State v. Lee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
MARCH 1997 SESSION
FILED
May 28, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 03C01-9607-CR-00277
Appellee, )
) Knox County
V. )
) Honorable Richard R. Baumgartner, Judge
)
DONALD C. LEE, ) (Felony murder, robbery, reckless
) endangerment, aggravated assault, and
Appellant. ) vehicular homicide)
FOR THE APPELLANT: FOR THE APPELLEE:
Leslie M. Jeffress Charles W. Burson
Attorney at Law Attorney General & Reporter
1776 Riverview Tower
900 S. Gay Street Michael J. Fahey, II
Knoxville, TN 37902 Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Randall E. Nichols
District Attorney General
Gregory H. Harrison
Assistant District Attorney General
City-County Building
400 Main Street, P.O. Box 1468
Knoxville, TN 37901-1468
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Donald C. Lee, was convicted by a jury of felony murder,
robbery, reckless endangerment, aggravated assault, and vehicular homicide.
He was sentenced to life for the felony murder conviction. This sentence was
ordered to run consecutively to the 37 years he received on the other
convictions. He appeals raising the following issues for review:
1) whether the evidence is sufficient to support a felony murder
conviction;
2) whether the evidence is sufficient to support a vehicular
homicide conviction;
3) whether a state rebuttal witness was properly allowed to express
his opinion regarding the driver of the appellant's vehicle; and
4) whether his sentence is proper.
Upon review, we affirm the judgment of the trial court.
FACTS
The appellant entered the Super-X drug store in Knoxville. He forced the
pharmacist to open the safe and give him all Schedule II, III, and IV narcotics. A
witness saw him leaving the pharmacy in a white truck. The driver of the white
truck let the appellant out in an adjacent parking lot. The police immediately
apprehended the driver. He informed the police that the appellant left in a brown
Ford containing one passenger. Approximately 25 minutes later the appellant
was spotted by the police and a high-speed chase ensued. In an effort to get
away, the appellant struck the side of the police car. He erratically cut in front of
other motorists. He slammed on his brakes causing the police car to slam into
the rear of his car. The appellant eventually swerved into the oncoming lane of
traffic and struck a Jeep. The appellant's passenger and the driver of the Jeep
were killed in the head-on collision.
I
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In his first issue the appellant contends that the evidence was insufficient
to support a conviction for felony murder. He argues that the killing of the victim
did not occur during the perpetration of the robbery. He claims that he had
successfully completed the robbery and made a successful getaway when the
police chase ensued. We disagree.
The purpose of Tennessee's felony murder statute is to prevent the death
of innocent persons likely to occur during the commission of certain inherently
dangerous felonies. The applicable statute reads in pertinent part:
First degree murder. (a) First degree murder is defined as:
(2) A reckless killing of another committed in the perpetration of, or
attempt to perpetrate any first degree murder, arson, rape, robbery,
burglary, theft, kidnaping or aircraft piracy.
Tenn. Code Ann. § 39-13-202(a)(2) (1991). The appellant's contention is simply
that the robbery had been completed when he collided with the Jeep causing the
death of its driver. We note that the protraction of events over time and distance
accentuate the problem of determining whether the underlying felony had
reached completion before the death occurred. However, other jurisdictions
have held that a person is engaged in the commission or perpetration of a
robbery while the criminal is trying to escape with the property taken in such
robbery. Campbell v. State, 227 So. 2d 873 (Fla. 1969). Factors to be
considered in determining whether there has been a break in the chain of
circumstances include the relationship between the underlying felony and the
homicide in point of time, place, and causation. One commentator suggests that
in the case of flight, the most important consideration is whether the fleeing felon
has reached a "place of temporary safety." LaFave, Substantive Criminal Law, §
7.5 (1986). We also note that the determination of whether the act of escape or
flight is a continuous part of the accomplished crime or whether the defendant
has reached a place of temporary safety is a question for the trier of fact. See
Commonwealth v. Dellelo, 209 N.E.2d 303 (Mass. 1965).
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In this case the appellant was spotted by a police officer approximately 25
minutes after the robbery occurred. The appellant, in his brief, states that he and
his accomplice planned to rendezvous and split up the fruits of the robbery. We
find that a rational trier of fact could find, and indeed did find, that the homicide
occurred in furtherance of the robbery. Nothing in the record indicates that the
appellant had reached a place of temporary safety. The homicide was clearly a
result of the high-speed chase necessitated by the appellant's attempt to flee the
area of the crime. It is a legitimate and logical assumption that one who plans a
robbery and carries it out has also planned to escape from the scene of the
crime. His flight is an integral part of the crime. Since asportation is an element
of robbery, the felony is still in progress while the defendant is fleeing from the
scene with the stolen property. We find the evidence sufficient to support the
appellant's felony murder conviction.
II
The appellant next contends that he cannot be convicted of vehicular
assault because there was insufficient proof that he was the driver of the vehicle.
We disagree.
