State v. George Kelly

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
October 13, 1998
FEBRUARY 1998 SESSION
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 01C01-9610-CC-00448
)
vs. ) Warren County
)
GEORGE BLAKE KELLY, ) Hon. Charles Haston, Judge
)
Appellant. ) (Second Degree Murder, Vehicular
) Assault, Reckless Driving, DUI - 3d,
) Driving on Revoked License)
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID L. RAYBIN (on appeal) JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
2210 SunTrust Center
424 Church St. KAREN YACUZZO
Nashville, TN 37219 Asst. Attorney General
425 Fifth Ave. North
BERNARD K. SMITH (at trial) 2d Floor, Cordell Hull Bldg.
Attorney at Law Nashville, TN 37243-0493
P.O. Box 490
McMinnville, TN 37110 WILLIAM M. LOCKE
District Attorney General
JOHN MELTON (at trial)
Attorney at Law LARRY ROSS
P.O. Box 446 ROBERT W. BOYD, JR.
Woodbury, TN 37190-0160 Asst. District Attorneys General
Professional Building
McMinnville, TN 37110
OPINION FILED:__________________
AFFIRMED IN PART, REVERSED IN PART, MODIFIED IN PART
CURWOOD WITT, JUDGE
OPINION
The defendant, George Blake Kelly, appeals from his convictions of
second-degree murder, vehicular assault, reckless driving, third-offense driving
under the influence, and driving on a revoked license. Following a trial by jury, Kelly
was found guilty of second-degree murder, vehicular homicide by intoxication,
vehicular homicide by recklessness, vehicular assault by intoxication, reckless
driving and third-offense DUI. He pleaded guilty to driving on a revoked license
before the issue was submitted to the jury. The court imposed judgments of
conviction for second-degree murder, vehicular assault, reckless driving, third-
offense DUI and driving on a revoked license. Kelly is presently serving a sentence
of 30 years, 11 months and 29 days, which consists of the maximum sentences for
each of his offenses stacked consecutively to each other. In this direct appeal, he
raises ten issues for our consideration:
1. Whether the evidence on his second-degree murder conviction
sufficiently supports that he "knowingly" killed Ginny Prince.
2. Whether the Criminal Code proscribes death caused by
drunk driving as second-degree murder.
3. Whether the trial court erroneously instructed the jury
on the definition of "knowingly" as to the second-degree
murder charge.
4. Whether the trial court erroneously instructed the jury
on the definition of "intentionally" as to the second-
degree murder charge.
5. Whether the trial court deprived him of due process of
law and the right to a jury trial by instructing the jury it
could convict him of both second-degree murder and
vehicular homicide as to the same victim.
6. Whether the DUI conviction merged with the vehicular
assault by intoxication and vehicular homicide by
intoxication convictions, double jeopardy principles
thereby preventing his conviction of DUI.
7. Whether the reckless driving conviction merged with the
vehicular assault by intoxication, vehicular homicide by
reckless driving, and vehicular homicide by intoxication
convictions, double jeopardy principles thereby
preventing his conviction of reckless driving.
2
8. Whether the court in sentencing the defendant relied on
improper enhancement factors and failed to consider
appropriate mitigating factors.
9. Whether the court properly imposed consecutive
sentences.
10. Whether the total sentence imposed is grossly
excessive and resulted from improper considerations of
parole, the adequacy of punishment for vehicular
homicide, and emotional factors.
Having reviewed the record and briefs and heard the oral arguments of the parties,
we reverse the conviction of second-degree murder and impose a conviction of the
lesser grade offense of vehicular homicide by intoxication, reverse the convictions
of driving under the influence and reckless driving and dismiss those charges, and
affirm all other convictions. We modify defendant’s effective sentences to ten years
and six months. Because our reversal of the second-degree murder conviction is
based upon insufficiency of evidence, resulting in a dismissal of the second-degree
murder charge, issues 2-5 as listed above are pre-empted, rendered moot, and
need not be resolved.
This case arises from a tragic car wreck involving the defendant and
the occupants of another vehicle, Ginny Prince and David Bryan Miller. Miss Prince,
an eighteen-year-old high school senior, was killed in the wreck. Mr. Miller, a
twenty-year-old real estate salesman, received very serious and permanent injuries.
Miss Prince and Mr. Miller were returning to McMinnville from a date in
Murfreesboro when their vehicle was struck head-on in their lane of traffic by the
defendant's vehicle.
For some time prior to April 7, 1995, George Blake Kelly and his wife
at the time, Lisa Kelly, were experiencing marital difficulties. According to Lisa
Kelly, she and the defendant had been separated three times. However, on April
7, 1995, they were living together in Readyville, Tennessee, in order to give the
3
relationship one last chance. That morning, Lisa Kelly left home to go to a tanning
bed. She returned and found the defendant and their infant child gone. The
defendant left Mrs. Kelly a note informing her that he had gone to see his attorney.
This made Mrs. Kelly mad, and she departed for Dunlap, Tennessee. Mrs. Kelly
met with a relative and some friends and went to a tavern in Whitwell, Tennessee,
where she drank and socialized. Around 1:30 a.m., Mrs. Kelly departed Dunlap to
return home. On her way home, Mrs. Kelly was involved in a single-car accident.
The law enforcement officer who responded to her wreck informed her of a wreck
in which the defendant had been involved.
Mrs. Kelly testified that the defendant told her he had five or six beers
on April 7, 1995. He came up on a vehicle that was traveling very slowly. When he
began passing the vehicle, it sped up. He could not get back on the right side of the
road and avoid the wreck.
