Defendant was convicted in the Knox County Court, Ray L. Jenkins,
J., of vehicular homicide. Defendant appealed. The Court of
Criminal Appeals, Scott, J., held that: (1) defendant was not
entitled to psychological expert at state expense; (2) maximum
sentence of 21 years for each count of vehicular homicide was
appropriate; and (3) consecutive sentencing was appropriate.
Affirmed.
West Headnotes
[1] KeyCite this headnote
102 Costs
102XIV In Criminal Prosecutions
102k301.1 Security for Payment; Proceedings
in Forma Pauperis
102k302.4 k. Medical or Psychiatric
Witnesses or Assistance.
Defendant was not entitled to psychological expert at state expense
in the absence of showing that his sanity would be an issue at
trial.
[2] KeyCite this headnote
110 Criminal Law
110XIX Continuance
110k588 Grounds for Continuance
110k589 In General
110k589(1) k. In General.
110 Criminal Law
110XIX Continuance
110k588 Grounds for Continuance
110k590 Want of Preparation
110k590(2) k. Want
of Time for Preparation by Counsel.
Trial judge did not abuse his discretion in denying defendant's
motion for continuance which was made on second day of trial,
although defendant alleged counsel was unprepared for trial and
cited counsel's failure to subpoena witness as evidence of
unpreparedness and contended that since attorney had represented
a witness in unrelated case, that he had a conflict of interest;
eyewitness that defendant wanted was already under subpoena by
State but unavailable because she was hospitalized, transcript
of her testimony of preliminary hearing was available, and there
was no showing that counsel's representation of other witness on
totally unrelated matter affected his representation.
[3] KeyCite this headnote
110 Criminal Law
110XXIV Review
110XXIV(E) Presentation and Reservation in
Lower Court of Grounds of Review
110XXIV(E)1 In General
110k1036 Evidence
110k1036.1
In General
110k1036.1(9) k. Exclusion of Evidence.
(Formerly 110k1035(10))
Defendant waived for review on appeal issue that trial judge erred
by limiting number of character witnesses that defendant could call
at trial where defendant failed to object to limitation and did
not make offer of proof concerning what proposed additional witnesses
would say about his character. Rules App.Proc., Rule 36(a).
[4] KeyCite this headnote
110 Criminal Law
110XX Trial
110XX(C) Reception of Evidence
110k676 k. Number of Witnesses.
At sentencing hearing, trial judge did not abuse his discretion
in limiting to three the number of character witnesses defendant could
call from his place of employment; judge set no limitation on
number of character witnesses who could be called who knew
defendant from other circumstances.
[5] KeyCite this headnote
48A Automobiles
48AVII Offenses
48AVII(B) Prosecution
48Ak357 k. Instructions.
Use of the word "shall" rather than "may" in jury charge on inferences
to be drawn from defendant's blood-alcohol level conveyed
same idea and was not erroneous. T.C.A. § 55-10-408.
[6] KeyCite this headnote
48A Automobiles
48AVII Offenses
48AVII(B) Prosecution
48Ak357 k. Instructions.
Defendant was not entitled to jury instruction that when blood-alcohol
level is less than .10% no inference is created and jury cannot
infer defendant was under influence of intoxicants; there was
ample and overwhelming evidence from which jury could have found
defendant was under influence of intoxicants at time of accident.
[7] KeyCite this headnote
48A Automobiles
48AVII Offenses
48AVII(C) Judgment and Punishment
48Ak359 k. In General.
Sentence of maximum of 21 years for each count of vehicular homicide
was appropriate in light of enhancement factors that
defendant had previous history of criminal convictions and behavior,
victims of offense were particularly vulnerable, and defendant
had absolutely no hesitation about committing crime involving
extremely high risk to human life. T.C.A. § 40-35-111(1, 4, 10).
[8] KeyCite this headnote
350H Sentencing and Punishment
350HI Punishment in General
350HI(G) Dual Use
350Hk145 k. Use of Same Factor
to Enhance Different Sentences.
(Formerly 110k1208.6(4))
Fact that offense of vehicular homicide involved more than one
victim was not a proper enhancement factor, for sentencing
purposes, since there were separate convictions for each victim.
T.C.A. § 40-35-111(3).
