State v. Hester

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED
JANUARY 1998 SESSION

STATE OF TENNESSEE, * C.C.A. NO. 03C01-9704-CR-00144
June 4, 1998
APPELLEE, * HAMILTON COUNTY

VS. * Hon. Stephen M. Bevil, Judge
Cecil Crowson, Jr.
HARVEY PHILLIP HESTER, * (Second Degree Murder--Two Counts;
Attempted Second Degree Murder) Clerk
Appellate C ourt

APPELLANT. *

For Appellant: For Appellee:

Leonard M. Caputo John Knox Walkup
312 Vine Street Attorney General and Reporter
Chattanooga, TN 37403 450 James Robertson Parkway
(on appeal and at trial) Nashville, TN 37243-0493

Leroy Phillips, Jr. Michael J. Fahey, II
312 Vine Street Assistant Attorney General
Chattanooga, TN 37403 425 Fifth Avenue, North
(at trial) Second Floor, Cordell Hull Building
Nashville, TN 37243-0488

Bates Bryan
Assistant District Attorney
600 Market Street
Courts Building
Chattanooga, TN 37402

OPINION FILED: ____________________

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

GARY R. WADE, 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 this appeal of right, the defendant presents the following issues for our review:

(I) whether the evidence is sufficient to support the
convictions;

(II) whether the trial court committed reversible error by
refusing to charge vehicular homicide as a lesser grade
offense of first degree murder;

(III) whether prosecutorial misconduct occurring during
the trial requires reversal;

(IV) whether the trial court erred by allowing the blood
alcohol test results of two of the victims to be admitted,
where the individuals who conducted the tests were not
called as witnesses; and

(V) whether the trial court erred by imposing the
maximum sentence for each conviction and by ordering
the sentences to be served consecutively.

The trial court committed error by failing to instruct the jury on the

lesser offense of vehicular homicide; thus, the second degree murder convictions

are reversed and new trials ordered. The conviction and sentence for attempted

second degree murder is affirmed.

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

2
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

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

3
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

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

4
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

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."

5
 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

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.

6
 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

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).

7
 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

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.

8
 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

A significant question is whether the trial court committed reversible

error by refusing to charge vehicular homicide as a lesser offense of first degree

murder. First degree murder, second degree murder, voluntary manslaughter,

reckless homicide, and criminally negligent homicide were all charged to the jury.

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 any error by failing to charge vehicular homicide qualifies as

harmless error.

The trial judge has a duty to give a complete charge of the law

applicable to the facts of the case. State v. Harbison, 704 S.W.2d 314, 319 (Tenn.

1986). It is settled law that when "there are any facts that are susceptible of

inferring guilt of any lesser included offense or offenses, then there is a mandatory

duty upon the trial judge to charge on such offense or offenses. Failure to do so

denies a defendant his constitutional right of trial by a jury." State v. Wright, 618

S.W.2d 310, 315 (Tenn. Crim. App. 1981) (citations omitted); Tenn. Code Ann. §

9
40-18-110(a). When there is a trial on a single charge of a felony, there is also a

trial on all lesser offenses, "as the facts may be." Strader v. State, 362 S.W.2d 224,

227 (Tenn. 1962). Trial courts, however, are not required to charge the jury on a

lesser included offense when the record is devoid of evidence to support an

inference of guilt of the lesser offense. State v. Stephenson, 878 S.W.2d 530, 549-

50 (Tenn. 1994); State v. Boyd, 797 S.W.2d 589, 593 (Tenn. 1990); State v.

Dulsworth, 781 S.W.2d 277, 287 (Tenn. Crim. App. 1989).

Trial judges should instruct on lesser offenses charged in the

indictment whether requested to do so or not. Tenn. Code Ann. § 40-18-110(a).

Failure to instruct on a lesser offense denies a defendant his constitutional right to

trial by jury. Wright, 618 S.W.2d at 315.

In State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996), our supreme

court ruled as follows:

Tennessee law recognizes two types of lesser offenses
that may be included in the offense charged in the
indictment: offenses necessarily included in the
indictment and offenses that are lesser grades of the
charged offense. An offense is "necessarily included in
the indictment ... only if the elements of the included
offense are a subset of the elements of the charged
offense and only if the greater offense cannot be
committed without also committing the lesser offense."

Id.