Anita Morton, a resident of Dunlap, testified the defendant stopped by
her house about 7:00 p.m. on April 7. He had a beer bottle with him. He stayed at
Ms. Morton's residence for about 45 minutes. The defendant and Ms. Morton had
a tearful discussion of their respective relationship problems. They also discussed
Mrs. Kelly's alleged infidelity. The defendant appeared to be more distraught than
drunk to Ms. Morton. She denied having previously characterized the defendant as
"drunk" or "pretty drunk." Shortly after the defendant went outside to leave, he
returned to Ms. Morton's door and asked for some paper towels to clean up some
beer he had spilled in his vehicle. Ms. Morton saw the defendant with only one beer
during his visit. She also testified she had known Mrs. Kelly for a long time and
would not believe Mrs. Kelly's sworn testimony.
Sue Lewis, another Dunlap resident, testified she was an employee
4
of Steve's Place, a tavern. On April 7, the defendant came to this establishment at
about 4:00 or 4:30 p.m. The defendant had a can of Miller Lite beer in his hand.
He asked to see Steve Robertson. Mr. Robertson and the defendant went outside,
and Ms. Lewis did not hear what was said. The defendant returned to Steve's Place
around 6:30 or 7:00 that evening. He had a cup of beer in his hand. Ms. Lewis
observed that the defendant was agitated. The defendant said that Mr. Robertson
had lied to him and began asking Ms. Lewis questions in a loud tone of voice.
Apparently, the defendant believed Mr. Robertson was having a romantic
relationship with Lisa Kelly. The defendant requested "beer to go" but Ms. Lewis
refused to serve him. She told him that he had had one too many. When Mr.
Robertson arrived, he and the defendant went outside. Ms. Lewis testified the
defendant left Steve's Place around 7:00 p.m.
Steven Robertson testified he runs Steve's Place. On April 7, the
defendant came to this establishment about 4:00 p.m. looking for his wife. Mr.
Robertson and the defendant went outside to talk, and the defendant wanted Mr.
Robertson to "testify or something" in the defendant's divorce proceedings. Mr.
Robertson told the defendant he had seen Lisa Kelly the previous week at Ruby's,
another tavern. Mrs. Kelly had been with Bob Green. Although the defendant had
a beer with him, Mr. Robertson did not think he was under the influence. Mr.
Robertson did not serve Mr. Kelly anything to drink.
Mr. Robertson further testified that he saw the defendant a second
time at Steve's Place that evening. When Mr. Robertson came in the back door
around 7:00 p.m., Ms. Lewis told him that the defendant had returned and was
asking questions and accusing Mr. Robertson of having lied to him. Both Ms. Lewis
and the defendant were upset. The defendant had a cup in his hand and had been
drinking. Mr. Robertson did not sell him any beer.
5
Mr. Robertson also testified that Lisa Kelly had taken a jacket
containing $1,800 from Steve's Place.1
David Bryan Miller, one of the two victims, testified that he and Ginny
Prince, the other victim, had been dating for two years and were planning to marry.
They had been to O'Charley's to celebrate his having closed a sale on a house and
to the Outlets Limited Mall in Murfreesboro. They left the mall about 8:30 and were
headed toward Miss Prince's home in McMinnville. They were in Miss Prince's car,
and Mr. Miller was driving. They were traveling 50 to 55 miles per hour about 9:15
to 9:25 p.m, when suddenly the defendant's vehicle appeared in their lane of traffic
and hit their vehicle head-on. The collision occurred at a curve in the road. Mr.
Miller testified he could do nothing to avoid it.
Mr. Miller testified he sustained torn ligaments and tendons in his
ankle, a broken bone beneath his knee, three fractured ribs, a dislocated hip which
required surgery, heavy facial lacerations requiring 1,100 stitches, and a torn retina.
He had fourteen staples in his head and permanent vision loss in his right eye. He
was hospitalized for a week and confined to bed for another eight to nine weeks.
Bobby Joe Perry testified he was traveling west on the road where the
collision occurred. He was on his way home from choir practice. He was going
about 50 miles per hour with no one ahead of him in his lane of traffic. The
defendant's vehicle came up behind him and got so close that he could not see its
headlights behind his tailgate. The defendant's vehicle pulled out to pass about 125
to 150 yards before a curve. The road was marked with double yellow lines;
however, there was a break in the lines for an intersection at the point where the
1
During her testimony, Lisa Kelly denied taking this money.
6
defendant started to pass Mr. Perry. The defendant's vehicle passed him and
started back toward the right lane but the driver's side wheels never crossed the
yellow line. The headlights of the victims' vehicle had appeared as the defendant
started passing Mr. Perry. As the defendant's and victims' headlights met on the
curve, the defendant veered to the left into the path of the victims' car. At the point
the vehicles collided, the defendant's vehicle was four to four and one half car
lengths in front of Mr. Perry. The witness testified he had a clear view and never
saw any brake lights on the defendant's vehicle. After the wreck, Mr. Perry went to
check on the occupants of both vehicles. When he stuck his head in the
defendant's vehicle, he smelled alcohol. He also observed two empty beer cans in
the road. The defendant's vehicle was full of clothing and other personal items.
Christie Lynn Myers, a licensed practical nurse, was traveling on the
road where the wreck occurred. She stopped to assist the injured. She observed
that Miss Prince was dead and Mr. Miller was in pain. The defendant was slumped
over his steering wheel and smelled of alcohol. The defendant was breathing on
her, and the smell was coming from him rather than his vehicle. She observed a
few Budweiser cans inside and outside the defendant's vehicle. One can was in the
defendant's lap, one was on the floor, another was in the seat, and a couple were
outside.
Nicholas Joseph Abraham, an emergency medical technician,
responded to the scene. The defendant was unresponsive at first, but he became
responsive once Mr. Abraham opened up his airway. The defendant wanted to
know where his wife was and had no idea he had been involved in an accident. He
became combative and screamed for Mrs. Kelly. He would not, however, respond
to the emergency personnel's questions. Mr. Kelly suffered a head injury, and his
actions were similar to other individuals who have sustained head injuries. Mr.
