IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
JANUARY 1998 SESSION
March 22, 2000
STATE OF TENNESSEE, * C.C.A. NO. 03C01-9704-CR-00144
Cecil Crowson, Jr.
Appellate Court Clerk
APPELLEE, * HAMILTON COUNTY
VS. * Hon. Stephen M. Bevil, Judge
HARVEY PHILLIP HESTER, * (Second Degree Murder--Two Counts;
Attempted Second Degree Murder)
APPELLANT. *
For Appellant: For Appellee:
Leonard M. Caputo Paul G. Summers
312 Vine Street Attorney General and Reporter
Chattanooga, TN 37403
(on appeal and at trial) Michael J. Fahey II
Assistant Attorney General
Leroy Phillips, Jr. 425 Fifth Avenue, North
312 Vine Street Second Floor, Cordell Hull Building
Chattanooga, TN 37403 Nashville, TN 37243-0488
(at trial)
Bates Bryan
Assistant District Attorney General
600 Market Street
Courts Building
Chattanooga, TN 37402
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Harvey Phillip Hester, was convicted of two counts of
second degree murder and one count of attempted second degree murder. The trial
court imposed twenty-five-year terms for each murder conviction and a twelve-year
term for the attempted second degree murder conviction. Because the three
sentences are to be served consecutively, the effective sentence is sixty-two years.
In the appeal of right to this court, the defendant challenged the
sufficiency of the evidence, alleged prosecutorial misconduct, questioned the
admission of certain evidence, alleged error by the failure to charge lesser included
offenses, and challenged the propriety of the sentences. On June 4, 1998, this
court filed an opinion, concluding that the trial court had committed error by failing to
instruct the jury on the lesser offense of vehicular homicide. In consequence, the
two second degree murder convictions were reversed and new trials ordered. The
conviction for attempted second degree murder was affirmed. State v. Harvey
Phillip Hester, No. 03C01-9704-CR-00144 (Tenn. Crim. App., at Knoxville, Jun. 4,
1998).
On August 5, 1998, the state applied for permission to appeal. On
February 7, 2000, our supreme court remanded the case for reconsideration in light
of its opinion in State v. Dominy, 6 S.W.3d 472 (Tenn. 1999), which was released
over a year after the entry of our original opinion. Because Dominy involved the
issue of lesser included offenses only, the remand does not affect the attempted
second degree murder conviction in this case and does not alter the analyses in our
original opinion as to other issues. So as to avoid confusion, sections I, III, IV, and
V from our original opinion will be restated in their entirety. Only Section II, that
portion dealing with the issue of lesser included offenses, has been changed.
2
On August 8, 1994, Richard Serna (Richard), his daughter, Angela,
and his brother, Paul Serna (Paul), drove to the "blue hole" on Suck Creek Road at
Signal Mountain to swim. Upon their arrival, the defendant was in the parking lot.
Richard Serna briefly engaged in friendly conversation with the defendant after
which the Sernas walked to the swimming area. Sometime later, the defendant
approached them and asked if they had seen his wallet. The defendant searched
unsuccessfully for his wallet and then left. Angela described this exchange as
"pleasant."
About five minutes later, the defendant returned and again inquired
about his wallet. He pointed out that the Sernas were the only others in the area
and explained that his wallet contained around $2,200. The defendant left but soon
returned and insisted his wallet had to "be here somewhere." When he mentioned
that he had a gun in his car, the Sernas were surprised. Paul placed a knife in his
pocket but made no threats to the defendant.
After the defendant left, the Sernas gathered their belongings and
returned to their car. When they reached the parking lot, the defendant asked
permission to search. While the Sernas allowed a search, the defendant did not
find his wallet. The Sernas then drove away. After driving on a short distance, the
Sernas noted the defendant was following them. He rammed the back of their car
several times and, at one point, the Sernas' car "fishtailed" around a bigger truck.
At trial, Angela testified that the defendant struck their vehicle in the
rear "over and over again ... continuously the whole way down the mountain." She
estimated that their vehicle was struck more than twenty times. As their car passed
by the Suck Creek Boat Ramp, Angela yelled out the window asking for someone to
3
call the police.