Our supreme court also provided guidance on how to determine

whether an offense is a lesser grade or class of the offense charged: "[o]ne need

only look to the statutes to determine whether a given offense is a lesser grade or

class of the crime charged." Id. at 310. The court observed that the legislature has

divided criminal homicide "into the grades of first-degree murder, second-degree

10
murder, voluntary manslaughter, criminally negligent homicide, and vehicular

homicide." Id. Our statutory law, section 39-13-201, Tenn. Code Ann., established

the grades of homicide recognized when the defendant committed these crimes:

"criminal homicide is the unlawful killing of another person which may be first degree

murder, second degree murder, voluntary manslaughter, criminally negligent

homicide or vehicular homicide."

Voluntary manslaughter is a lesser grade of first degree murder. It is

not a lesser included offense because manslaughter contains elements that are not

found in first degree murder. It is a lesser grade offense, however, pursuant to

statute. Trusty, 919 S.W.2d at 311.

Vehicular homicide, like manslaughter, is not an offense necessarily

included in the indictment charging premeditated first degree murder; however,

under the guidelines established by our supreme court, we are compelled to

recognize that vehicular homicide is a lesser grade offense of first-degree murder.

In Trusty, our supreme court held unequivocally that "defendants are entitled to jury

instructions on all lesser included offenses ... and on all offenses which are a lesser

grade or class of the charged offense." Id. at 311.

Here, the defendant was charged with first degree murder. The lesser

offenses of second degree murder, voluntary manslaughter, reckless homicide, and

negligent homicide were properly included in the jury charge. Vehicular homicide, a

lesser grade of first degree murder, was not. A Class C felony, it is defined as "a

reckless killing of another by the operation of an automobile ...: [a]s the proximate

result of conduct creating a substantial risk of death or serious bodily injury to a

person." Tenn. Code Ann. § 39-13-213(a).

11
 The defendant argues the "facts in this case clearly required the Court

to charge the jury as to the issue of vehicular homicide." He also submits that "the

entire State's case [] was based upon the fact that [the defendant] killed ... two men

... and injured the young lady ... by the use of his automobile in a manner such as to

create a substantial risk of death or serious bodily injury to the victims." Under the

facts presented at trial, it is plausible that the jury could have determined the victims'

deaths resulted from the substantial, unjustified risks taken by the defendant. The

defense theory was that the Sernas had committed a robbery and the defendant

was attempting to force them to stop their vehicle. The defendant claimed that his

collision with the Serna vehicle was minor.

Although the evidence is sufficient to support the second degree

murder convictions, there were facts that could have been classified as a reckless

killing of another by the operation of an automobile as the result of "conduct creating

a substantial risk of death or serious bodily injury." Tenn. Code Ann. § 39-13-

213(a). Those facts might have warranted a conviction for vehicular homicide. As

the trial judge acknowledged, the facts of this case warranted an instruction on

vehicular homicide. His concern about the form of the indictment was without basis.

Because vehicular homicide is a lesser grade offense of first-degree murder, the jury

should have been allowed to consider that option. Tenn. Code Ann. § 40-18-110;

Trusty, 919 S.W.2d at 310.

We now address the state's argument that the court's failure to charge

vehicular homicide was harmless error. The state makes the following argument as

to why the error is harmless:

Error associated with a trial court's failure to
charge a lesser offense is harmless when the jury finds
the defendant guilty of the greater offense and rejects
other lesser offenses that are greater offenses than the

12
 one requested and were included in the instructions. In
this case, the jury rejected the offense of voluntary
manslaughter which is a greater offense than vehicular
homicide. Thus, the failure to instruct on vehicular
homicide is harmless.

It is true that failure to instruct a lesser offense may be harmless when

the jury finds the defendant guilty of the greater offense and rejects other lesser

included offenses that are greater offenses than the one requested. State v. Atkins,

681 S.W.2d 571, 577 (Tenn. Crim. App. 1984). That is not, however, the case in

this instance. Voluntary manslaughter is not a greater offense than vehicular

homicide; both offenses are Class C felonies. See Tenn. Code Ann. § 39-13-211,

-213. Each offense is of an equal grade and includes a Range I sentence of three

to six years. Tenn. Code Ann. § 40-35-112(a)(3).