[9] KeyCite this headnote
350H Sentencing and Punishment
350HI Punishment in General
350HI(G) Dual Use
350Hk137 Elements of Offense
350Hk140 k. Harm,
Injury, and Death.
(Formerly
110k1208.6(4))
Fact that personal injuries inflicted upon victims were particularly
great in that both died, was not a proper enhancement factor, for
sentencing purposes, since death of victim was element of offense
of vehicular homicide for which defendant was convicted. T.C.A.
§ 40-35-111(6).
[10] KeyCite this headnote
350H Sentencing and Punishment
350HIII Sentence on Conviction of Different Charges
350HIII(B) Consecutive or Cumulative Sentences
350HIII(B)3 Factors and Purposes
350Hk585 k. In General.
(Formerly
110k1210(3))
Consecutive sentencing is reserved for persistent defendant, professional
criminal, multiple offender, dangerous, mentally abnormal
offender, and dangerous offender.
[11] KeyCite this headnote
350H Sentencing and Punishment
350HI Punishment in General
350HI(E) Factors Related to Offender
350Hk116 k. Dangerousness.
(Formerly 110k1208.6(3))
Defendant may be classified, for sentencing purposes, as a "dangerous
offender" if crimes for which he is convicted indicate that he
has little or no regard for human life, and no hesitation about
committing crime in which risk to human life is high.
[12] KeyCite this headnote
350H Sentencing and Punishment
350HIII Sentence on Conviction of Different Charges
350HIII(B) Consecutive or Cumulative Sentences
350HIII(B)3 Factors and Purposes
350Hk602 k. Dangerousness.
(Formerly
110k1210(3))
Decision to impose consecutive sentences in cases involving crimes
that are inherently dangerous should be based on aggravating
circumstances and not merely on fact that two or more dangerous
crimes were committed.
[13] KeyCite this headnote
350H Sentencing and Punishment
350HIII Sentence on Conviction of Different Charges
350HIII(B) Consecutive or Cumulative Sentences
350HIII(B)3 Factors and Purposes
350Hk602 k. Dangerousness.
(Formerly
110k1210(4))
Consecutive sentencing was appropriate for defendant, a dangerous
offender who committed two counts of vehicular homicide;
defendant had long history of irresponsible criminal behavior
resulting in numerous misdemeanor convictions, and he endangered
many lives during his jaunt leaving injured and dying people
in the road and making no effort to assist them.
*129 Robert C. Edwards, Richard E. Faires, (At trial only), Knoxville,
for appellant.
W.J. Michael Cody, Atty. Gen., Kathy M. Principe, Asst. Atty.
Gen., Nashville, William E. Dossett, Dist. Atty. Gen., William H.
Crabtree, Robert L. Jolley, Jr., Asst. Dist. Atty. Gens., Knoxville,
for appellee.
OPINION
SCOTT, Judge.
The appellant was convicted of two counts of vehicular homicide
as a proximate result of his intoxication in violation of TCA §
39-2-231(b). He received a sentence of twenty-one years in the
state penitentiary for each count. He was also convicted of
possession of marijuana and received a sentence of eleven months
and twenty-nine days in the county jail. He was sentenced as a
Range II, especially aggravated offender, and all of the sentences
are to be served consecutively. Much aggrieved by his
convictions, the appellant has presented seven issues on appeal.
While he does not challenge the sufficiency of the convicting
evidence, a narration of the facts is necessary for a full understanding
of the issues presented.
On the night of August 10, 1984, Michael Jackson, the world famous
entertainer, was presenting a concert at Neyland Stadium on
the campus of the University of Tennessee. The university area
of Knoxville was extremely crowded with automobiles and
pedestrians.
The appellant went to the University Club to drink beer and hear
the band. He parked his pickup truck in the parking lot of a Taco
Bell located on Cumberland Avenue. The Assistant Manager of the
Taco Bell, upon realizing that their parking lot was being used by
noncustomers, decided to have their vehicles towed from the lot.
A friend saw the appellant's truck being attached to a wrecker and
told him his truck was about to be towed. The appellant hurried
to his truck. After some discussion with the Assistant Manager of
the Taco Bell and Robert Eugene (Monk) Newman, it was agreed
that the appellant's truck would not be towed if he would remove
it from the parking lot.