She recalled that at the bottom of the mountain, Suck Creek Road
terminates at its intersection with Signal Mountain Boulevard, a four-lane road. She
remembered that the defendant rammed their car into the four-lane road. At
another intersection, only a short distance away, Richard and Paul Serna stopped
their vehicle and confronted the defendant. Paul drew his knife from his pocket but
held it to his side. Angela testified that an argument ensued about the wallet but
that her next memory was waking up in the hospital. Initially unable to recognize her
mother, Angela Serna had suffered a broken pelvic bone and a broken leg. All of
her facial bones were broken. She required bone graft surgery on her nose.
James Pilkington, who observed the confrontation at the intersection of
Mountain Creek Road and Signal Mountain Boulevard, testified that the Sernas
appeared to be frightened. When Pilkington stopped at a nearby Conoco to call the
police, he noticed the Sernas' vehicle drive by and thought the altercation might
have ended. When he drove around a curve, however, he saw that the Sernas had
been involved in a wreck.
Mark Payne, who also saw the confrontation between the Sernas and
the defendant at the intersection of Signal Mountain Boulevard and Mountain Creek
Road, testified that either Richard or Paul was standing on the side of the road with
a terrified look on his face. He saw that individual run and then observed the driver
of the Serna vehicle stop to allow him to enter. The defendant's vehicle "shot right
through the light and started chasing [the Sernas'] Nissan." Payne described the
defendant as "chasing [the victims] down." Michael Eugene Hood, who also
witnessed the confrontation at the intersection, corroborated Payne's version of the
4
events.
James DeSha, who was traveling on Signal Mountain Boulevard on
the day of the wreck, testified that he saw a white Cutlass ram a red Nissan Pulsar
on two occasions. He also saw the Cutlass move to the outside lane to the right
side of the Nissan and "turned in on him," ramming into the back bumper of the
Nissan, spinning it sideways. He recalled that the Sernas' Nissan slid sideways,
became airborne, flew across a red Thunderbird, and onto the hood of a green
Dodge. DeSha claimed that the defendant, who was driving the Cutlass, grinned as
he drove away at a high rate of speed. DeSha was able to get the license plate
number of the Cutlass.
Officer Charles Russell of the Chattanooga Police Department
investigated the accident. He found three cars with "a considerable amount of
damage." The victims' car contained several beer cans. At approximately 1:00 A.M.
the day after the wreck, he located the Cutlass driven by the defendant. The license
tags had been removed. While there were no dents to the front of the defendant's
car, the front right fender did have a presence of red paint, the color of the Serna
vehicle. The defendant, who had suffered a black eye, voluntarily turned himself in
to police.
Dr. Charles Harlan performed an autopsy on Paul Serna. Death
resulted from a ring fracture of C-1 and C-2 cervical vertebrae, which is the area
where the skull fits on to the vertebral column. His blood alcohol content was .03
percent, which indicated he had consumed less than two units of alcohol.
Richard Serna, who had a blood alcohol content of .032 percent, was
5
a quadriplegic due to the brain injuries suffered in the accident. He died on January
20, 1995, several months after the car wreck. According to Dr. Frank King, the
Hamilton County Medical Examiner, the cause of death was "acute bronchial
pneumonia due to chronic medical debilitation due to head injury."
Attorney Joe McBrien, who represented the defendant in a civil case,
appeared as a defense witness. He testified that the defendant had received a
settlement award of $3518.75 six days before this incident. He recalled that the
defendant received cash in that amount.
John Hackney, who lived at the foot of Suck Creek Mountain, was
traveling to his residence on the day of the wreck, when he passed a car and then
saw a billfold "blow up in the air." He stopped his vehicle and found the billfold and
large denominations of cash lying on the ground. He testified that he picked
everything up and left. The identification in the billfold was that of the defendant.
Hackney admitted that he kept the money. He burned the wallet. He conceded that
he had bragged to his co-workers about finding the cash, which is how the defense
attorneys eventually located him. He acknowledged that he never notified the police
about finding the wallet.
Terry Thurman, who testified through an interpreter, recalled that she
saw the defendant and the victims in a confrontation at an intersection on Signal
Mountain Boulevard. She observed one of the Serna men holding a knife up in the
air.
David Blackburn testified that he was with the defendant at the time of
the wreck. An individual named John and a girl whose name he could not recall
6
were also present. Blackburn recalled that the defendant had a large amount of
money in his possession before they went to the swimming hole. Blackburn testified
that he separated from the defendant and then saw him in the parking lot. His eye
was swelling shut and his nose or mouth was "busted." The defendant claimed that
the people pulling away in another car had just robbed him.
