State v. Dean Clark

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
APRIL SESSION, 1998
FILED
STATE OF TENNESSEE, ) May 8, 1998
) No. 02C01-9705-CC-00186
Appellee ) Cecil Crowson, Jr.
) HARDEMAN COUNTY Appellate C ourt Clerk
vs. )
) Hon. JON KERRY BLACKWOOD, Judge
DEAN BENJAMIN CLARK, II, )
) (Reckless Homicide, Assault,
Appellant ) Unlawful Carrying of a Weapon)
For the Appellant: For the Appellee:
D. Tyler Kelly John Knox Walkup
Hardee, Martin & Jaynes Attorney General and Reporter
P. O. Box 98
Jackson, TN 38302 Elizabeth T. Ryan
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Elizabeth T. Rice
District Attorney General
Jerry Norwood and
Christopher Marshburn
Asst. District Attorneys General
302 Market Street
Somerville, TN 38068
OPINION FILED:
AFFIRMED AS MODIFIED
David G. Hayes
Judge
OPINION
The appellant, Dean Benjamin Clark II, was indicted by a Hardeman County
Grand Jury for the offenses of second degree murder, reckless homicide,
aggravated assault, and unlawful carrying of a weapon with the intent to go armed.
Following a jury trial, the appellant was found guilty of reckless homicide, a class D
felony, and the misdemeanor offenses of assault, and unlawful carrying of a
weapon. Subsequently, the trial court imposed concurrent sentences of two years
for the conviction for reckless homicide, six months for the conviction for assault,
and ten days for the conviction for unlawful carrying of a weapon. In granting a
sentence of split confinement, the court ordered that the appellant serve seventy-
five days of his effective sentence in the county jail, with the remainder of the
sentence to be served in the Community Corrections Program. In this appeal as of
right, the appellant contends:
I. The evidence is insufficient to support a conviction for reckless
homicide; and
II. The trial court should have granted a sentence of total probation.
After a review of the evidence, we affirm the appellant’s conviction for
reckless homicide. However, the State concedes, and we agree, that the appellant
is ineligible for a community corrections sentence. Accordingly, the sentence is
modified to reflect a sentence of supervised probation in lieu of placement in the
local community corrections program.
Background
Around 7:30 or 8:00 p.m. on March 16, 1996, Benjamin “Benji” Mills, his
girlfriend, Kelly Hughes, and her sister-in-law, Lori Hughes, met for an evening of
socializing and visiting with friends. Mills and his girlfriend were both seventeen
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years of age and high school students; Lori Hughes was twenty years old. All three
lived in or around Walnut, Mississippi. After visiting friends in Mississippi, the trio
left in Mills’ white Blazer to visit friends in adjoining Hardeman County, Tennessee.
En route home, they stopped at Collins One Stop in Middleton, Tennessee. Lori
went into the convenience store to purchase some potato chips. The group then
started back towards Walnut.
After traveling a short distance, they realized that the remote control changer
for the CD player was missing and Mills pulled to the side of the road to look for the
remote. Unable to locate the remote, they then decided to return to the
convenience store to see if it had fallen out of the Blazer. At the store, Mills looked
around the parking lot for the remote, while Lori went inside to see if it had been
found.
Meanwhile, the appellant, accompanied by Franklin Anderson, arrived at the
convenience store in the appellant’s green pickup truck. The appellant and
Anderson saw a few of their friends and made plans to follow them to a party on
“Dry Springs Road,” near the Girl Scout Camp. As the appellant and Anderson
walked toward the truck, Lori Hughes exited the store and approached them. The
appellant testified that Lori was staggering and appeared to be intoxicated. She
asked them if they had seen a remote. Anderson and the appellant responded no
and continued toward the appellant’s truck. Lori then began “cussing and swearing.”
The appellant told Lori to “sober up” and to “grow up.” The appellant and Anderson
returned to the truck and left the convenience store following their friends to the
party.
Lori returned to the Blazer and appeared to be upset. She instructed Mills to
follow the green truck driven by the appellant. Mills complied with Lori’s request and
began pursuit of the green truck at a high rate of speed. Middleton Police Officer
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Mike Kennemore observed the white Blazer and attempted to catch up to the
vehicle. Officer Kennemore testified that the white Blazer “passed a couple of cars
in no passing zones” and crossed the railroad tracks even though the warning gates
were lowered for an oncoming train. The train aborted Officer Kennemore’s pursuit,
however, he notified the Hardeman County Sheriff’s Department of the situation.