As the appellant went to his truck, he observed that the door
lock on the driver's side was damaged and he accused Mr. Newman
of causing the damage. He began loudly cursing Mr. Newman and
the manager and a fight ensued between the appellant and Mr.
Newman. During the altercation, the appellant attempted to get
an ax from the back of the wrecker. However, Mr. Newman
grabbed him around the neck with one arm and used his other arm
to prevent the appellant from getting the ax. Immediately after
this scuffle ended, the appellant attacked Mr. Newman with a
pencil. Mr. Newman again grabbed the appellant around the neck
and prevented him from doing anyone any harm. While this was
going on, an employee of the Taco Bell called the Knoxville police.
Before they arrived, the appellant was able to break loose from
Mr. Newman. He ran to his truck to leave.
In the process of leaving, the appellant hit Mr. Newman's wrecker
with his truck, then hit another wrecker that was working in the
parking lot, and finally hit the door of Mr. Newman's wrecker,
severely damaging the door. As the appellant entered the street, he
hit a parked car. He went speeding down the center of Cumberland
Avenue, which was clogged with traffic. He passed through
several intersections, and almost hit a police officer who was
directing traffic. Two police officers, upon observing the appellant, gave
chase in their police cruiser with their blue lights flashing.
However, the appellant did not heed the officers, but continued his wild
flight. He turned south on Volunteer Boulevard and traveled approximately
two blocks. At a curve in the street, located at the statue
of the Volunteer, his truck jumped the grassy median and hit
two pedestrians who were standing in the median. The truck became
airborne and landed on top of a parked car. The appellant then
jumped out of his truck and fled on foot.
There were numerous police officers in the area directing traffic,
performing crowd control duties and undercover operations. *130
One undercover officer gave chase on foot. The two police officers
who were following in their cruiser arrived at the scene. As they
were arriving, they hit the appellant, who ran out in front of
their car as he sought to escape. However, he rolled over the hood of the
car and continued his flight. A bystander observed what was happening,
threw a body block at the appellant and brought him to the
ground. The police officer who was chasing him and a number of
other spectators piled on to assist in his apprehension.
The pedestrians who were standing in the median were Dr. Harold
Neuenschwander, a prominent sixty-eight year old Knoxville
physician, and his nine year old granddaughter, Lisa. They had
attended the Michael Jackson concert and were leaving the stadium
area at the time they were struck. Dr. Neuenschwander was dead
on arrival at the University of Tennessee Hospital. The child was
carried forward by the force of the impact and was found underneath
a car. A nurse and a hospital orderly who were in the area
provided first aid to the child and accompanied her to the emergency
room of Fort Sanders Hospital where efforts to save her were
unsuccessful. She had massive head injuries and her grandfather
had massive head and chest injuries.
The appellant complained of injuries to his hand. He was taken
to U.T. Hospital where an examination revealed that he was
unharmed. A sample of his blood was taken at the hospital and
analyzed. His blood alcohol level two hours after the incident was
.08%. The toxicologist who testified about his blood alcohol
level opined that the appellant's blood alcohol level at the time of the
incident was somewhere between .08% and .13%.
A search of the appellant, conducted at the jail in connection
with his booking, revealed a joint and some additional marijuana in his
pocket. At the time of the incident the appellant was on probation
for delivering marijuana and was not allowed to drink, frequent
places selling alcohol, or be out that late at night.
The appellant admitted the Taco Bell incident and his wild trip
along Cumberland Avenue. However, he testified that he sideswiped a
car at the intersection of Cumberland and Volunteer and did not
remember anything else about the events until he was in police
custody. No other witness saw him hit a car at that intersection.
[1] In the first issue the appellant contends that the trial
judge erred by not allowing him to employ a psychological expert at state
expense in order to properly evaluate him prior to trial.
The appellant made a pre-trial motion for a psychiatric examination
and the trial judge inquired as to whether the appellant's
competence was going to be an issue at trial. Defense counsel
responded that he did not know at that time. It was suggested that
the appellant could be examined at state expense by a psychiatrist
at a state psychiatric hospital. The appellant chose not to be
examined by a state psychiatrist and insanity was not raised
as a defense at trial. The appellant argues that because his mental
condition was relied upon in sentencing that "an examination
of (his) inner thoughts" should have been allowed, his mental state
being a substantial issue at trial and at sentencing.