Blackburn testified that the defendant followed the Sernas down the
mountain and bumped their car several times. W hen they reached Signal Mountain
Boulevard, the defendant and John got out of their vehicle. He saw one of the
Sernas approach waving a knife; when the Sernas returned to their vehicle, the
defendant continued to follow them. Blackburn testified that he suggested that the
defendant continue to follow so they could eventually call the police. Blackburn
claimed that the driver of the Nissan kept swerving in and out in an attempt to keep
the defendant from driving alongside. He testified that after the accident, the
defendant drove him to his car. Blackburn was charged with "accessory after the
fact" but the charges were dismissed. He acknowledged prior convictions for theft,
robbery, and drug-related offenses.
I
The defendant first argues the evidence is insufficient to support the
verdict. He argues the proof would at most establish vehicular homicide or vehicular
assault.
On appeal, the state is entitled to the strongest legitimate view of the
trial testimony and all reasonable inferences which might be drawn therefrom. State
v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses,
the weight to be given their testimony, and the reconciliation of conflicts in the proof
7
are matters entrusted to the jury as trier of fact. Byrge v. State, 575 S.W.2d 292,
295 (Tenn. Crim. App. 1978). The relevant question is whether, after reviewing the
evidence in the light most favorable to the state, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e).
Second degree murder is defined as a "knowing killing of another."
Tenn. Code Ann. § 39-13-210(a)(1). Our code defines "knowing" conduct as
follows:
"Knowing" refers to a person who acts knowingly with
respect to the conduct or to circumstances surrounding
the conduct when the person is aware of the nature of
the conduct or that the circumstances exist. A person
acts knowingly with respect to the result of the 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).
A person engages in criminal attempt when he acts with the degree of
culpability otherwise required and "[a]cts with intent to complete a course of action
or cause a result that would constitute the offense, under the circumstances
surrounding the conduct as the person believes them to be, and the conduct
constitutes a substantial step toward the commission of the offense." Tenn. Code
Ann. § 39-12-101(a)(3).
In our view, there is sufficient evidence to support both of the second
degree murder convictions as well as the attempted second degree murder
conviction. Angela Serna testified the defendant rammed their vehicle more than
twenty times. At one point, the defendant rammed the Serna vehicle, causing it to
fishtail around an on-coming truck. DeSha testified that the defendant forced the
8
Serna vehicle to slide into the path of a Thunderbird, thereby causing the injuries to
its occupants. There was evidence that the defendant then fled the scene traveling
at a high rate of speed. Obviously, the jury accredited the testimony of the state
witnesses.
Second degree murder does not require an intentional killing. All that
is required is that the defendant "is aware that the conduct is reasonably certain to
cause the result." Tenn. Code Ann. § 39-11-302(b). Here, the defendant was able
to appreciate the dangers caused by his conduct. Even though the Sernas' vehicle
had almost collided with a truck just before the fatal wreck, the defendant continued
to ram the victims' vehicle from the rear and the side.
II
Next, the defendant argues that the trial court erred by failing to
instruct on a lesser included offense, vehicular homicide. Tenn. Code Ann. § 39-13-
213. The defendant argues that the trial judge had a duty under Tenn. Code Ann. §
40-18-110(a) to include in the instructions to the jury all lesser included offenses.
First degree murder, second degree murder, voluntary manslaughter,
reckless homicide, and criminally negligent homicide were all charged to the jury.
When the defendant requested an instruction on vehicular homicide, the trial court
ruled as follows:
[A]lthough I think the facts in this case could possibly
support a charge to the jury on vehicular homicide, there
is nothing, no language in the indictment which charges
the offense of vehicular homicide, and it is a separate
offense. This court is not going to charge vehicular
homicide.
The state argues that any error by refusing to charge vehicular
9
homicide qualified as harmless error.
There is a statutory duty on the part of trial courts to charge not only
the offense listed in the indictment,1 but also all lesser included offenses. Tenn.
Code Ann. § 40-18-110. It has traditionally been held that the failure to charge a
lesser included offense denies a defendant his constitutional right to a trial by jury if
there are any facts "susceptible of inferring guilt on any lesser included offense or
offenses." State v. Wright, 618 S.W.2d 310, 315 (Tenn. Crim. App. 1981); see also
McGowan v. State, 17 Tenn. 184 (1836). If, however, the record is devoid of
evidence to support an inference of guilt as to the lesser offense, the trial court is
not required to instruct the jury on the lesser offense. State v. Vann, 976 S.W.2d 93
(Tenn. 1998); State v. Stephenson, 878 S.W.2d 530 (Tenn. 1994). In State v.
