State of Tennessee v. Arnold v. Porter

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH SESSION, 1995
January 5, 1996
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate Court Clerk
) No. 01C01-9410-CC-00353
Appellee, )
) Coffee County
v. )
) Hon. Gerald L. Ewell, Judge
ARNOLD V. PORTER, )
) (Felony Reckless Endangerment, 2 counts)
Appellant. )
For the Appellant: For the Appellee:
Shawn G. Graham Charles W. Burson
Assistant Public Defender Attorney General of Tennessee
605 E. Carroll Street and
P.O. Box 260 Sharon S. Selby
Tullahoma, TN 37388 Assistant Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
C. Michael Layne
District Attorney General
and
Steve Weitzman
Assistant District Attorney General
P.O. Box 147
Manchester, TN 37355
OPINION FILED:
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, Arnold V. Porter, appeals from a jury conviction in the
Circuit Court of Coffee County for two counts of reckless endangerment with a deadly
weapon, a Class E felony. The defendant received two two-year sentences as a
Range I, standard offender to be served concurrently in addition to a fine of twenty-five
hundred dollars in each count. In this appeal as of right, he presents the following
issues:
I. whether the evidence is sufficient to support guilty verdicts
for felony reckless endangerment,
II. whether he was denied a fair trial because the jury did not
represent a fair cross-section of the community,
III. whether the trial court imposed an excessive sentence, and
IV. whether the trial court abused its discretion in raising his
bond pending appeal.
The facts surrounding this case involve a hundred-mile-per-hour chase on
Interstate 24 in Coffee County that covered approximately eighteen miles and
culminated in the defendant crashing his automobile into a bridge support. On August
20, 1993 at approximately 10:00 p.m., Trooper Larry Fraley of the Tennessee Highway
Patrol (THP) was posted at mile marker one hundred and twenty-nine near Pelham,
Tennessee, when the defendant sped past him driving approximately sixty-four miles
per hour in a fifty-five-miles-per-hour-zone. Fraley testified that he decided to stop
the defendant when the defendant crossed the shoulder line. He stated that he
pursued the defendant with his blue lights on and that as the defendant traveled down
the shoulder of the interstate, the defendant kept reaching into the passenger floor or
seat. He stated that as soon as the defendant pulled over and he had one foot out of
the door of his patrol car, the defendant accelerated and took off again, swerving all
over the road. Fraley recounted that he pursued the defendant at speeds up to ninety
miles per hour when the defendant drove up the Pelham exit ramp, through the grass
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and broadside through two lanes of traffic. He stated that the defendant then
proceeded toward Coffee County, driving one hundred miles per hour.
Fraley stated that he called for assistance and at one point, two semi-
trucks blocked both lanes of the interstate in an attempt to aid in the apprehension of
the defendant. He reported that the defendant passed the semi-trucks on the shoulder
while approaching a bridge but swerved into the lanes just before hitting the guardrail.
He stated that the defendant began throwing things out the car window and that a
cellophane baggie hit his windshield at one point during the pursuit. However, he
admitted that nothing could be found later.
Fraley stated that he and two other troopers, Mike Tanner and Robert
Beard, eventually attempted to form a "moving roadblock" to slow down the defendant
and arrest him. He explained that Trooper Beard drove in front of the defendant while
he and Trooper Tanner drove behind. He also stated that Trooper Tanner’s car was
equipped with a video camera and that Trooper Tanner videotaped the last three and
one-half miles of the chase. He stated that the defendant bumped Beard’s car at least
three times before veering off the shoulder and striking a bridge abutment at Exit 111.
Fraley stated that the defendant struck the bridge support at one hundred miles per
hour and then hit a tree. When the defendant's car stopped, the tree was
approximately four feet inside the back seat of the car.
Fraley testified that he called for an ambulance before approaching the
car to remove the defendant. He reported that the defendant was kicking, screaming
and reaching under the passenger front seat. He stated that the defendant kept
yelling, "You're gonna have to kill me." Fraley testified that he had his gun drawn
because he thought that the defendant may be reaching for a weapon. Another officer
sprayed Mace on the defendant, sending him fleeing from the vehicle. Fraley stated
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that the defendant exited the vehicle "like a wild man" and knocked him down in the
process. 1 He stated that they were able to control the defendant in order to place
handcuffs on him but that he continued to struggle and eventually had to be "hogtied"
with plastic riot straps around his feet.
Trooper Fraley testified that the defendant was transported to the
Manchester Medical Hospital for treatment of a broken arm suffered in the accident.