The appellant contended at the sentencing hearing that one mitigating
factor was that he was suffering from a mental condition or
defect at the time of the offense, which significantly reduced
his culpability. TCA § 40-35-110(9). The trial judge rejected that
contention. The appellant also asked the trial judge to consider
whether the act was committed under such unusual circumstances
as to indicate that it was unlikely that the appellant had a
sustained intent to violate the law. TCA § 40-35-110(12). The trial
judge
rejected that contention. As an enhancement factor the state
advanced the position that the appellant had no hesitation about
committing a crime where the risk to human life was high. TCA
§ 40-35-111(10). The trial judge accepted the state's contention.
Under these circumstances the appellant contends that it was
error to deny his motion. He relies on Ake v. Oklahoma, 470 U.S.
68, 105 S.Ct. 1087, 1097, 84 L.Ed.2d 53 (1985), where the United
States Supreme *131 Court held that, when a defendant
demonstrates to the trial judge that his sanity at the time of
the offense is to be a significant factor at trial, the state must, at
a
minimum, assure him access to a competent psychiatrist who will
conduct an appropriate examination and assist in evaluation,
preparation and presentation of the defense. However, the United
States Supreme Court went on to note that the defendant does not
have a constitutional right to choose his own psychiatrist or
to receive funds to hire his own.
In Ake, the defendant was charged with and convicted of two counts
of murder in the first degree, a capital offense in Oklahoma.
The majority opinion did not specifically state that the holding
applies in non-capital cases. Chief Justice Burger in his concurrence
limited the holding to capital cases and Justice (now Chief Justice)
Rhenquist dissented, in part, because he saw the majority
extending the constitutional right to psychiatric evaluation
to noncapital cases.
Assuming, but not deciding, that Ake applies to non-capital cases,
the appellant has failed to make the threshhold demonstration
that his sanity would be an issue at trial. Without this showing,
the state was under no obligation to provide a psychiatric evaluation
at state expense. Indeed, the offer to have the appellant examined
by a state psychiatrist at state expense was made and the
appellant refused the offer.
It cannot be said every time "mental state" is an issue for sentencing
purposes that the defendant's "sanity at the time of the
offense" is a significant issue at trial, requiring a psychiatric
examination. If that were the rule, it would be necessary to provide
psychiatric examinations for virtually every defendant charged
with a criminal offense, since intent, motive, desire, lack of hesitation,
etc. are all "mental states" which affect guilt or sentencing.
Furthermore, simply because the defense counsel has urged the court
to take a particular position does not make that a "significant"
issue in the case. Neither at trial nor at the sentencing hearing was
there one shred of evidence offered to show that the appellant's
mental capacity was limited in any way whatsoever. This issue has
no merit.
[2] In the next issue the appellant contends that the trial judge
erred by refusing to grant his motion for a continuance which was
made on the second day of trial. At that time, just after jury
selection had been completed, the appellant asked the trial judge for a
continuance because he was dissatisfied with his court appointed
counsel, and stated that he wanted time to retain counsel at his
own expense. According to the appellant, he was then able to
pay attorney's fees, because he had been employed since he was
released on bond. He further asserted that he had been unable
to communicate with his attorney due to a death in the attorney's
family. He expressed his belief that his counsel was unprepared
for trial and cited his counsel's failure to subpoena a witness as
evidence of his unpreparedness. He also argued that since his
attorney had represented Mr. Newman, the wrecker driver, in an
unrelated case, that he had a conflict of interest which prevented
him from properly representing the appellant.
As the appellant concedes, the decision whether to grant or deny
a motion for continuance rests within the sound discretion of the
trial judge. State v. Martin, 634 S.W.2d 639, 643 (Tenn.Cr.App.1982).
Unless it is "clearly shown" that the trial judge abused his
discretion, his action will not be disturbed on appeal. State
v. Melson, 638 S.W.2d 342, 359 (Tenn.1982).