That the jury rejected voluntary manslaughter does not lead to the

inevitable conclusion that the jury would have also rejected vehicular homicide. It is

likely that the jury concluded there was not adequate provocation on the part of the

victims to return a verdict of voluntary manslaughter. The state made a compelling

argument that there was no justification for the defendant's conduct and that his

claim that he was robbed and assaulted by the Sernas was not credible. The

prosecution asked, "Are these lives worth more than ... $2,200? That's what this

trial is about." The state contended that a robbery, if one occurred, would not justify

the actions of the defendant. A determination that there was not provocation would

not have foreclosed a vehicular homicide verdict.

That the jury convicted of second degree murder suggests the jury did

not wholeheartedly embrace the first degree murder theory of the state. The

harmless error analysis approved in Atkins was applied to an indictment for first

13
degree murder, a conviction for first degree murder, and the failure of the trial judge

to charge voluntary or involuntary manslaughter.1 Atkins, 681 S.W.2d at 572. This

court ruled first, there was no evidence to support a manslaughter instruction, and

secondly, the rejection of second degree murder would foreclose the possibility of a

lesser grade offense. Id. at 577.

In Whitmore, the defendant was indicted in separate counts with

premeditated murder and felony murder. The jury convicted on both counts and

declined to return a verdict on second degree murder or voluntary manslaughter.

This court found that the failure to charge criminally negligent homicide was

harmless. State v. Frank Whitmore, No. 03C01-9404-CR-00141, slip op. at 33

(Tenn. Crim. App., at Knoxville, June 19, 1997), perm. to app. filed, Aug. 20, 1997.

In each of these cases, the defendant was convicted of the highest offense charged

and the jury rejected a lesser offense that was higher than the requested instruction.

The state also argues that the error was harmless because the jury

was instructed on reckless homicide, a Class D felony. The state contends the jury

was allowed to consider but rejected the defendant's theory that the killings were

reckless. Again, we cannot agree. The instruction on reckless homicide made no

reference to the operation of a vehicle in a reckless manner. Vehicular homicide

necessarily requires the reckless use of a vehicle. That the jury did not find a

reckless homicide does not mean that the jury would not have found a reckless

killing by the use of a vehicle.

1
The law in effect when the Atkins homicide occurred defined manslaughter as "the unlawful
killing of an othe r witho ut m alice . .. whic h m ay be e ither v olunt ary up on a s udd en he at, or in volun tary,
but in the comm ission of some unlawfu l act." Tenn. Code Ann. § 39-2-221 (rep ealed 1989).

14
 The guiding principle is that if there is evidence in the record from

which the jury could have concluded that the lesser included or grade of offense was

committed, there must be an instruction for the lesser offense. See Johnson v.

State, 531 S.W.2d 558, 559 (Tenn. 1975). To rule otherwise would effectively

deprive any defendant of a jury trial on the lesser offense. That is a constitutional

entitlement.

Recently, Judge Welles spoke for this court in its determination that an

omission of a lesser included offense from the charge to the jury always requires a

new trial. State v. Boyce, 920 S.W.2d 224, 227 (Tenn. Crim. App. 1995). The

opinion included a quote from Poole v. State, 61 Tenn. 288, 294 (1872):

However plain it may be to the mind of the Court that one
certain offense has been committed and none other, he
must not confine himself in his charge to that offense.
When he does so he invades the province of the jury,
whose peculiar duty it is to ascertain the grade of the
offense. However clear it may be, the Court should
never decide the facts, but must leave them
unembarrassed to the jury.

Boyce, 922 S.W.2d at 227.

By refusing to charge the jury on vehicular homicide, the court invaded

the province of the jury. The grade of homicide was a jury question. We cannot

conclude the failure to charge it was harmless beyond a reasonable doubt. In

consequence, the murder convictions must be reversed and remanded for a new

trial.

The defendant also argues that the jury could have reasonably found

that the defendant committed vehicular assault on Angela Serna. He implies that

the trial court erred by failing to charge vehicular assault as a lesser offense of

attempted first-degree murder. Yet, vehicular assault is not a lesser grade of

15
attempted first-degree murder. Trusty, 919 S.W.2d at 307. Nor is it a lesser offense

necessarily included in the indictment. Id. The attempted second degree murder

conviction is affirmed.

III

As his third issue, the defendant claims that the prosecutor was guilty

of misconduct during the trial. The defendant complains that the prosecutor

improperly "branded" a defense witness "as a thief and implied a totally false and

improper theory" of the case. The defendant also argues the prosecutor improperly

argued the jury was "to determine the value of life in this community."