He reported that a blood sample was sent to the Tennessee Bureau of Investigation
(TBI) Crime Lab for analysis. Jeff Crews, a toxicologist with the TBI Crime Lab,
testified that he analyzed the defendant's blood for the presence of drugs and found
that the blood contained less than .1 micrograms per milliliter of cocaine.
Trooper Mike Tanner of the THP testified that he received Fraley's call for
assistance and waited for the defendant to pass him on the interstate. He stated that
he turned on his video camera at mile marker one hundred and sixteen. He saw the
defendant approaching at a high rate of speed and began following him. He stated
that he turned on his emergency flashers in an attempt to warn other motorists. He
recounted that the defendant never drove below ninety miles per hour during the
chase. He stated that the defendant hit the bridge support at approximately ninety-
three miles per hour without applying his brakes. He testified that the defendant kept
running his hand under the passenger seat. He said that Fraley was on the driver's
side and that close to a minute went by before another officer sprayed the defendant
with Mace, causing him to exit the car. Tanner testified that he recorded the last four
to four and one-half miles of the chase and that the videotape was shown to the
defendant on the night of his arrest.
1
The defendant was also indicted for assault relative to knocking down Trooper Fraley.
However, the jury acquitted him of the charge.
4
The videotape of the chase was shown to the jury. It showed the
defendant and the three troopers traveling at a high rate of speed past numerous
vehicles on the interstate. It also showed that Troopers Fraley and Tanner followed
the defendant at a distance of approximately two car lengths while the defendant
traveled very close to Trooper Beard. The video contained footage of the defendant
crashing and of his erratic and violent behavior upon arrest.
Robert Beard of the THP testified that he and the other troopers
attempted to form a moving roadblock to apprehend the defendant. He stated that on
at least three occasions, the defendant's grill and bumper were not visible in his
rearview mirror, although he did not believe that the defendant had actually bumped
him at any time. He recounted that there were still several vehicles on the roadway
during the chase and that the defendant switched lanes several times. He gave a
similar account of the defendant’s behavior and stated that the defendant bit Officer
Larry Campbell of the Coffee County Drug Task Force while being restrained.
Deputy William Marcom of the Coffee County Sheriff's Department
testified that he followed the chase behind Trooper Tanner's car and that no one ever
hit the defendant's car. He stated that, when the officers tried to apprehend the
defendant, the defendant kept reaching under his seat and would not exit the car. He
recounted that he sprayed the defendant with Mace in order to facilitate his arrest. He
testified that he assisted in the search of the defendant's vehicle and that the search
uncovered no weapons or drugs.
The defendant testified that he was traveling from Atlanta to Nashville
when he met a girl at a gas station and followed her to a party. He stated that he
asked for a nonalcoholic drink and consumed two sixteen ounce beverages before
smelling marijuana and leaving the party. He could not remember the location of the
5
gas station or the party. He stated that he started to feel "kinda racy" when he
returned to Interstate 24. He testified that he initially stopped for Trooper Fraley but
sped away when something frightened him. He admitted that he passed the semi-
trucks. He described the moving roadblock and stated that, although he was driving
behind Trooper Beard, Beard was slowing down in order to hit him. He stated that the
troopers were so close that he went off the road to avoid an accident and was
unconscious until he awoke to find Trooper Fraley standing over him with a gun. He
also claimed that the troopers broke his arm while apprehending him.
On cross-examination the defendant was questioned about his direct
examination testimony relative to his career as a research chemist and agreed that the
average research chemist could make twenty thousand dollars a year but explained
that he did not have to work that much. The state questioned him about his affidavit of
indigency to qualify for appointed counsel on which he reported his annual income as
three thousand dollars, although he testified to an income of five thousand dollars on
direct examination. When questioned regarding why he told his treating physician that
he had not suffered any loss of consciousness, he denied making the statement. He
also denied telling the physician that he regularly used crack and cocaine in
conjunction with Prozac to enhance the high. When confronted with the videotape, the
defendant implied that it was not him on the videotape because, as he stated, "I can't
see my face."
I
The defendant contends that the evidence is insufficient to convict him of
felony reckless endangerment. He claims that his conduct did not rise to the level of
recklessness required for a conviction for reckless endangerment and that his
involuntary intoxication was a defense to the conduct. Our standard of review when
the sufficiency of the evidence is questioned on appeal is "whether, after viewing the
6
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt." Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).