Jury verdicts accredit state's witnesses and resolve all evidentiary conflicts
in the state's favor. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State
v. Banes, 874 S.W.2d 73, 78 (Tenn. Crim. App. 1993). On appeal, the state is
entitled to both the strongest legitimate view of the evidence and all reasonable
inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832(Tenn. 1978). When appellants challenge the sufficiency of the evidence, this
Court must only determine whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of a crime beyond a reasonable doubt. Jackson v. Virginia,
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443 U.S. 307 (1979); Tenn. R. App. P. 13(e); State v. Duncan, 698 S.W.2d 63(Tenn. 1985).
The record reveals that the vehicle was registered to the appellant. At
trial two police officers testified that they observed the appellant driving the
vehicle during the high speed chase. Also, an uninterested motorist identified
the appellant as the driver of the car. Finally, a member of the rescue squad
testified. He stated that when he arrived on the scene the appellant's car was
found resting on the driver's side door. The appellant's right foot was entangled
in the driver side floorboard, and he was trapped behind the steering wheel
underneath the other passenger in the car.
Based upon the evidence supplied by several witnesses, a rational trier of
fact could have concluded that the appellant was driving the vehicle when the
deadly collision occurred. We find the evidence sufficient to support the
appellant's conviction for vehicular assault.
III
The appellant next contends that the trial court erred in allowing rebuttal
testimony of a rescue squad worker in the form of opinion testimony. He argues
that the rescue worker was not qualified as an expert in accident reconstruction
and should not have been allowed to give his opinion.
At trial the appellant attempted to defend the vehicular assault charge by
proving that he was not driving the Ford when the collision occurred. In rebuttal,
the state called the member of the rescue squad that extracted the appellant
from the wreckage. The witness testified that he had years of experience in
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removing individuals from wrecked vehicles.1 He testified regarding the positions
of the bodies in the appellant's car and the process of removal. He then gave his
opinion that the appellant had been driving the car.
The record is ambiguous as to whether the trial judge considered the
rescue worker to be an expert. It does reveal that he considered the appellant's
objection and allowed the rescue worker to state his opinion. We think this
decision was proper.
This Court finds that, had the proper procedures been followed, the
rescue worker would have qualified as an expert. His extensive experience, skill,
and training qualified him to testify in this capacity. Tenn. R. Evid. 702.
However, regardless of his status as a expert or lay witness, his testimony was
proper. His testimony was rationally based on his perception and was helpful to
gain a clear understanding of his testimony. Tenn. R. Evid. 701(a).
Furthermore, we note, that if there was error regarding this testimony, it was
harmless. The state produced three other witnesses that testified that the
appellant was the driver of the vehicle. This issue is without merit.
IV
In his final issue the appellant contends that his sentences are excessive.
He argues that the trial court misapplied enhancement factors and improperly
ran the sentences consecutively.
When a sentencing issue is appealed, this Court shall conduct a de novo
review with the presumption that the trial court’s findings are correct. State v.
Byrd, 861 S.W.2d 377, 379 (Tenn. Crim. App. 1993).
1
The rescue worker testified that has been a paramedic for over ten years and has been a member of the rescue
squad s ince 198 2. He testified that, as a m embe r of the rescu e squad , he has e xtracted bo dies from wrecke d cars
somewhe re between 300 to 500 tim es.
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The appellant was classified as a Range II offender. The trial court found
that Tenn. Code Ann. §§ 40-35-114(1), (2), and (13) enhancement factors
applied to all of the appellant's convictions. The appellant offered no mitigation
evidence. Our review of the record suggests that none exists. After careful
consideration, we find that the trial court followed the principles of sentencing.
The sentences imposed were proper. This issue is without merit.
Regarding the issue of consecutive sentences, the record reveals that the
trial court found the appellant's record of criminal activity to be extensive. 2 The
trial court also found that the appellant was clearly a dangerous offender whose
behavior indicates little regard for human life and no hesitation about committing
crimes in which the risk to human life is high. Furthermore, the appellant was on
parole when he committed these crimes. The trial court found that society needs
protection from the appellant. We find that the trial court correctly interpreted
and applied Tenn. Code Ann § 40-35-115 in ordering the appellant's sentences
consecutively. This issue is without merit.
CONCLUSION
After carefully considering the appellant's issues, we find no error of law
mandating reversal. Accordingly, we affirm the judgment of the trial court.
__________________________
2
The ap pellant's pres entence report indica tes that he has bee n arrested and/or co nvicted fo r the followin g crimes :
robbery, aggravated robbery, possession of a controlled substance, public intoxication, criminal trespassing, DUI, assault and
battery, carrying a weapon with intent to go armed, reckless driving, evading arrest, several moving violations, and several
parole violations. It should be noted that the appellant has been arrested and/or convicted of several of the above listed
crimes o n more than on e occasio n.
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PAUL G. SUMMERS, Judge
CONCUR:
______________________________
JOHN H. PEAY, Judge
______________________________
CORNELIA A. CLARK, Special Judge
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