IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
FEBRUARY 1997 SESSION
February 4, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. 03C01-9608-CR-00302
)
) Hamilton County
v. )
) Honorable Stephen M. Bevil, Judge
)
CHARLES FRANK BANKSTON, ) (Second degree murder and reckless
) endangerment with a deadly weapon)
)
Appellant. )
For the Appellant: For the Appellee:
Don W. Poole Charles W. Burson
732 Cherry Street Attorney General of Tennessee
Chattanooga, TN 37402 and
Elizabeth T. Ryan
Assistant Attorney General of Tennessee
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
William H. Cox
District Attorney General
and
David Denny
Assistant District Attorney General
600 Market Street
Chattanooga, TN 37402
OPINION FILED:____________________
CONVICTIONS AFFIRMED; SENTENCE FOR SECOND DEGREE MURDER
MODIFIED
Joseph M. Tipton
Judge
OPINION
The defendant, Charles Frank Bankston, appeals as of right following his
convictions by a jury in the Criminal Court of Hamilton County of second degree
murder, a Class A felony, and reckless endangerment with a deadly weapon, a Class E
felony. He received sentences of twenty-five years and two years to be served
concurrently in the custody of the Department of Correction. The defendant presents
the following issues for our review:
(1) whether the indictment is sufficient;
(2) whether the evidence is sufficient to support the
defendant’s convictions;
(3) whether the trial court erred by denying the defendant’s
motion for a change of venue;
(4) whether the defendant was denied a fair trial when the trial
court limited the defendant’s questioning of two potential jurors
during voir dire;
(5) whether the trial court erred by failing to dismiss the case
on the grounds of double jeopardy;
(6) whether the trial court erred by refusing to allow testimony
and refusing to instruct the jury regarding the legal
presumptions of people with certain blood alcohol levels;
(7) whether the trial court erred in its charge to the jury
regarding multiple indictments and the definitions of reckless
and knowing;
(8) whether the statute providing for instructing the jury about
parole eligibility, T.C.A. § 40-35-201(b), is unconstitutional;
(9) whether the trial court erred in its charge to the jury by
incorrectly calculating the minimum number of years the
defendant would spend in jail;
(10) whether the trial court erred by admitting certain evidence
at the sentencing hearing; and
(11) whether the trial court erred in sentencing by applying
certain aggravating factors, failing to apply certain mitigating
factors, and imposing an excessive sentence.
2
We conclude that the convictions should be affirmed but the sentence for second
degree murder should be modified.
Steve Gentry testified that on August 26, 1994, he and his friend, Dr. Don
Jezewski, met at the Ocean Avenue Cafe in Chattanooga at about 6:15 p.m. He said
they each drank about six bourbon and cokes and ate a sampler platter, which is a
large dish. He said they left the restaurant at about 8:45 p.m. and went toward
Jezewski’s car in the parking lot. He said that as they were walking, Jezewski saw the
defendant, whom neither of them knew, and said the defendant was too drunk to drive.
He said Jezewski suggested they talk to the defendant.
Gentry testified that the defendant was driving a red Camaro. He said
that Jezewski approached the defendant and told him, “My friend, I think you shouldn’t
be driving home. You’ve had too much to drink.” He said Jezewski was not threatening
the defendant. He said the Camaro door on the driver’s side was open, and he and
Jezewski were standing in the doorway. He testified that the defendant replied that he
was fine and could drive. He said the defendant was slurring his words. He said that
the conversation between Jezewski and the defendant was pleasant. Gentry testified
that he told the defendant his car was pretty, and it would be a shame to mess it up.
He said Jezewski asked the defendant where he lived and offered to drive the
defendant home. He said the defendant refused, insisting that he was fine to drive. He
said the defendant appeared to understand everything they were saying to him, and he
gave logical responses to their questions.
Gentry testified that after Jezewski offered to pay for a taxi cab to drive
the defendant home, which he refused, the defendant started to back up. Gentry stated
that the driver’s side door was open, and Jezewski told the defendant he was not going
to let him close his door. He said the tone of the conversation between the two men
3
was still pleasant. He said the defendant continued to back out, and his door became
wedged between the front and back door of an adjacent car, causing the defendant’s
car to become stuck. Gentry said the defendant continued to accelerate, causing his
wheels to spin, and he told Jezewski that they should let the defendant drive home. He
testified that the defendant then let up on the gas and accelerated quickly, causing the
driver’s side door side to bend back then disengage, hitting him and Jezewski. He said
the force of the hit knocked him across the parking lot. He said that when he got up, he
saw Jezewski lying under the defendant’s car, and the back right wheel of the
defendant’s car ran over Jezewski. He said the defendant had to accelerate to do this.
Gentry testified that Jezewski sat up, looked around, and saw that blood
was coming from his mouth. He said he went over to Jezewski and asked him if he was
all right, but Jezewski lay back down. He said he called for an ambulance and in the
meantime, the defendant veered to the left, struck another car, and he left the parking
lot. Gentry said that nothing was obstructing the defendant’s view of Jezewski. He said
that he drank with Jezewski on several occasions and that Jezewski never became
belligerent or confrontational when he drank. He said he sustained one broken rib and
a bruised growth plate in his rib as a result of the accident.
On cross-examination, Gentry admitted that he and Jezewski each had six
drinks. He said that Jezewski weighed about two hundred and forty pounds, and he
weighs two hundred and twenty pounds. He admitted that he did not see the defendant
as the defendant was getting into his car and that he relied on Jezewski’s initial
observations of the defendant. Gentry said the defendant’s slurred speech was the
reason he decided the defendant should not be driving. He said he did not see the
defendant walk nor did he smell alcohol on the defendant. He said the parking lot was
close to a freeway and that it was noisy.
4
Tracy Cook testified that he arrived at the Ocean Avenue Cafe around
5:30 p.m. and left at around 9:00 p.m. He said that as he entered the parking lot, he
saw a car that appeared to be in reverse, and the driver was accelerating. He said
there was smoke coming from the back of the car. He said that two men were leaning
over talking to the driver. He said that one of the men was leaning into the car. He said
the defendant disengaged the brake, throwing one man across the parking lot and
knocking the other over. He said that Jezewski looked like he was trying to move away
from the front of the Camaro. He said Jezewski was getting up on all fours, his knees
were off the ground, and he was almost standing up when the Camaro went forward
and ran over Jezewski. He said the Camaro continued and hit another car, and his wife
got the defendant’s license plate number. He said that when he went to check on
Jezewski, he was semiconscious and was trying to talk. He said he had an
unobstructed view of Jezewski before he was hit, and he did not see anything that
would prevent the defendant from seeing Jezewski.
On cross-examination, Cook admitted he had four or five beers, possibly
as many as seven, between the hours of 6:00 and 9:00 p.m. He said that he had a
small buzz. He also said Jezewski was leaning close to the defendant inside the car.
Randy Murray testified that he arrived at the Ocean Avenue Cafe at about
5:00 p.m. and had a seafood salad and three drinks. He said that when he went to the
parking lot, he heard tires squealing. He said the defendant floored the accelerator
while the car was in reverse, throwing Jezewski into the middle of the parking lot. He
said the defendant then moved forward at a regular pace. He said Jezewski was on his
hands and knees getting up when the defendant ran over him. He said Jezewski was
able partially to stand up before he was hit, and Jezewski’s hands were on the hood of
the car. He said the defendant accelerated as fast as he could go when he ran over
Jezewski.
5
On cross-examination, Murray admitted that he had one beer at a golf
course the afternoon of the accident. He said the defendant’s car door appeared
closed. He admitted giving a statement to the police in which he said the Camaro came
to a stop while backing up, then someone jumped in front of the Camaro. He said he
meant that Jezewski was on his hands and knees and jumped up from the pavement so
the defendant could see him.
Sheila Murray testified that she met Randy Murray at the restaurant at
about 8:00 p.m. She said she did not have anything to drink that night. She said when
they went to the parking lot, she heard the defendant revving his engine. She said she
saw Gentry and Jezewski standing between the defendant’s car and another car. She
said the defendant sped backwards, causing Gentry to be thrown to the back of the car
and Jezewski to be thrown in front. She said there was nothing obstructing the
defendant’s view. She said Jezewski was off the ground and in front of the Camaro,
and he either had his hands on the car or was trying to get his hands on the car when
the defendant ran over him.