Bolden, our supreme court acknowledged that a "purpose of the statute is to protect
the right to trial by jury by instructing the jury on the elements of all offenses
embraced by the indictment [and to] facilitate . . . the overall truth-seeking function
of the process." 979 S.W.2d 587, 593 (Tenn. 1998).
In Beck v. Alabama, 447 U.S. 625 (1980), the United States Supreme
Court commented upon the basis of the duty to charge lesser included offenses:
At common law, the jury was permitted to find the
defendant guilty of any lesser offense necessarily
included in the offense charged. This rule originally
1
The indictments charge d as follows:
That Harvey Phillip Hester alias Harvey Clevenger heretofore on August 8,
1994, in the County aforesaid, did unlawfully, intentionally, deliberately and
with premeditation kill Paul Edward Serna, in violation of Tennessee Code
Annotated 39-13-2 02, against the peace an d dignity of the S tate.
That Harvey Phillip Hester alias Harvey Clevenger heretofore on August 8,
1994, in the County aforesaid, did unlawfully, intentionally, deliberately and
with premeditation inflict mortal injuries on Richard Anthony Serna which
resulted in the d eath of Rich ard Antho ny Serna on January 20 , 1995, in
violation of Tennessee Code Annotated 39-13-202, against the peace and
dignity of the State.
10
developed as an aid to the prosecution in cases in which
the proof failed to establish some element of the crime
charged. But it has long been recognized that it can also
be beneficial to the defendant because it affords the jury
a less drastic alternative than the choice between
conviction of the offense charged and acquittal.
[P]roviding the jury with the "third option" of convicting on
a lesser included offense ensures that the jury will accord
the defendant the full benefit of the reasonable-doubt
standard.
Id. at 633-34. In State v. Williams, 977 S.W.2d 101 (Tenn. 1998), a majority of our
supreme court indicated that there was merely a statutory right, rather than a
constitutional right, to a charge on lesser included offenses. 2 In State v. Langford,
994 S.W.2d 126 (Tenn. 1999), our supreme court again touched on the subject,
holding that "a trial court must instruct the jury on all lesser included offenses if the
evidence introduced at trial is legally sufficient to support a conviction for the lesser
offense." Id. at 128.
Recently, in State v. Burns, 6 S.W.3d 453 (Tenn. 1999), our supreme
2
See State v. Staggs, 554 S.W.2d 620 (Tenn. 1977) (a part of the constitutional right to trial by
jury is to have every issue mad e by the evide nce de termin ed by the jur y under a c orrect an d com plete
charge of the law); Strader v. State , 362 S.W.2d 224 (Tenn. 1962). Recent cases stating the rule that
failure to charge a lesser offense is a constitutional deprivation rely on State v. Wright, 618 S.W.2d
310 (T enn. Cr im. Ap p. 1981) (Joe D . Dunca n, Judg e), and inc lude the fo llowing: State v. Belser, 945
S.W .2d 776 ( Tenn . Crim. A pp. 1996 ); State v. Howard, 926 S.W .2d 579 (Tenn. Crim . App. 1996);
State v. Sum me rall, 926 S.W .2d 272 ( Tenn . Crim. A pp. 1995 ); State v. Ruane, 912 S.W.2d 766
(Tenn . Crim. A pp. 1995 ); State v. Lew is, 919 S.W .2d 62 (T enn. Cr im. Ap p. 1995) ; State v. Boyce, 920
S.W .2d 224 ( Tenn . Crim. A pp. 1995 ); State v. King, 905 S.W .2d 207 ( Tenn . Crim. A pp. 1995 ); State
v. McKnight, 900 S.W .2d 36 (T enn. Cr im. Ap p. 1994) ; State v. Vance, 888 S.W .2d 7 76 (T enn . Crim .
App. 19 94); State v. Banes, 874 S.W .2d 73 (T enn. Cr im. Ap p. 1993) ; State v. Richard Darrell Miller
and Johnny Wayne Garner, C.C.A. N o. 01C0 1-9703 -CC-0 0087 (T enn. Cr im. Ap p., at Nas hville, Sept.
