuant to T.C.A. § 40-35-313 ( post-trial diversion). State v Norris, 47 S.W. 3d 457 ( Tenn. Crim App. 2001) (codefendant who took straight probation could appeal and won his search warrant question! )

2. Certified question without consent of state (no plea bargain) Rule 37(b)(2)(iv), Tenn R. Crim. P.

3. Certified question: What is it?

(a) Controlling question of law. E.g. State v Norris, 47 S.W. 3d 457 ( Tenn. Crim App. 2001)( search question)

(b) State v. Jennette, 706 S.W.2d 614 (Tenn. 1986) (precisely stated in court’s order, must be dispositive of case)

(d) Wilkes (not certified)

4. Have a hearing, introduce evidence, have an order, put it in guilty plea order. DISCUSSION: Court of Criminal Appeals of Tennessee, at Knoxville.

STATE v. OGLE. Jan. 17, 2001.Appeal Denied June 4, 2001.

Defendant entered a best interest plea of guilty to vehicular homicide by recklessness. The parties attempted to reserve a certified question of law relating to the destruction of the victim's vehicle. The defendant contends that because the vehicle was destroyed, a full reconstruction of the accident could not be conducted. Defendant further contends that a reconstruction of the accident would have led to exculpatory evidence. Thus, he argues he was denied a fair trial. Upon our review of the record, we must conclude that this court does not have jurisdiction to address the certified question since the certification did not meet the requirements of State v. Preston, 759 S.W.2d 647 (Tenn.1988). The appeal is, therefore, dismissed. PROCEDURAL BACKGROUND Defendant was indicted in June 1994 for the offenses of vehicular homicide by intoxication and vehicular homicide by recklessness as a result of the death of the victim in a head-on collision on February 23, 1994. After several continuances, the case was set for trial on November 24, 1997. A month prior to the trial date, defense counsel retained an accident reconstructionist. It was then discovered that the victim's vehicle had been released from a storage facility and, therefore, was not subject to examination by the accident reconstructionist. Defendant moved for dismissal of the indictment due to the destruction of the vehicle while it was under state control. The trial date was continued, and the trial court overruled the motion on July 24, 1998. The case was reset for trial, and on January 11, 2000, after jury selection for the trial had begun, defendant entered a negotiated, best interest plea to vehicular homicide by reckless operation of a vehicle. The transcript of the guilty plea clearly reveals that all parties understood that the guilty plea was conditional upon the reservation of a certified question of law relating to the issue of the destruction of the victim's vehicle. See Tenn.R.Crim.P. 37(b)(2)(i). Further, the written plea agreement executed by the assistant district attorney general and the defendant on this date specifically refers to the certified question. However, the judgment of conviction entered by the trial court on January 14, 2000, contains the following language: "CERTIFIED QUESTION OF LAW RESERVED FOR APPEAL (SEE SUPPLEMENTAL ORDER)." The judgment of conviction contains no other information relating to the certified question, and no supplemental order was filed on that date. Notice of appeal was filed February 10, 2000. The supplemental "Order Certifying Question" was signed by the trial judge on February 17, 2000, and entered on the same date by the trial court clerk. That order certifies as dispositive the question of whether the defendant would be deprived of a fair trial by the loss of the victim's vehicle. JURISDICTIONAL ISSUE The state has not raised the issue as to whether the certified question is properly before this court. However, Tenn.R.App.P. 13(b) provides that this court "shall" in all cases consider whether this court has jurisdiction. We must, therefore, determine whether the question has been properly certified, and, if not, whether such a failure deprives us of jurisdiction. In State v. Preston, 759 S.W.2d 647 (Tenn.1988), our Supreme Court made explicit to the bench and bar exactly what the appellate courts require as prerequisites to the consideration of the merits of a certified question of law. These requirements are as follows: Regardless of what has appeared in prior petitions, orders, colloquy in open court or otherwise, the final order or judgment from which the time begins to run to pursue a T.R.A.P. 3 appeal must contain a statement of the dispositive certified question of law reserved by defendant for appellate review and the question of law must be stated so as to clearly identify the scope and the limits of the legal issue reserved. For example, where questions of law involve the validity of searches and the admissibility of statements and confessions, etc., the reasons relied upon by defendant in the trial court at the suppression hearing must be identified in the statement of the certified question of law and review by the appellate courts will be limited to those passed upon by the trial judge and stated in the certified question, absent a constitutional requirement otherwise. Without an explicit statement of the certified question, neither the defendant, the State nor the trial judge can make a meaningful determination of whether the issue sought to be reviewed is dispositive of the case.... Also, the order must state that the certified question was expressly reserved as part of a plea agreement, that the State and the trial judge consented to the reservation and that the State and the trial judge are of the opinion that the question is dispositive of the case.... No issue beyond the scope of the certified question will be considered. Id. at 650 (emphasis added); see also State v. Caldwell, 924 S.W.2d 117, 118 (Tenn.Crim.App.1995). Failure to properly reserve a certified question of law pursuant to Preston will result in the dismissal of the appeal. State v. Pendergrass, 937 S.W.2d 834, 838 (Tenn.1996). The requirements of Preston were steadfastly reaffirmed in Pendergrass. Id. at 837-38. In Pendergrass, the judgments of conviction entered January 15, 1993, did not make reference to the certified question of law. Notice of appeal was filed February 12, 1993, and on February 19, 1993, the trial court entered an order certifying the question of law as dispositive of the case. Id. at 835-36. The court noted that the judgments of conviction made no reference to the certified question, did not contain an identification of the scope and limits of the legal issues reserved, and did not contain any statement that the certified question was dispositive, all of which are explicitly required by Preston. Id. at 837. The court further found the trial court lost jurisdiction on the date the notice of appeal was filed, and its attempt to properly certify the question several days later was a nullity. Id. at 838. Because the defendant had not complied with all of the requirements of Preston, the court dismissed the appeal. Id.The attempt to certify the question of law in this case was not in compliance with Preston. Although the judgment of conviction made reference to a certified question of law pursuant to a supplemental order, the judgment does not identify the scope of the certified question of law and contains no statement that the question is dispositive. Furthermore, like the subsequent order entered in Pendergrass, the order entered by the trial court in this case was signed and entered more than thirty days after entry of the judgment and after filing of the notice of appeal; thus, it is a nullity. HISTORY OF PRESTON AND TENN.R.CRIM.P. 37 After much discussion, this panel makes the following comments concerning appeals from guilty pleas with certified questions of law pursuant to Tenn.R.Crim.P. 37(b)(2). The rule has a valuable purpose. It allows for the disposition of cases based upon guilty pleas where there is a dispositive pretrial issue in dispute, thereby avoiding the necessity of a trial. The rule itself does not set forth the detailed requirements enumerated by Preston. As the appellate courts have written time and again, the requirements of Preston are extremely clear. See Pendergrass, 937 S.W.2d at 837. In Preston, the supreme court noted that, "[m]ost of the reported and unreported cases seeking the limited appellate review pursuant to Tenn.R.Crim.P. 37 have been dismissed." Preston, 759 S.W.2d at 650. Preston was decided in 1988 and Pendergrass in 1996, and we regret to observe that, based upon the history of appellate cases, the problems do not appear to have substantially diminished. In many of these cases the state, defendant and trial court have all agreed (as evidenced by the guilty plea transcript) that the question is properly certified, only to have the state correctly argue on appeal that the certification was not in compliance with Preston, requiring dismissal of the appeal. The dismissal of the appeal leads to an unwieldy result. Since the plea was entered conditionally upon the certified question, the defendant has the opportunity to seek post-conviction relief from the conviction and guilty plea. The defendant, state, crime victims, and the trial court are now back to "square one," in spite of everyone's original agreement as to the substance of the plea agreement. It is then months or years after the original guilty plea. The defendant may re-enter his plea and properly certify the question back to this court. However, the defendant is not required to do so. Thus, in spite of everyone's earlier agreement as evidenced by the transcript of the hearing, the parties are left in a quandary and, at the very least, face even more delay. Based upon the documented appellate history of guilty pleas with certified questions of law, we observe that it has become more of a trap than serving its intended purpose. In spite of repeated appellate cautions, the dictates of Preston are simply not being met and, according to its history, will not be met. Along these lines we observe that guilty pleas are often unanticipated until shortly prior to their entry with judgments prepared by the state or trial court and entered without approval by defense counsel. We further note that there is no requirement that either counsel approve the judgment. See Tenn.Sup.Ct.R. 17 (signatures of attorneys "optional"). Unfortunately, it appears there is undue prejudice to the state, crime victims, defendants and all involved in these cases because that which has clearly been agreed upon has not been written on the appropriate document at the appropriate time.

5. Guilty plea itself

(a) Housler v. State, 749 S.W.2d 758 (all issues regarding the plea can be litigated on direct, very limited on post-conviction).

D. Interlocutory Appeals; Rule 9 & 10, T.R.A.P. (civil & criminal).

1. Rule 9 with trial judge’s permission

(a) Must seek trial judge’s permission within 30 days of complaining action. Rule 9 Orders must be very specific as to WHY an appeal is required at this time.

(b) Must perfect in appellate court within 10 days of trial judge’s order

2. Rule 10 without trial judge’s permission. Go right to the appellate court. Very rare.

3. State’s right

(a) Discovery; State v. Ballard, 714 S.W.2d 284 (mental evaluation of victims)

(b) Granting a new trial; State v. Perry, 740 S.W.2d 723

4. Defendant’s right

(a) Double jeopardy: Abney, 431 U.S. 651

(b) Place of custody: Grey, 602 S.W.2d 259

(c) Discovery: Gawlas, 614 S.W.2d 74 (denied, informant); Vilvarajah, 735 S.W.2d 837 (granted, defendant’s medical reports)

(d) Suppression of search, confession: Hartsfield, 629 S.W.2d 907 (denied)

(e) Closure: Drake, 701 S.W.2d 604 (denied)

(f) Appointment of lawyer: Huskey v. State, 743 S.W.2d 609 (Rule 10, T.R.A.P. allowed)

(g) Disqualification: Parrot, 919 S.W.2d 60 (allowed)

(h) Pretrial diversion:

(1) Can appeal prior to or after conviction: Rule 38 Tenn. R. Crim. Pro., overruling State v. Wilson, 713 S.W.2d 85

(2) Bring it all up on first shot: Nabb I, 713 S.W.2d 685, Nabb II, 713 S.W.2d 688