Herman Stout testified that he had about five or six beers at the restaurant
that night, along with appetizers and a meal. He said that when he went to the parking
lot, he saw the defendant’s car go backwards, slinging Jezewski into the middle of the
parking lot. He said there was nothing obstructing the defendant’s view. He said the
defendant went forward and ran over Jezewski, who was on his hands and knees. On
cross-examination he admitted that the defendant appeared to drive fine when he left
the parking lot. He also admitted that in his report to the police, he did not write that the
defendant ran over Jezewski.
Dr. Frank King, the medical examiner for Hamilton County, testified that
he examined Jezewski’s body and determined that Jezewski died of multiple injuries.
6
He said Jezewski had multiple abrasions, bruises, and bone fractures. He said
Jezewski’s chest cavity was crushed, he had a fractured pelvis, and there was bleeding
in his body, chest cavity, and pelvis. He said Jezewski’s blood alcohol content based
on a blood sample was .05 percent, and a vitreous fluid sample test registered .07. He
said that an earlier blood alcohol test performed at 9:40 p.m. when Jezewski was
admitted to the hospital registered .10 percent. He said Jezewski weighed two hundred
and twenty-six pounds.
On cross-examination, Dr. King said that Jezewski’s blood alcohol content
was probably .11 to .12 percent at the time of the accident. He said blood alcohol
content at that level can cause decreased inhibition, altered judgment, slowed reaction
time, incoordination, slurred speech, and sedation. He said Jezewski’s blood alcohol
content indicated that he had between six and eight drinks within a two and one-half
hour period. He said the impact that caused Jezewski’s death was a very low speed
impact. He testified that if a person weighing one hundred and sixty to one hundred
and seventy pounds drank two beers in two hours after consuming four to five beers
four hours earlier, that person’s blood alcohol content would be less than .05 percent.
Officer William Neblette of the Chattanooga Police Department’s D.U.I.
Task Force testified that he took pictures and interviewed witnesses at the scene. He
said that none of the witnesses appeared drunk or impaired. He said Officer Robert
Simpson notified him that the defendant’s car had been located, and he went to the
defendant’s house. He said that when he arrived, Officer Simpson had the defendant
in custody in Simpson’s car. He said he went to talk to the defendant and as soon as
he opened the door, he noticed the odor of alcohol. He said the defendant’s head was
moving from side to side, his eyes were watery and bloodshot, and he seemed
unsteady. He said he would not have wanted to drive on the same road as the
defendant that night.
7
Officer Neblette testified that he saw the defendant later that night in jail.
He said the defendant was as impaired if not more impaired than he was earlier that
night. He said the defendant was unsteady, his eyes were watery and bloodshot, his
speech was affected, and he smelled strongly of alcohol.
On cross-examination, Officer Neblette said that six drinks would probably
result in a blood alcohol content of close to .10 percent. He admitted that he did not
ask any of the witnesses how much they had to drink that night. He said one of the
factors he used to determine that the defendant was intoxicated was the defendant’s
speech.
Officer Robert Simpson, also of the D.U.I. Task Force, testified that he
located the defendant’s car at the defendant’s house. He said that when the defendant
came to the door, he was eating a sandwich and seemed surprised to see a police
officer. He said the defendant smelled of alcohol, his speech was muddled, and there
was a small abrasion on his forehead. He said that his police car had video equipment
and that he wore a wireless microphone and recorded his conversation with the
defendant that night.
The jury listened to the audio portion of the tape because the camera was
pointed away from the defendant during the conversation. In the audiotape, Officer
Simpson asked the defendant how his car became damaged. The defendant
responded that earlier that night, he thought he was going to be robbed. He told Officer
Simpson that two men were at Ocean Avenue and approached him. He said he told
the men he was going home, but the men told him they wanted to talk to him. He said
he told them no, pushed the gas, and the tires squealed. The defendant said he told
the men to get out of the way, backed up, put the car in drive, then went forward and hit
one of the men. He admitted that he had something to drink after he came home. He
8
laughed and told Officer Simpson that his address was too easy to find. Officer
Simpson testified that it was obvious the defendant was drunk. He said he arrested the
defendant for being drunk in public in order to keep the defendant from leaving.
On cross-examination, Officer Simpson said that one reason he thought
the defendant was intoxicated was because of the defendant’s muddled speech. He
said the defendant’s car was not hidden from view. He also said the defendant told him
he had hit somebody, not run over somebody. He said he saw a liquor bottle on the
table but no other evidence that the defendant had anything to drink at his house.
William Polen, Jr., an audiologist, testified that he treated the defendant in
1985 because the defendant complained of dizziness. He said the defendant had mild
high frequency hearing loss in his right ear and moderately severe high frequency
hearing loss in his left ear. He said the defendant also had a slight difference in speech
discrimination ability between his right and left ear, with his left ear being worse. He
said the defendant had difficulty detecting the presence of high frequency or high pitch
sounds. He said this type of hearing loss would cause one to have difficulty
distinguishing between words that sound alike. He said the defendant would have more
difficulty hearing and understanding others when there was background noise, including
traffic noise. He said that subsequent testing by other doctors revealed a general
worsening of the defendant’s ability to hear sounds in the high frequency range.
On cross-examination, Polen admitted that male voices generally have a
lower pitch and fundamental frequency. He said he had not examined the defendant
within the last year.
Carolyn Hogan, the defendant’s sister, testified that the defendant had
lived with her since the accident. She testified that the defendant has a daughter and a
9
granddaughter. She said the defendant could not hear very well, and she had to repeat
everything two or three times. She also said the defendant has had a stuttering
problem all of his life.
George Griggs, an acquaintance of the defendant, testified that he was at
the Ocean Avenue Cafe the night of the incident. He said he saw the defendant at
about 6:30 or 7:00 p.m. He said he talked to the defendant for about two minutes, and
the defendant did not have any problem talking to him and did not smell of alcohol. On
cross-examination, he admitted telling a detective that he had not been around the
defendant enough in the past to know if the defendant had been drinking that night.
Kimberly Edwards testified that she was working as a waitress at the
Ocean Avenue Cafe the night of the accident, and she waited on the defendant. She
testified that it was happy hour when he arrived, during which customers would receive
two shots of liquor for the price of one or discounts on beer. She said she served the
defendant two beers. She said she had training to recognize people who have had too
much to drink. She said the defendant did not look like he had too much to drink.
On cross-examination, Edwards testified that the defendant could have
ordered drinks from the bar without her knowledge. She admitted that the seafood
sampler is a huge platter, and some people order it as a meal for two people to share.
She said the management of the restaurant was concerned with whether impaired
people were served, and the managers asked her to write a statement detailing her
actions on the night of the accident. She said she was aware that the restaurant was
being sued, although she was not aware the lawsuit was for ten million dollars. She
said the defendant did not pay for his drinks that night.
10
The defendant testified that on the day of the accident, he ran errands
then went to the pool from 2:30 to 4:00 p.m. He said he drank two beers during this
time. He said he went into Georgia to play the lottery then arrived at the Ocean Avenue
Cafe around 7:00 p.m. He said he saw some people he knew at the restaurant, then he
sat down and drank two beers. He said he decided to leave at about 9:00 p.m.
because he had to get up early for work the next morning. He said he thought he had
paid for his drinks.
He said he got into his car in the parking lot, and Jezewski and Gentry
approached him. He said he did not know them and had never seen them before. He
said he thought he was going to be carjacked and robbed. He testified that they said
they wanted to talk to him, but he told them he did not want to, and he was going home.
He said he could not hear all of their conversation. He said he asked them several
times to move out of the way because they were standing in the door preventing him
from shutting the door. He said both men were talking and the freeway was close. He
said he started the car, put it in reverse, and held the brake to “squall” the tires, hoping
they might leave. He said one of the men then told him to get out of the car and
reached inside the car. He said he took his foot off of the brake, went backwards, hit
the man standing in the door, and hit his head on the mirror. He said his car door
became stuck on the adjacent car. He said he did not know what was happening, and
he started forward and hit the adjacent car with his door. He said he did not see
anyone in front of him after he pulled out, and he did not knowingly run over anyone.
He said he did not know that he had run over anyone when he went home.
He said that when he arrived home, he had two big drinks of whisky
because he was “scared to death.” He said he started to change clothes and fix himself
a sandwich when he decided to call the police. He said an officer showed up before he
could make the call. He said he did not know that he had run over Jezewski.
11
On cross-examination, the defendant admitted that he told Officer
Simpson he had hit someone. He said he meant to say that he hit the man while he
was backing up. He admitted that he never stopped to call 9-1-1. He admitted that
neither Gentry nor Jezewski had any weapons. He said that he did not tell Officer
Simpson about the beers he drank earlier in the day.
The stipulated testimony of FBI Agent Wayne Jackson was admitted into
evidence. Jackson defined the federal crime of carjacking.