11, 1998 ); State v. George Rose, C.C.A. No. 02C01-9710-CR-00405 (Tenn. Crim. App., at Jackson,
July 2, 1998 ); State v. Bec ky Da vis, C.C.A. No. 03C01-9701-CR-00027 (Tenn. Crim. App., at
Knoxv ille, May 1, 199 8); State v. Willie D. Graham, C.C .A. N o. 03 C01 -970 7-C C-0 031 4 (T enn . Crim .
App., at K noxville, Ma y 7, 1998); State v. Warren Tyrone Fowler, C.C.A. No. 03C01-9709-CC-00391
(Tenn . Crim. A pp., at Kno xville, Apr. 29 , 1998); State v. Harvey D'Hati Moore, C.C.A. No. 03C01-
9704-C R-001 31 (Te nn. Crim . App., at Kn oxville, Mar . 18, 1998 ); State v. Daniel Joe Brown, C.C.A.
No. 02C 01-961 1-CC -00385 (Tenn . Crim. A pp., at Jac kson , Dec. 3, 1 997); State v. Michael Tyrone
Gordon, C.C.A. N o. 01C0 1-9605 -CR-0 0213 (T enn. Cr im. Ap p., at Nas hville, Sept. 18 , 1997); State v.
George Brooks, C.C.A. N o. 02C0 1-9602 -CR-0 0050 (T enn. Cr im. Ap p., at Jack son, M ay 15, 199 7);
State v. Janice Hansbrough-Eason, C.C.A. No. 02C01-9504-CR-00098 (Tenn. Crim. App., at
Jack son, De c. 19, 199 6); State v. Hollis Ray Williams, C.C.A. No. 03C01-9406-CR-00209 (Tenn.
Crim . App., at Kn oxville, July 23, 1 996); State v. R andall Sc ott, C.C.A. No. 01C01-9307-CR-00240
(Tenn . Crim. A pp., at Na shville, Jan. 5 , 1996); State v. Deborah Gladish, C.C.A. No. 02C01-9404-CC-
00070 (Tenn . Crim. A pp., at Jac kson , Nov. 21 , 1995); State v. Eric J. Fa ir, C.C.A. No. 02C01-9403-
CR-00055 (T enn. Crim. App., at Jacks on, Nov. 15, 1995).
11
court revised the standards for the determination of lesser included offenses. Our
high court confirmed that in a companion case, State v. Dominy, 6 S.W.3d 472
(Tenn. 1999), it had overruled portions of the holding in State v. Trusty, 919 S.W.2d
305 (Tenn. 1996), in which the court had established a distinction between lesser
grades or classes of offenses and lesser included offenses. In Burns, the court
adopted a modified version of the model penal code in order to determine what
constitutes a lesser included offense:
An offense is a lesser included offense if:
(a) all of its statutory elements are included within the
statutory elements of the offense charged; or
(b) it fails to meet the definition in part (a) only in the
respect that it contains a statutory element or
elements establishing
(1) a different mental state indicating a lesser
kind of culpability; and/or
(2) a less serious harm or risk of harm
to the same person, property or
public interest; or
(c) it consists of
(1) facilitation of the offense charged or
of an offense that otherwise meets
the definition of lesser-included
offense in part (a) or (b); or
(2) an attempt to commit the offense
charged or an offense that otherwise
meets the definition of lesser
included offense in part (a) or (b); or
(3) solicitation to commit the offense
charged or an offense that otherwise
meets the definition of lesser-
included offense in part (a) or (b).
Burns, 6 S.W.3d at 466-67.
There is a two-step process in determining whether the evidence
justifies a jury instruction on a lesser included offense:
12
First, the trial court must determine whether any
evidence exists that reasonable minds could accept as to
the lesser included offense. In making this
determination, the trial court must view the evidence
liberally in the light most favorable to the existence of the
lesser-included offense without making any judgments on
the credibility of such evidence. Second, the trial court
must determine if the evidence, viewed in this light, is
legally sufficient to support a conviction for the lesser-
included offense.
Id. at 469.
In Dominy, our supreme court set aside a conviction of spousal rape
on the basis that it was not a lesser included offense of aggravated rape. By
utilizing the Burns test, the court concluded that a marriage between the defendant
and the victim was an essential element to spousal rape, but not an element of
aggravated rape. Thus, section (a) of the Burns test did not apply. Moreover,
section (b) of the Burns test did not apply because the marriage element did not
relate to "a different mental state" of the defendant or "a less serious harm or risk of
harm" to the victim. Finally, because section (c) dealt only with facilitation, attempt,
and solicitation offenses, spousal rape obviously did not fit within any of the
classifications.