3. PROTECTED RECORD

A. Begin at arrest, keep an “appeal” file

B. Get it in the record!

1. File exhibits (exhibit A, B, etc.), Cooper, 735 S.W.2d 125 (no search warrant); Rhoden, 739 S.W.2d 6 (tapes)

C. Objection

1. Object, object, object

2. How to object: Hammonds, 737 S.W.2d 549 (no off-the-record)

3. Contemporaneous objection: McGee, 746 S.W.2d 460 (Tenn. 1988) (motion in limine)

4. Offer of proof: State v. Goad, 707 S.W.2d 846 (Tenn. 1986) (better practice is to present proof); Tenn. Rule Evid. 103(b) (question and answer)

5. Ground of objection: Tenn. R. Evidence 103(a)(1) (grounds must be stated)

D. Pretrial Litigation

1. Motions must be on time; Rule 12, Tenn. R. Crim. P.

2. Litigate to “finality,” : McGee, 746 S.W.2d 460 (Tenn. 1988) (motion in limine)

3. Defendant can testify without cross on other issues. Rule 104(d) T. R. Evid.

E. Jury Argument, must object.

F. Jury Instructions

1. Object, special requests required for lesser included crimes.

2. Exception: Inclusion of bad instruction, Empire, 563 S.W.2d 551 (Tenn. 1978)

G. Sentencing

1. Presentence report as an exhibit

2. Sentencing memo ( see sample later in this outline )

H. Motion for a new trial

1. When to file, Blunkall, 731 S.W.2d 72 (30 days)

2. Amendments, Butler, 626 S.W.2d 6 (Tenn. 1981) (30 days after denial)

3. Form of motion: Frazier, 683 S.W.2d 346 (motion must state specific grounds)

See ALSO Fahey v. Eldridge 46 S.W.3d 138(Tenn. 2001):

“SPECIFICITY REQUIREMENTS OF RULE OF APPELLATE PROCEDURE 3(e)

It has long been the rule in this state that in order to preserve errors for appeal, the appellant must first bring the alleged errors to the attention of the trial court in a motion for a new trial. ...This requirement was initially imposed by this Court to make more efficient the process of reviewing "the ever increasing number of appeals," and we have recognized that this practice significantly aids the functions of the appellate courts by limiting and defining the issues for review. See Board of Equalization v. Nashville, C. & St. L. Ry., 148 Tenn. 676, 680, 257 S.W. 91, 93 (1923) (noting that this Court "was constrained to exercise its power of prescribing rules of practice, requiring that errors be first assigned in a motion for new trial presented to the trial court, and ... limiting the inquiry on appeal to error assigned in the motion"). Moreover, and perhaps most importantly, motions for a new trial also help to ensure that the trial judge might be given an opportunity to consider or to reconsider alleged errors committed during the course of the trial or other matters affecting the jury or the verdict, such as alleged misconduct of jurors, parties, or counsel which either occurred after the trial or could not reasonably have been discovered until after the verdict.

McCormic v. Smith, 659 S.W.2d 804, 806 (Tenn.1983). In modern appellate practice, the requirement of filing a motion for a new trial to preserve most errors is governed by Rule of Appellate Procedure 3(e), which reads in relevant part,

[I]n all cases tried by a jury, no issue presented for review shall be predicated upon error in the admission or exclusion of evidence, jury instructions granted or refused, misconduct of jurors, parties or counsel, or other action committed or occurring during the trial of the case, or other ground upon which a new trial is sought, unless the same was specifically stated in a motion for a new trial; otherwise such issues will be treated as waived.

Although Rule 3(e) requires that the grounds for the motion be "specifically stated," the Rule is silent as to how specific these grounds must be. Decisions from this Court have long stated the standard for specificity as being "as specific and certain as the nature of the error complained of will permit." Johnson, 114 Tenn. at 643, 88 S.W. at 170; see also McCormic, 659 S.W.2d at 805 (acknowledging that Johnson has survived the enactment of the Rules). While this standard says little more than does Rule 3(e) itself, several principles may be determined from the Rules and case law as to the degree of specificity needed in a motion for new trial to properly preserve issues for appeal.

First, the motion should contain a concise factual statement of the error, "sufficient to direct the attention of the court and the prevailing party to it." Johnson, 114 Tenn. at 644, 88 S.W. at 170-71. Under this standard, it is clearly improper to simply allege, in general terms, that the trial court committed error, either by taking some action or by admitting or excluding evidence; [FN6] rather, the motion should identify the specific circumstances giving rise to the alleged error so that it may be reasonably identified in the context of the entire trial. See State v. Ashburn, 914 S.W.2d 108, 114 (Tenn.Crim.App.1995). Accordingly, a well-drafted motion alleging improper admission or exclusion of testimony, for example, should identify the witness giving the testimony and provide a short and plain summary of the testimony improperly admitted or excluded. Moreover, a well-drafted motion alleging error in the jury instructions should set forth the language of the instruction given by the court and the language of the instruction rejected by the court if an alternative instruction was requested. FN6. See, e.g., Cloyd v. State, 202 Tenn. 694, 696, 308 S.W.2d 467, 468 (1957) ("[C]ertain evidence was improperly submitted to the jury."); Loeffler v. Kjellgren, 884 S.W.2d 463, 472 (Tenn.Ct.App.1994) ("The trial court erred in jury instructions in the second trial."); State v. Gauldin, 737 S.W.2d 795, 798 (Tenn.Crim.App.1987) ("The instructions given by the court to the jury were unclear and confusing."). Second, as it is well-settled in law that a general objection is usually not sufficient to assign error, Tenn. R. Evid. 103(a)(1); Jack M. Bass & Co. v. Parker, 208 Tenn. 38, 48, 343 S.W.2d 879, 883 (1961), the motion should also contain a specific legal ground alleged for the error. Accordingly, in addition to setting forth a concise statement of the factual grounds, a well-drafted motion for a new trial should also identify, with reasonable clarity, the legal ground upon which the trial court based its actions and contain a concise statement asserting the legal reasons why the court's decision was improper. However, because motions for a new trial should not be expanded "into all the voluminosity of 'briefs' and printed arguments," National Hosiery & Yarn Co. v. Napper, 124 Tenn. 155, 171, 135 S.W. 780, 784 (1911), the movant is not required to identify such errors in the motion with the same precision expected in the appellate courts. Therefore, precise citation to a rule, statute, or case as the legal ground for the alleged error is normally not required to preserve the issue for appeal under Rule 3(e), although to the extent that citation to authority aids in fairly bringing the legal nature of the error to the attention of the trial judge, such a practice ought to be encouraged. [FN7] FN7. This is not to say that the trial court cannot require precise citation to authority in considering a motion for a new trial. It is only to say that such precision is not otherwise required to preserve the error for appeal under Rule 3(e), so long as the legal ground for the alleged error is clearly and fairly presented to the trial court. Finally, Rule of Appellate Procedure 1 provides that the Rules "shall be construed to secure the just, speedy, and inexpensive determination of every proceeding on its merits." Accordingly, when an appellate court reviews a motion for a new trial under Rule 3(e), it should view the motion in the light most favorable to the appellant, and it should resolve any doubt as to whether the issue and its grounds were specifically stated in favor of preserving the issue. Any other method of review would result in needlessly favoring "technicality in form" over substance, a practice specifically discouraged by the comments to Rule 1. Thus, while courts cannot find error where none has actually been alleged, no matter how liberal a construction is given to the motion, Jacks v. Williams-Robinson Lumber Co., 125 Tenn. 123, 128-29, 140 S.W. 1066, 1067 (1911) ("But this court will not search the record at large to find errors. The presumption is that the judgment of the lower court is correct. The burden is upon the appellant to specifically point out the errors complained of, and affirmatively show that they exist."), courts may not deem a motion for a new trial insufficient to preserve errors for appeal merely because it fails to enumerate specific issues. Accordingly, just as parties must endeavor to specifically state the issues raised so as to avoid any potential for future waiver, appellate courts should not lightly dismiss an issue on appeal under a strict or technical application of Rule 3(e).”

4. Grounds: (waiver if not raised, except for “plain error”)

Discussion. The most frightening example of the consequences of failing to raise what at least one set of state lawyers thought was a "frivolous" issue involved Machetti and Smith. They were husband and wife who were tried together by the same jury and both given death sentences. The upshot of the opinions is that the husband (Smith) was executed and the wife (Machetti) lived due to the preservation of the jury composition issue. Machetti v. Linahan, 679 F.2d 236 (11th Cir. 1982), cert. denied, 459 U.S. 1127 (1983) (state jury selection procedure that permitted any woman who did not wish to serve on a jury to opt out merely by sending notice to the jury commissioners deprived petitioner of her right to an impartial jury trial); Smith v. Kemp, 715 F.2d 1459 (11th Cir.), cert. denied, 464 U.S. 1459 (1983) (petitioner waived right to object to jury composition by failing to assert issue at trial).

State v. Ogle, 666 S.W.2d 58 (Tenn. 1984). State v. Adkisson, 899 S.W.2d 626 (Tenn. Crim. App. 1994) (plain error requires that the record clearly established what occurred in the trial court, a clear rule of law must have been violated, the substantial right of the defendant must have been adversely affected, the defendant did not waive the issue for technical reasons, and consideration of the error is necessary for substantial justice; extensive discussion of issue); State v. Smith, 24 S.W.3d 274 (Tenn. 2000) (extensive discussion in determining whether an error constitutes 'plain error' in the absence of an objection at trial: (a) the record must clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial right of the accused must have been adversely affected; (d) the accused did not waive the issue for tactical reasons; and (e) consideration of the error is necessary to do substantial justice); State v. West, 19 S.W.3d 753 (Tenn. 2000) (plain error doctrine does not apply to post-conviction relief petitions).

5. Tactics: shotgun it in motion for new trial

6. Trial brief

7. Have a hearing, introduce proof, make a part of record

I. Motion for judgment of acquittal

1. Sufficient evidence is raised with this motion

4. NOTICE OF APPEAL

A. When filed (30 days), exception for “interests of justice”

B. Where filed: trial court clerk ( Serve copies on D.A.and State A.G.,)

5. RECORD ON APPEAL (Rules 24, T.R.A.P.)

A. Getting it up. YOUR RESPOSIBILITY !!!

DESIGNATION OF RECORD

FOR PURPOSES OF APPEAL

Pursuant to Rule 24, Tennessee Rules of Appellate Procedure, the defendant/appellant, Jerome Wray, hereby designates those portions of the record for purposes of his appeal. The defendant/appellant specifically designates the trial transcript contemporaneously filed herewith consisting of the entire trial proceedings as necessary for his appeal. The defendant/appellant also designates all exhibits filed in this matter, whether they were numbered exhibits or merely exhibits marked for identification only, with no distinction to be made as to whether same was considered by the Court or not as evidence in chief for either party. All exhibits introduced by either side, whether for identification purposes or not, shall be included in the record. The defendant/appellant specifically designates copies of all papers filed in the trial court, including the originals of any exhibits, all motions, pleadings, petitions, answers, and orders of every sort entered by the trial court, along with all appropriate minute entries. All trial briefs or memoranda filed by either side must be included. The defendant/appellant specifically excludes from the appeal any subpoena or summons or any witness as being unnecessary to the issues being contested.