7
Abraham drew a blood sample for blood alcohol testing at the request of a state
trooper on the scene. Mr. Abraham did not notice a smell of alcohol on Mr. Kelly,
although he did not think he would have smelled alcohol because of the automotive
fluids that had been spilled from the wreck.
Trooper Jimmy Jones arrived after the defendant had been extricated
from his vehicle, but he noticed the smell of alcohol around the defendant's vehicle.
He saw a Budweiser can in the vehicle, two in the ditch, and two lying in the road
near the double yellow line. One of the cans in the road may have been full until it
was run over by an ambulance. The trooper went to the ambulance where the
defendant was being treated and smelled alcohol on him. During his testimony, a
videotape of the wreck scene recorded from the trooper's patrol car was played for
the jury, and the witness narrated its contents. His narration included the existence
of a double yellow "no passing" line on the roadway which had a short 20' to 25'
break at an intersection with another street.
Robert Searcy, an on-duty fireman and off-duty officer of the Warren
County Sheriff's Department, responded to the scene. He observed Mr. Miller in
"extreme pain." He assisted Mr. Kelly's breathing with a bag mask device. Mr. Kelly
had a head injury and was going into shock. He noticed a strong odor of alcohol
8
coming from Mr. Kelly.
Trooper Michael Jones was the first trooper on the scene at about
9:55 p.m. He had to physically restrain the defendant so Mr. Abraham could render
medical assistance. The defendant was "screaming for Lisa" and "thrashing
around." He did not smell any alcohol on the defendant, but the trooper thought his
sense of smell was adversely affected by his smoking habit. Billy George gave him
the defendant's wallet, and he took a driver's license from it. He ran a check of the
license and discovered it had been revoked. The witness conceded that the
defendant's behavior was similar to that of other individuals with head injuries and
in shock, although it was more pronounced than in any other case the witness had
ever seen. The trooper admitted he was not an emergency medical technician, but
he had been a medical specialist in the Army.
Lieutenant Randy Hoover, an accident reconstructionist with the
Tennessee Highway Patrol, investigated the wreck. In his opinion, the defendant's
vehicle, a Jimmy, was going faster than the victims' Probe. The vehicles collided
in head-on fashion with about 50 percent overlap in the eastbound lane. The Probe
was knocked backwards in a counterclockwise direction, and the Jimmy continued
forward in a clockwise direction. The Jimmy was partially on top of the Probe just
after impact and may have been airborne for a very short time before turning onto
and sliding on its side. One of the two vehicles was "cutting its wheels," but Lt.
Hoover could not opine which one.
Raymond Siler, Jr., a crime lab supervisor with the Tennessee Bureau
of Investigation, tested the defendant's blood sample for alcohol content. The blood
alcohol content result was 0.28 percent.
9
The parties stipulated that if called to testify, Dr. David N. Jones would
say that Ginny Prince suffered multiple trauma injuries in the wreck that proximately
resulted in her death.
Venita Spearman, a secretary at McMinnville Garage and Wrecker
Service, testified that her employer towed the defendant's vehicle and kept it in a
secure, fenced back lot. The defendant told Ms. Spearman that he drank
approximately a six-pack of beer on an empty stomach on the day of the wreck. He
said all he remembered was two headlights coming toward him, and he admitted he
was at fault for drinking and driving. He told Ms. Spearman he was not driving
around looking for a car to hit, and he wished he could say something to "the
family."
Billy Cook, the director of the Drug and Violent Crime Task Force, met
with the defendant in a chapel at the Warren County Sheriff's office. Mr. Cook
advised the defendant of his rights. Thereafter, the defendant proceeded to tell Mr.
Cook that he should not have "let my drinking get hold of me." The defendant was
upset because his wife had been "running around on him," and he had been looking
for her on the evening of the wreck. Mr. Cook recalled the defendant saying he
drank six to eight beers and had not eaten all day. He had passed a vehicle and
thought it sped up. He was beside the vehicle, and before he knew it he was in a
curve. He felt the driver of the vehicle he was attempting to pass was as much at
fault as he was.
Following the conclusion of the state's proof, the defendant changed
his plea for the charge of driving on a revoked license from not guilty to guilty.
The defense presented no evidence.
10
The jury found the defendant guilty of second-degree murder of Ginny
Prince, vehicular homicide of Ginny Prince by intoxication, vehicular homicide of
Ginny Prince by recklessness, vehicular assault of David Miller by intoxication,
reckless driving and third-offense DUI. The court entered convictions of second-
degree murder, vehicular assault, reckless driving, third-offense DUI and driving on
a revoked license.
Following a sentencing hearing, the trial court imposed maximum
sentences of 25 years for second-degree murder, four years for vehicular assault,
six months for reckless driving, eleven months and 29 days for third-offense DUI,2
and six months for driving on a revoked license. The court further found
consecutive sentencing was appropriate and imposed each conviction consecutive
to each other, for an effective sentence of 30 years, eleven months and 29 days.
I
The first issue we must consider is whether the evidence is sufficient
to sustain the defendant's conviction of second-degree murder. When an accused
challenges the sufficiency of the evidence, an appellate court’s standard of review
is whether, after considering the 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, 324, 99 S. Ct.
2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R.
App. P. 13(e). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of direct and circumstantial evidence.
2
According to the transcript, the trial court imposed a minimum fine of
$1,100 and revoked the defendant's driver's license for ten years for the third-
offense DUI conviction. The judgment form reflects a fine of only $1,000. In light
of our dismissal of the DUI conviction on double jeopardy grounds, it is moot
whether the $1,000 or $1,100 fine is correct.
11
State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).
In determining the sufficiency of the evidence, this court should not
reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779
(Tenn. Crim. App. 1990). Questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). Nor may this court substitute its inferences for those drawn by the
trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d
856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On
the contrary, this court must afford the State of Tennessee the strongest legitimate
view of the evidence contained in the record as well as all reasonable and legitimate
inferences which may be drawn from the evidence. Cabbage, 571 S.W.2d at 835.