Marla Clingman testified that she was the manager of a convenience store
in Georgia. She said the defendant would come into her store almost daily to play the
lottery, and he came in between 5:30 and 6:00 p.m. the day of the accident. She said
he stayed about fifteen or twenty minutes. She said he did not buy anything to drink,
and he did not demonstrate that he had been drinking that day. On cross-examination,
she admitted that she was not trained to detect impairment.
I. SUFFICIENCY OF THE RECKLESS ENDANGERMENT INDICTMENT
The defendant contends that the indictment charging reckless
endangerment is insufficient because it does not name a specific victim. In the heading
for this argument in the defendant’s brief, he states that the trial court erred in its charge
to the jury regarding the reckless endangerment indictment. However, his argument is
really two-fold: that the indictment is insufficient because it fails to name a specific
victim, and that the jury could have erroneously concluded that the reckless
endangerment charge applied to Jezewski. He argues that the jury could have
erroneously convicted the defendant of both second degree murder and reckless
endangerment of Jezewski. The state contends that the indictment is sufficient and
that the jurors were adequately apprised that the reckless endangerment charge
applied only to Gentry.
12
Initially, we note that an objection to the indictment should have been
made in a pretrial motion, and the failure to do so may constitute a waiver. See Tenn.
R. Crim. P. 12(b), (f). In any event, the defendant’s contention is without merit. The
indictment alleged that the defendant “did unlawfully and recklessly engage in conduct
which placed or may place another person in imminent danger of death or serious
bodily injury . . . .” Both the state and the defendant proceeded at trial on the theory
that Gentry was the victim of reckless endangerment. Furthermore, there was no risk
that the jury was confused and erroneously convicted the defendant for the reckless
endangerment of Jezewski because the trial court instructed the jury that the reckless
endangerment charge applied only to Gentry. Thus, we conclude that the issue is
waived, and even if it were not, it is without merit.
II. SUFFICIENCY OF THE EVIDENCE
The defendant argues that the evidence is insufficient to support his
convictions for second degree murder and reckless endangerment with a deadly
weapon and that the verdicts are against the weight of the evidence. With respect to
the second degree murder conviction, he contends that there is insufficient evidence to
support a finding that he knowingly ran over Jezewski. With respect to the reckless
endangerment conviction, he contends that the evidence is insufficient to show that he
acted recklessly and that the evidence merely shows that he was trying to get away
from the victims whom he believed were threatening him. The state argues that the
evidence is sufficient.
Our standard of review when the sufficiency of the evidence is questioned
on appeal is "whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789 (1979). This means that we do not reweigh the evidence, but presume that
13
the jury has resolved all conflicts in the testimony and drawn all reasonable inferences
from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547
(Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Second degree murder is defined as a knowing killing of another. T.C.A.
§ 39-13-210(a)(1). “A person acts knowingly with respect to the result of that person’s
conduct when the person is aware that the conduct is reasonably certain to cause the
result.” T.C.A. § 39-11-302(b). We conclude that the evidence is sufficient to support a
finding that the defendant acted knowingly. The evidence presented shows that
Jezewski, who was over six feet tall and weighed about two hundred and forty pounds,
was either upright or almost upright when the defendant ran over him with his Camaro,
a car that sits low to the ground. Several witnesses testified that there was nothing
blocking the defendant’s view of Jezewski. Based on this evidence, the jury could have
concluded that the defendant knowingly ran over Jezewski.
The evidence is also sufficient to support a conviction of reckless
endangerment. Reckless endangerment occurs when a person “recklessly engages in
conduct which places or may place another person in imminent danger of death or
serious bodily injury” and is a felony when committed with a deadly weapon. T.C.A. §
39-13-103. A person acts recklessly when he is aware of, but consciously disregards a
substantial and unjustifiable risk that the circumstances exist or the result will occur.
T.C.A. § 39-11-302(c). “The risk must be of such a nature and degree that its
disregard constitutes a gross deviation from the standard of care that an ordinary
person would exercise under the circumstances as viewed from the accused person’s
standpoint.” Id.
The evidence presented shows that the defendant attempted to back out
of the parking lot while Gentry was standing in his doorway. When the defendant
14
backed out, his door became stuck in an adjacent car. The defendant then continued
to accelerate in an attempt to disengage his door while Gentry was still standing in the
doorway. When the defendant finally disengaged his door, the impact caused Gentry to
be thrown across the parking lot. Based on this evidence, the jury could have
concluded that the defendant acted recklessly. Although the defendant argues that he
presented evidence that he was frightened of the victims and was trying to escape, the
jury accredited the testimony of the state’s witnesses, and its decision will not be
disturbed on appeal.
Finally, we conclude that the trial court did not fail in its capacity as the
thirteenth juror. Once the trial court approves the verdict as the thirteenth juror and
imposes judgment, the review of the evidence on appeal is quite limited, requiring us to
“accredit the testimony of the witnesses for the state and resolve the evidentiary
conflicts in favor of the state.” State v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim.
App. 1993) (citation omitted). When viewed in this light, we conclude that the trial court
did not err by refusing to set aside the verdict or grant the defendant a new trial.
III. CHANGE OF VENUE
The defendant contends that the trial court should have granted his
motion for a change of venue based upon the deluge of prejudicial media coverage
surrounding the incident. He argues that because the publicity permeated Hamilton
County through television, radio and newspapers, it was impossible for him to receive a
fair trial, and the jury’s verdicts of guilt demonstrate that he was prejudiced. He
contends that even if actual prejudice is not shown, the convictions must be set aside
based on the totality of the circumstances. The state argues initially that the defendant
waived the issue by failing to prepare an adequate appellate record that shows he used
all of his peremptory challenges. The state argues that if the issue is not waived, it is
nevertheless without merit because the trial court excused all potential jurors who had
15
read or seen something about the case in the media and could not put it aside.
Furthermore, the state contends that the defendant failed to show prejudice.
With respect to the defendant failing to prepare an adequate record on
appeal, the state asserts that the defendant must show that he used all of his
peremptory challenges before he can complain about jurors’ qualifications. See
Sommerville v. State, 521 S.W.2d 792, 797 (Tenn. 1975). We agree that the record is
unclear about the defendant’s challenges. Nevertheless, we will address the merits of
the issue presented.
The decision of whether to grant a motion for a change of venue based on
pretrial publicity rests within the sound discretion of the trial court and will not be
reversed on appeal unless the trial court abused its discretion. State v. Howell, 868
S.W.2d 238, 249 (Tenn. 1993). Furthermore, the defendant must show that the jurors
were biased or prejudiced against him before his conviction will be overturned on
appeal. State v. Melson, 638 S.W.2d 342, 360-61 (Tenn. 1992). Mere exposure to
news accounts of the incident does not, standing alone, establish bias or prejudice.
Prospective jurors can have knowledge of the facts surrounding the crime and still be
qualified to sit on the jury. State v. Bates, 804 S.W.2d 868, 877 (Tenn. 1991). The test
is “whether the jurors who actually sat and rendered verdicts were prejudiced by the
pretrial publicity.” State v. Kyger, 787 S.W.2d 13, 18-19 (Tenn. Crim. App. 1989).
We conclude that the trial court did not abuse its discretion by denying the
defendant’s motion for a change of venue. During voir dire, each prospective juror was
asked if he or she knew anything about the case from the media. If a juror indicated
that he or she had read, heard, or seen something, both the attorneys and the trial court
questioned the prospective juror on exactly what he or she had heard. Most
prospective jurors said that they vaguely remembered hearing or reading about the
16
incident, but most could not provide details. Several prospective jurors said they did not
know anything about the case. The trial court also asked the prospective jurors if they
had formed an opinion on the defendant’s guilt or innocence based on what they had
heard and whether they could set aside what they had heard and decide the case
based on the evidence at trial. Prospective jurors who indicated that they had formed
an opinion regarding the defendant’s guilt or innocence or could not set aside what they
had heard in the media were excused. Each juror that actually heard the case told the
trial court that they could listen to the evidence and make a decision on the defendant’s
guilt or innocence based on that evidence.
We do not dispute the fact that the incident garnered a lot of media
coverage. One radio station in Chattanooga ran fifty-two news stories, and both
newspapers in Chattanooga printed a combined forty-four stories. However, as this
court has previously recognized, a defendant who commits a serious crime cannot be
expected to remain anonymous in the community. State v. Griffis, 964 S.W.2d 577,
597 (Tenn. Crim. App. 1997). Based on our review of the trial court’s proceedings
during voir dire, we conclude that it did not abuse its discretion by denying the
defendant’s motion for a change of venue. In addition, the defendant has failed to
establish that the jurors selected to serve during his trial were biased or prejudiced
against him in light of the fact that all jurors empaneled expressed that they could listen
to the evidence and base their verdicts on the evidence presented at trial.