B. Designation of record, Rule 24, T.R.A.P Where less than complete transcript is to be filed, appellant shall file a description of parts of the transcript to include in the record and a declaration of the issues intended to be presented on appeal. . State v. Peak, 823 S.W.2d 228 (Tenn. Crim. App. 1991) (trial judge has authority to require parties to designate portions of the record that will be prepared and submitted to appellate court, but may not dismiss an appeal as means of settling any controversy over designations of portions of the record);

C. Appellee has 15 days after service of the description and declaration to designate additional parts to be included.

D. Order transcript REMEMBER COURT REPORTER DOES NOT TYPE UP THE ENTIRE TRIAL UNLESS YOU SPECIFY WHAT YOU WANT..INCLUDE THE ENTIRE TRIAL INCLUDING ARGUMENTS.

E. Narrative transcript State v. Marbury, 908 S.W.2d 405 (Tenn. Crim. App. 1995) (the narrative statement of the evidence instead of a transcript did not contain any statement that the defendant was the person arrested, the failure of the state to file an objection precluded a finding that the evidence was sufficient to sustain the verdict).

F. Make sure the whole thing is there. GO TO THE TRIAL COURT CLERKS’S OFFICE !!!!!!!!!!!! See also State v. Gourley, 680 S.W.2d 483 (Tenn. Crim. App. 1984) (remand for further proof where state failed to introduce proof regarding a search question). State v. Hopper, 695 S.W.2d 530 (Tenn. Crim. App. 1985) (court refused to consider issues where transcript not prepared relating to search and confession questions; motion to supplement record denied under facts of case); State v. Meeks, 779 S.W.2d 394 (Tenn. Crim. App. 1988) (absence of transcript of sentencing hearing precluded criminal appellate court from considering propriety of sentencing court's decision not to suspend sentence); State v. Coolidge, 915 S.W.2d 820 (Tenn. Crim. App. 1995) (in the absence of a record and particularly that portion which relates to the sentence, the appellate court must presume that the sentence imposed by the trial judge was correct).

E. Supplement record, Rule 24, T.R.A.P. State v. Blevins, 736 S.W.2d 120 (Tenn. Crim. App. 1987) (the appellate court may permit a late filing of a transcript when it does not prejudice either party to the proceeding and a good faith effort was made to timely file the transcript in the first place).

F. Post Judgment Facts Tenn. R. App. P. 14. See the discussion in Duncan v. Duncan, 672 S.W.2d 765 (Tenn.1984). State v. Branam, 855 S.W.2d 563 (Tenn. 1993) (evidence that witness told police of direct involvement in murder of person charged as accessory before fact, which evidence defendant contended he did not discover until a year after his trial because prosecution failed to provide it during pretrial discovery, was admissible under rule authorizing Supreme Court to consider post judgment facts on appeal, and remand was required to determine whether violation of due process occurred; alleged facts, if proven correct, concerned matter that could not have been contested at defendant's trial since evidence was unconstitutionally withheld from defense).

G. Filing Of The Transcript (Tenn. R. App. P. 24(b)) Must be filed with the trial court clerk within 90 days after filing the notice of appeal. Appellant must simultaneously file notice of filing on State

H. Filing Of Record In Appellate Court (Tenn. R. App. P. 25(a).Must be “completed” by trial court clerk within 45 days after filing of transcript or, if no transcript filed, within 45 days after notice that no transcript will be filed. An extension of 15 days may be granted.

6. APPELLATE BRIEF (Rule 27, T.R.A.P.)

A. Follows rules as to form

1. Cover sheet (ORAL ARGUMENT REQUESTED)

2. Table of contents

3. Table of authorities

4. Jurisdiction for direct appeal to Supreme Court

5. Statement of issues

(a) Cut it down to size (no duty to raise everything v. waiver)

(b) Be precise

6. Statement of case

7. Statement of facts - cite to record

8. Argument

(a) Summary of argument (important for cold court)

(b) Reasons why appellate relief is sought

9. Conclusion at end, what do you want?

10. Reproduction of rules, statutes or constitution (whole thing)

11. Reference to record in briefs (abbreviate or set out)

(a). Waiver if they can’t find it

12. Citation format

(a). Full citation, including court and date

(b). All citations, such as L.Ed.2d and S.Ct. and U.S.

(c). Page citations (where is it?)

(d). Unpublished opinions (reproduce them)

B. How to draft a specific issue

1. Raybin’s Rule: Citation should have the content or holding of case after the citation unless the case is point of the argument; quote liberally from the case

2. Division of long arguments within a single issue

3. Reproduce exhibits in brief v. appendix

4. Tactics:

(a) State issue again

(b) How it came up, what are the facts?

(d) What is the law? Do my facts fit the law?

(e) How it hurt client VERY IMPORTANT

(f) Harmful or harmless error

(1) Error to judicial process without prejudice: Claybrook, 736 S.W.2d 95 (jury selection); Perry, 740 S.W.2d 723 (jury misconduct). Otherwise you must show prejudice.

(2) Degree of harm: Martin, 702 S.W.2d 560 (closeness of facts, error not harmless)

Discussion: Harmless error analysis requires an examination of the type of error involved because of the different burden of proof requirements. In State v. Harris, 989 S.W.2d 307, 314 -315 (Tenn. 1999) the Court held that:

“To resolve the issue in this appeal we must first determine whether the error complained of is constitutional or statutory. The answer to this question is important because the test for harmlessness of constitutional errors differs from that for non-constitutional errors. First, once a constitutional error is found, the burden shifts to the State to prove harmlessness; the burden does not shift to the state for non-constitutional errors. Second, the standard which applies to assess the harm or prejudice resulting from constitutional errors is more exacting than the standard which applies to non-constitutional errors. ...For example, in Tennessee, non-constitutional errors will not result in reversal unless the error affirmatively appears to have affected the result of the trial on the merits, or considering the whole record, the error involves a substantial right which more probably than not affected the judgment or would result in prejudice to the judicial process. Tenn.R.Crim. P. 52(a); Tenn. R.App.P. 36(b), State v. Cook, 816 S.W.2d 322, 326 (Tenn. 1991); State v. Williams, 977 S.W.2d 101, 105 (Tenn. 1998). In contrast, a constitutional error will result in reversal unless the reviewing court is convinced “beyond a reasonable doubt” that the error did not affect the trial outcome. Chapman v. California, 386 U.S. 18, 87 S.Ct 824, 17 L.Ed.2d 705 (1967); Howell, 868 S.W.2d at 260; Cook, 816 S.W.2d at 326; Tenn.R.Crim. P.52(a).”

(g) A brief conclusion at end of each issue

(h) Underline important points

(i) Use of color; tabs

5. Does the brief make sense?

C. Color of brief

1. Blue (us)

2. Red (them)

E. Certificate of Service

1. Send to Attorney General, not D.A.

2. Send to client and his or her family

F. APPELLANT’S BRIEF (Tenn. R. App. P. 29(a)):

Filed within 30 days after record is filed.

G. APPELLEE’S BRIEF (Tenn. R. App. P. 29(a)):

Filed within 30 days following service of appellant’s brief.

H. APPELLANT’S REPLY BRIEF (Tenn. R. App. P. 29(a)):

Filed within 14 days after service of “preceding brief.”

7 ORAL ARGUMENT (Tenn. R. App. P. 35(b) Should be requested when brief filed

A. When to argue

B. Prepare day before - think about your case

C. Write an outline of argument

D. Practice it

E. Time 20 minutes in C.C.A.; 30 in Supreme Court

F. Reserve 5 for rebuttal

G. Cut your issues down to 3 or 4

H. Your Court will be cold; or at least lukewarm

I. Don’t bring your whole file up with you

J. Introduce self

K. Brief history of case

L. Tell them what your issues are that you will argue

M. Start with first issue

1. What’s the problem?

2. What are the facts? know your facts

3. What’s the law?

4. How were you hurt?

5. What do you want?

N. Stay in the record

O. Don’t read your brief

P. Questions from the Court; invite questions

Q. Quote from cases they wrote if possible

R. Stop when you are ahead

S. Go on to next issue

T. Rebuttal: Don’t always use it

8. BOND IF YOU WIN

A. State v. Owen, July 10, 1989, CCA at Knoxville

9. PETITION TO REHEAR

A. Time 10 days

B. Form

10. TENNESSEE SUPREME COURT

A. Application for Permission to Appeal. DO NOT ABANDON YOUR CLIENT

B. Time limits - 60 days. NO EXTENTIONS ALLOWED !!!!!

C. Keep it short

D. Tell them why they should take your case

E. Conflicts in C.C.A.

F. Attach copy of opinions

G. Rule 11 allows for a Brief on the Merits to be filed with the application.

H. Narrow Issues In Tn Sp Court. No waiver for later Federal Review

11. PETITION FOR WRIT OF CERTIORARI TO UNITED STATES SUPREME COURT (Rule 13, United States Supreme Court Rules):

A. If from a state court of last resort, must be filed within 90 days after entry of judgment. NOT FROM date OF MANDATE !!!!!

B. If discretionary review is denied by state court of last resort, petition must be filed within 90 days after entry of the order denying discretionary review.

C. An extension of up to 60 days may be granted.

D. Tolled by a timely filed petition for rehearing in State Court.

12. BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI (R. U.S. S. Ct. 15.2): Filed within 30 days after receipt of the petition.

13. REPLY TO BRIEF IN OPPOSITION (R. U.S. S. Ct. 15.6):

No time limit, but petition is submitted to Court upon filing of brief in opposition.

14. PETITION FOR REHEARING FROM DENIAL OF PETITION FOR CERTIORARI (R. U.S. S. Ct. 44.2): Must be filed within 25 days after date of the order of denial.

14. COMPUTATION OF TIME (Tenn. R. App. P. 21(a) & United States Supreme Court Rule 30.1):

A. Do not include date of the act, event or default (i.e., time begins day after entry of order).

B. Last day is included unless it is a Saturday, Sunday, legal holiday or day when clerk’s office is closed.

C. Tennessee only: If time is less than 7 days, Saturdays, Sundays and state holidays are not included in computing prescribed period.

15. MAILING EXTENSION (Tenn. R. App. P. 21(d)):

A. Where a party is required to do an act which is triggered by the service of a notice or other paper and the notice or paper is served by mail, 3 days are added to the prescribed period.

B. This provision does not extend the time to file an application for permission to appeal. State of Tennessee v. James J. Benson, Williamson County (Tenn. May 14, 1990).