There is not even a hint, much less a clear showing, that the
trial judge abused his discretion in denying the continuance. The
eyewitness that the appellant wanted subpoenaed was already under
subpoena by the state. However, she was unavailable
because she was hospitalized recovering from the birth of her
child by Caesarean section, the birth having occurred during the time
the trial was going on. The transcript of her testimony at the
preliminary hearing was available.
While the appellant's counsel had represented Mr. Newman on a
totally unrelated *132 matter, there was no showing that this in
any way affected his representation of this appellant.
Having acquired funds, the appellant was free to obtain counsel
of his own choice, but he was not entitled to wait until the trial was
in progress and then attempt to take control of the court's docket.
This issue has no merit.
[3] In the next issue the appellant contends that the trial judge
erred by limiting the number of character witnesses that he could call
at trial. Citing Shields v. State, 197 Tenn. 83, 270 S.W.2d 367,
371 (1954), the appellant contends that the court should not have a
rule or make a rule "in advance of the adduction of evidence"
limiting the number of witnesses in any case.
The Supreme Court made that statement in Shields. However, the
Court went on to hold that the trial court is "vested with a sound
discretion in regard to limiting the number of witnesses." Citing
Conlee v. Taylor, 153 Tenn. 507, 285 S.W. 35, 39 (1926), from
which the no advance limitation statement was drawn, the Court
also noted that on proper occasions the court may and should in
its discretion limit the number of witnesses on collateral matters.
The character of the accused is a collateral matter.
[4] In this case the appellant's character was not an issue at
trial and he did not call any character witnesses during that phase of
the proceeding. At the sentencing hearing, the trial judge limited
to three the number of character witnesses that the appellant could
call from his place of employment. He set no limitation on the
number of character witnesses who could be called who knew the
appellant from other circumstances. The appellant did not object
to the limitation, nor did he make an offer of proof concerning what
the proposed additional witnesses would have to say about his
character.
It is clear then by failing to object, the appellant waived this
issue. Rule 36(a), T.R.A.P., Ezell v. State, 220 Tenn. 11, 413 S.W.2d
678, 681 (1967). It is equally clear that there was no abuse
of discretion by the trial judge. This issue has no merit.
In the next issue the appellant contends that the trial judge
erred by refusing to allow his counsel to question Roy Neuenschwander
concerning the desires of the victims' family concerning sentencing.
At the sentencing hearing Mr. Neuenschwander, the son of Dr.
Neuenschwander and uncle of Lisa Neuenschwander testified that
he and his family believed that the appellant should receive
the maximum sentence. This was consistent with his recommendation
to the preparer of the pre-sentence report. The appellant attempted
to elicit from Mr. Neuenschwander an admission that he had
offered to recommend a lenient sentence in exchange for the appellant's
cooperation in a pending civil suit. Mr. Neuenschwander
denied this and the appellant offered no other proof to support
his contention.
Thus, it can be seen that the appellant did question Mr. Neuenschwander
concerning the family's desire about sentencing, and this
issue has no merit.
In another issue the appellant contends that the trial judge
erred by refusing to instruct the jury that when a defendant's blood
alcohol level is less than . 10% that no inference is created
and the jury cannot infer that the defendant was under the influence of
an intoxicant.
In this regard, the trial judge instructed the jury at two different
places in the charge as follows:
If any person is found by means of a blood test to have ten hundredths
of one percent (.10%) or more of alcohol in his blood, this
shall create a rebuttable inference that such person was under
the influence of such intoxicant, and that his ability to drive was
thereby impaired sufficiently to constitute a violation of the
law against driving while under the influence of alcohol. However, if the
blood test shows an alcoholic content of five hundredths of one
percent (.05%) or less, then no inference shall be created as to
whether this person's ability to operate a motor vehicle was
impaired.
*133 These instructions were taken from T.P.I.--Crim. §§
20.07 and 20.09 and comport with TCA § 55-10-408.
[5] The appellant relies on language from State v. McKinney,
605 S.W.2d 842, 846 (Tenn.Cr.App.1980), contending that the word
"shall" should not have been used in the instructions, but rather
the word "may" should have been substituted. In McKinney, the
appellant argued that the trial judge should have explicitly
charged the jury, in accordance with his proposed instruction, that the
inference need not be drawn. This Court held that use of the
word "may" conveyed "precisely the same meaning" as his proposed
instruction. In McKinney, the judge did not refer to the inference
as "rebuttable," as he did in this case. That terminology, like the
word "may," conveys the idea that the inference need not be drawn
by the jury.