A conviction for felony reckless endangerment requires that a person
"recklessly engages in conduct which places or may place another person in imminent
danger of death or serious bodily injury" by the use of a deadly weapon. T.C.A. § 39-
13-103. A person acts recklessly "when the person is aware of but consciously
disregards a substantial and unjustifiable risk . . . . The risk must be of such a nature
and degree that its disregard constitutes a gross deviation from a standard of care that
an ordinary person would exercise under all the circumstances as viewed from the
accused person's standpoint." T.C.A. § 39-11-106(31). A deadly weapon is defined as
"[a]nything that in a manner of its use or intended use is capable of causing death or
serious bodily injury." T.C.A. § 39-11-106(5)(B).
The evidence in this case is sufficient to support the two convictions for
felony reckless endangerment. The defendant was convicted of endangering Troopers
Fraley, Beard and others. He engaged Trooper Fraley in an eighteen-mile chase with
speeds exceeding ninety miles per hour. He failed to slow down or to yield to the
troopers' sirens or blue lights. Two instances in particular stand out as especially
reckless acts. First, when two semi-trucks attempted to aid in his apprehension, the
defendant passed them on the shoulder while approaching a bridge, endangering the
safety of the truck drivers, himself and Trooper Fraley. Later, the defendant drove
closely behind Trooper Beard at speeds up to one hundred miles per hour for
approximately four miles before crashing into the bridge support. Furthermore, as is
apparent from the videotape, the interstate was heavily traveled even at 10:00 p.m.
and the defendant and troopers passed several vehicles during the chase. The
defendant acted recklessly and endangered the lives and safety of the troopers, as
7
well as anyone else on the road. We also conclude that the defendant's automobile
was used in a manner consistent with a deadly weapon.
Relative to his defense of involuntary intoxication, the defendant testified
that he met a woman at a gas station, followed her to a party and ingested what he
claims was a nonalcoholic beverage that someone must have "spiked" with a drug. He
could not specify where he met this woman or where the party took place. When
confronted regarding his statements to the treating physician that he regularly used
cocaine or crack in conjunction with Prozac, he denied making the statement. The jury
is the exclusive judge of the credibility of witnesses and it was their prerogative to
disbelieve the defendant's testimony. We will not reweigh the credibility of the
witnesses on appeal and we conclude that the evidence is sufficient to support a
conviction for felony reckless endangerment.
II
The defendant, an African-American, contends that he was denied a fair
trial because the jury did not represent a fair cross-section of the community. The
state responds that the issue is waived for the defendant's failure to object
contemporaneously to the jury selection process. The record reflects that the
defendant raised this issue for the first time in his motion for a new trial. We agree with
the state and conclude that "[b]y failing to raise this issue prior to a plea on the merits,
this issue has been waived." State v. Shaw, 619 S.W.2d 546, 548 (Tenn. Crim. App.)
app. denied (Tenn. 1981).
III
The defendant argues that the trial court imposed an excessive sentence
and failed to weigh properly the applicable enhancing and mitigating factors. The state
8
responds that the trial court properly applied all the enhancement factors in arriving at
the maximum sentence of two years.
Appellate review of sentencing is de novo on the record with a
presumption that the trial court's determinations are correct. T.C.A. §§ 40-35-401(d)
and -402(d). As the Sentencing Commission Comments to these sections note, the
burden is now on the appealing party to show that the sentencing is improper. This
means that if the trial court follows the statutory sentencing procedure, makes findings
of fact that are adequately supported by the record and gives due consideration and
proper application of the factors and principles that are relevant to sentencing under
the 1989 Sentencing Act, we may not disturb the sentence even if a different result
were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
However, "the presumption of correctness which accompanies the trial court's action is
conditioned upon the affirmative showing in the record that the trial court considered
the sentencing principles and all relevant facts and circumstances." State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991).
In conducting a de novo review, we must consider (1) the evidence, if any,
received at the trial and sentencing hearing, (2) the presentence report, (3) the
principles of sentencing and arguments as to sentencing alternatives, (4) the nature
and characteristics of the criminal conduct, (5) any mitigating or statutory enhancement
factors, (6) any statement that the defendant made on his own behalf and (7) the
potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103 and
-210; see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).