In this case, the defendant was indicted for first degree murder. Under
our statutory scheme, the term "criminal homicide" means "the unlawful killing of
another person which may be first degree murder, second degree murder, voluntary
manslaughter, criminally negligent homicide, or vehicular homicide." Tenn. Code
Ann. § 39-13-201. First degree murder is defined as follows:
(a) (1) a premeditated and intentional killing of
another;
(2) a killing of another committed in the
perpetration of or attempt to
perpetrate any first degree murder,
arson, rape, robbery, burglary, theft,
13
kidnapping, aggravated child abuse
or aircraft piracy; or
(3) a killing of another committed as the
result of the unlawful throwing,
placing or discharging of a
destructive device or bomb.
(b) No culpable mental state is required for a
conviction under subdivision (a) (2) or (a) (3)
except the intent to commit the enumerated
offenses or acts in such subdivisions.
By comparison, the statute prohibiting vehicular homicide provides, in
pertinent part, as follows:
(a) Vehicular homicide is the reckless killing of
another by the operation of an automobile,
airplane, motorboat or other motor vehicle:
(1) As the proximate result of conduct
creating a substantial risk of death or
serious bodily injury to a person; or
(2) As the proximate result of the
driver's intoxication as set forth in
§ 55-10-401. For the purposes of
this section, "intoxication" includes
alcohol intoxication as defined by
§ 55-10-408, drug intoxication, or
both.
Tenn. Code Ann. § 39-13-213. Vehicular homicide, of course, requires the
"operation of an automobile, airplane, motorboat, or other motor vehicle. . . ." That
element is not necessary for the conviction of either first degree murder or second
degree murder. In Dominy, our supreme court placed emphasis upon the
defendant's constitutional right to be given notice of the offense or offenses
charged. 6 S.W.3d at 476; see also State v. Hill, 954 S.W.2d 725, 727 (Tenn.
1997). It observed that Tenn. Code Ann. § 40-13-202 required indictments to "state
the facts constituting the offense in ordinary and concise language . . . in such a
manner as to enable a person of common understanding to know what is intended,
and with that degree of certainty which will enable the court, on conviction, to
14
pronounce the proper judgment . . . ." Dominy, 6 S.W.3d at 476, n.6; see also
Tenn. R. Crim. P. 31(c) ("The defendant may be found guilty of an offense
necessarily included in the offense charged or of an attempt to commit either the
offense charged or an offense necessarily included therein if the attempt is an
offense."). Our supreme court cited with approval Howard v. State, 578 S.W.2d 83,
85 (Tenn. 1979), and its holding that "an offense is necessarily included in another if
the elements of the greater offense, as those elements are set forth in the
indictment, include, but not are not congruent with, all the elements of the lesser."
Dominy, 6 S.W.3d at 476. In other words, the offense is lesser included if "all its
elements are contained within the elements of the offense charged in the
indictment." Id.
Because vehicular homicide contains a statutory element not
contained in first degree murder, that is, "the operation of an automobile, airplane,
motorboat or other motor vehicle," vehicular homicide is not a lesser included
offense. That additional element has nothing to do, of course, with the mental state
of the defendant or the harm or risks to the victim. An indictment charging first
degree murder would not be sufficient to support a conviction of vehicular homicide.
Thus, the trial court here was not in error by refusing to charge to the jury the
offense of vehicular homicide. The test established in Burns and utilized in Dominy
requires a different result than the test adopted in State v. Trusty, 919 S.W.2d 305
(1996). Because Trusty has been overruled, there was no entitlement to a jury
instruction on vehicular homicide.
III
Tennessee courts have long recognized the business records
exception. Bolden v. State, 203 S.W. 755 (Tenn. 1918). In Bolden, our supreme
15
court explained the rationale for the "business records" exception: "They are
receivable as original evidence, because they import trustworthiness, in that a
motive to make the entries falsely is excluded." In Lillard, this court ruled the
"business records exception as set forth in T.R.E. 803(6) is a firmly rooted exception
to the hearsay rule." Slip op. at 5.
Had a proper foundation been laid, the results could have been
admissible as business records without violating the defendant's right of
confrontation. As long as the records are "properly admitted," there is no violation.
Norton, 867 F.2d at 1363.