The relevant definition of second-degree murder is the "knowing killing
of another." Tenn. Code Ann. § 39-13-210(a)(1) (1991). The defendant claims the
evidence is insufficient to support the conclusion he knowingly killed Ginny Prince.
He argues that murder is a crime defined by its results; therefore, the state must
prove that he knew a killing would result from his conduct. On the other hand, the
state argues that the proof shows that the killing was knowing, 3 and further, that the
relevant inquiry is not solely into defendant's mental state with respect to result of
the his actions but alternatively into his mental state with respect to his conduct.
Thus, the state argues, if he knowingly or intentionally drank and drove, he is guilty
of second-degree murder for the result of the unlawful drinking and driving.
3
In its brief, the state argued that a basis for an intentional, and hence a
knowing, killing exists in that the defendant was attempting suicide and
intentionally caused the collision. However, during oral argument, the state
abandoned this theory.
12
We find insufficient evidence of a knowing killing to sustain the
defendant's conviction of second-degree murder.
Under our Criminal Code, murder is an offense defined by the result,
not by the offender’s conduct or by the circumstances surrounding the conduct.
See, e.g., State v. Freeman, 943 S.W.2d 25, 29 (Tenn. Crim. App. 1996), perm.
app. denied (Tenn. 1997). “A person acts knowingly with respect to a result of a
person’s conduct when the person is aware that the conduct is reasonably certain
to cause the result.” Tenn. Code Ann. § 39-11-302(b) (1997). Thus, to establish
second-degree murder, the state must prove that the defendant was “aware that the
conduct is reasonably certain” to cause death.
In a case of this type, the offending activity may arguably occur at a
given point in a sequence of events or along a continuum of time. A reviewing court
must determine during which event or at what point in time the critical “conduct”
occurred. The state would have us choose an event or time very early in the
sequence -- that is, when the intoxicated defendant began to drive his vehicle in
violation of the DUI laws. Certainly, under the pre-1989 Code, this theory would
support a finding of implied malice which was the underpinning for a long line of
Tennessee cases which, before 1989, approved second-degree murder convictions
in vehicular-homicide situations. See, e.g., State v. Durham, 614 S.W.2d 815
(Tenn. Crim. App. 1981). Malice was implied from the defendant’s decision to drive
a motor vehicle while intoxicated. Under the pre-1989 law, the facts of this case
would have demonstrated actions which are malum in se and which evince “willful
recklessness,” State v. Johnson, 541 S.W.2d 417 (Tenn. 1976), and, as such, they
would have supported a finding of implied malice which, in turn, would have
authorized a conviction for second-degree murder. However, the 1989 Criminal
Code removed malice as an element of murder, relegated the old implied-malice
13
formula to crimes proscribing killings resulting from reckless conduct, see Tenn.
Code Ann. § 39-13-210(a)(1) (1991), and inserted the mens rea of a knowing killing
as an element of second-degree murder. Moreover, as we have said, it is not
conduct, but a result, that is proscribed by the current second-degree murder
statute. Therefore, for purposes of second-degree murder, we must reject the
argument that the critical time for judging the defendant’s actions is when he
climbed behind the wheel of his vehicle.
Alternatively, the state suggests that the critical time for judging the
defendant’s conduct is the point in time after he passed the Perry vehicle when,
instead of returning to his lane of travel, he veered left, further into the path of the
victims’ car. Mr. Perry is the only witness to this movement of the defendant’s
vehicle, and we have examined carefully his testimony. We do not find that this
testimony provides meaningful evidence of the defendant’s knowledge, awareness
or intent at that point in time. The perceived veering of the defendant's truck could
have been an evasive maneuver, and moreover, in light of the defendant's blood
alcohol content of .28 percent, his full consciousness at the critical time is arguably
in doubt. We believe that the critical conduct for which the defendant must be
judged occurred prior to the instant just before the collision.
The critical conduct occurred when the intoxicated defendant passed
another vehicle on a curve in a no-passing zone and his presence in the opposing
14
lane of traffic became irreversible. As such, the record is devoid of any proof of the
defendant’s knowledge that death was reasonably certain to result before the
events were irretrievably set into motion by this conduct. The defendant’s
outrageously reckless conduct is analogous to a person firing a pistol from inside
a windowless building out through the open doorway. The person cannot see
whether someone may be walking outside along the front of the building, about to
pass the doorway, and he knows of no one present outside. The “conduct” is
commenced by the firing of the weapon and must be judged at that time because
the conduct is then irreversible. Under our Criminal Code, such conduct is, as is the
conduct in the present case, reckless. This reckless conduct, however egregious,
is distinguishable from a hypothesis where the person is firing the pistol through the
doorway when he is aware that a moving line of people is filing in close order past
the open door. In that hypothesis, death is reasonably certain to result from the
conduct, even before the bullet is fired, such that a death resulting from the shot is,
at least, knowing. As seen in this analogy, the facts in the present case do not
support a finding of a knowing killing which is necessary to a conviction of second-
degree murder.
The case at bar presents an egregious picture of an individual who
drove while intoxicated and after his driver's license had been revoked. He drove
with his vehicle full of personal belongings, which may have impaired his ability to
see out of the right side of the vehicle. He attempted to pass a vehicle in a no-
passing zone. Tragically, the defendant's blatant, unjustifiable disregard for the
rules of the road and the safety of others resulted in the death of a young woman
and the permanent bodily injury of a young man. Nonetheless, the facts when
viewed in the light most favorable to the state do not support a conclusion beyond
a reasonable doubt that he was aware that his actions were reasonably certain to
cause the victim's death. See Tenn. Code Ann. § 39-11-302(b) (1997). On the
15
other hand, however, the defendant’s conduct was clearly reckless, and, as he
concedes, he is guilty of the crime of vehicular homicide.