One of the defense witnesses, David Blackburn, claimed that he was

present during the incident and testified that he had seen the defendant with a large

amount of cash in his wallet earlier in the day. On cross-examination, Blackburn

admitted to having prior convictions for possession of marijuana for resale, theft

under $500, and robbery. In a jury-out hearing, the trial court ruled that these prior

convictions could be used only to "impeach[] his credibility."

In closing argument, however, the following exchange took place:

Prosecutor: What would be more reasonable? Would it
be more reasonable that, let's say, someone who is a
thief, a robber, a drug dealer who is out of work, and
knows that his friend has some money to buy tires--

Defense Counsel: Excuse me. I object to his use of that
in that manner. It was only admitted for credibility
purposes, not for the purposes he's using it for.

***

Court: I'll sustain the objection to the term drug dealer.

Prosecutor: Is it more reasonable that thief friend of Mr.
Hester, who had access to the wallet, took the wallet.

16
 ***

Prosecutor: Are these lives worth more than ... $2,200?
That's what this trial is about. This trial is about do you
want the kind of trials Mr. Hester offers? If everybody got
that trial, Mr. Blackburn would have been killed years ago
for his theft convictions.

Defense Counsel: Objection, Judge.

Court: Sustained. I'll sustain that objection. Ask the jury
to disregard that last statement.

***

Prosecutor: Also, ... if you believe that the Sernas are
traveling down the mountain and they throw that wallet
out of their car, and behind this is Mr. Hester and his
buddy Blackburn, who is out of work, and with his kind of
record, and they don't stop and grab that wallet--

Defense Counsel: Objection. Again I object. He's using
the record in an improper manner. It's only been
admitted for one purpose.

Court: Sustain the objection.

***

Prosecutor: What is a human life worth in this county?

Defense counsel: Objection. That is totally improper.

Court: Sustained.

Our supreme court recently reaffirmed several well-established

guidelines which control closing argument:

We have recognized that closing argument is a
valuable privilege for both the State and the defense and
have allowed wide latitude to counsel in arguing their
cases to the jury. Nonetheless, closing argument is
subject to the discretion of the trial judge, and must be
temperate, predicated on evidence introduced during the
trial, and relevant to the issues being tried.

State v. Ronnie Michael Cauthern, _____ S.W.2d _____, No. 02S01-9612-CC-

00108, slip op. at 18 (Tenn., at Jackson, Mar. 23, 1998) (citations omitted).

17
 The state's argument that Blackburn was a thief who took the wallet

violated the trial court's admonishment that the prior convictions be used only for

impeachment. The prosecutor argued that Blackburn, as a convicted felon, had a

greater propensity to have committed the theft. See Tenn. R. Evid. 404.

The prosecutor's argument about the value of "human life in this

county" was also improper. Appeals for the jury "to act as the community

conscience are not necessarily impermissible." State v. Pulliam, 950 S.W.2d 360,

368 (Tenn. Crim. App. 1996), app. denied, (Tenn. 1997). In Pulliam, the court

established the following guideline:

The fairness or unfairness of comments appealing to the
national or local community interests of jurors in a given
instance will depend in great part on the nature of the
community interest appealed to, and its relationship to,
and the nature of, the wider social-political context to
which it refers. The correlation between the community
interest comments and the wider social-political context
to a large extent controls the determination of whether an
appeal is deemed impermissible because it is calculated
to inflame passion and prejudice.

Id. (quoting United States v. Solivan, 937 F.2d 1146, 1154 (6th Cir.1991)). Because

the arguments for the state about the value of a human life were designed to

"inflame passion and prejudice," it exceeds the bounds of propriety.

In our assessment, however, any misconduct on the state's part did

not affect the jury's verdict in this case. The test to be applied in reviewing a claim

of prosecutorial misconduct is "whether the improper conduct could have affected

the verdict to the prejudice of the defendant." Harrington v. State, 385 S.W.2d 758,

759 (Tenn. 1965). The factors, set out in Judge v. State, 539 S.W.2d 340, 344

(Tenn. Crim. App. 1976), and adopted by the Tennessee Supreme Court in State v.

Buck, 670 S.W.2d 600, 609 (Tenn. 1984), are as follows:

18
 (1) the conduct complained of, viewed in light of the facts
and circumstances of the case;

(2) the curative measures undertaken by the court and
the prosecution;

(3) the intent of the prosecutor in making the improper
statement;

(4) the cumulative effect of the improper conduct and any
other errors in the record; and

(5) the relative strength or weakness of the case.