The appellant heard Officer Kennemore’s report on his police scanner and
looked in his rear view mirror in time to see the Blazer crossing the railroad tracks.
Both Anderson and the appellant observed the fast approach of the white Blazer,
which began flashing its highbeams. Mills pulled alongside the appellant’s vehicle
and applied his brakes. The appellant then passed the Blazer. Mills again pulled
alongside the appellant’s vehicle. The appellant and Anderson testified that, at this
time, Lori was pointing a gun out of the passenger side window at them.1 The
Blazer passed the appellant’s truck and pulled in between the appellant’s truck and
the vehicle driven by the appellant’s friends. The Blazer followed the lead vehicle
onto Girl Scout Road, however, the appellant did not turn and headed toward
Bolivar. The appellant pulled off the road and called the Sheriff’s Department on his
cellular phone to report the Blazer and the female pointing the gun at them.2
Meanwhile, the Blazer pulled alongside the driver’s side of the appellant’s truck.
After both vehicles came to a stop, the testimony of the witnesses are at a material
variance as to the sequence and circumstances of the events that followed.
Nonetheless, it is undisputed that Mills and Anderson became involved in an
argument resulting in Mills hitting Anderson in the mouth with a Bud Light beer
1
Two of the State’s witnesses, Benji Mills and Kelly Hughes, denied that Lori ever pointed
a weapon at the appellant’s truck. State’s witness Franklin Anderson, however, confirmed the
appellant’s version of the events. Police officers discovered a .38 revolver in the glove
compa rtment of the Blazer.
2
Chief D eputy Mik e Laws on con firmed the appe llant’s report to the She riff’s Depa rtmen t.
4
bottle.3 The appellant, meanwhile, armed with his .44 Magnum revolver, got out of
his vehicle. Lori, who was standing near Mills, began to slap the appellant in an
attempt to knock the weapon out of the appellant’s hands. The appellant pushed
Lori out of the way and, in an effort to aid Anderson, hit Mills over the head with the
butt of the gun. Anderson then heard a gunshot, looked toward the rear of the
vehicle, and saw the appellant pointing his gun in the air. 4 The gun discharged
again, at which point, the appellant testified that he realized that the weapon was
not functioning properly. He “released Lori Hughes from having her pinned up
against the truck . . ., pointed the gun straight down at the ground . . ., and . . .
pulled the hammer back again . . .” and, in the same motion, released the hammer.
The hammer struck the firing pin, firing a bullet into the pavement about three inches
in front of the appellant’s left foot, scattering pieces of pavement into the appellant’s
face. Unknown to the appellant, the ricocheting bullet struck Lori Hughes in the
head. The appellant got into his truck and told Anderson that the weapon was firing
without him touching the trigger. The appellant then left the scene of the incident.
Meanwhile, Mills climbed back into the Blazer with Kelly. The two were
unable to see Lori and Mills began to look for her. She was found lying on the
ground, partially underneath the Blazer. A significant amount of blood was coming
from her head. Mills and Kelly then placed Lori in the Blazer. En route to the
hospital, Mills was stopped by police officers. Lori was then transferred to an
ambulance. She died sometime later from a gunshot wound to the head. Dr.
Wendy Gunther, a forensic pathologist, conducted an autopsy and determined that
the victim was shot at a distance of over three feet. Dr. Gunther confirmed that the
victim’s blood alcohol level, at the time of her death, was .09 percent.
3
The blow of the beer bottle knocked out three of Anderson’s teeth, broke four teeth and
chipped an addition al three tee th.
4
The appellant explained that he fired the weapon in an attempt to scare Mills and Hughes
and put an end to the confrontation.
5
A subsequent examination of the appellant’s weapon revealed that the trigger
guard on the gun was bent. The bent trigger guard, which was pressing on the
trigger, caused the trigger to be engaged so that if the hammer was cocked and
then released, the weapon would fire instantly.
Based upon this evidence, the jury found the appellant guilty of reckless
homicide, assault, and carrying a weapon with the intent to go armed.
I. Sufficiency of the Evidence
The appellant contends that the proof is insufficient to establish the mens rea
of the offense of reckless homicide, i.e., that he acted recklessly. Specifically, the
appellant argues that “the risk that the bullet would strike and kill Lori [Hughes] was
not substantial and unjustifiable.” Additionally, he maintains that “failing to perceive
the risk that the bullet might strike and kill Lori [Hughes] does not constitute a gross
deviation from the standard of care that an ordinary person would exercise under all
of the circumstances as viewed from the accused person’s standpoint.” (emphasis
in original). For the reasons discussed herein, we disagree.