This court is mindful that the offenses in the present case were
committed during a time period in which the legislature’s grading of vehicular-
homicide-type offenses was viewed by many as inadequate. Prior to the enactment
of the 1989 Criminal Code, as we have observed, murder was predicated upon the
element of malice, and second-degree murder could be established by proof of
implied malice. See State v. Moss, 727 S.W.2d 229 (Tenn. 1986); State v.
Johnson, 541 S.W.2d 417 (Tenn. 1976); Griffin v. State, 578 S.W.2d 654 (Tenn.
Crim. App. 1978). On the other hand, the offenses in the present case were
committed before the legislature upgraded the penalty for vehicular homicide
committed by DUI. At the time of the defendant’s crime, vehicular homicide was a
Class C felony. See Tenn. Code Ann. § 39-13-213(b) (1991) (amended 1995).
Vehicular homicide by intoxication has since been elevated to a Class B felony.
See Tenn. Code Ann. § 39-13-213(b) (1997). Moreover, the legislature has created
the Class A felony of aggravated vehicular homicide. The “aggravation” of vehicular
homicide results either from the defendant’s previous conviction of enumerated
driving and/or alcohol-related offenses or a combination of a .20% or greater blood
alcohol content and conviction of at least one enumerated driving or alcohol-related
offense. See Tenn. Code Ann. § 39-13-218 (1997). Thus, the defendant’s crime,
if committed today under the same circumstances and by the same individual,
would be subject to prosecution as aggravated vehicular homicide, which is in the
same sentencing class as second-degree murder. Compare Tenn. Code Ann. § 39-
13-218(d) (1997) (aggravated vehicular homicide is Class A felony) with § 39-13-
210(b) (1997) (second-degree murder is Class A felony).
As senseless as the defendant's crimes are, we are constrained to
16
follow the dictates of and observe the limitations imposed by the legislature. Given
the legislature’s substitution of a “knowing” killing in place of malice as the basis for
second-degree murder, and our finding that the facts in the present case, even in
the light most favorable to the state, do not support a knowing killing, we are bound
to reverse the second-degree murder conviction, even though such a reversal
relegates this offense to a gradation of vehicular homicide which the legislature has
recently decided was inadequately sanctioned at the time the defendant committed
the crime.
In accord with the relevant law, we modify the defendant’s conviction
for second-degree murder to a conviction of vehicular homicide by intoxication.
II
Next, we turn to the defendant's claims that double jeopardy principles
prevent his conviction of DUI and reckless driving because these crimes should
have been merged with certain of his other convictions. In response, the state
concedes the impropriety of these dual convictions. Applying the principles of State
v. Denton, 938 S.W.2d 373 (Tenn. 1996), we reach the same conclusion and
therefore must reverse and dismiss the DUI and reckless driving convictions.
The state and federal constitutions protect against multiple convictions
or punishments for a single offense. U.S. Const. amend. V; Tenn. Const. art. 1, §
10. In order for offenses to support multiple convictions, they must be "wholly
separate and distinct." See, e.g., State v. Goins, 705 S.W.2d 648, 650 (Tenn.
1986) (citations omitted). In State v. Denton, our supreme court recognized that
"[t]he key issue in multiple punishment cases is legislative intent." Denton, 938
S.W.2d at 379 (citations omitted). In other words, the court must determine whether
the legislature intended that each violation resulting from a single act be a separate
17
offense. Presumptively, "the legislature does not ordinarily intend to punish the
same offense under two different statutes." Denton, 938 S.W.2d at 379.
The Denton court employed a four-part balancing inquiry in
determining whether multiple convictions offend double jeopardy. Denton, 938
S.W.2d at 379-81. First, the court must determine, in accord with Blockburger v.
United States, 284 U.S. 299, 52 S. Ct. 180 (1932), whether each offense requires
proof of an element that the other does not. Denton, 938 S.W.2d at 379. Second,
the court must look to the specific evidence offered in the case at bar to determine
whether the different evidence was used to prove each offense. Denton, 938
S.W.2d at 380 (relying on Duchac v. State, 505 S.W.2d 237 (Tenn. 1973)). Third,
the court must consider whether there were multiple victims or multiple episodes.
Denton, 938 S.W.2d at 381. Fourth, the court must examine the purposes of the
respective statutes prohibiting the defendant's conduct and determine whether the
statutes serve different purposes. Denton, 938 S.W.2d at 381. None of these four
inquiries is determinative; rather, the court must conduct a balancing test of each
factor in relation to each other. Denton, 938 S.W.2d at 381.
In the case at bar, we have conducted the Denton inquiry, first, with
respect to the crime of DUI, as compared with vehicular assault and vehicular
homicide. We conclude that double jeopardy will not permit the DUI conviction to
stand. Accord State v. Rhodes, 917 S.W.2d 708 (Tenn. Crim. App. 1995) (double
jeopardy prevents convictions for both vehicular assault by intoxication and DUI),
perm. app. denied (Tenn. 1996). Comparison reveals that the crimes fail the
Blockburger separate elements test.4 The evidence essential to the vehicular
4
The defendant was convicted both of vehicular homicide by intoxication
and vehicular homicide by recklessness. He can receive only one conviction for
this crime. We believe Denton clearly prohibits a conviction for both DUI and
vehicular homicide by intoxication in the case at bar. Alternatively, had we
18
homicide by intoxication conviction is inclusive of the evidence necessary to prove
DUI.5 Likewise, the evidence essential to the vehicular assault conviction is
inclusive of the evidence necessary to prove DUI. While it is true there are multiple
victims in this case, proof of a victim is not necessary for a conviction of DUI. The
relevant inquiry in the case at bar is whether there were multiple episodes, and
there were not. The defendant was involved in only one collision. Finally, the
purposes of the three statutes are similar. The vehicular assault and vehicular
homicide statutes have the obvious goal of proscribing bodily injury to a victim and
punishing those who commit such an act,6 and the similar aim of the DUI statute is
to "remove from the highways, prosecute and punish those who engage in the
dangerous menace of driving under the influence." State v. Turner, 913 S.W.2d
158, 160 (Tenn. 1995); see also State v. Lawrence, 849 S.W.2d 761, 765-66 (Tenn.