The failure on the part of the state to establish a proper foundation for
the evidence would not require reversal. There was substantial evidence of the
defendant's guilt. The blood alcohol content of the victims was not a significant
point. There was no indication that that contributed to the car wreck. The error, in
our view, qualified as harmless.
V
As his final issue, the defendant complains that twenty-five (25) year
sentences, the maximum possible, for each second degree murder, and the
sentence of twelve years, the maximum, for the attempted second degree murder,
were excessive. He also complains that the trial court erred by ordering all three
sentences to be served consecutively.
When a challenge is made to the length, range, or manner of service
of a sentence, it is the duty of this court to conduct a "de novo review ... with a
presumption that the determinations made by the court from which the appeal is
16
taken are correct." Tenn. Code Ann. § 40-35-401(d). The Sentencing Commission
Comments provide that the burden is on the defendant to show the impropriety of
the sentence.
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and
-210.
At the time of this offense, the presumptive sentence was the
minimum in the range if there were no enhancement and mitigating factors. Tenn.
Code Ann. § 40-35-210 (amended in 1995 changing the presumptive sentence for a
Class A felony to the midpoint in the range). Should the trial court find mitigating
and enhancement factors, it must start at the minimum sentence in the range and
enhance the sentence based upon any applicable enhancement factors, then
reduce the sentence based upon any appropriate mitigating factors. Tenn. Code
Ann. § 40-35-210(e). The weight given to each factor is within the trial court's
discretion provided that the record supports its findings and it complies with the
Sentencing Act. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The trial
court, however, should make specific findings on the record which indicate its
application of the sentencing principles. Tenn. Code Ann. §§ 40-35-209 and -210.
At the sentencing hearing, Michael Scott Serna, the brother of Richard
and Paul Serna, testified that anything less than the "maximum sentence ran
17
consecutive would be less than justice." He recalled that Richard weighed about
one-hundred seventy pounds prior to the wreck and had dropped to eighty or ninety
pounds as a result. He described his brother's pain as excruciating. He had to file
bankruptcy because the medical bills amounted to "hundreds of thousands of
dollars." He also asked the court to consider that Angela Serna would never be able
to have children because of her injuries.
The presentence report established that the defendant, age twenty-
four at the time of sentencing, completed eighth grade and acquired his G.E.D. A
laborer, he has three children, ages four, three, and one. His prior criminal history
included several thefts, simple assault, reckless driving, and failure to appear. He
was on probation for theft at the time of these offenses.
The trial court found the following enhancement factors applicable to
each offense:
(1) The defendant has a previous history of criminal
convictions or criminal behavior in addition to those
necessary to establish the appropriate range. Tenn.
Code Ann. § 40-35-114(1).
(2) The personal injuries inflicted upon the victim were
great. Tenn. Code Ann. § 40-35-114(6).
(3) The defendant possessed or employed a deadly
weapon during the commission of the offense. Tenn.
Code Ann. § 40-35-119(9).
(4) The defendant had no hesitation about committing a
crime when the risk to human life was high. Tenn. Code
Ann. § 40-35-114(10).
(5) The felony was committed while the defendant was
on a form of release from a prior conviction. Tenn. Code
Ann. § 40-35-114(13).
The defendant argues enhancement factor (10), no hesitation about
18
committing a crime when the risk to human life was high, is an essential element of
the offenses. The trial judge commented that he was applying this factor because
the defendant endangered the lives of persons other than the victims. For that
reason, we agree that this factor is applicable.
The Tennessee Criminal Sentencing Reform Act of 1989 provides that
an enhancement factor may be applied if it is not an "essential element" of the
offense. Tenn. Code Ann. § 40-35-114. The test for determining if an enhancement
factor is an essential element of an offense is whether the same proof necessary to
establish the enhancement factor would also establish an element of the offense.
See State v. Jones, 883 S.W.2d 597, 601 (Tenn. 1994).
In State v. Bingham, 910 S.W.2d 448 (Tenn. 1995), our supreme court
ruled that factor (10) may be used "where the defendant creates a high risk to the
life of a person other than the victim." In Bingham, our supreme court upheld use of
the factor in a vehicular homicide case, where the trial court found the defendant
had driven recklessly on a busy four-lane road. Because the defendant's conduct
created a substantial risk of death to other drivers, the factor was appropriately
applied.