16. FILING DOCUMENT IN U.S. SUPREME COURT (R. U.S. S. Ct. 29.2):

A. Document must either be filed with the clerk of the court within the time specified for filing or be sent to the clerk by “first class mail, postage prepaid, and bear a postmark showing that the document was mailed on or before the last day for filing.”

B. If document is delivered by private service (e.g., Federal Express) document must be received by clerk within prescribed time.

17. CONCLUSION

A. T.A.C.L.D. Amicus briefs.

SAMPLE BRIEFS

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE, )

)

Appellee, )

)

VERSUS ) CASE NO. O1C01-9610-CC-00448

) WARREN COUNTY CRIMINAL

)

GEORGE BLAKE KELLY, )

)

Appellant. )

APPEAL AS OF RIGHT FROM THE WARREN COUNTY CRIMINAL COURT

______________________

BRIEF OF APPELLANT

______________________

ORAL ARGUMENT REQUESTED David L. Raybin (#3385)

Hollins, Wagster, Weatherly & Raybin, P.C.,

2210 The Financial Center, 424 Church Street

Nashville, Tennessee 37219

(615) 256-6666

ATTORNEY FOR APPELLANT

TABLE OF CONTENTS

Table of Authorities ... iii

Introduction ... 1

The Record on Appeal ... 2

Statement of the Issues ... 3

Statement of the Case ... 5

Statement of the Facts ... 7

Argument:

1. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A

CONVICTION FOR SECOND DEGREE MURDER IN THAT

THE STATE FAILED TO ESTABLISH THAT THE

DEFENDANT “KNOWINGLY” KILLED MS. PRINCE;

THE EVIDENCE WAS, HOWEVER, SUFFICIENT TO

SUPPORT A CONVICTION FOR VEHICULAR HOMICIDE

REQUIRING A RECKLESS KILLING . 10

2. THE 1989 TENNESSEE CRIMINAL CODE DOES NOT

PROSCRIBE DEATH CAUSED BY DRUNK DRIVING

AS SECOND DEGREE MURDER SINCE THERE IS NO

LONGER ANY “IMPLIED MALICE” ELEMENT FOR

THIS OFFENSE BUT RATHER SUCH HOMICIDES

CONSTITUTE VEHICULAR HOMICIDE, RECKLESS

HOMICIDE, OR CRIMINALLY NEGLIGENT HOMICIDE ..... 10

Conclusion ... 61

Certificate of Service . 63

Appendix ...... 64

TABLE OF AUTHORITIES

Cases

Alley v. State,

882 S.W.2d 810 (Tenn. Crim. App. 1994) .. 58

Bennett v. State,

723 S.W.2d 359 (Tex. App. 1987) 29

Casey v. State,

491 S.W.2d 90, 94-95 (Tenn. Crim. App. 1972) ........ 36

Cook v. State,

884 S.W.2d 485 (Tex. Crim. App. 1994) .... 37, 38

Cooper v. Texas,

351 S.W.2d 235 (Tex. Crim. App. 1961) ..... 28

Crist v. State,

861 S.W.2d 913, 916, n.1 (Tex. Crim. App. 1993) ..... 28

DePauw v. State,

658 S.W.2d 628 (Tex. App. 1983) 28

Farr v. State,

591 S.W.2d 449 (Tenn. Crim. App. 1979) .. 12

Garrett v. State,

749 S.W.2d 784 (Tex. Crim. App. 1986) ..... 28

Griffin v. State,

578 S.W.2d 654 (Tenn. Crim. App. 1978) .. 12

Statutes

T.C.A. §39-11-101 ...... 61

T.C.A. §39-11-109(a) .. 40

T.C.A. §30-11-301 ...... 29

INTRODUCTION

George Blake Kelly appeals as of right from his convictions for murder in the second degree, vehicular homicide by intoxication, vehicular homicide by reckless driving, vehicular assault, reckless driving, and driving under the influence. He received an effective sentence of 31 years.

In summary, this case involves a tragic automobile collision occurring on April 7, 1995. Mr. Kelly was driving on a two-lane road at about 9:30 in the evening. Mr. Kelly passed a vehicle in front of him as he was nearing a turn in the road. While still negotiating the turn in the road, Mr. Kelly’s vehicle collided head-on with the victims’ automobile, which was traveling in the opposite direction in the other lane, resulting in injury to the driver and the death of the passenger.

The primary issue in this appeal is one of first impression: whether a death resulting from drunk driving can constitute second degree murder under the 1989 Criminal Code. Second degree murder requires a “knowing” killing as opposed to a “reckless” killing which is sufficient for vehicular homicide. While the death here was clearly the result of Mr. Kelly’s recklessness, Mr. Kelly did not “knowingly” kill the victim. Accordingly, the conviction for murder in the second degree should be dismissed and the conviction for vehicular homicide affirmed.

THE RECORD ON APPEAL

The record on appeal consists of 9 volumes, along with a number of exhibits consisting of documents and photographs. The first volume contains what was previously known as the Technical Record. In this brief, citations to the technical record will be as follows: “T.R. ____.” Volumes two through six contain a transcript of the trial proceedings which occurred October 18-20, 1995. In this Brief the trial proceedings will be indicated by the abbreviation of “T. ____” standing for “trial.”The seventh volume contains pre-trial proceedings occurring in October, 1995, which will be indicated in this Brief by the abbreviation “P. ____” standing for “pre-trial.” The eighth volume contains the sentencing hearing conducted on December 22, 1995, which will be indicated by the abbreviation “S. ____” standing for “sentencing hearing.” The ninth volume is the transcript of the Motion for New Trial conducted on April 26, 1996, which will be indicated in this Brief by the abbreviation “N.T. ____” standing for “new trial.”

THE APPENDIX

The appendix to this brief contains relevant statutes and other materials necessary for a resolution of the issues. It also contains sources not readily available elsewhere. The appendix is abbreviated “A., p.___.”

STATEMENT OF THE ISSUES

1. WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR SECOND DEGREE MURDER IN THAT THE STATE FAILED TO ESTABLISH THAT THE DEFENDANT “KNOWINGLY” KILLED MS. PRINCE; WHETHER THE EVIDENCE WAS, HOWEVER, SUFFICIENT TO SUPPORT A CONVICTION FOR VEHICULAR HOMICIDE REQUIRING A RECKLESS KILLING.

2. SINCE THERE IS NO LONGER ANY “IMPLIED MALICE,” WHETHER THE 1989 TENNESSEE CRIMINAL CODE PROSCRIBES DEATH CAUSED BY DRUNK DRIVING AS SECOND DEGREE MURDER, OR WHETHER THE HOMICIDE CONSTITUTES VEHICULAR HOMICIDE, RECKLESS HOMICIDE, OR CRIMINALLY NEGLIGENT HOMICIDE.

3. SINCE MURDER IS AN OFFENSE DEFINED ONLY BY ITS RESULT, WHETHER THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY ON THE “NATURE OF CONDUCT” AND “CIRCUMSTANCES SURROUNDING THE CONDUCT” AS IT RELATES TO THE DEFINITION OF “KNOWINGLY”; WHETHER THE COURT SHOULD HAVE CONFINED THE DEFINITION OF “KNOWINGLY” TO ITS “RESULT” COMPONENT.

4. SINCE MURDER IS AN OFFENSE DEFINED ONLY BY ITS RESULT, WHETHER THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY ON THE “CONDUCT” COMPONENT OF THE MENTAL ELEMENT OF “INTENTIONALLY”; WHETHER THE COURT SHOULD HAVE CONFINED ITS INSTRUCTION TO THE “RESULT” COMPONENT OF THE MENTAL STATE OF “INTENTIONALLY.”

5. WHETHER THE DEFENDANT WAS DENIED DUE PROCESS OF LAW AND THE RIGHT TO A JURY TRIAL BY THE INSTRUCTION THAT THE JURY COULD CONVICT THE DEFENDANT OF BOTH SECOND DEGREE MURDER AND VEHICULAR HOMICIDE WHEN IN FACT THE LATTER OFFENSE IS A LESSER GRADE OR CLASS OF THE FORMER, IN VIOLATION OF THE UNITED STATES AND TENNESSEE CONSTITUTION.

STATEMENT OF THE CASE

The automobile collision giving rise to the criminal charges occurred on April 7, 1995. (T. 297). On May 12, 1995, the defendant was indicted by the Warren County Grand Jury. (T.R. 1-3). Count 1 charged the defendant with murder in the second degree of Ms. Prince. Count 2 charged vehicular homicide of Ms. Prince by reason of intoxication. Count 3 charged vehicular homicide of Ms. Prince by reason of reckless driving. Count 4 charged vehicular assault of the surviving victim, Mr. Miller, by reason of intoxication. Count 5 charged reckless driving. Count 6 charged driving under the influence. Count 7 charged driving on a revoked driver’s license. (T.R. 1-3).

The trial commenced on October 18 and continued until October 20, 1995. (T.R. 44-58). As to Count 1, the jury found the defendant guilty of murder in the second degree concerning the death of Ms. Prince. (T.R. 47-48). As to Count 2, the jury found the defendant guilty of vehicular homicide by intoxication concerning the death of Ms. Prince. (T.R. 49-50). As to Count 3, the jury found the defendant guilty of vehicular homicide by reckless driving concerning the death of Ms. Prince. (T.R. 51-52). As to Count 4, the jury found the defendant guilty of vehicular assault as relates to the injuries inflicted on Mr. Miller. (T.R. 53-54).

As to Count 5, the jury found the defendant guilty of reckless driving. (T.R. 55-56). As to Count 6, the jury found the defendant guilty of driving under the influence. (T.R. 57-58). With respect to Count 7 of the indictment, charging the defendant with driving on a revoked driver’s license, the defendant changed his plea from not guilty to guilty, and the Court accepted the defendant’s plea for that offense. There was no agreed or bargained sentence for that crime. (T.R. 57). See also (T. 515).

The sentencing hearing was conducted on December 22, 1995 and those proceedings are contained in a separate volume of the record. The Judge imposed the maximum sentence of 25 years for the offense of murder in the second degree. As reflected in the judgment form, the two counts charging vehicular homicide by intoxication and by reckless driving were found to “merge into Count One of this indictment.” (T.R. 80).

As to the conviction for vehicular assault, the Judge imposed the maximum sentence of four years. (T.R. 81). As to the offense of reckless driving, the Judge imposed the maximum sentence of six months. (T.R. 82). As to the offense of driving under the influence, the Judge imposed the maximum sentence of 11 months and 29 days. (T.R. 83). As to the offense of driving on a revoked driver’s license, the Court imposed the maximum sentence of six months. (T.R. 84). As to all counts upon which sentence was imposed, the Court ran all of the sentences consecutively to one another for a total effective sentence of 30 years, 11 months and 29 days. (T.R. 80-85). Hereinafter, the sentence will be referred to generally as a sentence of 31 years.