IV. VOIR DIRE OF PROSPECTIVE JURORS
The defendant contends that the trial court abused its discretion by
refusing to allow him to voir dire certain prospective jurors individually regarding
whether they felt the defendant could receive a fair trial in Hamilton County.
Specifically, he argues that a prospective juror’s testimony regarding the ability of the
defendant to receive a fair trial amounts to an affidavit averring undue excitement,
17
which can be grounds for a change of venue. See Tenn. R. Crim. P. 21(b). The state
argues that the trial court did not abuse its discretion.
The control of the voir dire is within the sound discretion of the trial court
and will not be found to be error unless the defendant shows that he was prejudiced.
Howell, 868 S.W.2d at 247. We conclude that the trial court did not abuse its
discretion, and defendant has failed to show that he was prejudiced.
The trial court permitted individual questioning of the venire. After
questioning thirty-eight jurors, the defendant asked one juror, who had already
determined that the defendant was guilty based upon pretrial publicity, whether the juror
thought the defendant could receive a fair trial in Hamilton County. Seventeen jurors
later, the defendant sought to ask the same question of a juror who had been excused
because she had already formed an opinion regarding the defendant’s guilt and could
not put it aside. This time, however, the state objected and the trial court sustained the
objection.
We do not believe that the trial court erred by not allowing the defendant
to question prospective jurors who had been dismissed for cause in order to support his
motion for a change of venue. Our supreme court has ruled that the “ultimate goal of
voir dire is to insure that jurors are competent, unbiased, and impartial.” State v.
Cazes, 875 S.W.2d 253, 262 (Tenn. 1994). The two jurors whom the defendant sought
to question regarding whether he could receive a fair trial stated that they had formed
an opinion regarding the defendant’s guilt and could not set it aside. These jurors were
dismissed for cause by the trial court because they were clearly biased. Further
questioning of jurors, who have already been shown to be biased, in order to support a
motion for a change of venue does not further the goal of voir dire, and a trial court’s
decision to deny such questioning is not an abuse of discretion. Cf. State v. Marvin
18
Readus, No. 01-C-01-9006-CR-00141, Davidson County (Tenn. Crim. App. Feb. 13,
1991), applic. denied, (Tenn. July 1, 1991) (holding that Rule 24(b), Tenn. R. Crim. P.,
and T.C.A. § 22-3-101 do not provide a defendant with the right to question prospective
jurors when the record shows the jurors are not competent). Furthermore, in light of the
fact that the jurors who were impaneled stated that they either knew nothing or very
little about the case and could set aside what they knew and base their decision on the
facts presented at trial, we conclude that the defendant has failed to establish
prejudice.
V. DOUBLE JEOPARDY
The defendant contends that the trial court erred by not granting his
motion to dismiss based on double jeopardy. He argues that because the conditions of
his bond before trial constituted punishment, he could not be subsequently tried and
punished for second degree murder and reckless endangerment. The state argues that
the conditions of the defendant’s bond did not constitute punishment.
The double jeopardy clause of the Fifth Amendment to the United States
Constitution provides that no person shall “be subject for the same offense to be twice
put in jeopardy of life or limb . . .” Article 1, § 10 of the Tennessee Constitution provides
that “no person shall, for the same offence, be twice put in jeopardy of life or limb.” In
State v. Pennington, 952 S.W.2d 420, 423 (Tenn. 1997), our supreme court determined
that a policy of detaining for twelve hours suspected drunk drivers who refused to
submit to a breathalyzer test did not constitute punishment for purposes of double
jeopardy. The court noted that “the policy was intended, at least in part, to protect the
public from individuals who had been arrested on suspicion of driving under the
influence. This is a remedial purpose, not a punitive one . . . .” Id.
19
The defendant in the present case was initially released on a thirty-nine
thousand-dollar bond.1 The next day he attempted to rent a car, and the state
requested that the trial court reexamine the defendant’s bond. At the second bond
hearing, the trial court placed the defendant under house arrest by requiring him to
wear an electronic monitor, required him to live with his sister, and prohibited him from
driving a vehicle. The house arrest and prohibition against driving were removed in July
1995 when the trial court determined that the defendant had satisfactorily attended
court appearances.
Initially, we note that the restrictions were reasonable, particularly in light
of the fact that the defendant left the scene of the accident, had four prior convictions
for D.U.I., and attempted to rent a car the day after his initial bond hearing. We also
believe that the conditions of the defendant’s bond in the present case were remedial,
not punitive, in order to ensure the defendant’s appearance at court. Once the trial
court was satisfied that the defendant did not present a risk of flight, the conditions were
removed. Reasonable conditions for bond or pretrial detention do not implicate double
jeopardy concerns.
Also, the defendant cites several civil forfeiture cases in support of his
argument. We believe that those cases are factually inapposite and of no consequence
in light of United States v. Ursery, 518 U.S. 267, 270, 116 S. Ct. 2135, 238 (1996).
1
We note that the information regarding the conditions of the defendant’s bond comes
from the state’s brief and the defendant’s motion to dismiss because transcripts of the original and second
bon d hea rings were not m ade a par t of the reco rd on appe al. It is th e dut y of the appe llant to prov ide th is
court with tra nscripts neces sary to con vey a fair, acc urate an d com plete acc ount of w hat trans pired with
respect to the issues that are the bases of the appeal. T.R.A.P. 24(b). Nevertheless, we will rely on the
conditions of bond as gleaned from the record we have before us and address the merits of the
defend ant’s argu men t.
20
VI. TESTIMONY AND JURY INSTRUCTION REGARDING
PRESUMPTIONS OF BLOOD ALCOHOL CONTENT LEVELS
The defendant argues that the trial court erred by not allowing the medical
examiner or the officers from the D.U.I. Task Force to testify regarding the legal
presumptions that accompany blood alcohol content levels of .05 percent and .10
percent and by failing to instruct the jury on the legal presumption of those levels. He
argues that the testimony is relevant because it shows that the victims were not thinking
clearly or acting soberly at the time of the accident, and it is relevant to the defendant’s
state of mind in that it supports his claim that he was scared of the victims. He
contends that the evidence supported such an instruction. The state argues that the
defendant never asked the witnesses about the legal presumption of intoxication, and in
any event, the testimony is irrelevant to the defendant’s state of mind. It argues that the
trial court properly denied the requested instruction.
A trial court has discretion in determining the relevance of proffered
evidence, and its decision will not be overturned on appeal absent an abuse of that
discretion. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). In addition, an
accused is entitled to an instruction on every issue that is fairly raised by the evidence.
See State v. Zirkle, 910 S.W.2d 874, 892 (Tenn. Crim. App. 1995) (citations omitted).
Furthermore, a defendant has a right to have every issue of fact raised by the evidence
and material to his or her defense submitted to the jury on proper instructions. Poe v.
State, 370 S.W.2d 488, 489 (Tenn. 1963).
The defendant asked Dr. King, the medical examiner, a hypothetical
question regarding impairment based upon the defendant’s weight and the number of
drinks the defendant claimed he had before the accident. Dr. King testified that if a
person weighing one hundred and sixty to one hundred and seventy pounds had two
beers in the afternoon, then four to five hours later drank two beers over a two-hour
period, that person’s blood alcohol content would be less than .05 percent. Dr. King
21
testified that some individuals would be impaired at that level while others would not.
He also estimated that Jezewski’s blood alcohol level was probably about .11 to .12
percent at the time of the accident.
The defendant sought to elicit from Dr. King and from the officers on the
D.U.I. Task Force that a person with a .10 percent blood alcohol level is presumed to
be intoxicated pursuant to T.C.A. § 55-10-408(a) and that a blood alcohol content of .05
percent means that a person is not legally presumed to be intoxicated. The trial court,
while allowing the defendant to ask hypothetical questions regarding blood alcohol
content levels and their effects, would not allow testimony regarding the legal
presumptions that accompany those levels. The trial court found that the testimony
was not relevant and that the facts of the hypothetical questions were not borne out by
the proof.