The sentence to be imposed by the trial court is presumptively the
minimum in the range unless there are enhancement factors present. T.C.A. § 40-35-
210(c). Procedurally, the trial court is to increase the sentence within the range based
9
upon the existence of enhancement factors and, then, reduce the sentence as
appropriate for any mitigating factors. T.C.A. § 40-35-210(d) and (e). The weight to be
afforded an existing factor is left to the trial court’s discretion so long as it complies with
the purposes and principles of the 1989 Sentencing Act and its findings are adequately
supported by the record. T.C.A. § 40-35-210, Sentencing Commission Comments;
Moss, 727 S.W.2d at 237; see Ashby, 823 S.W.2d at 169. For the purpose of review,
the trial court must preserve in the record the factors it found to apply and the specific
findings of fact upon which it applied the sentencing principles to arrive at the
sentence. See T.C.A. §§ 40-35-210(f) and -209(c).
The defendant was sentenced to the maximum two-year sentence.
Enhancement factors are to be applied to the facts of the offense if not themselves
essential elements of the offense. T.C.A. § 40-35-114; State v. Jones, 883 S.W.2d
597, 601 (Tenn. 1994). The trial court applied the following enhancement factors as
listed in T.C.A. § 40-35-114:
(3) The offense involved more than one victim;
(10) The defendant had no hesitation about committing a
crime when the risk to human life was high; and
(16) The crime was committed under circumstances under
which the potential for bodily injury to a victim was great.
Factor (3) was properly applied in this case given the numerous vehicles that were
traveling on the interstate during the chase. The defendant not only endangered the
lives of the troopers but also endangered the lives of many other motorists. Factors
(10) and (16) should not have been applied because felony reckless endangerment
requires the use of a deadly weapon and our court has held that there is necessarily a
high risk to human life and the great potential for bodily injury whenever a deadly
weapon is used. See State v. Hill, 885 S.W.2d 357, 363 (Tenn. Crim. App.), app.
denied (Tenn. 1994); State v. Hicks, 868 S.W.2d 729. 732 (Tenn. Crim. App. 1993).
10
The trial court rejected three of the defendant's requested mitigating
factors: that the defendant's conduct neither caused nor threatened serious bodily
injury, that substantial grounds exist to excuse the defendant's conduct and that the
defendant was under the influence of involuntary intoxication. T.C.A. § 40-35-
113(1),(3) and (8). However, the trial court did consider as mitigation the defendant's
social history and background, despite the fact that it was unsubstantiated by any
witnesses, documentation or verification by the presentence officer. 2 We agree that
the evidence does not support the application of mitigating factors (1), (3) and (8) and
conclude that the trial court was more than generous to consider the defendant's
unsubstantiated background as mitigation under these circumstances. Although the
trial court erroneously applied two enhancement factors, we conclude that two years is
an appropriate sentence in light of the defendant's total disregard for the safety of
numerous motorists as evidenced by the eighteen mile, one-hundred-miles-per-hour
chase in which he engaged to police.
IV
In the defendant's final issue, he argues that the trial court abused its
discretion when it increased his bond from three thousand dollars to ten thousand
dollars pending appeal. At the conclusion of the trial proceedings but before the
sentencing hearing, the trial court increased the defendant's bond, stating that
"considering the verdict of the jury here, I think it is appropriate that the bond be
increased." The defendant did not object to the bond increase at that time but did file a
motion for reduction of bond before sentencing. The motion requested that the
defendant be released on his own recognizance or that the original bond of three
thousand dollars be reinstated due to the fact that the defendant had already served
2
The defendant claim ed to have extensive training and education in biology and chem istry.
However, he refused to sign a release of records and the presentence officer was unable to verify any of
his educational, em ploym ent or social background.
11
nine months in jail by the date of the sentencing hearing. At the conclusion of the
sentencing hearing, the trial court denied the defendant's motion but failed to enter a
written order stating his reasons for denial. See T.C.A. § 40-30-143.
T.C.A. § 40-30-113(3) addresses a defendant's admission to bail pending
appeal and grants broad discretion in the trial court regarding whether to reduce or
increase bond pending appeal. However, it is apparent from the record that this issue
is moot because the record reflects that the defendant's sentence has long since been
served.3 Therefore, we need not address whether the trial court abused its discretion
in increasing the defendant's bond pending appeal.
Based upon the foregoing and the record as a whole, the convictions and
sentences for two counts of felony reckless endangerment are affirmed.
Joseph M. Tipton, Judge
CONCUR:
Jerry Scott, Presiding Judge
David G. Hayes, Judge
3
The appropriate way to have an appeal bond decision reviewed pending appeal is by Rule 8,
T.R.A.P., which avoids the potential of serving a sentence before the issue is reviewed. In fact, the
record reflects that the defendant's sentence was essentially served by the tim e this case was docketed
and assigned.
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