Within 30 days of the imposition of sentence, the defendant filed his Motion for New Trial on January 19, 1996. (T.R. 77-78). The hearing on the Motion for New Trial is contained in a separate transcript of the record. On April 26, 1996, the Trial Judge overruled the Motion for New Trial. (T.R. 86). The defendant filed his Notice of Appeal on May 16, 1996. (T.R. 89). On November 22, 1996, this Court allowed trial counsel to withdraw and permitted the substitution of the undersigned counsel as attorney of record for Mr. Kelly. Mr. Kelly remains incarcerated in the Tennessee Department of Correction.

STATEMENT OF THE FACTS

In early 1995, Mr. and Mrs. Kelly were experiencing domestic difficulties. On April 7, Mrs. Kelly came home and found a note from Mr. Kelly saying that he had “went to see his lawyer.” (T. 209). Mrs. Kelly “got mad” and left for Dunlap, Tennessee. While in Dunlap, Mrs. Kelly saw the defendant near a red light and believed that he was out “looking for me.” (T. 211). A number of witnesses for the state testified to seeing the defendant in the hours before the fatal collision and described his increasing state of intoxication as he was driving around looking for his wife. Sue Lewis testified that she saw the defendant at the tavern called Steve’s Place at around 4:30 p.m. and the defendant had a beer with him. (T. 267). She saw him again at around 6:30 and he wanted a “beer to go.” (T. 271). The owner, Steve Robertson, testified that he saw the defendant at around 7:00 and that “he was upset and said he was looking for his wife.” (T. 285-286). Mr. Robertson said that the defendant “had been drinking.” (T. 288).

From statements made by the defendant to his wife and other individuals after the collision, it is apparent that the defendant consumed at least five or six beers that evening. (T. 230). Venita Spearman testified that the defendant told her he had had a six-pack of beer and that the collision was “his fault because he had been drinking and driving.” (T. 507). Billy Cook said that the defendant admitted later that “his drinking got hold of him.” (T. 511).

The surviving victim, David Miller, testified that he and his girlfriend, Ginny Prince, left her house at about 6:00 p.m. on the day of the collision. (T. 298). They were in a white 1989 Ford Probe. (T. 298). They ate at a restaurant and left the restaurant at about 7:45, went to a store to go shopping, and left the store at about 8:30 p.m. (T. 299). Mr. Miller and Ms. Prince had had nothing to drink that evening. (T. 299). At about 9:15 or so, they were going back to Ms. Prince’s home on Highway 70. All Mr. Miller can remember is that he saw headlights and there was a wreck. (T. 300). The collision was essentially head-on. (T. 315). As a result of the collision, Mr. Miller sustained serious injury including cuts requiring over a thousand stitches as well as suffering the loss of vision in his right eye. (T. 318). A nurse who came up on the wreck shortly after its occurrence, testified that Ms. Prince was dead at the scene. (T. 339). The parties stipulated that Ms. Prince suffered fatal injuries as a result of the collision. (T. 477). The testimony at the trial indicated that Highway 70 is a two-lane winding road. The stretch of road at issue is marked by double yellow -- no passing--lines. The victims’ vehicle, a Ford, was going east and the defendant’s vehicle was going west. The collision occurred when the defendant’s vehicle entered the on-coming lane occupied by the victims. (T. 459). When the two vehicles collided, there was a head-on contact with a 50 percent overlap according to the accident reconstruction expert. (T. 462).

This report indicates that vehicle number one (driven by the defendant) had just improperly passed another vehicle prior to the collision. The vehicle which had just been passed was driven by Mr. Bobby Joe Perry. Mr. Perry testified that, shortly after 9:00 p.m., he was on his way home following choir practice. (T. 322). As he was getting up near the airport, “I looked back through the mirror and I saw headlights coming at me from behind -- coming pretty swift.” (T. 322). Mr. Perry said he was traveling about 50 miles per hour. (T. 324). At this point, the defendant’s vehicle got right behind him and “swung out to pass.” (T. 324). The center lanes were marked for no passing. (T. 325). After the defendant’s car passed him, they were approaching the curve but the defendant’s “driver’s side wheels stayed on the other side of the yellow line.” (T. 327).

At this point, Mr. Miller’s vehicle was coming from the other direction also heading into the curve. Mr. Perry saw the defendant’s vehicle collide with the victims’ vehicle. As Mr. Perry put it, “just as their headlights met on the curve, the [defendant’s vehicle] veered to the left straight across into the path of the [victims’ vehicle].” (T. 328).

Mr. Perry stopped to render such aid as he could. Emergency and law enforcement vehicles soon came to the scene. A sample of blood was taken from the defendant before he was taken to the hospital to be treated for his injuries sustained in the wreck. (T. 354-355). Multiple witnesses testified to the fact that the defendant had a strong odor of alcohol about him. (T. 332, 399). The laboratory report disclosed that the defendant’s blood alcohol level was 0.28 gram percent. (T. 473).

ARGUMENT

1. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR SECOND DEGREE MURDER IN THAT THE STATE FAILED TO ESTABLISH THAT THE DEFENDANT “KNOWINGLY” KILLED MS. PRINCE; THE EVIDENCE WAS, HOWEVER, SUFFICIENT TO SUPPORT A CONVICTION FOR VEHICULAR HOMICIDE REQUIRING A RECKLESS KILLING.

This is a case of first impression. There have been no other convictions under the 1989 Criminal Code for murder in the second degree resulting from a traffic collision involving a drunk driver. An analysis of our current homicide statutes will demonstrate that while the defendant recklessly caused death, he did not do so “knowingly” as required for second degree murder. Thus, the second degree murder conviction should be dismissed, and the “merged” conviction for vehicular homicide reinstated.

Under the statutes existing prior to 1989 it was permissible to have a conviction for second degree murder for a drunk driving homicide. This was because murder in the second degree required a “malicious” killing which could either be “express” or “implied.”

In State v. Johnson, 541 S.W.2d 417 (Tenn. 1976), the Court undertook to explain the differences between malice for second degree murder and gross negligence required for involuntary manslaughter. Occasionally, the prosecution could show “express malice by the accused to kill the victim by running him down with an automobile.” However, “the more common cases, and ...

SAMPLE SENTENCING BRIEF

6. AS TO KELLY LEWIS, THE FINE OF $2,000.00 WAS GROSSLY EXCESSIVE WITH RESPECT TO THE CONVICTION FOR SIMPLE POSSESSION OF ONE-HALF GRAM OF MARIJUANA.

7. AS TO KELLY LEWIS, THE COURT ABUSED ITS DISCRETION IN FAILING TO SENTENCE HIM TO JUDICIAL DIVERSION UNDER T.C.A. §40-35-313 FOR THE OFFENSE OF SIMPLE POSSESSION OF MARIJUANA.

8. AS TO KELLY LEWIS, THE FINES OF $2,000.00, $3,000.00 AND $2,000.00, FOR A TOTAL OF $7,000.00, WERE EXCESSIVE; THE EFFECTIVE CONSECUTIVE IMPOSITION OF THESE FINES VIOLATED T.C.A. §40-35-115 REGARDING MULTIPLE CONVICTIONS.

The judge imposed the following sentences on Kelly Lewis. As to the conviction for Simple Possession of Marijuana, the Court imposed a sentence of six months, suspended for 11 months and 29 days, and a fine of $2,000.00. (T.R. Vol. 1, p. 71). As to the felony conviction of Reckless Endangerment, the court imposed a sentence of 0.9 years as a mitigated offender and a fine of $3,000.00. The court suspended the sentence for two years except that Kelly Lewis was to serve 20 days on consecutive weekends in the county jail. (T.R. Vol. 1, p. 72).

As to the conviction for Evading Arrest, the court imposed a sentence of six months and a fine of $2,000.00. The sentence was suspended for 11 months and 29 days. (T.R. Vol. 1, p. 73). All of the judgments reflected that all of the convictions were to run concurrently with one another. Id. All of the judgments reflected that the request for post-trial diversion under T.C.A. §40-35-313 would be denied. Id. The sentencing proceedings are contained in the Appendix as is a copy of the pre-sentence reports and associated documents.

The pre-sentence report as to Kelly Lewis reveals that his is 29 years of age and graduated from Vanderbilt University. He has no physical or mental problems. He was previously employed with Bellsouth and is currently employed with EBM. (A. 715 - 723). The pre-sentence report reflects that his yearly salary is $36,000.00 per year but that he has a substantial amount of debt for the mortgage of his home, car, insurance and school loans. (A. 722). Testifying at the sentencing hearing, Kelly Lewis advised the court that he has been involved in civic activities including the Cystic Fibrosis Foundation. (A. 591). On behalf of Kelly Lewis as well as his parents, the defense introduced a number of letters from reputable members of the community attesting to their outstanding character in the community. See Exhibits 4 and collective Exhibit 5 reproduced in the Appendix at pages 698 - 702. As reflected in the pre-sentence report, Mr. Kelly Lewis has no prior arrests or convictions of any sort. (A. p. 719).

With respect to Kelly Lewis, the judge found that there were a number of factors which weighed in his favor. The court found that there were no enhancing factors and that there were many mitigating factors. Further, he had a stable home life, full work history, participation in civic activities and other productive participation in the system and had no prior record. (A. 628). However, the court found that it was not appropriate to grant diversion under T.C.A. §40-35-313 because Mr. Lewis was the “primary actor in the case.” (A. 629). The court also found that he had not accepted responsibility for his case and that the seriousness of the offense should not be depreciated. (A. 630). Following the sentencing hearing, the undersigned counsel filed a Motion to Modify the Sentence and permit sentencing under T.C.A. §40-35-313 and to reduce the amount of fines and for the fines to run concurrently. (T.R. Vol. 1, 78-79). The trial judge denied that Motion and those proceedings are contained in the Appendix at pages 637 - 696. In summary, the judge found that Mr. Kelly Lewis could afford to pay the fines because he had paid for a transcript of the trial which “cost a bunch of money” and because he had hired Mr. Raybin, who “is not cheap.” (A. 692).