1993).
Second, we have conducted a Denton inquiry with respect to the
defendant's reckless driving conviction, as compared with his vehicular assault and
vehicular homicide convictions. We conclude that double jeopardy bars his
conviction of reckless driving. The reckless driving conviction fails the Blockburger
separate elements test with respect to both vehicular assault and vehicular
permitted the defendant's vehicular homicide by recklessness conviction to
stand, the DUI conviction would nevertheless violate double jeopardy principles
in light of the vehicular assault by intoxication conviction.
5
Although there is evidence the defendant drove while under the influence
prior to encountering the victims, this court has said that DUI is a "continuing
offense." See State v. Rhodes, 917 S.W.2d 708, 713 (Tenn. Crim. App. 1995);
State v. Adkins, 619 S.W .2d 147, 148-49 (Tenn. Crim. App. 1981). Accordingly,
in the usual circumstance, a continuing episode of drunken driving will support
only one DUI conviction.
6
Tenn. Code Ann. § 39-13-213 (1991) (amended 1995); § 39-13-106
(1997).
19
homicide.7 In the case at bar, the evidence used to prove the defendant's
commission of the offense of reckless driving was part of the evidence also used
to convict the defendant of vehicular assault and vehicular homicide. The state
proved one episode of reckless driving in this case, and that episode is the
foundation for all three convictions under scrutiny. See State v. Gilboy, 857 S.W.2d
884, 887 (Tenn. Crim. App. 1993) ("[A]n act of driving which disregards the safety
of several distinct persons or properties still constitutes one offense of reckless
driving under the statute."). But cf. State v. Adkins, 619 S.W.2d 147, 149 (Tenn.
Crim. App. 1981) (reckless driving is not a continuing offense). Finally, we see a
common purpose in the reckless driving, vehicular assault and vehicular homicide
statutes. All three proscribe and punish reckless driving.
Thus, as argued by the defendant and conceded by the state, double
jeopardy principles mandate that we reverse and dismiss the convictions of DUI and
reckless driving.
III
Finally, we address the defendant's sentencing issues. The defendant
complains of improper consideration of enhancement and mitigating factors, the
weight afforded those factors, the imposition of consecutive sentences, and the total
length of the effective sentence. In determining whether the trial court has properly
sentenced an individual, this court engages in a de novo review of the record with
a presumption that the trial court's determinations were correct. Tenn. Code Ann.
§ 40-35-401(d) (1997). This presumption 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.
7
Both vehicular homicide by recklessness and vehicular homicide by
intoxication require reckless operation of a motor vehicle.
20
1991). In conducting our de novo review, we must consider the evidence at
sentencing, the presentence report, the sentencing principles, the arguments of
counsel, the statements of the defendant, the nature and characteristics of the
offense, any mitigating and enhancement factors, and the defendant’s amenability
to rehabilitation. Tenn. Code Ann. §§ 40-35-210(b), 40-35-103(5) (1997); Ashby,
823 S.W.2d at 168. On appeal, the appellant has the burden of showing that the
sentence imposed is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing
Comm'n Comments (1997); Ashby, 823 S.W.2d at 169.
In the case at bar, the record reflects that the trial court announced its
contemplation of the statutory considerations. Unfortunately, however, the trial
court made comments on the record which indicate extraneous factors were
considered in determining the appropriate sentence.8 Accordingly, we conduct a de
novo review without the presumption of correctness. We will consider, first, the
length of the defendant's individual sentences, and second, the propriety of
consecutive sentencing.
Additionally, in the interest of judicial economy, we have determined
the appropriate sentence for the defendant's modified conviction of vehicular
homicide. See State v. Angela Manning, No. 03C01-9501-CR-00012, slip op. at 27
(Tenn. Crim. App., Knoxville, Feb. 27, 1998) (remand for sentencing on modified
conviction unnecessary if record is sufficient for appellate court to impose an
8
The trial judge expressed his dissatisfaction with the legal authority
applicable to the defendant, including his dissatisfaction with the sentencing
structure and the applicability of parole provisions. The judge did say, however,
that he could not consider these things in making his sentencing determination.
Notwithstanding, he went on to characterize the defendant as being like the
inventor of V-1 and V-2 rockets, who indirectly caused the deaths of thousands
during World War II. Having carefully reviewed the entire transcript of the
sentencing hearing, we view the character and duration of the trial judge's
comments as a departure from the relevant considerations of the Sentencing
Reform Act of 1989.
21
appropriate sentence).
A
The defendant reaches the sentencing determination with three
convictions -- vehicular homicide of Ginny Prince, vehicular assault of David Miller,
and driving on a revoked license. We consider first the enhancement factors
applicable to these convictions.
The defendant concedes he has a previous history of criminal
convictions and criminal behavior. See Tenn. Code Ann. § 40-35-114(1) (1997).
This factor is entitled to great weight given the defendant's history of recent DUI
convictions and other evidence of drinking and driving presented at the sentencing
hearing.
We believe factor (6) applies. Tenn. Code Ann. § 40-35-114(6) (1997)
(personal injuries or property damage caused was particularly great). However, to
the extent that the trial court applied this factor in the vehicular assault case based
on the injuries to Mr. Miller, it erred. This factor is not applicable to the vehicular
assault convictions because serious bodily injury is an element of that offense.