A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is
insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In determining the
sufficiency of the evidence, this court does not reweigh or reevaluate the evidence.
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Also, it is the responsibility
of the jury to resolve any conflicts in the evidence and to weigh the credibility of the
witnesses. Id. at 836. On appeal the State is entitled to the strongest legitimate
view of the evidence and all reasonable or legitimate inferences which may be
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drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). It is the
appellate court’s duty to affirm the conviction if the evidence, viewed under these
standards, was sufficient for any rational trier of fact to have found the essential
elements of the offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn.
1994); Tenn. R. App. P. 13(e).
Reckless homicide is defined as a “reckless killing of another.” Tenn. Code
Ann. § 39-13-215 (1996 Supp.).
“Reckless” refers to a person who acts recklessly with respect to
circumstances surrounding the conduct or the result of the conduct
when the person is aware of but consciously disregards a substantial
and unjustifiable risk that the circumstances exist or the result will
occur. The risk must be of such a nature and degree that its disregard
constitutes a gross deviation from the standard of care that an ordinary
person would exercise under all the circumstances as viewed from the
accused person’s standpoint.
Tenn. Code Ann. § 39-11-106 (a)(31) (1996 Supp.).
The risk of which the accused is aware must be substantial in order for the
recklessness judgment to be made. The risk must also be unjustifiable. The
awareness of the risk is measured from the actor’s point of view. The question
remains as to what standard is used in determining how substantial and how
unjustifiable the risk must be in order to warrant a finding of culpability. These are
questions to which the jury must evaluate the actor’s conduct and determine
whether it should be condemned. Thus, the jury must answer two questions: (1) to
what extent was the actor aware of the risk, of factors relating to its substantiality,
and of factors relating to its unjustifiableness; and (2) whether the actor’s conscious
disregard of the risk justifies condemnation. See Comment, MODEL PENAL CODE §
2.02 (1985).
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The proof at trial revealed that the appellant fired his weapon into the air in an
attempt to scare Mills and Lori. He admitted that after the second shot he realized
that the gun was not functioning properly because it was firing without pulling the
trigger. W ith full knowledge that Lori Hughes and Mills were within close proximity,
the appellant aimed the weapon at the ground and, again, fired the weapon. The
bullet ricocheted off the pavement striking Lori Hughes in the head. The evidence
also revealed that the appellant had twelve years service in the United States
Marine Corps and was experienced and knowledgeable regarding the operation of
various types of weapons. These factors are sufficient for a rational trier of fact to
conclude that the appellant was aware that the firing of a malfunctioning weapon in
close proximity of other individuals during a volatile confrontation was likely to cause
injury to those individuals. Since the discharge of a firearm is likely to result in
injury, the risk created is substantial. Moreover, we find the appellant’s subsequent
action unjustifiable in light of the surrounding circumstances. Thus, the appellant’s
actions constituted a gross deviation from the standard of care required of a
reasonable person with the appellant’s experience with firearms and in the same
circumstances. A rational juror could reasonably conclude that the appellant’s
actions were not accidental; but constituted reckless conduct. Viewing the evidence
in the light most favorable to the State, we cannot conclude otherwise. This issue is
without merit.
II. Sentencing
In his final issue, the appellant contends that the trial court erred by denying
total probation. Although the State concedes that the trial court erroneously
imposed a Community Corrections sentence, the State argues that the appellant is
not entitled to full probation.
8
At the sentencing hearing, the State presented the testimony of Pam
Hightower, the victim’s mother. Ms. Hightower expressed the emotional pain
caused by the death of her daughter. No further witnesses were presented. The
pre-sentence report revealed that the appellant is a single thirty-year old high school
graduate with a six year old son. In June 1996, the appellant received an honorable
discharge after twelve years service in the United States Marine Corps. Since his
discharge, the appellant has been employed as both a laborer and an electrician.
Other than several traffic violations, the appellant has no prior criminal record. Both
sides rested and the sentencing determination was submitted to the trial court based
upon the evidence contained in the pre-sentence report and Ms. Hightower’s
testimony.
The trial court imposed concurrent sentences of two years for the conviction
for reckless homicide, six months for the conviction for assault, and ten days for the
conviction for unlawful carrying of a weapon. The court further ordered the
appellant to serve seventy-five days of his effective sentence in the county jail, with
the remainder of the sentence to be served in the Community Corrections Program.