The defendant, Kelly Lewis, asserts that the trial judge should have placed him on judicial diversion pursuant to T.C.A. §40-35-313 on the conviction for Simple Possession of Marijuana. The defense does not raise the issue of judicial diversion with respect to the convictions for evading arrest or reckless endangerment.The granting of judicial diversion rests within the discretion of the trial court. State v. Beverly, 894 S.W. 2d 292, 293 (Tenn. Crim. App. 1994). The trial judge’s discretion is subject only to the same constraints applicable to prosecutors in applying pre-trial diversion. State v. Anderson, 857 S.W. 2d 571, 572 (Tenn. Crim. App. 1992). For this Court to find that the trial judge abused his or her discretion in refusing to grant judicial diversion, this Court must find that there exists no substantial evidence to support the denial of judicial diversion. When reviewing a request for judicial diversion, this Court will utilize the same factors as used by the district attorney when considering pre-trial diversion. State v. Bonestell, 871 S.W. 2d, 163, 168 (Tenn. Crim. App. 1993). See also State v. George, 830 S.W. 2d 79, 80 (Tenn. Crim. App. 1992). It is apparent that the trial judge denied diversion because of the defendant’s failure to “accept responsibility” for this offense. As noted in the above cases, judicial diversion utilizes the same standards as pre-trial diversion. With respect to pre-trial diversion, this Court has held that “an admission of guilt is not a valid prerequisite to the granting of pre-trial diversion.” State v. Anderson, 645 S.W. 2d 251, 253 (Tenn. Crim. App. 1982). In State v. Maynard, Tenn Crim. App. at Nashville filed February 24, 1994 (unpublished), Judge Peay found that “it would be deceitful and thereby unworthy of diversion to admit to a crime and claim that you have been rehabilitated when you did not commit the crime in the first place.” Slip Opinion, at page 3.

The judicial diversion statute does not require that one plead guilty to the crime to be considered for this program. T.C.A. §40-35-313 provides, in part, that a person may be placed on judicial diversion if the person is “found guilty or pleads guilty.” Obviously, this statute contemplates relief where a jury finds a person guilty of a crime even though they may have pled not guilty to the offense.The fact that Kelly Lewis did not “accept responsibility” for the simple possession of marijuana does not preclude judicial diversion. At trial, he testified that he did not know that the film canister contained any marijuana. He stated that he had purchased some photography equipment and a camera bag at a pawn shop in Nashville. The film canisters were among those items contained in the camera equipment. (A. 386-387). The record also reflects that Kelly Lewis advised the judge that he had smoked marijuana in two occasions back when he was in college. (A. 387). Most significantly, the record is undisputed that the amount of marijuana was 0.5 grams which is one-half of a gram. (A. 212).Simple Possession of Marijuana is defined under T.C.A. §39-17-418 and does not contain any limit on the amount of marijuana provided it is not otherwise sold, distributed or exchanged. T.C.A. §39-17-418 provides that even the distribution of 14.175 grams of marijuana is a misdemeanor. The amount of marijuana involved in this case is one-half of a gram which is 1/56th of an ounce.The defendant, Kelly Lewis, asserts that the simple possession of this tiny amount of marijuana should not subject him to a conviction which he will have to carry around for the rest of his life! The trial judge abused her discretion in failing to place him in judicial diversion for this offense so that, upon successful completion of probation, he would be eligible to have this conviction expunged. Accordingly, this Court should direct that, on remand, the trial judge should place him on judicial diversion for the offense of simple possession of marijuana.

Also with respect to the conviction for simple possession of marijuana, the defendant, Kelly Lewis, asserts that the trial court imposed an excessive fine in the amount of $2,000.00 against him. The mandatory minimum fine for simple possession of marijuana is $250.00 pursuant to T.C.A. §39-17-428(b)(1). This Court should reduce the amount of fine to that amount. The standard of review as to the fine issue is different from that regarding judicial diversion discussed above. In State v. Bryant, 805 S.W. 2d 762 (Tenn. 1991), the Court found that a fine is as much of a “sentence” as confinement and therefore the normal standard of appellate review would apply. According to T.C.A. §40-35-401(b), this Court may determine whether the sentence is excessive. This review is de novo with a presumption that the determination made by the trial court was correct. T.C.A. §40-35-401(d).

With respect to the amount of fines, the trial judge simply “adopted” the fine imposed by the jury. (A. 631). This represents a fundamental misunderstanding of how fines are assessed. T.C.A. §40-35-301(b) provides that the jury initially fixes the fine if it is in excess of $50.00. However, when imposing sentence, after the sentencing hearing, the court shall impose a fine, if any, not to exceed the fine fixed by the jury.

Obviously, under our current sentencing scheme, the jury’s “fine” sets the outer limits within which the judge is to set the actual fine. In Bryant, the Court observed that, when the fine is imposed, the trial judge, unlike the jury, knows more about the facts of the case, and considers the mitigating and aggravating circumstances and other matters relevant to an appropriate sentence. (805 S.W. 2d at 766). Further, “at that stage, an informed judgment can be made as to the sentence, including the amount of fine, confinement or any other sentencing alternative offered by the Reform Act.” Id.

Quite simply, the trial judge determines the appropriate amount of fine just like the trial judge determines the appropriate number of days, months or years that a defendant is supposed to serve. This is based on the sentencing considerations, as well as aggravating and mitigating circumstances present in the sentencing statutes. To say that a trial judge will just simply “adopt” the fine assessed by the jury means that the judge abdicates his or her role in making a sentencing determination. As has been noted, the judge found that Kelly Lewis demonstrated a host of mitigating factors and no ..

ANOTHER SENTENCING BRIEF

ARGUMENT

THE TRIAL COURT ERRONEOUSLY RELIED UPON INAPPROPRIATE ENHANCEMENT FACTORS AND THUS THE SENTENCE OF TWELVE YEARS IS EXCESSIVE.

There is no dispute as to the facts here. Mr. Daniel was driving down the road in his truck. He was intoxicated. The test results established that his blood-alcohol level was 0.18%.

Mr. Daniel’s vehicle collided head-on with the vehicle occupied by the victims’. All three of them had been drinking themselves. Mr. Smith registered 0.09%. (Exhibit 16 C). Mr. Lucas registered 0.047%. (Exhibit 16 B). The driver of the car, Mr. Ones Polk registered 0.083%. (Exhibit 16 A). The defendant’s vehicle “veered” into the lane occupied by the victims’ car as opposed to having traveled in the lane for a long period of time. (Testimony of Mr. Chris Polk, Vol. IV, page 7, lines 17-21). The probation report appears in the record as Exhibit 14 A. This document reflects that Mr. Daniel was born on February 10, 1959. Mr. Daniel graduated from high school and completed Nashville Tech. He had attended Tennessee Tech as well.

Mr. Daniel has been gainfully employed for 20 years. He worked for Nissan for 13 years and prior to that was with Aladdin Industries for seven years. Mr. Daniel has a wife, Marquinta, and two young children. In addition to a mother and father, who are both living, he has five siblings. Mr. Daniel expressed remorse in the pre-sentence report when in testifying in open court. (Vol. IV, pages 90-92). The record reflects that Mr. Daniel had no prior felony arrests or convictions. He had been arrested for driving under the influence six years earlier in 1991. (Vol. III, page 35). The conviction document was introduced as Exhibit 15 in the record.

The defense does not contend that Mr. Daniel should be granted probation or even split-confinement. Where multiple victims are killed or injured, probation is inappropriate. See , State v. Housewright, 982 S.W.2d 354 (Tenn. Crim. App. 1997) (multiple victims were involved and three of those persons were thrown from their vehicle). While the defense does not contest the issue of incarceration, it is the length of that incarceration which is at issue in this appeal. Pursuant to T.C.A. §40-35-401 (b) the defendant asserts that the sentence was not imposed in accordance with the sentencing statute and the enhancement and mitigating factors were not weighed properly and thus the sentence is excessive.

In this case the trial judge relied upon three factors in imposing the absolute maximum sentence of 12 years. The trial judge relied upon T.C.A. §40-35-114, factor (1) dealing with a “previous history of criminal convictions”, factor (3) that the offense involved “more than one victim,” and factor (10) that the defendant “has no hesitation about committing a crime when the risk to human life was high.”Taking these in reverse order, it is apparent that the judge erroneously imposed the “high risk” enhancement factor. The judge said that factor (10) applied because the crime was drinking and then driving and that it was a dangerous thing to do. Clearly these “facts” upon which this judge relied were inherent in the offense itself and could not be used to further enhance the sentence.The prosecutor argued that factor (10) applied because of the “risk” to the people in the vehicle adjacent to the victims’ automobile, citing State v. Bingham, 910 S.W.2d. 448 (Tenn. Crim. App. 1995). See Vol. IV, page 102.

In Bingham the defendant was driving the wrong way on a four lane divided highway for over 30 minutes at speeds of up to 100 mph. In light of the significant danger to other motorists coming in the other direction for this extended period of time, the Court found that factor (10) would apply. Bingham cited State v. Lambert, 741 S.W.2d 127 (Tenn. Crim. App. 1987) where the defendant recklessly drove through streets and sidewalks crowded with people prior to striking the victims who were actually killed. While there might be some loose language in cases suggesting that virtually any risk to third persons is sufficient, Lambert and Bingham are illustrative of the serious risk which must be present before this factor can apply. Indeed, one need go no further than the language of the enhancement factor itself to see that it requires not only a risk to human life but that that risk be “high.” Driving through a number of pedestrians in a crowded street and sidewalk is clearly the type of thing contemplated by this enhancement factor. Driving for 30 minutes on the wrong side of a divided highway at speeds up to 100 mph clearly places oncoming traffic at a high risk of death of significant injury. Were those factors present here?The only testimony concerning enhancement factor (10) was that of Mr. Chris Polk who was in the vehicle adjacent to that of the victims at the time of the collision. Essentially he and the victims were driving next to one another when the defendant’s vehicle suddenly veered into the lane of traffic occupied by the victims striking their car head-on. Since the State here will undoubtedly seize upon this morsel of proof as justification for the enhancement factor Mr. Polk’s direct testimony is reproduced in full:

Q. We are talking about the collision that happened on November 23rd, 1997; do you remember that?

A. Yes.

Q. Can you tell Judge Clement what you remember as being a witness to this crash?

A. Okay. We were traveling down Donelson Pike and they were actually behind me when we started down Donelson Pike. Then, when they realized where they were, they pulled up beside me. We were going down a two-lane. As they got beside me, I left my window down to wave to tell them I would see them later. As soon as that happened, a truck veered in their lane. It kind of scared me and I turned, but I saw the truck hit the Volkswagen.

Q. So the truck that struck the Volkswagon, they were in the left-hand lane; is that correct?

A. Right.

Q. And the truck was in their lane and hit them head on?

A. Yes.

Q. You said that you had to swerve?

A. Right. It just startled me because all of a sudden, you know, I just saw the truck. It wasn’t like it was there for awhile or anything like that, just all of a sudden it was there.