With respect to the state’s argument that the defendant did not attempt to
ask the witnesses about the legal presumption, we note that the defendant was
prohibited from so doing by the trial court’s ruling. Next, with respect to the defendant’s
contention that the trial court erred by not allowing the testimony, we conclude that the
trial court did not err. The defendant argues that the legal significance of Jezewski’s
intoxication level is relevant to the defendant’s state of mind because if Jezewski was
intoxicated, he could have been acting in such a way that the defendant was justified in
fearing him. However, we believe that whether Jezewski was under the influence of an
intoxicant is irrelevant, particularly in light of the fact that Dr. King testified regarding the
effect that a blood alcohol content level of .10 percent would have on one’s actions. He
testified that a blood alcohol level of .10 percent would result in decreased inhibition,
altered judgment, slowed reaction time, incoordination, slurred speech, and sedation.
Thus, the testimony regarding the victim’s possible impairment that might arguably
relate to the defendant’s state of mind was admitted. There was no need for the
22
additional, speculative testimony that if Jezewski’s blood alcohol content was .10
percent, he was intoxicated.
The defendant summarily argues that testimony should have been
allowed regarding the legal presumption of a blood alcohol level of .05 percent. The
defendant does not explain, either on appeal or during the trial, why such testimony is
relevant. We conclude that it is not. The fact that the defendant may not have been
under the influence does not make the existence of any fact of consequence to the
determination of the action more or less probable, see Tenn. R. Evid. 401, particularly
in light of the fact that Dr. King testified that a person with a blood alcohol content level
of .05 percent may or may not be impaired depending on the individual.
We also conclude that the trial court did not err by not instructing the jury
on the legal significance of blood alcohol content levels of .05 and .10 percent. The trial
court need not instruct the jury on matters not raised by the proof. State v. Leaphart,
673 S.W.2d 870 (Tenn. Crim. App. 1983) (citations omitted). The amount of alcohol
the defendant had on the day of the accident, as well as the precise blood alcohol
content level of the victim at the time of the accident, is speculative. Although the
defendant testified that he had two beers in the afternoon and two beers later that
evening, he also said that he failed to tell the police officer of any of the drinks he had
that day, except for the whiskey he said he drank at home after the accident. In
addition, Dr. King’s estimate of Jezewski’s blood alcohol content level at the time of the
accident was just that, an estimate. Furthermore, we have already concluded that
whether the victims were under the influence is irrelevant in light of the fact that
testimony regarding the effect of a blood alcohol level over .10 percent was admitted
into evidence.
23
VII. JURY CHARGE
The defendant contends that the trial court erred with respect to its charge
to the jury. First, the defendant argues that the trial court erred by instructing the jury
that it could find the defendant guilty of the crimes charged in all indictments. The
defendant also argues that the trial court erred in its instruction on the definition of a
knowing killing. The state contends that the trial court properly charged the jury.
A.
The defendant contends that the trial court erred when it instructed the
jury that he could be found guilty of all crimes charged in the indictments. He argues
that although the trial court later corrected the error, the correction came too late, and
the jury was probably confused. The state contends that the defendant waived any
error in the charge by failing to object contemporaneously. See T.R.A.P. 36(a). It
argues that in any event, the instruction was not misleading or confusing.
Initially, we note that the fact that the defendant failed to object
contemporaneously to the jury charge relating to multiple indictments does not waive
the issue on appeal because a defendant can raise the issue in a motion for a new trial.
See Tenn. R. Crim. P. 30(b). Nevertheless, we conclude that the trial court’s charge to
the jury was not erroneous.
The defendant was indicted for second degree murder, vehicular
homicide, and reckless endangerment. The trial court initially instructed the jury as
follows:
The crime charged in each indictment and each lesser
included offense of the indictment is a separate and distinct
offense. You must decide each indictment and lesser included
charge separately on the evidence and the law applicable to it.
A defendant may be found guilty as to one or two indictments,
or he may be found not guilty as to all indictments. Your
finding as to each indictment must be stated in your verdict.
24
....
You must first determine if the defendant is guilty of the
offense of murder in the second degree or vehicular homicide
as charged in these indictments. If you agree that the
defendant is guilty beyond a reasonable doubt of murder in the
second degree or vehicular homicide, you may stop your
discussions and return your verdict. You can find the
defendant guilty of only one of these offenses.
The trial court then instructed the jury that they should only consider lesser included
offenses after first determining that the defendant was not guilty of the primary offense.
It also instructed the jury that the reckless endangerment charge only pertained to
Steve Gentry.
We do not believe that the trial court’s charge was confusing or
misleading. The trial court’s initial instruction merely informed the jury that the
defendant could be convicted of more than one offense or acquitted of all the offenses.
In light of the fact that the state’s theory was that the defendant committed second
degree murder of one victim and reckless endangerment of another, the instruction was
correct. The defendant’s contention that the instruction was confusing because the jury
may have concluded that they could find the defendant guilty of both second degree
murder and reckless endangerment of Jezewski is without merit. The trial court
instructed the jury that the reckless endangerment charge applied only to Gentry. Thus,
we conclude that the trial court’s charge to the jury with respect to the multiple
indictments was not erroneous.
B.
Next, the defendant argues that the trial court’s initial definition of knowing
and its subsequent answer to the jury’s question regarding when the knowing must
occur misled the jury. We believe that the trial court’s instruction was correct.
The trial court instructed the jury as follows:
25
A person acts “knowingly” or “with knowledge” if that person
acts with an awareness either,
(1) that his or her conduct is of a particular nature, or
(2) that a particular circumstance exists.
A person acts knowingly with respect to a result of the person’s
conduct when the person is aware that the conduct is
reasonably certain to cause the result.
After several hours of deliberation, the jury asked the trial court, “As a matter of law,
does knowing take place before, during, or after an act?” In response, the trial court
instructed the jury as follows:
Every criminal offense requires a culpable mental state. A
culpable mental state is either intentionally, knowingly, or
recklessly. When the offense is committed, the person must
be acting intentionally, knowingly, or recklessly. Read again
the elements of the offenses to find the culpable mental state.
First, we conclude that the trial court’s initial instruction on the definition of
knowing was appropriate. The definition is a variation of the definition of knowing in
T.C.A. § 39-11-302(b) and was not confusing or misleading. Cf. State v. Raines, 882
S.W.2d 376, 383 (Tenn. Crim. App. 1994) (holding that the term “knowing” is commonly
used and can be understood by persons of ordinary intelligence).
The defendant also argues that the trial court’s response to the jury’s
question was misleading because the jurors could have concluded that they only had to
find that the defendant acted recklessly in order to convict him of second degree
murder. We do not believe that the trial court’s instruction supports such an assertion.
The trial court informed the jurors of the three culpable mental states, instructing the
jury to review the elements of the offenses to determine which mental state applied to
the offense they were considering. The jury’s question to the trial court did not specify
which offense it was considering in asking its question, and the trial court’s answer
merely ensured that the jurors were looking at the appropriate culpable mental state for
the offense.
26
Finally, the defendant argues that the trial court’s answer did not
adequately address the jury’s concern about when one must possess the culpable
mental state. He contends that the trial court’s answer led the jury to believe that the
knowing mental state can occur after the act. However, the plain language of the trial
court’s answer belies the defendant’s claim. The trial court instructed the jury that the
culpable mental state must take place when the offense is committed. This issue is
without merit.
VIII. CONSTITUTIONALITY OF T.C.A. § 40-35-201(b)
The defendant argues that T.C.A. § 40-35-201(b)2 violates the equal
protection and due process clauses of the United States and Tennessee Constitutions
because it allows a jury to convict a defendant based not on the evidence but on the
punishment the jury feels is most appropriate. He also argues that the statute is
unconstitutional because sentencing matters are irrelevant to the jury’s determination of
guilt or innocence. The state argues that the statute is constitutional.
T.C.A. § 40-35-201(b) provides that “upon the motion of either party, filed
with the court prior to the selection of the jury, the court shall charge the possible
penalties for the offense charged and all lesser included offenses.” When such a
charge is requested by either party, section (b)(2)(A)(i) provides:
When a charge as to possible penalties has been requested
pursuant to subdivision (b)(1), the judge shall also include in
the instructions for the jury to weigh and consider the meaning
of a sentence of imprisonment for the offense charged and any
lesser included offenses. Such instruction shall include an
approximate calculation of the minimum number of years a
person sentenced to imprisonment for the offense charged and
lesser included offenses must serve before reaching such
person’s earliest release eligibility date. Such calculation shall
include such factors as the release eligibility percentage
2
We note that effective May 18, 1998, the Tennessee General Assembly amended
T.C.A. § 40-35-201, deleting subsection (b) and replacing it with a new provision that provides that juries
in non-capital cases shall not be instructed on the possible penalties for the offense charged or lesser
included offenses. This amendment does not apply to cases tried before the effective date of the
ame ndm ent. 1998 Tenn . Public Ac ts CED RIC H ART S:. 1041 , § 2.