While the conduct was inappropriate, the trial court sustained

objections made by the defense and instructed the jury to disregard certain of the

comments. For the most part, the prosecutor disregarded the ruling limiting the

convictions to impeachment purposes. Because of his repeated refusal to comply

with the trial court's orders, this factor weighs heavily for the defense. The

cumulative effect of the misconduct was minimal. The final argument is a very small

part of the record, only two pages out of a seven-hundred page transcript. Finally,

the state presented a compelling case against the defendant. Regardless of

whether there had been a theft, the defendant either recklessly or intentionally

misused his vehicle in a manner that caused the death of two of the victims and

serious injuries to a third. In our view, the misconduct had no effect on the verdict.

IV

The defendant next complains that the trial judge erred by allowing

medical examiners, who had not administered the tests, to testify about the victims'

blood alcohol content at the time of the wreck. He complains this amounts to

inadmissible hearsay and violates his right to confront adverse witnesses.

19
 During the cross-examination of Officer Russell, defense counsel

established that a twelve-pack of beer may have been in the victims' automobile.

Pictures of empty beer cans were also admitted into evidence. The state sought to

admit medical records of the autopsy which indicated fairly low blood alcohol

contents at the time of the wreck. The trial court ruled that defense counsel, by its

reference to the victims' possession of alcohol, made the blood alcohol content

relevant and that the test results were admissible under Tenn. R. Evid. 803(6), the

"business records" exception to the hearsay rule.

Dr. King, who performed an autopsy on Richard Serna several months

after the car wreck, testified that when he performs an autopsy, he reviews all

medical records to determine the cause of death. Emergency room records

indicated a .032 percent blood alcohol content. Dr. King admitted, however, that the

victim's blood alcohol level at the time of the accident "played no role" in his

determination of the cause of death.

Dr. Harlan testified that when he began performing the autopsy on

Paul Serna, on August 9, 1994, he withdrew a sample of the victim's blood and

arranged for the Tennessee Bureau of Investigation to conduct a blood alcohol

analysis. The test registered a .03.

Hearsay, of course, is generally not admissible. Tenn. R. Evid. 802. It

is defined as "a statement, other that one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted."

Tenn. R. Evid. 801(c). The "business records" exception to the hearsay rule

provides as follows:

Records of Regularly Conducted Activity.--A
memorandum, report, record, or data compilation in any

20
 form of acts, events, conditions, opinions, or diagnoses
made at or near the time by or from information
transmitted by a person with knowledge and a business
duty to record or transmit if kept in the course of a
regularly conducted business activity and if it was the
regular practice of that business activity to make the
memorandum, report, record, or data compilation, all as
shown by the testimony of the custodian or other
qualified witness, unless the source of information or the
method or circumstances of preparation indicate lack of
trustworthiness. The term "business" as used in this
paragraph includes every kind of business, institution,
association, profession, occupation, and calling, whether
or not conducted for profit.

Tenn. R. Evid. 803(6).

Medical records may fall within the business records exception, as

long as the appropriate foundation is established. Witter v. Nesbit, 878 S.W.2d 116,

122 (Tenn. App. 1993). One authority states the rule as follows:

Their declarations are admissible insofar as pertinent to
the regular course of hospital business. The jury can
assume the nurse recorded [the patient's] words
accurately. Likewise, the jury can take the doctor's
diagnostic opinion as true .... The jury may also consider
the lab test results as true.

Neil P. Cohen et al., Tennessee Law of Evidence, § 803(6).11, at 566 (3d ed. 1995).

Here, there was an inadequate foundation for Dr. King's testimony.

The rule requires the "custodian [of the records] or other qualified witness." Tenn.

R. Evid. 803(6). A witness is not qualified to lay the foundation unless he or she is

"personally familiar with the business's record-keeping systems." Alexander v.

Inman, 903 S.W.2d 686, 700 (Tenn. App. 1995) (emphasis added). The witness

should also be "able to explain the record keeping procedures." Id.

Dr. King was not an employee of Erlanger Hospital, where the blood

alcohol examinations on Richard Serna took place. No effort was made to show

21
that he had any first-hand knowledge of the record-keeping procedures at the

hospital. Thus, the trial court erred by allowing Dr. King to testify to the test results

under Tenn. R. Evid. 803(6). See Cobble v. McCamey, 790 S.W.2d 279, 283

(Tenn. App. 1989) ("[T]he purported business records cannot prove themselves").