Q. But fortunately you weren’t injured?

A. No, sir.

Q. Please tell Judge Clement about your relationship or your friendship with Mr. Smith, Mr. Polk, and Mr. Lucas; how you knew them and what you knew about them?

A. Actually I had met them that night. I played cards with Tavio and Ones most of the night, so I had known them for maybe about four hours. They talked a lot about the things that they liked. Tavio talked about his kids back at his school. Ones talked about when he got his law degree going overseas to help the unfortunate. It was kind of just a – I told them I was getting married next year. We had made plans to get back together and play a little basketball and some different things. It was like you meet somebody and you like them. We kind of developed a friendship the time that we were there together.

Q. So it was almost an instantaneous relationship?

A. Yes, sir.

GENERAL RYAN: That is all, Your Honor. (Vol. IV, pp. 4-6).

It is apparent from this testimony that Mr. Pope was adjacent to or just ahead of the victims’ car when the victims’ vehicle was struck. There is no proof that his car was in any significant danger of being hit. Certainly he “swerved” but all of the testimony is to the effect that the defendant simply entered into the victims’ lane momentarily and there was a crash. The facts here are nothing like those in the reported decisions cited above where the enhancement factor was appropriately applied. The brief invasion of the victims’ lane of traffic did not cause a “high risk” to anybody else for any significant time. Simple physics tells us that. Although the State below cited Bingham and argued for the full application of this factor, the trial judge made absolutely no finding that the State’s argument was persuasive in any way. Rather, the judge simply discussed the dangers of drinking and driving and relied upon these facts in imposing the maximum sentence. Here, the judge was clearly in error. First, there are no factual findings supporting the application of the enhancement factor and, in any event, there is no proof that this enhancement factor is even applicable here. Accordingly, the trial judge should not have used this factor to impose to the maximum sentence. The trial judge also found that the maximum sentence was appropriate because the “crime involved more than one victim.” Here the three victims were all killed and there was a conviction for each offense. It is elementary that enhancement factor (3) cannot apply where there are separate convictions for the several victims. State v. Lambert, 741 S.W.2d 127 (Tenn. Crim. App. 1987), and State v. Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995). Thus, the second of the three factors is not proper.Lastly, the trial judge relied upon Mr. Daniel’s prior conviction for DUI:

“That very much works against Mr. Daniel. As the old saying goes, we build our own record. For Mr. Daniel, while I am very pleased to say, the only spot on his record, prior to that day, is one thing and that is very important for him. It was a very serious spot because it dealt with drinking and driving under the influence, which is what all this is about (Vol. IV, pp. 115-116).”

There is no question but that a prior conviction for DUI occurring six years before this offense should be considered in the balance. However, the defense asserts that the trial judge was not justified in imposing the maximum sentence based on this prior misdemeanor conviction. In short, the weight given to this factor was grossly out of proportion. T.C.A. §40-35-210 (c) provides that the presumptive minimum sentence must be imposed in the absence of enhancement or mitigating factors. Essentially a judge increases the sentence based on the number and severity of the enhancement factors. Admittedly this sentencing process is somewhat subjective but the weight to be accorded the enhancement factors must bear some rational relationship to the sentence imposed. While the prior conviction here did involve drinking and driving it was, after all, a misdemeanor occurring six years before this offense.

Undoubtedly, this Court should give some weight to the prior misdemeanor conviction. However, it is also clear that two of the three enhancement factors which this judge utilized were not proper. Thus it would require a great deal of speculation to conclude that the trial judge here would or should have imposed the same maximum sentence had he relied upon the one remaining valid factor. A remand is unnecessary. This Court can correct the problem very easily by reducing the length of the sentence to that appropriate for the crime considering that there is but a single enhancement factor: the six-year-old misdemeanor. In this case the defense concedes that probation is inappropriate. Even if this Court were to reduce the sentence to the statutory minimum of eight years probation should be denied “to avoid depreciating the seriousness of the offense.” T.C.A. §40-35-103 (1) (B). That there should be confinement is not the issue. Rather, it is the length of that confinement which is contested in this appeal.As demonstrated, the maximum sentence of twelve years was improper under the guidelines. Yet, how does one account for the tragic loss of three lives? The answer to this question is in the parole statutes enacted as part of the Criminal Sentencing Reform Act of 1989. T.C.A. §40-35-503 (b) provides that the parole board may deny parole if the “release from custody at the time would depreciate the seriousness of the crime of which the defendant stands convicted.” The parole board will deny his parole based on this factor alone. It requires no speculation to come to the conclusion that Mr. Daniel will have to serve his full sentence. The fact that there are three deaths here is exactly the type of circumstance that our sentencing statutes were designed to cover but not with respect to the length of that sentence under the facts here but rather, whether Mr. Daniel should be serving a sentence in confinement (he should) and whether he should ever be released on parole (he will not).

The same factors which prohibit probation also prohibit parole. But, as noted, these are separate questions from the appropriate length of the sentence. In this case the judge relied upon three factors to impose the maximum sentence. Two of those factors cannot apply a matter of law. The remaining factor – the prior DUI conviction – is inadequate to justify the maximum sentence. Here, the sentence “spread” was from eight to twelve years. By imposing the maximum twelve-year sentence this judge, in effect, increased the presumptive minimum sentence length by 50% based on a single prior misdemeanor conviction! This was wrong and was in violation of our sentencing scheme. Accordingly, this Court should reduce the length of the sentence to the statutory minimum or perhaps as much as nine years.

CONCLUSION

Our sentencing statutes have recently been amended to increase the punishment for vehicular homicide by intoxication from three to six years, to eight to twelve years. Mr. Daniel fell within the new statutory increase. While it is within the discretion of the Legislature to set the new sentencing span the Legislature also set forth criteria for how the sentence was to be imposed within that span. This judge applied inappropriate criteria. This Court should remedy that judgment and give but limited value to the remaining valid enhancement factor. Accordingly, this Court should reduce the sentence to not more than nine years ...

SAMPLE SENTENCING MEMORANDUM

IN THE CIRCUIT COURT OF DAVIDSON COUNTY, TENNESSEE

STATE OF TENNESSEE ] ]

vs. ] Case No. 99-T-77

JIMMY RAY SIMMONS ]

SENTENCING MEMORANDUM

Mr. Jimmy Ray Simmons is before the Court for sentencing upon his guilty plea to two counts of criminally negligent homicide. The plea agreement contemplates that this Court has full discretion to impose any sentence within the statutory limits. Mr. Simmons is to be sentenced within Range I given that he has no prior convictions of any sort that would trigger sentencing into higher ranges. A Range I sentence for criminally negligent homicide is between one and two years. While this Court has authority to impose incarceration, the relevant statutory guidelines, as well as the unusual facts and circumstances of this case, justify a finding that Mr. Simmons should be placed on probation supervision under such terms and conditions as this Court believes to be appropriate.

There should be few, if any, factual disputes in this case. Mr. Jimmy Ray Simmons was employed by McDonald Transit Associates that provides drivers for the buses operated by the Metropolitan Transit Authority. On August 31, 1998, Mr. Simmons was driving a bus that went through a red light at 14^th and Broadway and also went through a red light at 13^th and Broadway. The bus initially collided with at least one vehicle and then veered into a lane of oncoming traffic. The bus rode over a Volkswagen, killing two of the occupants and injuring a third. Other vehicles sustained significant damage. Approximately eleven other people were hurt including individuals on the bus as well as one or more people in other vehicles.

It is also undisputed that Mr. Simmons is a diabetic. The defense will demonstrate through medical testimony that Mr. Simmons was suffering from hypoglycemia at the time of this event. Hypoglycemia (or low blood sugar) can produce various symptoms such as faintness, dizziness, and blurred vision. Obviously, this can affect driving performance by decreasing accurate perception.

The defense asserts two factors in mitigation. T.C.A. §40-35-113(8) provides that it is a mitigating factor that the “defendant, although guilty of the crime, was suffering from a mental or physical condition that significantly reduced his culpability for the offense.”

T.C.A. §40-35-113(11) provides in part that it is a mitigating factor that the “defendant, although guilty of the crime, committed the offense under such unusual circumstances, that it is unlikely that a sustained intent to violate the law motivated his conduct.”

The defense asserts that both of these factors are present here. Thus, this Court should exercise its discretion by sentencing Mr. Simmons to probation supervision. Mr. Simmons should not be incarcerated.

Mr. Simmons is currently 58 years of age. He was born in Drew County, Arkansas. He grew up in Chicago, Illinois. Mr. Simmons graduated from high school where he was on the track team.

Mr. Simmons moved to Nashville after receiving a track scholarship to Tennessee State University. After several years of college he enlisted in the Army in 1965.

Mr. Simmons saw substantial combat. He served with the 101^st as a medic in Vietnam. Mr. Simmons was awarded a medal for heroism. The specifications are as follows:

“For heroism in connection with military operations against a hostile force: Specialist Simmons distinguished himself by exceptionally valorous actions on 9 June 1967 in the Republic of Viet Nam. As Specialist Simmons, the platoon medic, landed on a landing zone during a heliborne assault, he observed a machine gunner badly sprain his ankle as he jumped from the helicopter. Taking immediate action, he administered the proper medical aid to the man and carried the man’s machine gun as he escorted him to the landing zone. As they approached the landing zone, they were suddenly brought under an intense volume of enemy fire. Realizing the necessity for immediate action, Specialist Simmons opened fire with the machine gun and with complete disregard for his own safety, charged through the enemy’s withering hail of fire and assaulted their position. He succeeded in overrunning their position and killing one enemy soldier. He then heard the cry of “medic” and he again rushed through the enemy fire to aid a wounded comrade. Throughout the battle, he moved all over the battle area treating the wounded, and in one instance undoubtedly saved a seriously wounded soldier’s life. Specialist Simmons devotion to duty and personal courage were in keeping with the highest traditions of the military service, and reflect great credit upon himself, his unit, and the United States Army.”

Mr. Simmons received an Honorable Discharge on January 20, 1968. On June 24, 1968, Mr. Simmons began working as a bus driver here in Nashville. He also finished college and graduated from TSU with a B.S. degree in 1972.

Mr. Simmons developed an adult diabetic condition in 1985 On July 28, 1988, the physicians advised that Mr. Simmons’ diabetic condition required that he be treated with insulin. Mr. Simmons then took disability retirement effective September 1, 1988 at the age of 47 with 20 years of service. He then sold insurance for a time.

In 1991 Mr. Simmons returned to work as a bus driver because the doctors found that Mr. Simmons had adequate control of the sugar level through the use of an oral non-insulin medication. The relevant medical documentation is attached to this memorandum.

Mr. Simmons had a serious bus accident on April 30, 1992. The attached documentation from the MTA advises that:

“One of my drivers, Jimmy Simmons, had a diabetic episode today that rendered him incapable of safely operating a bus. Unfortunately he was driving at the time, and we are very lucky to have avoided a major accident. He was cited for reckless driving.”