27
established by § 40-35-501, maximum and minimum sentence
reduction credits authorized by § 41-21-236 and the governor’s
power to reduce prison overcrowding pursuant to title 41,
chapter 1, part 5, if applicable.
Our supreme court recently addressed the same claims the defendant
makes in the present case with respect to T.C.A. § 40-35-201(b) in State v. King, 973
S.W.2d 586, 587 (Tenn. 1998). In King, the defendant argued that T.C.A. § 40-35-
201(b) was unconstitutional because it violated his due process rights under both the
United States and Tennessee Constitutions. The defendant in King, like the defendant
in the present case, relied on Farris v. State, 535 S.W.2d 608, 612-13 (Tenn. 1976) to
support his argument that the statute was unconstitutionally vague and impossible to
apply. Our supreme court distinguished the statute at issue in Farris, holding that
T.C.A. § 40-35-201(b), in contrast, “does not leave a jury to speculate about release
eligibility dates, good time credits and safety valve release provisions.” King, 973
S.W.2d at 589. The court concluded that the statute provides explicit and unambiguous
guidance such that the defendant’s claim of vagueness was without merit. Id. at 950.
The same reasoning applies to the present case, and we conclude that the statute is
not unconstitutionally vague.
In King, the defendant also claimed that T.C.A. § 40-35-201(b) was
unconstitutional because sentencing considerations are irrelevant to the jury’s
determination of guilt or innocence. The court held that deference should be given to
the legislature’s determination that the sentencing information is relevant, noting that
the jurors were properly instructed that the state had the burden of proof and that they
were not to fix punishment. Id. at 591.
The defendant in the present case makes the same argument as the
defendant in King with respect to relevance. In the present case, as in King, the trial
court instructed the jury that it was not to attempt to fix any sentence but that it was to
28
weigh and consider the meaning of a sentence of imprisonment. It also instructed the
jury that the state had the burden of proof. W e believe that our supreme court’s
analysis in King applies to the present case, and we conclude that the statute is not
unconstitutional as applied in the present case.
IX. INSTRUCTION REGARDING DEFENDANT’S
EARLIEST RELEASE ELIGIBILITY
The defendant contends that the trial court erred by instructing the jury
regarding his earliest release eligibility date for second degree murder because the trial
court incorrectly calculated his earliest release eligibility date. Also, he contends that
the trial court should have instructed the jury on the earliest release eligibility date for a
twenty-five-year sentence, which is the maximum sentence in the range and is the
sentence he received. He contends that the errors were prejudicial and require a new
trial. The state first contends that the defendant waived any argument with respect to
the trial court’s instruction for failing to object timely. The state argues that if the issue
is not waived, any error in the instruction was harmless because the trial court, not the
jury, sentenced the defendant.
Initially, we note that the defendant’s failure to object contemporaneously
to the trial court’s instruction does not waive our review of the issue on appeal. See
Tenn. R. Crim. P. 30(b). After careful review, we conclude that any error in the trial
court’s instruction was harmless because it is unlikely that the error more probably than
not affected the judgment or would result in prejudice to the judicial process. T.R.A.P.
36(b).
A.
First, the defendant argues that the trial court erred in its instruction to the
jury regarding the defendant’s earliest eligibility for release. The trial court instructed
29
the jurors, pursuant to T.C.A. § 40-35-201(b), that the range of punishment for second
degree murder is fifteen to twenty-five years. The trial court then instructed the jurors
that the earliest time at which the defendant could be released would be after serving
1.77 years. The defendant claims that the earliest he could possibly be released,
based upon a fifteen-year sentence, would be after serving 2.95 years. At the hearing
for the motion for a new trial, the trial court acknowledged its error but concluded that
the error was harmless. We agree.
The defendant argues that our supreme court’s decision in State v. Cook,
816 S.W.2d 322, 327 (Tenn. 1991), is controlling. In that case, the defendant was
charged with aggravated rape and aggravated sexual battery. The trial court
erroneously instructed the jury on the range of punishment for a Range I offender, even
though the aggravated nature of the offenses necessitated that the defendant be
sentenced as a Range II offender. Thus, the minimum sentence in the range of
punishment provided to the jury for the aggravated rape charge was twenty years lower
than the minimum sentence in the range that was actually imposed. Id. at 323.
Our supreme court determined that T.C.A. § 40-35-201(b) (1989) provides
a defendant with a statutory right to have the jury informed of the applicable range of
punishment. Id. at 326. The court reversed the defendant’s convictions and remanded
the case for a new trial, noting that “whatever rights or benefits the Legislature had in
mind for the defendant when it passed T.C.A. § 40-35-201(b) would be lost if the
defendant were to be sentenced to punishments greater than what the jury finding guilt
was instructed would be imposed.” Id. at 327.
We believe that the defendant’s reliance on Cook is misplaced. Unlike in
Cook, the trial court in the present case did not err in its instruction on the range of
punishment but rather on the earliest release eligibility date. In addition, the
30
discrepancy between the trial court’s instruction and the defendant’s actual earliest
release eligibility date is only a little over a year, whereas the discrepancy in Cook was
twenty years. We also note that the statute requires the trial court to give an
approximate calculation of the defendant’s earliest release eligibility date, not an exact
calculation. T.C.A. § 40-35-201(b)(2)(A)(i). Although the trial court’s calculation was
wrong, we do not believe that the error prejudiced the defendant, as it did in Cook, such
that a new trial is warranted. See State v. J.C. Meyer, No. 03C01-9705-CR-00165,
McMinn County (Tenn. Crim. App. June 26, 1998), applic. filed, (Tenn. July 8, 1998)
(holding that trial court’s erroneous instruction on the defendant’s earliest release
eligibility date was harmless when trial court instructed the jury on the elements of the
offense charged and the evidence was substantial).
B.
The defendant also contends that the trial court erred by not instructing
the jury that if he received the maximum sentence of twenty-five years, his earliest
release eligibility would be after serving five years. He contends that because the state
filed a notice to seek enhanced punishment before the trial court gave its instruction,
the trial court was aware that there was a good chance that he would receive a longer
sentence than the statutory minimum. We conclude that the trial court’s instruction was
accurate.
The statute provides a defendant with the right to “an approximate
calculation of the minimum number of years a person sentenced to imprisonment for
the offense charged and lesser included offenses must serve before reaching such
person’s earliest release eligibility date.” T.C.A. § 400-35-201(b)(2)(A)(i). The offense
of second degree murder carries with it a minimum sentence of fifteen years for a
Range I offender and an earliest release eligibility date of 2.95 years. Although the trial
court committed harmless error when it instructed the jury that the earliest release
31
eligibility date was 1.77 years, the trial court otherwise complied with the statute. There
is no requirement in the statute that the trial court instruct the jury as to all possible
early release eligibility dates. The fact that the defendant might possibly receive an
enhanced sentence within the range does not affect the requirements of the statute.
See King, 973 S.W.2d at 590-91 (holding that the trial court’s instruction on the
defendant’s earliest release eligibility date was accurate even though the state filed a
notice of enhancement because “the actual decision whether to permit enhancement
does not occur until after conviction . . .”).
X. ADMISSION OF EVIDENCE AT SENTENCING
The defendant argues that the trial court erroneously admitted certain
evidence at the sentencing hearing. Specifically, the defendant argues that the trial
court should not have admitted evidence that he threatened to run over a coworker in
1977 and should not have admitted a defensive driving certificate found in the
defendant’s car after the accident. The state argues that the evidence was properly
admitted.
A.
The defendant first contends that the trial court should not have admitted
into evidence a statement from his employer contained in the defendant’s personnel file
reflecting that in 1977, the defendant threatened to run over a security guard at work
who would not let him park in a certain area. The defendant asserts that he was not
informed of the statement until one day before the sentencing hearing, the statement is
hearsay, and the statement is irrelevant. The state contends that the statement was
part of the defendant’s employment record which, as part of the state’s file, was
available to the defendant long before the sentencing hearing. The state also contends
that the statement is not hearsay because it is part of a business record, and it is
relevant because it provides details about the incident.
32
Initially, we note that a trial court has discretion in determining the
relevance of proffered evidence, and its decision will not be overturned on appeal
absent an abuse of that discretion. DuBose, 953 S.W.2d at 652. We also note that the
defendant’s contention that he did not have knowledge of the incident is without merit in
light of the fact that the incident was acknowledged and explained in the employment
information section of the presentence report. As the trial court noted, the statement
admitted at the sentencing hearing merely provided more detail.