Dr. Harlan's testimony should not have been admitted for different

reasons. The test performed by the TBI was apparently conducted in anticipation of

litigation. Generally, business records are reliable because "they are 'prepared for

other use and only incidentally found pertinent to litigation.'" State v. Henderson,

554 S.W.2d 117, 120 (Tenn. 1977) (quoting People v. Hobson, 119 N.W.2d 581,

588 (Mich. 1963)). That does not appear to be the case here. Moreover, the state

made no effort to establish a foundation for the admission of the record. Finally,

Rule 803(3), which provides that public records are admissible, excludes "matters

observed by police officers and other law enforcement personnel."

The United States Constitution provides the right "to be confronted

with witnesses." U.S. Const. amend. VI. The Tennessee Constitution provides the

right "to meet witnesses face to face." Tenn. Const. art. I, § 9. If interpreted literally,

these clauses would bar admission of several different types of evidence which are

exceptions to the hearsay rule. Ohio v. Roberts, 448 U.S. 56, 63 (1980). The

United States Supreme Court has ruled, however, that the clause does not bar

admission of evidence that "falls within a firmly rooted hearsay exception." Id. at 66.

In Roberts, the court allowed an exception only upon a showing of (1) unavailability

of the witness and (2) reliability. Id. Later, however, the Supreme Court ruled that

"where the proffered hearsay has sufficient guarantees of reliability to come within a

firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied."

White v. Illinois, 502 U.S. 346, 356 (1992).

22
 In Henderson, 554 S.W.2d at 119-20, our supreme court ruled that

toxicology reports indicating the presence of illegal drugs could not be admitted

through a witness other than the one that performed the test. Our supreme court

ruled that hearsay is inadmissible in a criminal trial unless (1) the evidence is not

crucial to proving the state's case; (2) the witness is unavailable; and (3) the

evidence has its own indicia of reliability. In Henderson, the court concluded the

toxicologist's report could not be considered a business record because it was

prepared in anticipation of litigation. Id. at 120. The court emphasized that the

report was the only trial evidence establishing that the drugs were illegal.

This court has held that the Henderson test does not apply to

statements that fall within a firmly rooted hearsay exception. State v. Joseph T.

Alley, No. 02C01-9405-CC-00100, slip op. at 6 (Tenn. Crim. App., at Jackson, June

18, 1997), app. denied (Tenn., Mar. 2, 1998). See also State v. Kenneth Antonio

Lillard, No. 01C01-9602-CC-00051 (Tenn. Crim. App., at Nashville, Feb. 12, 1997).

As early as 1874, the United State Supreme Court made mention of

the "rule which governs the admissibility of entries made by private parties in the

ordinary course of their business." Chaffee v. United States, 85 U.S. 516, 541

(1873). Federal courts have held the "business records" exception is firmly

established. United State v. Norton, 867 F.2d 1354, 1363 (11th Cir. 1989). In

Norton, the Eleventh Circuit Court made the following ruling:

[W]e find the business records exception to the hearsay
rule to be "firmly enough rooted in our jurisprudence" to
satisfy the requirements of the Confrontation Clause
where, as here, the document was properly admitted
under the exception. "Properly administered the
business and public records exceptions would seem to
be among the safest of the hearsay exceptions."

23
Id. (citations omitted). Other federal courts have followed suit: "The business

records exception is a firmly rooted hearsay exception .... Therefore, if the records

are admissible under the business records exception, no violation of the

Confrontation Clause occurred." United States v. Ismoila, 100 F.3d 380, 392 (5th

Cir. 1996).

Tennessee courts have long recognized the business records

exception. Bolden v. State, 203 S.W. 755 (Tenn. 1918). In Bolden, our supreme

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.

24
 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

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

25
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

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).

26
 (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

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

27
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

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.

28
 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

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 criteria2 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

2
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.

29
 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;

(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

30
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

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.

Because the trial court failed to instruct the jury on all the possible

lesser grades of offenses as required by law, we must reverse the second degree

murder convictions and remand for a new trial. Otherwise, the judgment is affirmed.

_________________________________
Gary R. Wade, Judge

31
CONCUR:

_____________________________
William M. Barker, Judge

_____________________________
Curwood Witt, Judge

32