See e.g., State v. Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995). For like
reasons, the factor is not applicable to the vehicular homicide based upon the fatal
injuries suffered by Ms. Prince. On the other hand, Ms. Prince and her mother, the
beneficial and legal owners of the Probe, respectively, suffered property damage
in the amount of $6,000, the total value of the vehicle. In this limited sense, factor
(6) applies to all offenses. See State v. Danny Lee Ross, Jr., No. 01C01-94-PB-
00365, slip op. at 6-7 (Tenn. Crim. App., Nashville, Nov. 21, 1995) (finding that
individuals who suffered property damage in a multiple-car wreck were “victims”
allowing application of enhancement factor (3) to defendant’s vehicular homicide
22
convictions involving other victims of same wreck), perm. app. denied (Tenn. 1996)
(concurring results only).
The defendant concedes he has a previous unwillingness to comply
with the conditions of a sentence involving release into the community. See Tenn.
Code Ann. § 40-35-114(8) (1997). This factor is entitled to some weight.9
The defendant also concedes he had no hesitation about committing
his crimes when the risk to human life was high. See Tenn. Code Ann. § 40-35-
114(10) (1997). This factor applies to all cases, we believe, based upon the risk
posed to Mr. Perry, whom the defendant recklessly passed in a no-passing zone.
The state invites us to enhance the defendant's sentence based upon
9
The defendant was on probation (from a 1995 Sequatchie County DUI
conviction) at the time he committed the present offenses. However, that
circumstance in and of itself is not a basis for applying factor (8). See State v.
Hayes, 899 S.W.2d 175, 186 (Tenn. Crim. App. 1995) (“commission of the
offense for which a defendant is being sentenced should not make factor (8)
applicable”). We find that the defendant’s 1983 Davidson County offenses of
malicious mischief and marijuana possession committed while on a 1983 pre-trial
diversion from Rutherford County invokes the use of factor (8), but it is entitled to
little weight based on remoteness in time. Of equal or greater significance are
the defendant’s various incidents of driving on a revoked license earlier in the
day on April 7, 1995, prior to the trip which resulted in the fatal collision now
before us. These earlier driving offenses were committed while the defendant
was on probation. See State v. Randal A. Thies, No. 02C01-9708-CC-00299,
slip op. at 8 (Tenn. Crim. App., Jackson, Apr. 24, 1998).
23
the potential for bodily injury to Mr. Perry. See Tenn. Code Ann. § 40-35-114(16)
(1997). This factor is inapplicable to the crime of vehicular homicide based upon
this court's holding in State v. Bingham, 910 S.W.2d 448 (Tenn. Crim. App. 1995).
Likewise, we decline to apply this factor to the vehicular assault conviction. See
State v. Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995). As to the driving
on a revoked license conviction, the record clearly establishes not only that the
defendant drove while his driver's license was revoked, but also that he did it in a
way which presented great potential for bodily injury to Mr. Perry. Accord State v.
Randal A. Thies, No. 02C01-9708-CC-00299, slip op. at 11-12 (Tenn. Crim. App.,
Jackson, Apr. 24, 1998). Factor (16) applies to the driving on a revoked license
conviction.
Turning to the issue of mitigating factors, the defense offers the
defendant's lack of a felony record, his remorse, his continuous employment for 20
years in a position of great trust, and his sole support of his minor child. For the
reasons that follow, we decline to apply any of these factors.
We are not compelled to mitigate the defendant's sentence based
upon his lack of previous felony convictions. See Tenn. Code Ann. § 40-35-113(13)
(1997). Although we have condoned the lack of a prior criminal record as a
mitigating factor in appropriate circumstances, see, e.g., State v. Hicks, 868 S.W.2d
729, 731 n.5 (Tenn. Crim. App. 1993), this is not such a case. Mr. Kelly not only
has a prior criminal record, it is significant. We find no measure of mitigation in the
fact that his prior record consists only of misdemeanor convictions, particularly
where he has previously run afoul of the law for drinking and driving, the same
conduct which brought about the senseless felonies of which he now stands
convicted.
24
We are equally unpersuaded that the defendant should receive
mitigation based upon his alleged remorse for his crimes. See Tenn. Code Ann. §
40-35-113(13) (1997). The defendant did not testify at trial or the sentencing
hearing, but there was evidence that he had expressed remorse to medical
providers. However, there was also evidence that the defendant yelled "I'm sorry"
at the victim's mother in an angry tone of voice in the courthouse hall. On balance,
we find that the evidence does not establish that the defendant was genuinely
remorseful for his crimes. The mitigating factor does not apply.
Finally, we find no measure of mitigation in the defendant's stable
employment history in a position of great trust10 and his support of his minor child.
Tenn. Code Ann. § 40-35-113(13) (1997). "Every citizen in this state is expected
to have a stable work history if the economy permits the citizen to work, the citizen
is not disabled, or the citizen is not independently wealthy." State v. Keel, 882
S.W.2d 410, 423 (Tenn. Crim. App. 1994). Absent any proof that the defendant
performed his job well, we have no basis for concluding that he fulfilled his
obligation of "great trust." Moreover, we find no proof that the defendant does, in
fact, support his children. The presentence report reflects that he has a fifteen year-
old-son. Additionally, Lisa Kelly testified at trial that she and the defendant have a
two-year-old child. While the defendant reported a child support obligation of $340
per month to the presentence officer, there was no proof that he complied with this
obligation.
For the felony conviction of vehicular homicide by intoxication, the
defendant, a Range I offender, faced three to six years for this Class C felony. 11
10
The defendant worked as a railroad locomotive engineer.
11
As noted in section I above, the potential punishment for the defendant's
crime, if committed today, would be much greater than that authorized by the
25
Tenn. Code Ann. § 39-13-213 (1997); § 40-35-112 (1997). Considering the weight
afforded the enhancement factors and the lack of mitigating factors, Mr. Kelly justly
deserves a maximum sentence of six years.
The felony conviction of vehicular assault is a Class D felony for which
the defendant faced a sentence of two to four years. Tenn. Code Ann. § 39-13-
106(b) (1997); § 40-35-112 (1997). Again considering the weight appropriate for the
enhancement factors and the lack of mitigating factors, a maximum sentence fits
the crime.