We agree with the defendant’s contention that the employment statement
is hearsay, however we believe that the statement is admissible under the business
records exception to the hearsay rule of exclusion. Tenn. R. Evid. 803(6).
Furthermore, T.C.A. § 40-35-209(b) provides for the admission of reliable hearsay at a
sentencing hearing if the opposing party is accorded a fair opportunity to rebut such
evidence. The defendant had a fair opportunity to rebut the evidence, and we note that
the defendant did so by having his sister testify at the sentencing hearing that the
defendant was quiet and “never said anything about anybody.”
The defendant also argues that the statement is irrelevant. However, the
defendant requested that the trial court consider, as a mitigating factor, the defendant’s
long and steady work record. Although the statement is not relevant to show a
propensity to engage in or threaten to engage in dangerous conduct, we believe that
the fact that the defendant was discharged and subsequently reinstated for threatening
a security guard bears on the trial court’s consideration of the defendant’s work record
as a mitigating factor.
B.
The defendant also argues that the trial court erred by admitting into
evidence an agreement found in the glove compartment of his car in which the
33
defendant agreed to attend defensive driving school. He contends that the agreement
is irrelevant because it alludes to a previous conviction that was already in the record.
The state argues that the agreement is relevant to sentencing because it shows that at
the time of the offense, the defendant was under an obligation to attend a national
defensive driving course because of prior offenses, and it is probative of his criminal
conduct and inability to comply with the law.
We question the agreement’s relevance regarding its tendency to make
the existence of any fact of consequence more or less probable. Tenn. R. Evid. 401.
In any event, the fact of the defendant’s inability to comply with the law and his criminal
conduct was already known to the trial court by the admission of his prior convictions in
the presentence report. We believe that the admission of the agreement was harmless.
XI. SENTENCING
The defendant contends that the trial court erroneously applied certain
aggravating factors, failed to consider applicable mitigating factors, and imposed an
excessive sentence. The state argues that the defendant was properly sentenced.
Appellate review of sentencing is de novo on the record with a
presumption that the trial court's determinations are correct. T.C.A. §§ 40-35-401(d).
As the Sentencing Commission Comments to this section note, the burden is now on
the defendant to show that the sentence is improper. This means that if the trial court
followed the statutory sentencing procedure, made findings of fact that are adequately
supported in the record, and gave due consideration and proper weight to the factors
and principles that are relevant to sentencing under the 1989 Sentencing Act, we may
not disturb the sentence even if a different result were preferred. State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).
34
However, "the presumption of correctness which accompanies the trial
court's action is conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances."
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of
meaningful appellate review,
the trial court must place on the record its reasons for arriving
at the final sentencing decision, identify the mitigating and
enhancement factors found, state the specific facts supporting
each enhancement factor found, and articulate how the
mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. T.C.A. § 40-35-210(f)
(1990).
State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1995).
Also, in conducting a de novo review, we must consider (1) the evidence,
if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the
principles of sentencing and arguments as to sentencing alternatives, (4) the nature
and characteristics of the criminal conduct, (5) any mitigating or statutory enhancement
factors, (6) any statement that the defendant made on his own behalf and (7) the
potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103 and -210; see
Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).
Under the Criminal Sentencing Reform Act in effect at the time of the
offense, the sentence to be imposed by the trial court for a Class A felony is
presumptively the minimum in the range when there are no enhancement or mitigating
factors present. T.C.A. § 40-35-210(c) (1989). Procedurally, the trial court is to
increase the sentence within the range based upon the existence of enhancement
factors and, then, reduce the sentence as appropriate for any mitigating factors. T.C.A.
§ 40-35-210(d) and (e). The weight to be afforded an existing factor is left to the trial
court's discretion so long as it complies with the purposes and principles of the 1989
Sentencing Act and its findings are adequately supported by the record. T.C.A. § 40-
35
35-210, Sentencing Commission Comments; Moss, 727 S.W.2d at 237; see Ashby,
823 S.W.2d at 169.
At the sentencing hearing, Reverend Gayland Wiley testified that the
defendant had been a regular member of his church since 1991. He testified that the
defendant made regular financial contributions to the church.
Carolyn Hogan, the defendant’s sister, testified that the deaths of two of
their brothers thirty years ago affected the defendant. She said the defendant has a
daughter and a granddaughter whom he had supported. She said the defendant had
been depressed since the incident, and he told her he thought he was protecting
himself on the night of the incident. She said the defendant was attending Alcoholics
Anonymous meetings. She also said the defendant has an eighty-two-year-old mother.
She said the defendant was quiet and never said anything to anybody. She introduced
a letter, signed by the defendant’s friends and family, asking the court for leniency.
Dr. John Hendrick, a psychiatrist, testified that he treated the defendant
on September 2, 1994, at Valley Hospital. He said the defendant suffered from major
depression, suicidal thoughts, and alcohol dependence. He said that he was continuing
to treat the defendant. He said the defendant expressed remorse and guilt over the
incident. He testified that the defendant told him he generally cannot hear. He said the
defendant’s speech was fluent and coherent, but the defendant stuttered, had difficulty
completing words, and had difficulty hearing, particularly in the left ear. He said he
often had to repeat things to the defendant. He said the defendant’s hearing problems
contributed to his depression and caused paranoia.
A presentence report was introduced into evidence. The report reflects
that the then forty-eight-year-old defendant completed high school and attended
36
welding and maintenance trade school. It reflects that the defendant worked for W.R.
Grace since 1973, although he was discharged then reinstated in 1977 for using
abusive language to a security guard at the company. The report shows that the
defendant has ten convictions from 1971 to 1989, four for drug offenses, two for driving
on a revoked license, and four for driving under the influence of an intoxicant (D.U.I.).
With respect to the second degree murder conviction, the trial court
applied the following enhancement factors, as listed in T.C.A. § 40-35-114:
(1) The defendant has a previous history of criminal
convictions or criminal behavior in addition to those necessary
to establish the appropriate range; and
(9) The defendant possessed or employed a firearm, explosive
device or other deadly weapon during the commission of the
offense;
With respect to the reckless endangerment conviction, the trial court also applied factor
(1), along with the following additional factors:
(10) The defendant had no hesitation about committing a crime
when the risk to human life was high; and
(16) The crime was committed under circumstances under
which the potential for bodily injury to a victim was great.
The trial court found no applicable mitigating factors.
At the conclusion of the sentencing hearing, the trial court sentenced the
defendant as a Range I, standard offender to twenty-five years confinement for the
second degree murder conviction, and two years confinement for the reckless
endangerment conviction, to be served concurrently. The trial court gave the defendant
credit for the time he spent in house arrest as part of his bond before trial.
The defendant argues that the trial court erroneously applied all
enhancement factors. The defendant does not cite any case law in support of his
argument. Generally, the failure to cite any authority acts as a waiver of the issue.
37
Tenn. Crim. App. R. 10(b). Nevertheless, in conducting our de novo review we must
address the propriety of the defendant’s sentence, which includes an analysis of the
applicable enhancement and mitigating factors.
First, we conclude that enhancement factor (1) is applicable to both the
second degree murder and reckless endangerment convictions. The defendant’s
extensive prior criminal history is apparent from the record. Although the defendant
argues that the convictions are old and are for nonviolent offenses, the convictions may
still be used to enhance.
Next, we conclude that the trial court correctly applied factor (9) to the
second degree murder conviction and factors (10) and (16) to the reckless
endangerment conviction. Factor (9) applies because the car was used as a deadly
weapon against Jezewski. See State v. Norris, 874 S.W.2d 590, 601 (Tenn. Crim. App.
1993). Although we believe that factor (16) is an essential element of the offense of
reckless endangerment, factors (10) and (16) nevertheless apply because when the
defendant accelerated, causing the door to disengage and strike Gentry, there was also
a high risk and a great potential for bodily injury to Jezewski, who was standing in the
doorway. See State v. Ruane, 912 S.W.2d 766, 784 (Tenn. Crim. App. 1995) (holding
that factor (10) may be applied when someone besides the victim is present and at
risk); State v. Sims, 909 S.W.2d 50, 51 (Tenn. Crim. App. 1995) (holding that both
factors (10) and (16) may be applied when someone other than the victim is in the area
and subject to injury).
We also note that the record reflects that the defendant had previously
driven on a revoked license while he was on probation for D.U.I. This can be
considered as some history of an unwillingness to comply with conditions of sentence
involving release in the community. See T.C.A. § 40-35-114(8). In context, though, it is
38
of little or no consequence above the culpability shown by the repetitive offenses
relative to intoxicants and driving.