In this case, the proof established that when the victims' vehicle
wrecked, two other vehicles were involved and those drivers were placed directly in
danger. Prior to the wreck, the defendant caused the victims' vehicle to "fishtail"
around an oncoming truck. Clearly, others besides the victims were in danger due
to the defendant's driving. This factor was appropriately applied.
The defendant also argues that enhancement factor (6), the personal
19
injuries suffered by the victim, is inapplicable because it is an essential element of
the offenses charged. Because this factor was an essential element of the crime, it
should not have been applied to the murder convictions. State v. Lambert, 741
S.W.2d 127, 134 (Tenn. Crim. App. 1987). It was, however, appropriately applied to
the attempted second degree murder conviction. State v. Nix, 922 S.W.2d 894, 903
(Tenn. Crim. App. 1995). "Particularly great injuries are not essential to the
commission of this offense, but prove greater culpability." Id.
The defendant also contends that the trial court erred by refusing to
apply the mitigating factor that "[s]ubstantial grounds exist tending to excuse or
justify the defendant’s criminal conduct, though failing to establish a defense."
Tenn. Code Ann. § 40-35-113(3). At the sentencing hearing, the trial court made no
findings on any mitigating circumstances. In our view, this mitigating factor is
entitled to little or no weight. Even if the Sernas assaulted the defendant and stole
his wallet, that would not excuse the defendant's extended criminal conduct in
chasing the victims for several miles and repeatedly ramming their vehicle.
Even if some evidence of mitigation did exist, enhancement factors
present so strongly outweigh the mitigating factors that the maximum sentence on
each offense would have been warranted.
We now turn to the appropriateness of consecutive sentencing. Prior
to the enactment of the Criminal Sentencing Reform Act of 1989, the limited
classifications for the imposition of consecutive sentences were set out in Gray v.
State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case our supreme court ruled that
aggravating circumstances must be present before placement in any one of the
classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the court
20
established an additional category for those defendants convicted of two or more
statutory offenses involving sexual abuse of minors. There were, however,
additional words of caution: "[C]onsecutive sentences should not routinely be
imposed . . . and . . . the aggregate maximum of consecutive terms must be
reasonably related to the severity of the offenses involved." Taylor, 739 S.W.2d at
230. The Sentencing Commission Comments adopted the cautionary language.
Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence, the codification of the
holdings in Gray and Taylor; consecutive sentences may be imposed in the
discretion of the trial court only upon a determination that one or more of the
following criteria3 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;
(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;
3
The first four criteria are found in Gray. A fifth category in Gray, based on a specific number
of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion . See
Tenn. Code Ann. § 40-35-115, Sentencing Comm ission Comments.
21
(6) The defendant is sentenced for an offense
committed while on probation;
(7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b).
In Gray, our supreme court ruled that before consecutive sentencing
could be imposed upon the dangerous offender, as now defined by subsection
(b)(4) in the statute, other conditions must be present: (a) that the crimes involved
aggravating circumstances; (b) that consecutive sentences are a necessary means
to protect the public from the defendant; and (c) that the term reasonably relates to
the severity of the offenses.
In State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995), our high
court reaffirmed those principles, holding that consecutive sentences cannot be
required of the dangerous offender "unless the terms reasonably relate[] to the
severity of the offenses committed and are necessary in order to protect the public
(society) from further criminal acts by those persons who resort to aggravated
criminal conduct." The Wilkerson decision, which modified somewhat the strict
factual guidelines for consecutive sentencing adopted in State v. Woods, 814
S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "human
process that neither can nor should be reduced to a set of fixed and mechanical
rules." Wilkerson, 905 S.W.2d at 938. The record must show that the sentencing
principles and all relevant facts and circumstances were considered before the
presumption of correctness applies.
The trial court found consecutive sentences were appropriate because
the defendant was a dangerous offender. We agree. A reasonable inference from
the proof is that the defendant purposefully followed the victims and rammed their
22
vehicle repeatedly, fully aware that the conduct endangered not only the victims but
the occupants of the other vehicles on the road. Moreover, the defendant's prior
criminal record indicates an escalating pattern of criminal behavior. The defendant
was on probation at the time he committed the present offenses. See Tenn. Code
Ann. § 40-35-115(b)(6). Consecutive sentences are necessary to protect society
from further misdeeds by the defendant.
The judgment is affirmed.
________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_____________________________
William M. Barker, Special Judge
_____________________________
James Curwood Witt, Jr., Judge
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