When a defendant challenges the manner of service of his sentence, this
court must conduct a de novo review with the presumption that the determination
made by the trial court is correct. Tenn. Code Ann. § 40-35-401(d)(1990). This
presumption only applies, however, if the record shows that the trial court properly
considered relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991). In this case, the record is entirely void of any findings of fact which
reflect any consideration of the relevant sentencing principles, thus, the presumption
fails. In this regard, we emphasize that the trial court is obliged to make its findings
on the record in order to assist an appellate court in conducting its de novo review.
Tenn. Code Ann. § 40-35-209; Tenn. Code Ann. § 40-35-210(f). The fact that this
court’s review of the sentence is de novo does not relieve the trial court of its duty.
9
Nonetheless, the appellant maintains the burden of showing that the sentence
imposed by the trial court is improper. Sentencing Commission Comments, Tenn.
Code Ann. § 40-35-401(d).
The trial court imposed a sentence pursuant to the Community Corrections
Act. A defendant convicted of a crime against the person, as provided in title 39,
chapter 13, parts 1-5, is not eligible for a community corrections sentence. See
Tenn. Code Ann. § 40-36-106(a)(2) (1996 Supp.). Reckless homicide is codified at
Tenn. Code Ann. § 39-13-215 and is, therefore, a crime against the person.
Additionally, the appellant is ineligible because use of a weapon was involved in the
commission of the felony offense. See Tenn. Code Ann. § 40-36-106(a)(4) (1996
Supp.). Notwithstanding his ineligibility based upon these two reasons, he would,
nevertheless, remain eligible for placement in the community corrections program, if
the proof in the record established a causal connection between the crimes
committed and a history of chronic alcohol abuse, drug abuse or mental health
problems. See Tenn. Code Ann. § 40-36-106(c). The record reflects no such proof.
Accordingly, the appellant is not eligible for a sentence pursuant to the Community
Corrections Act; therefore, the trial court’s sentencing determination is improper.
Nonetheless, we do find the appellant to be a suitable candidate for
alternative sentencing. The appellant is a first-time offender of a class D felony.
See Tenn. Code Ann. § 40-35-102(5), -102(6) (1996 Supp.). Additionally, he is
statutorily eligible for probation. See Tenn. Code Ann. § 40-35-303(a) (1996
Supp.). The appellant’s eligibility for probation is not conclusive; the appellant bears
the burden of establishing his suitability for probation. See Tenn. Code Ann. § 40-
35-303(b). To meet this burden, the appellant must demonstrate that probation will
“subserve the ends of justice and the best interest of both the public and the
defendant.” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App.), perm. to
appeal denied, (Tenn. 1995) (citation omitted).
10
While not controlling on the issue of probation, but relevant to the sentencing
court’s determination are the following:
(1) the nature and circumstances of the conduct involved, Tenn. Code
Ann. § 40-35-210(b)(4);
(2) the defendant’s potential or lack of potential for rehabilitation, Tenn.
Code Ann. § 40-35-103(5);
(3) whether a sentence of probation will unduly depreciate the
seriousness of the offense, Tenn. Code Ann. § 40-35-103(1)(B); and
(4) whether a sentence other than probation would provide an effective
deterrent to others likely to commit similar crimes, Tenn. Code Ann. §
40-35-103(1)(B).
See Bingham, 910 S.W.2d at 456.
As previously indicated, the appellant maintains the burden of establishing
that the sentence imposed by the trial court is improper. In this regard, we find that
the appellant has failed in carrying this burden. Although the facts and
circumstances of the offense alone are insufficient to deny an alternative sentence,
they may be sufficient to deny a grant of total probation. See Bingham, 910 S.W.2d
at 456. After de novo review of the above principles and circumstances of the case,
we find that the 75 day period of confinement ordered by the trial court is both
justified and appropriate.
Accordingly, the appellant’s sentences are affirmed, subject to the following
sentencing modification: following the appellant’s confinement in the county jail for
a period of 75 days, he is to be released upon supervised probation for the balance
of his two year sentence. The appellant’s judgment of conviction for the offense of
reckless homicide is affirmed.
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____________________________________
DAVID G. HAYES, Judge
CONCUR:
___________________________________
WILLIAM M. BARKER, Judge
___________________________________
JOE G. RILEY, Judge
12