The defendant argues that the trial court should have applied the following
mitigating factors, as listed in T.C.A. § 40-35-113:
(2) the defendant acted under strong provocation;
(3) substantial grounds exist tending to excuse or justify the
defendant’s criminal conduct, though failing to establish a
defense;
(8) the defendant was suffering from a mental or physical
condition that significantly reduced the defendant’s culpability
for the offense . . .;
(11) the defendant, although guilty of the crime, committed the
offense under such unusual circumstances that it is unlikely
that a sustained intent to violate the law motivated the criminal
conduct; and
(13) any other factor consistent with the purposes of this
chapter.
With respect to factor (13), the defendant argues that the trial court should have
considered the fact that he had a steady work record, supported his daughter,
expressed remorse, and regularly attended and supported his church.
We conclude that although mitigating factors (2), (3), and (8) are not
applicable, factors (11) and (13) are. With respect to factors (2) and (3), we believe that
the record does not support their application. Although the defendant contends that the
victims were drunk, that he thought they were going to carjack him, and that they
demanded that he get out of his car, Gentry testified that the defendant understood
what they were saying because he responded logically to their questions. He also
testified that the conversation between Jezewski and the defendant remained pleasant.
The defendant testified that neither Gentry nor Jezewski had any weapons. Thus, we
conclude that factors (2) and (3) are not applicable.
39
The defendant argues that factor (8) should apply because he could not
hear what the victims were saying. He argues that if he had been able to understand
them, he would have realized that they were trying to help him and the accident would
have been avoided. Although the proof established that the defendant had hearing
loss, we do not believe that this significantly reduced the defendant’s culpability for the
offense. Again, the proof established that the defendant was able to respond logically
to the victim’s questions, thus showing that the defendant could understand what they
were saying.
The defendant also argues that factor (8) should apply because he
stuttered. He contends that if not for his stuttering, Gentry and Jezewski might not have
tried to keep the defendant from driving and the accident might not have occurred.
However, the proof showed that Jezewski spotted the defendant in the parking lot and
determined, without ever talking to him, that he should not drive. The defendant argues
that his stuttering, combined with the hearing problem, shows that the defendant and
the victims could not communicate. However, the record belies this argument because
it shows that the defendant could respond logically to the victim’s questions.
Finally, the defendant states in his brief that he suffered from major
depression and alcohol dependence. He does not explain how this relates to the
application of factor (8), and we conclude that it does not.
We believe that the trial court erred by not applying mitigating factors (11)
and (13). Initially, we note that there is no evidence in the record that the trial court
considered mitigating factor (13), although the defendant raised it at the sentencing
hearing. It is incumbent upon the trial court to state on the record its evaluation of
enhancement and mitigating factors. T.C.A. § 40-35-210(f) (1990). Failure to do so in
material fashion strips its determinations of the presumption of correctness.
40
With respect to factor (11), we believe that the bizarre circumstances of
the offense, as depicted in the testimony of most of the eyewitnesses, show that a
sustained intent to violate the law did not motivate the defendant’s conduct, and we
believe this factor warrants significant weight. With respect to factor (13), we conclude
that the defendant’s steady work record, support of his daughter, expression of
remorse, and regular attendance and support of his church should be considered in
mitigation in the present case, although we believe they are of very little weight. See
State v. Leggs, 955 S.W.2d 845, 850 (Tenn. Crim. App. 1997) (concluding that remorse
is an appropriate mitigating factor under (13)); State v. McKnight, 900 S.W.2d 36, 55
(Tenn. Crim. App. 1994) (indicating that family contributions and work ethic might be a
mitigating factor). But see, State v. Keel, 882 S.W.2d 410, 423 (Tenn. Crim. App.
1994) (concluding that a stable work history is expected of every citizen and should not
be applied in mitigation).
Now we must determine whether the application and weighing of
mitigating factors alters the defendant’s sentence. We conclude that it does. With
respect to the second degree murder conviction, we believe that great weight should be
given to enhancement factors (1) and (9). The defendant’s previous criminal history,
including four convictions for drinking while operating a potentially deadly weapon, show
the defendant’s repeated disregard for the law and for the safety of others. In
mitigation, we believe that the defendant’s lack of a sustained intent to violate the law
warrants significant weight, but his work history and his contributions to his family and
his church should be given only marginal weight. We are mindful that while a sentence
should reflect the seriousness of the circumstances surrounding the offense, it also
“should be the least severe measure necessary to achieve the purposes for which the
sentence is imposed . . . .” T.C.A. § 40-35-103(5). After applying and weighing the
enhancement and mitigating factors, we conclude that a sentence of twenty-three years
41
confinement for the second degree murder conviction is appropriate and is not
excessive.
With respect to the reckless endangerment conviction, great weight may
be given to enhancement factor (1) and moderate weight to factors (10) and (16).
Again, we give significant weight to mitigating factor (11), very little weight to factor (13),
and we conclude that the two-year sentence imposed by the trial court was appropriate.
XII. CONCLUSION
In consideration of the foregoing and the record as a whole, we affirm the
convictions and the sentence for reckless endangerment. We modify the sentence for
second degree murder to twenty-three years confinement.
________________________________
Joseph M. Tipton, Judge
CONCUR:
______________________________
Jerry L. Smith, Judge
______________________________
Thomas T. W oodall, Judge
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED
AT KNOXVILLE February 4, 1999
FEBRUARY 1997 SESSION Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TE NNE SSE E, ) C.C.A. NO. 03C01-9608-CR-00302
)
Appellee, )
) HAMILTON COUNTY
V. )
)
) HON. STEPHEN M. BEVIL,
JUDGE
CHARLES FRANK BANKSTON, )
) (Second degree murder and
reckless
Appe llant. ) endangerment with a deadly
weap on)
SEPARATE OPINION CONCURRING
IN PART AND DISSENTING IN PART
I agree w ith all parts of the majority’s opinion in this case except
that portion wherein the sentence for second degree murder is reduced to twenty-
three (23) years . Wh ile I agree that the mitigating factors under Tennessee Code
Annotated section 40-35-113(13) are applicable but should be entitled to little weight,
I respectfully disagree that the mitigating factor in Tennessee Code Annotated
section 4 0-35-11 3(11) is ap plicable.
Specifically, that mitigating factor states as follows:
(11) The defendant, although guilty of the crime,
committed the offense under such unusual circumstances
that it is unlikely that a sustained intent to violate the la w
motivate d the crim inal cond uct;
It is my opinion that Tennessee Code Annotated section 40-35-
113(11) refers to a defendant’s intent which motivates his or her conduct involved
- 4 3 -
in the particu lar offense (s) for which he or sh e is being senten ced. See State v.
Larry Trent, C.C.A. No. 137, Hawkins County (Tenn. Crim. App., Knoxville, June 7,
1991). In the present case, Randy Murray specifically testified that Defendant
“floored” the accelerator while it was in reverse, throwing Dr. Jezewski into the
midd le of the park ing lot. More importa nt for sente ncing pu rposes , Mr. Murray
further testified that the Defe ndan t then o perate d his ve hicle in a forward motion at
a “regular pace” until he came right up in front of Dr. Jez ewski. T hen, ac cording to
Murray, the Defendant accelerated as fast as he could when he ran over the victim.
To me, this proof demonstrates a sustained intent to violate the law on the part of
Defen dant.
Another factor which justifies the sentence imposed by the trial
court is the fact tha t enha ncem ent fac tor num ber (8) is app licable , even th ough it
was not relied upon by the trial court. That factor states that “[t]he defendant has a
previous history of unwillingness to comply with the conditions of a sentence
involving release in the community.” Tenn. Code Ann. § 40-35-114(8). The
Defendant has a rather lengthy criminal record. It reflects in part that he was
convicted of DUI on November 15, 1985, and received a sentence of eleven (11)
months and twenty-nine (29) days, suspended after ten (10) days. During the period
of the suspended sentence, on March 5, 1986, Defendant was arrested for the
offense of driving on a revoked license for which he was convicted on July 22, 1986.
A normal condition of a sentence involving release in the community is to obey the
laws of the S tate. C learly, D efend ant did not comply with that condition during the
service of his suspended sentence for the November, 1985 conviction of DUI. W hile
this may not be entitled to as much weight as other factors imposed by the trial co urt,
- 4 4 -
it does h elp to justify the senten ce imp osed, e specially in ligh t of the fact that
mitigating factor num ber (11) s hould n ot apply.
For the reasons stated herein, I would affirm the conviction and
senten ce imp osed b y the trial cou rt.
____________________________________
THOMAS T. W OODALL, Judge
- 4 5 -
State v. Bankston
Combined Opinion