The appellant also asked the judge to strike the instruction
about no presumption arising below .05% because it left the jury in the
dark about the blood alcohol levels of .06% through .09%. The
appellant's blood alcohol level was .08% almost two hours after the
accident.
In support of his proposed jury instruction, the appellant relied
on the case of State v. Bruce Hodge, Tennessee Criminal Appeals,
opinion filed at Jackson, April 24, 1985, wherein this Court
held that a blood alcohol level of .10% or more creates a rebuttable
inference of intoxication and that anything less than .10% creates
no inference.
The toxicologist testified that based upon a blood alcohol level
of .08% almost two hours after the incident, that the appellant's blood
alcohol level at the time of the incident was between .13% and
.08%. By his own admission the appellant drank three beers shortly
before the incident and virtually all of the witnesses who encountered
the appellant on the night of the crimes believed him to be
intoxicated. They based their opinions upon the smell of alcohol
on his breath, his slurred speech and his reckless and belligerent
manner.
[6] There was ample, indeed overwhelming, evidence--totally apart
from the inference--from which the jury could find that the
appellant was under the influence of an intoxicant at the time
of the accident. Indeed, he has not even challenged the sufficiency of
the convicting evidence in this appeal. This issue has no merit.
In the final issues the appellant questions the propriety of
his sentences. He first contends that the trial judge abused his discretion
in sentencing him to the maximum sentence for each homicide.
Since sentencing issues have been raised in this appeal, we have
conducted the de novo review on the record mandated by § 31 of
the Tennessee Comprehensive Correction Improvement Act of 1985,
Chap. 5, Public Acts of 1985, First Extraordinary Session, now
codified at TCA § 40-35-402(d). In so doing, we have indulged
in no presumption that the sentencing decisions of the trial judge were
proper.
[7] The punishment for vehicular homicide as a result of the
driver's intoxication is fixed at not less than one nor more than
twenty-one years. TCA § 39-2-232. The appellant was a Range
II offender, since he was on probation at the time of these offenses.
TCA § 40-35-107(3)(C). Therefore, the minimum sentence to
which he could be sentenced was eleven years in the state penitentiary
and the maximum was twenty-one years. TCA § 40- 35-109(b).
In arriving at a determinate sentence within the permissible range
the trial judge must apply the sentencing considerations set
forth in TCA § 40-35-103, the evidentiary requirements of TCA §
40-35-210(b), the relevant enhancement factors set forth in TCA
§ 40-35-111, and relevant mitigating factors found in TCA §
40-35-110. There is no set formula by which these factors are
to be mechanically applied. Rather, sentencing is to be approached
on a case by case basis. State v. Moss, 727 S.W.2d 229, 235 (Tenn.1986).
The trial judge found no mitigating factors. From our review
of the record, we have also been unable to find any.
On the other hand, the trial judge found six enhancement factors.
First, the appellant had a previous history of criminal convictions
*134 and behavior. TCA § 40-35-111(1). At the time of the
offense the appellant was on probation from a conviction for possession
of
marijuana.
[8] As an additional enhancement factor the trial judge found
that the offense involved more than one victim. TCA § 40-35-111(3).
This was not a proper enhancement factor, since there were separate
convictions for each victim. In other words, the appellant
received a separate penitentiary sentence for having killed each
victim.
The trial judge also found as an enhancement factor that the
victims of the offense were particularly vulnerable because of their
ages, one being elderly and the other very young. TCA §
40-35-111(4). One witness recounted that Dr. Neuenschwander apparently
saw the appellant's truck coming and bent down to get his granddaughter
to attempt to run. Perhaps a more virile victim could have
successfully extricated himself and the child from the danger
zone during the split second that was available.
[9] The trial judge also found as an enhancement factor that
the personal injuries inflicted upon the victims were particularly great,
in
that both died. TCA § 40-35-111(6). This is not a proper
enhancement factor, since the death of the victim is an element of the
offense of vehicular homicide. State v. Pride, 667 S.W.2d 102,
106 (Tenn.Cr.App.1983).