The misdemeanor driving on a revoked license conviction carried a
sentence of up to six months, with a minimum of two days confinement. See Tenn.
Code Ann. § 55-50-504(a)(1) (Supp 1997); § 40-35-111 (1997). Again, this
sentence deserves substantial enhancement, and we find the fact that prior
offenses were committed behind the wheel of a motor vehicle particularly relevant
to this crime. A maximum sentence of six months, with maximum release eligibility
of 75 percent, is warranted.
B
The final consideration is whether the defendant should receive
consecutive sentences for his crimes. In general, consecutive sentencing may be
imposed in the discretion of the trial court upon a determination that one or more of
the following criteria exist:
(1) The defendant is a professional criminal who has knowingly
devoted himself to criminal acts as a major source of
livelihood;
(2) The defendant is an offender whose record of criminal activity
is extensive;
legislature in April 1995.
26
(3) The defendant is a dangerous mentally abnormal person so
declared by a competent psychiatrist who concludes as a
result of an investigation prior to sentencing that the
defendant's criminal conduct has been characterized by a
pattern of repetitive or compulsive behavior with heedless
indifference to consequences;
(4) The defendant is a dangerous offender whose behavior
indicates little or no regard for human life, and no hesitation
about committing a crime in which the risk to human life is
high;
(5) The defendant is convicted of two (2) or more statutory
offenses involving sexual abuse of a minor with consideration
of the aggravating circumstances arising from the relationship
between the defendant and victim or victims, the time span of
defendant's undetected sexual activity, the nature and scope
of the sexual acts and the extent of the residual, physical and
mental damage to the victim or victims;
(6) The defendant is sentenced for an offense committed while on
probation; or
(7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b) (1997). In State v. Wilkerson, 905 S.W.2d 933,
937-38 (Tenn. 1995), the supreme court imposed two additional requirements for
consecutive sentencing -- the court must find consecutive sentences are reasonably
related to the severity of the offenses committed and are necessary to protect the
public from further criminal conduct. At this time, it is unsettled whether Wilkerson
applies to all seven of the statutory categories for consecutive sentencing or only
the "dangerous offender" category. See State v. David Keith Lane, No. 03C01-
9607-CC-00259, slip op. at 11 (Tenn. Crim. App., Knoxville, June 18, 1997), perm.
app. granted (Tenn. 1998).
This defendant's conduct fits hand-in-glove with the statutory criteria
of "behavior indicat[ing] little or no regard for human life, and no hesitation about
committing a crime in which the risk to human life is high." Tenn. Code Ann. § 40-
35-115(b)(4) (1997). Mr. Kelly has a history of driving under the influence. He was
on probation for this very crime when he chose, once again, to disregard the law by
27
operating a motor vehicle while his blood alcohol concentration was well over the
legal limit and without a valid driver's license. This time, his callous indifference for
the well-being of others and the bounds of the law had tragic results. Accord State
v. Penelope R. Karnes, No. 01C01-9606-CR-00249, slip op. at 8-9 (Tenn. Crim.
App., Nashville, May 21, 1997) (two previous DUI convictions and a previous driving
on revoked license conviction); State v. Anthony Raymond Bell, No. 03C01-9503-
CR-00070, slip op. at 7-8 (Tenn. Crim. App., Knoxville, Mar. 11, 1996) (second DUI
offense committed while on probation from earlier DUI conviction), perm. app.
denied (Tenn. 1996); Wilkerson, 905 S.W.2d 933 (DUI offense only two months
after previous DUI offense).
The defendant is also eligible for consecutive sentencing based on his
probationary status at the time he committed these crimes. Tenn. Code Ann. § 40-
35-115(b)(6) (1997). He concedes as much in his brief.
Moreover, with respect to the Wilkerson factors, the defendant easily
clears this final hurdle for consecutive sentencing. The aggregate sentence of ten
years and six months which will result from imposition of consecutive sentencing on
each count reasonably relates to the severity of the offense, is necessary to protect
the public from further criminal activity by the defendant, and is consistent with the
principles of the Sentencing Act. Wilkerson, 905 S.W.2d 933. A more lengthy
sentence is appropriate for this defendant who has repeated the same unlawful
conduct on multiple occasions and who took the life of a young woman and
seriously injured another individual on his most recent repetition. We find strong
indications in the record that the defendant has a problem with alcohol, and his
behavior indicates he is unwilling or unable to control his drinking, or at least to
control his conduct when he is drinking. The public needs to be protected from
further criminal activity that may result from the defendant's abuse of alcohol.
28
Accord Anthony Raymond Bell, slip op. at 8. His status as a repeat offender is
illustrative of the fact that lesser terms of punishment have not served to curtail his
conduct. Consecutive sentencing is consistent with the principles of the Sentencing
Act. The defendant has been given the benefit of less lengthy and less restrictive
terms of punishment in the past, yet he has failed to live within the bounds of the
law. See Tenn. Code Ann. § 40-35-103(5) (1997) ("The potential or lack of
potential for rehabilitation or treatment of defendant should be considered in
determining the sentence alternative or length of a term to be imposed.").
In summary, we modify the defendant's conviction related to the
homicide of Ginny Prince from second-degree murder to vehicular homicide by
intoxication. We reverse and dismiss the DUI and reckless driving convictions. We
affirm the defendant's vehicular assault and driving on revoked license convictions.
We modify the defendant's effective sentence to ten years and six months, based
upon a six-year sentence for vehicular homicide, a four year sentence for vehicular
assault, and six months for driving on a revoked license, each to be served
consecutively.
_______________________________
CURWOOD WITT, JUDGE
CONCUR:
_____________________________
GARY R. WADE, JUDGE
_____________________________
WILLIAM M. BARKER, JUDGE
29
30