This Memorandum includes a defense interview with a witness to the 1992 accident. The interview is relevant as to what happened in the prior accident and, in particular, of the witness’ description of Mr. Simmons:

“Mr. Michael Lewis: Ah but there were, there must have been a half dozen people, close to a half dozen people that witnessed this situation.

[Investigator] Wells: Oh really?

Lewis: Yeah. And there’s also, what he did was went through a construction site. They were repairing the street and they had a flagman out and everything. Two flagmen in fact.

Wells: And he went through it.

Lewis: Yeah. He went through it, he had a huge ah skid marks on the pavement where the bus had nearly overturned and he managed to avoid everybody except one little ol’ gal that he tapped the tire on her car an there was no damage by that. It was just a miracle that he kept from killing somebody.

Wells: Were you the only one that showed up for court that day?

Lewis: Right.

Wells: They notified everybody else and told them not to come.

Lewis: I would assume they notified everybody but ah I was the only one that showed up.

Wells: Okay. Then they failed to notify you?

Lewis: Right.

Wells: Okay ah was it in the summer time or?

Lewis: Yeah.

Wells: Okay.

Lewis: In fact ah what really surprised me is during this whole thing everybody else was sweating up a storm and here’s Jimmy Simmons just sitting there and not breaking a sweat and I said there’s something wrong with this guy.

Wells: Uh-huh. Did you see him personally face to face?

Lewis: Yeah. Yeah. He was sitting in his bus ah pulled over to the side of the road almost in the ditch and ah I told him, I said can you call your supervisor and ah, and, I think we have a problem here and he acted like he didn’t know anything and I assume he didn’t.

Wells: So he was incoherent?

Lewis: Yeah cause he tried to start his bus up and pull on out.

Wells: So he was incoherent then?

Lewis: Yeah.”

Two physicians advised that Mr. Simmons could go back to work after five days. The medical documentation is attached. The documentation also includes the following letter to Mr. Simmons from his employer, a full copy of which is attached:

“To follow up on our conversation of yesterday, your return to work is conditional on your personal ability to follow doctor’s instruction on diet and exercise. Your doctor says your condition is controllable and only you are in control. Any recurrence will be a consequence of your own causing and will leave the company limited latitude but indefinite suspension or termination. I truly hope that your health remains good, because that is what is really important to you and the company. I am glad that this incident turned out so positively.”

The attached documentation includes medical reports from 1993, 1994, 1995, 1996, and 1997. In general, the doctors continue to treat Mr. Simmons for his diabetes.Mr. Simmons had a full physical on or about June 30, 1998. Dr. Daniels’ letter of June 30, 1998 is among the papers enclosed and the Court will see that Dr. Daniels advises Mr. Simmons that “I want to keep your sugar consistently between the 115 and 120 range if at all possible.”

Jumping ahead a little bit, the attached documentation includes the first page from the Baptist Hospital records indicating that about an hour after the current 1998 bus collision Mr. Simmons’ sugar level was approximately 73. After the wreck, Mr. Simmons ate some candy mints which he carried with him. This raised his blood sugar before he was transported to Baptist. The doctors will testify that adrenaline will elevate blood sugar even further and certainly that occurred as a result of this bus collision. Thus, the 73 reading at Baptist demonstrates a depressed blood sugar level which was significantly lower at the time of the bus wreck occurring an hour earlier.

Moving back to the medical documentation, the Court will find that after the visit of June 30, 1998 Mr. Simmons returned several times to Dr. Daniels since there was some alteration and modification of his medication. There was another visit to the doctor’s office on July 8, 1998, another on July 16, 1998, and another on July 22, 1998.

Mr. Simmons was seen yet again on August 21, 1998. Dr. Daniels’ final office note is as follows:

“Because of the low sugar, even though he has had no hypoglycemia symptoms, we are cutting his glucotrol back to 5mg twice a day. Phone call and message to him about [this], together with asking him to have a follow up sugar this week. He is to report to me immediately any symptoms of hypoglycemia.”

The fatal bus collision occurs just ten days later. The attached documentation includes an article provided by Dr. Hayes which deals with hypoglycemia. Significantly, onset of hypoglycemia can occur without warning when an individual has long-term diabetes. The defense physicians will testify that typically an individual may become cognizant of the onset of hypoglycemia (and take precautions) but that there can be an episode where the person does not recognize the symptoms or goes immediately into a hypoglycemic episode which starts with drowsiness, leading to confusion and subsequently a possible coma if severe enough.

“The neuroglycopenic symptoms of hypoglycemia are those attributed directly to a slowing of higher brain function, including drowsiness, confusion, inability to concentrate and/or speak clearly, and irritability. These, together with feelings of warmth, are not affected by autonomic blockade. Traditionally, it is assumed that the autonomic symptoms occur at a slightly higher blood glucose concentration (i.e., earlier) than the neuroglycopenic symptoms and are thus the classic “early warning symptoms” of hypoglycemia. However, many diabetic patients depend on the latter symptoms to alert them to the situation. As long as some of these symptoms are generated at a time when sufficient cognitive and motor ability remain for the patient to recognize them and take appropriate action, he/she is protected against the more profound fall in blood glucose that causes clinically serious loss of brain function (less than 3 mmol/L). Such symptomatic episodes are unpleasant, but the danger lies in the failure to generate symptoms in response to relatively mild hypoglycemia. If symptoms are absent, there is an increased risk of plunging into profound hypoglycemia with cortical dysfunction that is evident to observers but not to the patient. Severe hypoglycemia is often embarrassing and socially disabling because the patient may behave illogically and uncharacteristically. At worst, injury and even death can result, either from loss of concentration while doing something dangerous or (probably very rarely) from prolonged and/or very severe hypoglycemia.” Amiel, Hypoglycemia Without Warning: A Dangerous but Reversible Phenomenon?, The Endocrinologist (1994).

On August 31, 1998 Mr. Simmons was on a new route which, significantly, had different work hours. Mr. Simmons had no lunch and had no dinner. Bus drivers, like police officers, get no specific break. In summary, Mr. Simmons had been on this route for about six hours with no food and his blood sugar got low and he had the hypoglycemic episode.

As has been noted, Mr. Simmons was employed as a bus driver for almost 30 years. In the year preceding the bus collision, Mr. Simmons worked as an “extra board” driver. This meant that he substituted for other drivers who were sick or were on vacation. Thus, his hours and route varied almost every day.

As an “extra board” driver Mr. Simmons reported to work anywhere from 4:30 to 9:00 in the morning. He worked between 6 and 14 hours a day.

On August 31, 1998 Mr. Simmons was assigned a permanent route as “night driver.” This route covered various streets. In the evening the route would change and would pick up routes from other buses as the number of passengers would decrease. Significantly, however, the new “night route” required that Mr. Simmons get to work at 2:15 in the afternoon and drive the bus for 9 hours.

As noted, the various directions that the bus would travel changed during the evening. On the late evening “trip” the bus would leave from the shelter across the street from First American Bank and would go up Charlotte and would turn left on White Bridge Road. The bus would then travel down White Bridge Road and take a left on Harding and go down West End. The bus was scheduled to go down West End and Broadway and take a right on 14^th by Beaman Pontiac. The bus was then to go around to Demonbruen, up to the Clement Landport and then back around into town to the bus station by First American, arriving there at 8:15 p.m.

Mr. Simmons began his new route on August 31^st, and, as noted, he had no lunch and no dinner. The bus company does not factor in meal breaks and the drivers catch something to eat when they can or they eat on the bus. As Dr. Hayes’ report discloses, the failure to have any food during the afternoon and evening contributed significantly to Mr. Simmons’ low blood sugar.

As Mr. Simmons was coming down West End and Broadway he should have turned right on 14^th. He did not. The police report discloses that he went straight through the intersection. Significantly, the light at 14^th and Broadway had been red for at least five seconds before the bus went through that intersection.

The accident report also discloses that the light at Broadway and 13^th turned red for Broadway traffic just after the bus crossed the intersection at 14^th Avenue.

Traffic on 13^th had already proceeded into the intersection as the bus approached at perhaps 50 miles per hour.³ Mr. Blackwell’s vehicle had already gone through the intersection just as the bus narrowly passed by. However, another vehicle, being operated by Mr. Reed was struck by the bus.⁴

The police report indicates that the impact caused the bus to go left into the oncoming lane of traffic on Broadway in front of Hippodrome. The Volkswagen containing Mr. Mund, Mr. Gasho, and Mr. Aingworth was then struck and the bus literally rode over that vehicle. Mr. Mund and Mr. Gasho were killed and Mr. Aingworth was trapped in the vehicle for a time.

The report indicates that two other vehicles were struck near Hippodrome but fortunately none of the drivers or their passengers were seriously injured.

The attachments include a transcript of the first 911 call. From the context of the conversation with the 911 dispatcher it is evident that the call is made probably just a few moments after the bus came to rest since the caller reports that individuals are still in the bus and are jumping out of the bus. The transcript reflects that the call is received at the Police Department at 8:03:34 p.m. The caller reports that the bus “skidded all the way across the bridge [over the interstate].” The drawings contained in the accident report show the path of the various vehicles and, in particular, the path of the bus as it entered the intersection at 13^th and Broadway.⁵

While there are some contrary police reports, there are many witnesses who observed Mr. Simmons both before and after the collision who indicated that Mr. Simmons was disoriented.

Mr. Nelson (a passenger on the bus) testified at the preliminary hearing that he heard Mr. Simmons talking to someone after the wreck: “All I remember him saying was that he said there was a car coming at him and then there were cars coming from every direction.” Ms. Spencer, another bus passenger, testified at the preliminary hearing that Mr. Simmons “was in a daze or something.”

We know from the reports of the witnesses that Mr. Simmons got off the bus immediately after the collision and then got back on. The police report from Tracy Easley states as follows:

“Easley was a rear (passenger side) passenger in the bus, and had boarded at 7:45 p.m. at the Nashville Tech campus on White Bridge Road. He said that the bus began to speed up going down the big hill on Broadway approaching the interstate, then hit a white car that was crossing Broadway (on 13^th Avenue). Then he stated that the bus bounced before coming to a stop. Easley had to kick a window out in order to exit the bus, and then went to the aid of bus driver who was lying in the stairwell area of the bus and being trampled by the other passengers.”

Another bus passenger Tramaine Burns, advised in her police report that:

“Ms. Burns said that the driver got off of the bus and never checked to see how any of the bus passengers were. She added that she had ridden with this same driver before, and he never had driven like this.”

Mr. Richard Kolinski testified at the preliminary hearing that: