State v. Richard A. Green ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JUNE SESSION, 1999 August 9, 1999
Cecil Crowson, Jr.
Appellate C ourt
Clerk
STATE OF TENNESSEE, )
) No. 03C01-9812-CC-00422
Appellee )
) JEFFERSON COUNTY
vs. )
) Hon. Ben W. Hooper, II, Judge
RICHARD A. GREEN, )
) (Vehicular Homicide)
Appellant )
For the Appellant: For the Appellee:
Lu Ann Ballew Paul G. Summers
Asst. Public Defender Attorney General and Reporter
P. O. Box 416
Dandridge, TN 37725 Marvin S. Blair, Jr.
Assistant Attorney General
Criminal Justice Division
Edward C. Miller 425 Fifth Avenue North
Public Defender 2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
Alfred C. Schmutzer, Jr.
District Attorney General
James L. Gass
Asst. District Attorney General
Sevier County Courthouse
Sevierville, TN 37862
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Richard A. Green, was convicted by a jury of vehicular
homicide by intoxication, a class B felony. Following a sentencing hearing, the
Jefferson County Criminal Court imposed a ten year sentence of confinement. The
appellant appeals both the judgment of conviction and resulting sentence entered by
the trial court. In doing so, he challenges:
I. The admission into evidence of the results of blood alcohol tests
performed by both the Tennessee Bureau of Investigation and
Jefferson Memorial Hospital;
II. The expert testimony of Dr. John Zirkle regarding the combined
effects of alcohol and drugs on an individual’s ability to operate a
motor vehicle;
III. The testimony relating to the presence of alcoholic beverage
containers found in the appellant’s vehicle;
IV. The imposition of a ten year sentence as being excessive; and
V. The trial court’s denial of a suspended sentence.
After review of the record and the applicable law, we find no error of law
requiring reversal of the judgment or modification of the sentence. The judgment of
the trial court is affirmed.
Background
The proof introduced at trial, taken in the light most favorable to the State,
reveals the following. On June 26, 1997, Richard Seymour picked up his wife,
Margaret, from her place of employment at approximately 4:00 p.m. The couple
drove to Wendy’s in Jefferson City where they ate dinner. They then completed
some grocery shopping at the nearby W al-Mart. The couple then began their drive
home on Highway 25/70. Upon approaching Kerr’s Market, they noticed a vehicle
coming towards them on the wrong side of the road. Margaret Seymour exclaimed,
2
“he’s going to hit us.” Richard Seymour stopped their Pontiac sedan in time to
watch the approaching red Volvo “travel all the way across to the edge of the road.”
Richard Seymour thought that “[the appellant] was going into the cow pasture.”
However, the red Volvo veered back across to his side of the road. Mr. Seymour
“took his foot off the brake and started his vehicle toward a big strip out on the edge
of his side of the road.” The Volvo again veered back across the road. Mr.
Seymour stopped again. The Volvo “went back across” and collided with the
passenger side of the Seymours’ vehicle.
At approximately 6:30 p.m., members of the Tennessee Highway Patrol were
dispatched to the scene of the crime. Troopers Bud Potts and Lloyd Smith
discovered two vehicles at the scene, a cream color Pontiac sedan and a 1978 red
Volvo. Trooper Smith approached the driver of the red Volvo, later identified as the
appellant. Smith observed that the appellant “appeared to be very intoxicated. He
was using a lot of profanity and not cooperating with the ambulance personnel at all.
I attempted to question him . . . and he more or less. . . told me to go to hell.”
Trooper Smith added that the appellant “had a very strong odor of alcohol.” Upon
searching the appellant’s vehicle, Trooper Smith discovered two empty beer bottles,
“one of them had a little cup holder thing on it they put them in to keep them cool.”
A more thorough search was completed after the vehicle was towed from the scene.
Trooper Smith later found “a total of twelve bottles, part of them empty and part of
them full” and a “pack of rolling papers # 1.5.”
The appellant, Richard Seymour, and Margaret Seymour were transported by
ambulance to Jefferson Memorial Hospital. Margaret Seymour, the forty-five year
old passenger of the Pontiac, was dead on arrival at the hospital. Efforts to revive
her were futile.
3
Later on that evening, Trooper David Brown questioned the appellant at the
Jefferson Memorial Hospital. Trooper Brown testified that the appellant “was very
argumentative, very combative. You could tell by the odor that he had been
drinking.” “His speech was slurred, [he was] talking fast, [and he was] using very
racy language.” The appellant told Trooper Brown:
. . .I just came back down the road and that God damned yellow
station wagon was over on the other side of the road, man. I said,
“God damn, they’re going to hit me head on.” And I cut over, man, to
try to miss them, man, and they freaked out and cut back over anyway
and it caught them in the side, man, and the next thing I knowed [sic] I
was f- - - ing flipping.
During this interview, the appellant admitted that he had consumed approximately
three beers prior to the collision. At some point during the appellant’s stay at the
hospital, officers discovered what was later determined to be 4.4 grams of marijuana
concealed in the appellant’s pants.
A blood sample was taken from the appellant at 8:12 p.m. This sample was
subsequently sent to the Tennessee Bureau of Investigation where a blood alcohol
analysis on the sample was conducted. The results of this test revealed that, at the
time the sample was drawn, the appellant had a blood alcohol content of .13
mg/decaliter. The analysis by the TBI also revealed the presence of Valium in the
appellant’s system.
Hospital personnel subsequently drew another sample of the appellant’s
blood at 8:20 p.m. for diagnostic and treatment purposes. The tests on this sample
revealed a blood alcohol content of .152 mg/decaliter. A urine test completed by the
hospital additionally tested positive for benzodiazeprine (Valium) and for
canabonoid, which is a metabolite of marijuana. At trial, Dr. John Zirkle, a physician
at Jefferson Memorial Hospital, was called as an expert to testify as to the combined
effects that alcohol and drugs would have upon an individual’s ability to operate a
motor vehicle. Dr. Zirkle did not treat the appellant at the hospital. He testified that
a blood alcohol level of .152 is well above the standard considered to be intoxicated.
4
At this level, Dr. Zirkle opined that the appellant’s “judgment and coordination would
be impaired severely.”
Trooper Roger Christian, an accident reconstructionist, provided additional
testimony. Based upon the positions of the two vehicles after impact and certain
marks, including tire marks, vehicle marks and gouges on the road surface, Trooper
Christian determined that:
[T]he Volvo was heading . . . in the direction of Knoxville, while the
Pontiac was heading back to Newport/Dandridge. The Volvo, some
263 feet prior to striking the Pontiac, has traveled off onto the shoulder
of the road.
...
It would have been on the shoulder of the road that the Pontiac was
traveling. In other words, the Volvo had crossed over - - crossed the
Pontiac’s lane of travel, and had traveled off onto the shoulder
approximately 263 feet before reaching the Pontiac, and it traveled
down the shoulder of the roadway. In other words, it was completely
on the other side of the highway.
...
. . .[T]he Volvo had come down on the wrong side, on the shoulder,
was aggressively trying to return back into the road, and had struck the
Pontiac on the Pontiac’s passenger side.
...
[In the present case, the left front brake did not have an impact on the
accident. Indeed, [w]hen he applied his brakes he should have went
over in the right hand side instead of going to the left.
The appellant’s acquaintance, Larry Stinnett, related the appellant’s activities
prior to the collision. Stinnett testified that, at sometime after 4:00 p.m., he and the
appellant traveled to Andy’s Market where they shot a game of pool and each drank
two beers. They then drove to Newman Hollow Road where they met three
unidentified men and smoked one marijuana cigarette. They went back to Andy’s
Market, the appellant “did donuts” in the parking lot, and then he drove to Green Hill
Road. The appellant dropped Stinnett off at his sister’s house near Kerr’s Market
on Highway 25/70. Stinnett testified that he saw the appellant with Valium tablets
and that he saw the appellant drink a total of three beers.
5
The appellant testified that he had obtained the 1978 Volvo two days prior to
the offense. At that time, he learned that the front left brake had been disconnected
and the brake line plugged. He had attempted to have this condition corrected on
the day of the offense; however, Bill Banks, the mechanic he visited, did not have
the proper parts. The appellant admitted that he had drank three beers prior to the
collision. He denied taking Valium prior to the collision although he did admit that he
had “eaten ten Valium, two days before.”
Based on this evidence, the jury found the appellant guilty of vehicular
homicide.
I. Admissibility of Blood Alcohol Tests
The appellant first complains that the admission into evidence of the results
of the blood alcohol tests completed by the Tennessee Bureau of Investigation and
Jefferson Memorial Hospital was error. He contends that, because both blood
samples were drawn nearly two hours after the collision, the results of the blood
tests “are not relevant to the issue of whether or not he was ‘driving under the
influence.’”
Relevant evidence is any evidence “having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” See Tenn. R.
Evid. 401. In the present case, the appellant was charged with vehicular homicide
as the proximate result of the driver’s intoxication. See Tenn. Code Ann. § 39-13-
213(a)(2) (1997). Thus, evidence relating to the appellant’s level of intoxication at
the time of the offense is relevant in establishing an element of the offense. Indeed,
the appellant’s intoxication was the only disputed issue at trial.
6
Blood tests are routinely used to determine whether a person was intoxicated
at a certain time. See NEIL P. COHEN , TENNESSEE LAW OF EVIDENCE § 401.25
(1995). Such tests are admissible provided that the sample was taken by a properly
trained person and went through a proper chain of custody between the time the
blood was drawn and the time it was analyzed. See generally Tenn. Code Ann. §§
55-10-401 to -412 (1997); NEIL P. COHEN , TENNESSEE LAW OF EVIDENCE § 401.25.
See also State v. Ben Jordan, No. 01C01-9311-CC-00419 (Tenn. Crim. App. at
Nashville, Jun. 13, 1995), perm. to appeal denied, concurring in results only, (Tenn.
Feb. 5, 1996). There is no dispute that the procedural prerequisites to admitting the
laboratory test results were satisfied in the instant case.
Again, the collision resulting in the death of Margaret Seymour occurred at
approximately 6:30 p.m. The blood sample drawn by the State was taken at 8:12
p.m. while the sample drawn by the hospital was taken at 8:20 p.m. No expert
testimony was presented at trial to establish what the test results would have been
at the time of the collision by means of extrapolation. As recognized by this court in
State v. McKinney, “it would be virtually impossible for a sample of blood to be
drawn until some time after the accident occurs.” See State v. McKinney, 605
S.W.2d 842, 846 (Tenn. Crim. App. 1980). Accordingly, the jury can infer
intoxication at the time of the offense from the results of a test of a blood sample
taken later. See State v. Joe Larry Fuqua, No. 01C01-9312-CC-00431 (Tenn.
Crim. App. at Nashville, Aug. 25, 1994), perm. to appeal denied, (Tenn. Nov. 7,
1994). Where there exists other evidence from which to infer the driver’s
intoxication, there is no need for expert witnesses to extrapolate the test results to
the time of the driving. Id. In the present case, several law enforcement officers
testified regarding the appellant’s demeanor at the time of the offense, specifically,
observing the appellant’s belligerent behavior, excessive cursing, slurred speech
and odor of alcohol. Additionally, Larry Stinnett testified that the appellant drank
three beers and smoked part of a marijuana cigarette prior to the collision.
7
Accordingly, we reject the appellant’s contention that a blood alcohol level of .13 is
so close to the statutory presumption of .10 that expert testimony is required to
establish the appellant’s blood alcohol at the time of the collision. We conclude that
the results of the blood alcohol tests were relevant to the appellant’s state of
intoxication. The interval between the time of the offense and the times at which the
blood samples were drawn are pertinent to the weight of the evidence, not to its
admissibility. See State v. Ben Jordan, No. 01C01-9311-CC-00419 (citing State v.
Ford, 721 S.W.2d 828, 830 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.
1986); McKinney, 605 S.W.2d at 846 (parenthetical omitted)). This issue is without
merit.
II. Testimony of Dr. Zirkle
In a related issue, the appellant contends that the trial court erred by
permitting Dr. John Zirkle to testify regarding the combined effects drugs and alcohol
would have on a person’s ability to operate a motor vehicle. Specifically, the
appellant bases his argument on the grounds that
Dr. Zirkle did not treat the appellant after the accident, nor did Dr.
Zirkle obtain appellant’s drug and urine samples, nor did he analyze
appellant’s samples for their alcohol and drug content. In short, Dr.
Zirkle had no personal knowledge of appellant’s statements for
treatment, observations by hospital personnel, nor of the lab tests
contained within the hospital records.
Accordingly, the appellant argues that Dr. Zirkle’s testimony violates his
constitutional right of confrontation.
Before calling Dr. John Zirkle to testify, the State offered into evidence,
pursuant to Tenn. Code Ann. § 68-11-401 et seq. (1996) (Hospital Records as
Evidence), the medical records of the appellant, Margaret Seymour, and Richard
Seymour maintained by Jefferson Memorial Hospital relative to each patient's
8
respective treatment following the June 26th offense. The trial court admitted the
records after determining that the State had complied with the requirements of
Tenn. Code Ann. § 68-11-401 et seq. These statutes permit hearsay evidence,
deny a party the right to cross-examine or otherwise refute the contents of the
medical record, and allow opinion evidence of experts without showing their
qualification to testify as an expert. See Sanders v. Nationwide Ins. Co., No.
02S01-9409-CV-00067 (Tenn. at Jackson, Jan. 22, 1996). The principal purpose of
Tenn. Code Ann. § 68-11-401 et seq. is to provide a procedure for a hospital, where
it has no interest in the case, to respond to a subpoena duces tecum for hospital
records by filing copies of the records authenticated by affidavit instead of by
sending a witness to the hearing with the originals. The copy of the record shall be
admissible in evidence to the same extent as though the original thereof were
offered and the custodian had been present and testified to the matters stated in the
affidavit. Tenn. Code Ann. § 68-11-406(a). The statutory requirements were
satisfied; thus, procedurally, the records were admissible into evidence.
Nonetheless, although authentication may, by statute, be satisfied by an affidavit by
the custodian, the medical records are still subject to constitutional challenge. See
State v. Woody Hutchinson, C.C.A. No. 887 (Tenn. Crim. App. at Knoxville, Jul. 19,
1990).
In the instant case, the appellant, relying upon State v. Henderson, 554
S.W.2d 117, 120 (Tenn. 1977), contends that, by not having the person(s) who
conducted the examination and who completed the laboratory tests available to
testify, the introduction of these medical records into evidence violated his
constitutional right to confrontation. In Henderson, our supreme court held that out-
of-court statements must meet certain criteria in order to satisfy the Confrontation
Clause of both the Sixth Amendment of the United States Constitution and Article I,
Section 9 of the Tennessee Constitution. See State v. Armes, 607 S.W.2d 234,
236 (Tenn. 1980); Henderson, 554 S.W.2d 117 (Tenn. 1977). Specifically, the court
9
recognized that valid claims of an unconstitutional abridgement of the right to
confront witnesses arise when:
(1) the hearsay evidence is crucial to proving the State’s case, i.e., the
evidence is offered to prove an essential element of the crime or it
connects the defendant directly to the commission of the crime;
(2) there is no proof that the witness is unavailable, i.e., the State must
make a good faith effort to secure the presence of the person whose
statement is to be offered against the defendant; and
(3) the hearsay evidence is lacking its own indicia of reliability.
Henderson, 554 S.W.2d at 120. See also Armes, 607 S.W.2d at 237; State v.
Oody, 823 S.W.2d 554 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1991);
State v. Carpenter, 773 S.W.2d 1 (Tenn. Crim. App. 1989); State v. Arnold, 719
S.W.2d 543 (Tenn. Crim. App. 1986). Cf. Stewart v. Cowan, 528 F.2d 79 (6th Cir.
1976).
Notwithstanding the constraints imposed by the Henderson tripartite test, our
supreme court has also recognized that “firmly rooted exceptions to the hearsay
rule do not violate the Confrontation Clause.” See State v. Causby, 706 S.W.2d
628, 631 (Tenn. 1986); see also State v. Darrell R. Kennedy, No. 02C01-9708-CR-
00318 (Tenn. Crim. App. at Jackson, Feb. 17, 1999), perm. to appeal denied,
(Tenn. Jul. 19, 1999); State v. Harvey Phillips Hester, No. 03C01-9704-CR-00144
(Tenn. Crim. App. at Knoxville, June 4, 1998) (citing State v. Alley, No. 02C01-9405-
CC-00100 (Tenn. Crim. App., at Jackson, June 18, 1997), perm. to appeal denied,
(Tenn. Mar. 2, 1998); State v. Lillard, No. 01C01-9602-CC-00051 (Tenn. Crim. App.
at Nashville, Feb. 12, 1997)). The rationale for this principle is based upon the
premise that some forms of admissible hearsay rest upon such solid foundations
that admission of virtually any evidence within them comports with the right of
confrontation. See Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2537, 2539 (1980);
Causby, 706 S.W.2d at 631 (Tennessee Supreme Court holds that former testimony
hearsay exception is such firmly established rule and so inherently reliable that any
10
such evidence necessarily comports with the right of confrontation.). 1 Indeed,
statements admitted under a firmly rooted hearsay exception are so inherently
trustworthy that adversarial testing would add little to their reliability. See State v.
Darrell R. Kennedy, No. 02C01-9708-CR-00318.
Business records are admissible as an exception to the rule against the
introduction of hearsay evidence. See Tenn. R. Evid. 803(6). The courts of this
state, our sister states, and many federal courts have held that the “business
records” exception to the rule against hearsay is firmly established. State v. Darrell
R. Kennedy, No. 02C01-9708-CR-00318 at n.8; State v. Harvey Phillip Hester, No.
03C01-9704-CR-00144. See, e.g., United States v. Ismoila, 100 F.3d 380, 392 (5th
Cir. 1996), cert. denied, -- U.S. --, 117 S.Ct. 1712 (1997); Minner v. Kerby, 30 F.3d
1311 (9th Cir. 1994)(introduction of chemist’s notes through supervisor not violative
of Confrontation Clause); United States v. Norton, 867 F.2d 1354, 1363 (11th Cir.
1989); United States v. Baker, 855 F.2d 1353,1360 (8th Cir. 1988)(business records
exception, is firmly rooted hearsay exception to prevent violation of Confrontation
Clause); Reardon v. Manson, 806 F.2d 39 (2d Cir. 1986), cert. denied, 481 U.S.
1020, 107 S.Ct. 1903 (1987)(chemist report introduced through testimony of
supervisor properly admitted sufficient indicia of reliability); People v. Vega, 639
N.Y.S.2d 511, 513-514 (A.D. 3 Dept. 1996) (introduction of technician’s notes under
business records exception rendered technician’s testimony unnecessary where
supervisor actually analyzed the samples); State v. Fontenette, No. 59014 (Ohio
App. Sept. 19, 1991) (testimony by laboratory supervisor regarding DNA profile
properly admitted under business records exception did not violate Confrontation
Clause).
1
In Causby, 706 S.W.2d at 631, the Tennessee Supreme Court held that the third prong
of the Henderson-Armes requirem ent for co mplying w ith the con frontation c lause, i.e., that the
evidence not be crucial or devastating, is not required in the case of well established hearsay
excep tion such as form er testim ony. Id. at 631, note 1 (citing Mancusi v. Stubbs, 408 U.S. 204,
92 S.Ct. 2308 (1972) and Ohio v. R oberts , 448 U.S. at 56, 100 S.Ct. at 2531).
11
A business record may be introduced by the custodian of those records or
any other qualified witness. See State v. Baker, 842 S.W.2d 261, 264
(Tenn.Crim.App.1992). The custodian of the record to be introduced must be able
to testify as to the identity of the record, the mode of preparation, and whether the
record was made in the regular course of business at or near the time of the
recorded event. Id. In the present case, the State failed to call the records
custodian to testify as to the authenticity of the records; rather, the State relied on
an affidavit completed by the custodian. See Tenn. Code Ann. § 68-11-406(a).
During the course of the trial, defense counsel stated:
I will not object, based on that affidavit, to the authenticity of the
records, but as far as these records being entered as exhibits without
hospital personnel such as a nurse who saw my client, or the person
who drew the blood, of the lab technician -- you know, I’ve got to object
to that because based on those grounds it would be hearsay.
We are unable to discern from this objection whether the appellant intended to
concede or challenge the State’s authentication of the medical records.
Notwithstanding, we conclude that an affidavit of the records custodian, rather than
his or her personal appearance in court, is insufficient authentication for purposes of
satisfying the reliable hearsay exception to the Henderson requirements. See
Douglas M. Varner v. Hon. W.L. Brown, No. 03A01-9405-CV-00171 (Tenn. App. at
Knoxville, Nov. 30, 1994).
Thus, we return to the tripartite test announced in Henderson. In this regard,
we find the evidence not violative of the appellant’s right to confrontation. First, the
evidence challenged is merely cumulative to evidence introduced by other witnesses
of the State. Again, numerous officers testified as to the appellant’s physical
condition at the time of the collision. Additionally, the tests performed by the
Tennessee Bureau of Investigation confirmed that the appellant had a blood alcohol
content of .13, tested positive for Valium, and that the substance found on the
appellant’s person was marijuana. Next, the United States Supreme Court has held
12
that a demonstration of availability (part 2 of the Henderson test) is not always
required. Ohio v. Roberts, 448 U.S. at 65, n. 7, 100 S.Ct. at 2538 n. 7; Sherman v.
Scott, 62 F.3d 136, 140 (5th Cir. 1995). Indeed, in White v. Illinois, 502 U.S. 346,
354, 112 S.Ct. 736, 741 (1992), the Court held that Ohio v. Roberts stands for the
proposition that unavailability analysis is a necessary part of the Confrontation
Clause inquiry only when the challenged out-of-court statements were made in the
course of a prior judicial proceeding. Accordingly, we need not address the
availability requirement. And, finally, because the records are regularly maintained
reports of the hospital with respect to its care and treatment of patients and because
they were not prepared for the purpose of this litigation, the records evidence their
own indicia of reliability. Accordingly, the evidence of the medical records do not
violate the appellant’s confrontation rights and were properly admitted.
We additionally find that introduction of Dr. Zirkle’s testimony was proper.
During pre-trial motions, the State asserted that Dr. Zirkle would testify as to the
effect the combination of alcohol, Valium, and marijuana would have on a person’s
ability to drive a motor vehicle. Tenn. R. Evid. 702 provides:
If scientific, technical, or other specialized knowledge will substantially
assist the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise.
Rule 703, Tenn. R. Evid., contemplates three possible sources from which an expert
may base his/her opinion: (1) information actually perceived by the expert; (2)
information made known to the expert by others; and (3) information reasonably
relied upon by experts in the particular field.2 See Tenn. R. Evid. 703; see also
NEIL P. COHEN , ET . AL., TENNESSEE LAW OF EVIDENCE §§ 703.2, 703.3, 703.4 (3d ed.
1995). Clearly, Dr. Zirkle, even though he was not the appellant’s attending
2
Altho ugh we ha ve de term ined t hat th e m edic al rep orts a re co nstitu tiona lly adm issib le
under an exception to the hearsay rule, Rule 703 does not prevent an expert from relying upon
inadmissible hearsay in formulating an opinion, if the type of hearsay is one that would be
reason ably relied upo n by expe rts in that situa tion. See N EIL P. C OHEN ET AL ., T ENNESSEE L A W O F
E V I D E N C E § 703.4.
13
physician, was able to formulate an opinion as to the appellant’s level of impairment
based on the medical records prepared contemporaneously to the appellant’s
treatment at Jefferson Memorial Hospital. Again, the records were prepared in order
to aid the treating physician in his treatment and diagnosis of the appellant; ergo,
the records are presumed reliable and trustworthy. Moreover, since the doctor was
available for cross-examination by the defense and he was thoroughly questioned,
the appellant’s right to confrontation was not infringed. This issue is without merit.
III. Evidence of Alcoholic Beverage Containers
The appellant next argues that evidence of alcoholic beverage containers
found within his vehicle was unreliable as well as irrelevant and should not have
been admitted into evidence. Specifically, he contends that the evidence was
unreliable in that the tow-in report completed at the accident site indicated that only
one empty beer bottle was found. At trial, Trooper Smith testified that he found two
empty beer bottles in the front seat of the car and twelve other beer bottles, both
empty and full, in the back seat and trunk of the vehicle. Trooper Smith explained
that the items on the tow-in report are not required by the Highway Patrol and are
discretonary on the part of the attending officer. Moreover, at the time the tow-in
report was completed, Trooper Smith had not searched the back seat or the trunk of
the car because of the vehicle’s position at the crime scene. The appellant
contends that this discrepancy in addition to the State’s failure to show that the
appellant had consumed alcohol from any of these specific containers at any time
prior to the offense was more prejudicial than probative and should have been
excluded.
Initially, we note that the State maintains that, because defense counsel
failed to make a contemporaneous objection to the testimony at trial, the issue has
14
been waived. We cannot agree. The appellant objected to the admission of the
beer bottles in a pretrial motion to suppress. The issue is properly preserved for
appeal.
Again, evidence is deemed relevant if it has any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence. Tenn. R. Evid. 401.
Even though relevant, evidence may be excluded if its “probative value is
substantially outweighed by the danger of unfair prejudice. . . .” Tenn. R. Evid. 403.
The issue before the jury was the appellant’s state of impairment at the time
of the collision which was dependant upon the quantity of alcohol consumed. The
presence of the beer bottles which were accessible to the appellant, i.e., those in
the front seat, was relevant in establishing an inference of the appellant’s
consumption of alcohol at the time of the collision. However, we conclude that
evidence and testimony relating to the presence of the twelve alcoholic beverage
containers not readily accessible to him, i.e., those found in the back seat and trunk
compartment of the vehicle, cannot be used to create an inference of consumption
at or near the time of the offense, and are, thus, more prejudicial than probative.
Notwithstanding the court’s error in admitting this evidence, any such error is
harmless, especially in consideration of the appellant’s admission that he had
consumed alcohol prior to the offense and the other overwhelming proof relative to
his intoxication presented at trial. See Tenn. R. Crim. P. 52(a).
IV. Sentencing
In his final issue, the appellant challenges the trial court’s imposition of a
sentence of ten years in the Department of Correction. Without any specific error
15
being assigned, the appellant, in a generalized statement, contends that he is
entitled to an eight year sentence, and, after credit for time served, the remainder of
his sentence should be suspended, or, in the alternative, he should be granted work
release. In support of this argument, he asserts that he is employable as a roofer
and that he is responsible for the support of his two children.
When the length, range, or manner of service of sentence is challenged on
appeal, this court conducts a de novo review conditioned upon the presumption that
the determination made by the trial court is correct. Tenn. Code Ann. § 40-35-
401(d)(1997). This presumption only applies, however, if the record demonstrates
that the trial court properly considered relevant sentencing principles. State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In the case before us, the trial court
considered relevant sentencing principles; thus, the presumption applies. Moreover,
this court may only modify sentence if the sentence is excessive or the manner of
service is inappropriate. State v. Russell, 773 S.W.2d 913, 915 (Tenn. 1989). On
appeal, the appellant bears the burden of showing that the sentence imposed was
improper. Sentencing Commission Comments, Tenn. Code Ann. § 40-35-401(d).
The proof at the sentencing hearing revealed that the twenty-eight year old
appellant is the non-custodial father of two minor children. The appellant refused to
acknowledge that the collision was the result of his intoxication. He admits to
smoking a “half nickel” of marijuana and drinking a twelve pack of beer a day. The
appellant’s work status with his most recent employer was not verified. Moreover,
his previous employer indicated that “the [appellant] had worked very little for him.
He stated that [the appellant] may work for a few hours and then he would not see
him again for six months.” Additionally, the appellant has a criminal history
consisting of at least twenty-two separate violations of the law including, among
others: two felony convictions for theft, three convictions for driving under the
influence, two convictions for reckless driving, two convictions for possession of a
16
controlled substance, two convictions for driving on a suspended license, four
convictions involving public intoxication, three convictions for reckless
endangerment, and one conviction for assault. The record also indicates that the
appellant had previously had a suspended sentence revoked and that, while in jail
on the present charges, the appellant was arrested for simple possession of
marijuana and drug paraphernalia while incarcerated in a penal facility.
In determining the appropriate sentence for the appellant’s conviction of
vehicular homicide, the trial court applied one enhancement factor, i.e., that the
appellant has a history of criminal behavior, but concluded that no mitigating factors
were applicable.3 See Tenn. Code Ann. § 40-35-114(1) (1997). The appellant’s
only challenge to the length of the sentence imposed by the trial court is that he
should have received a sentence of eight years rather than a ten year sentence.
When there are enhancement factors and no mitigating factors, the trial court
may set the sentence above the minimum within the applicable sentencing range,
but still within the range. Tenn Code Ann. § 40-35-210(d)(1997). The appellant was
convicted as a range I offender of a class B felony. Thus, the sentence range for
the appellant’s conviction is eight to twelve years. See Tenn. Code Ann. § 40-35-
112(a)(2) (1997). The court imposed a sentence of ten years. We find the length of
this sentence justified and clearly not excessive under the guidelines of the 1989
Sentencing Act.
Additionally, the trial court denied any form of alternative sentence including
probation. As the court imposed a sentence of ten years, which we have found to
be justified, the appellant is not eligible for a sentence involving probation. Tenn.
Code Ann. § 40-35-303(a) (1997). Moreover, we conclude that a sentence of
confinement is necessary to protect society by restraining a defendant who has a
3
The appellant does not challenge the trial court’s refusal to apply any mitigating factors.
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long history of criminal conduct and because measures less restrictive than
confinement have frequently or recently been applied unsuccessfully to the
appellant. See Tenn. Code Ann. §40-35-103(1)(A), -103(1)(C) (1997). This
contention is without merit.
VI. Conclusion
After a review of the record, we find no error requiring reversal. The
judgments of conviction and sentences entered by the trial court are affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
(See separate concurring opinion)
JOHN H. PEAY, Judge
_______________________________________
JOHN EVERETT W ILLIAMS, Judge
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