Finally, the trial judge found that, from the reckless manner
in which the appellant drove his truck through a heavy congested area,
it
is apparent that he had "no hesitation about committing a crime
when the risk to human life was high." TCA § 40-35-111(10). This
was clearly a proper factor. The appellant, in a fit of temper,
damaged three other vehicles, almost hit a police officer who was
directing traffic, and was fleeing at a high rate of speed from
a police car with blue lights flashing. All of this took place at a time
when, the appellant himself admitted, the streets of Knoxville
around the University of Tennessee were clogged with automobiles
and pedestrians. His conduct was such that no other conclusion
could be reached about him. He had absolutely no hesitation
about committing a crime involving extremely high risk to human
life.
The appellant's sentence of the maximum of twenty-one years for
each count was entirely appropriate in light of the proper
enhancement factors present in this case.
Finally, the appellant has questioned whether the trial judge
erred by ordering the sentences to be served consecutively.
[10][11][12] Consecutive sentencing is reserved for five classifications
of offenders: (1) the persistent offender, (2) the professional
criminal, (3) the multiple offender, (4) the dangerous, mentally
abnormal offender, and (5) the dangerous offender. Our Supreme
Court has defined each class of offender. Gray v. State, 538
S.W.2d 391, 393 (Tenn.1976). The trial judge found that the appellant is
a "dangerous offender." A defendant may be classified as a "dangerous
offender" "if the crimes for which he is convicted indicate
that he has little or no regard for human life, and no hesitation
about committing a crime in which the risk to human life is high." Not
all defendants convicted of several counts of dangerous offenses
should be consecutively sentenced. The decision to impose
consecutive sentences in cases involving crimes that are inherently
dangerous should be based on aggravating circumstances and
not merely on the fact that two or more dangerous crimes were
committed. Id.
The appellant points to other vehicular homicide cases where
consecutive sentences were received and seeks to distinguish them.
In State v. Hensley, 656 S.W.2d 410, 414-415 (Tenn.Cr.App.1983),
the appellant was convicted of vehicular homicide and
aggravated assault. He received consecutive sentences as a dangerous
offender. The appellant noted that in that case the
defendant received a lesser sentence than he did and that Hensley
had driven his vehicle over a wide area while intoxicated,
endangering several people over a period of several hours and
that after the accident he fled and concocted a cover up scheme.
*135 In this case, the appellant drove a much shorter distance
before tragedy struck, but he endangered many lives during his jaunt.
Like Hensley, he fled, leaving injured and dying people in the
road, making no effort to assist them. Through the combined efforts of
the police and civic-minded citizens his escape was thwarted.
Since these crimes and before trial, the appellant was apprehended
for speeding and driving on a revoked license. He entered a plea
of guilty to the speeding charge.
The appellant also sought to distinguish State v. Hall, 675 S.W.2d
208, 211 (Tenn.Cr.App.1984), in which the defendant received
consecutive sentences of seven and one-half years each for two
vehicular homicides after being found to be a dangerous offender.
The only distinction that the appellant finds between his case
and that case is that he received a much longer penitentiary sentence
for each offense than Hall did for his offenses. The defendant's
prior record is not recorded in the opinion in Hall. The appellant had
a
long history of irresponsible criminal behavior, resulting in
numerous misdemeanor convictions. It is impossible to equate his
sentence to Hall's. Indeed, it would be inappropriate to attempt
to do so. State v. Moss, supra.
[13] In this case the evidence is clear that the appellant is
a dangerous offender. In addition to all of the evidence of his
dangerousness already set forth, he admitted that by being out
late at night and drinking he was in violation of his probation. Earlier,
he had obtained his probation officer's permission to travel
to Corryton from Blount County that night to visit his mother. Instead,
he
chose to visit a honky tonk in Knoxville. All of his actions
were wild and reckless and it was only by the grace of God that he did
not
cause more carnage than he did. Like the defendant in Hall, he
fled after the wreck and exhibited absolutely no concern for the
victims he left dying in the street. Consecutive sentencing was
entirely appropriate for this dangerous offender and the issue has no
merit.
Finding no merit to any of the issues, the judgment is affirmed.
DWYER and CORNELIUS, JJ., concur.
Tenn.Cr.App.,1987.
State v. Lambert
END OF DOCUMENT