Advocacy In DUI Cases – 3

Advocacy In DUI Cases – 3

17. CONCLUSION

A. T.A.C.L.D. Amicus briefs.

SAMPLE BRIEFS

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE, )

)

Appellee, )

)

)

VERSUS ) CASE NO. O1C01-9610-CC-00448

) WARREN COUNTY CRIMINAL

)

GEORGE BLAKE KELLY, )

)

Appellant. )

APPEAL AS OF RIGHT FROM THE WARREN COUNTY CRIMINAL COURT

______________________

BRIEF OF APPELLANT

______________________

ORAL ARGUMENT REQUESTED David L. Raybin (#3385)

Raybin & Weissman P.C.,

2210 The Financial Center, 424 Church Street

Nashville, Tennessee 37219

(615) 256-6666

ATTORNEY FOR APPELLANT


TABLE OF CONTENTS

Table of Authorities … iii

Introduction … 1

The Record on Appeal … 2

Statement of the Issues … 3

Statement of the Case … 5

Statement of the Facts … 7

Argument:

1. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A

CONVICTION FOR SECOND DEGREE MURDER IN THAT

THE STATE FAILED TO ESTABLISH THAT THE

DEFENDANT “KNOWINGLY” KILLED MS. PRINCE;

THE EVIDENCE WAS, HOWEVER, SUFFICIENT TO

SUPPORT A CONVICTION FOR VEHICULAR HOMICIDE

REQUIRING A RECKLESS KILLING . 10

2. THE 1989 TENNESSEE CRIMINAL CODE DOES NOT

PROSCRIBE DEATH CAUSED BY DRUNK DRIVING

AS SECOND DEGREE MURDER SINCE THERE IS NO

LONGER ANY “IMPLIED MALICE” ELEMENT FOR

THIS OFFENSE BUT RATHER SUCH HOMICIDES

CONSTITUTE VEHICULAR HOMICIDE, RECKLESS

HOMICIDE, OR CRIMINALLY NEGLIGENT HOMICIDE ….. 10

Conclusion … 61

Certificate of Service . 63

Appendix …… 64

 

TABLE OF AUTHORITIES

Cases

Alley v. State,

882 S.W.2d 810 (Tenn. Crim. App. 1994) .. 58

Bennett v. State,

723 S.W.2d 359 (Tex. App. 1987) 29

Casey v. State,

491 S.W.2d 90, 94-95 (Tenn. Crim. App. 1972) …….. 36

Cook v. State,

884 S.W.2d 485 (Tex. Crim. App. 1994) …. 37, 38

Cooper v. Texas,

351 S.W.2d 235 (Tex. Crim. App. 1961) ….. 28

Crist v. State,

861 S.W.2d 913, 916, n.1 (Tex. Crim. App. 1993) ….. 28

DePauw v. State,

658 S.W.2d 628 (Tex. App. 1983) 28

Farr v. State,

591 S.W.2d 449 (Tenn. Crim. App. 1979) .. 12

Garrett v. State,

749 S.W.2d 784 (Tex. Crim. App. 1986) ….. 28

Griffin v. State,

578 S.W.2d 654 (Tenn. Crim. App. 1978) .. 12

Statutes

T.C.A. §39-11-101 …… 61

T.C.A. §39-11-109(a) .. 40

T.C.A. §30-11-301 …… 29

INTRODUCTION

George Blake Kelly appeals as of right from his convictions for murder in the second degree, vehicular homicide by intoxication, vehicular homicide by reckless driving, vehicular assault, reckless driving, and driving under the influence. He received an effective sentence of 31 years.

In summary, this case involves a tragic automobile collision occurring on April 7, 1995. Mr. Kelly was driving on a two-lane road at about 9:30 in the evening. Mr. Kelly passed a vehicle in front of him as he was nearing a turn in the road. While still negotiating the turn in the road, Mr. Kelly’s vehicle collided head-on with the victims’ automobile, which was traveling in the opposite direction in the other lane, resulting in injury to the driver and the death of the passenger.

The primary issue in this appeal is one of first impression: whether a death resulting from drunk driving can constitute second degree murder under the 1989 Criminal Code. Second degree murder requires a “knowing” killing as opposed to a “reckless” killing which is sufficient for vehicular homicide. While the death here was clearly the result of Mr. Kelly’s recklessness, Mr. Kelly did not “knowingly” kill the victim. Accordingly, the conviction for murder in the second degree should be dismissed and the conviction for vehicular homicide affirmed.

THE RECORD ON APPEAL

The record on appeal consists of 9 volumes, along with a number of exhibits consisting of documents and photographs. The first volume contains what was previously known as the Technical Record. In this brief, citations to the technical record will be as follows: “T.R. ____.” Volumes two through six contain a transcript of the trial proceedings which occurred October 18-20, 1995. In this Brief the trial proceedings will be indicated by the abbreviation of “T. ____” standing for “trial.”The seventh volume contains pre-trial proceedings occurring in October, 1995, which will be indicated in this Brief by the abbreviation “P. ____” standing for “pre-trial.” The eighth volume contains the sentencing hearing conducted on December 22, 1995, which will be indicated by the abbreviation “S. ____” standing for “sentencing hearing.” The ninth volume is the transcript of the Motion for New Trial conducted on April 26, 1996, which will be indicated in this Brief by the abbreviation “N.T. ____” standing for “new trial.”

THE APPENDIX

The appendix to this brief contains relevant statutes and other materials necessary for a resolution of the issues. It also contains sources not readily available elsewhere. The appendix is abbreviated “A., p.___.”

STATEMENT OF THE ISSUES

1. WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR SECOND DEGREE MURDER IN THAT THE STATE FAILED TO ESTABLISH THAT THE DEFENDANT “KNOWINGLY” KILLED MS. PRINCE; WHETHER THE EVIDENCE WAS, HOWEVER, SUFFICIENT TO SUPPORT A CONVICTION FOR VEHICULAR HOMICIDE REQUIRING A RECKLESS KILLING.

2. SINCE THERE IS NO LONGER ANY “IMPLIED MALICE,” WHETHER THE 1989 TENNESSEE CRIMINAL CODE PROSCRIBES DEATH CAUSED BY DRUNK DRIVING AS SECOND DEGREE MURDER, OR WHETHER THE HOMICIDE CONSTITUTES VEHICULAR HOMICIDE, RECKLESS HOMICIDE, OR CRIMINALLY NEGLIGENT HOMICIDE.

3. SINCE MURDER IS AN OFFENSE DEFINED ONLY BY ITS RESULT, WHETHER THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY ON THE “NATURE OF CONDUCT” AND “CIRCUMSTANCES SURROUNDING THE CONDUCT” AS IT RELATES TO THE DEFINITION OF “KNOWINGLY”; WHETHER THE COURT SHOULD HAVE CONFINED THE DEFINITION OF “KNOWINGLY” TO ITS “RESULT” COMPONENT.

4. SINCE MURDER IS AN OFFENSE DEFINED ONLY BY ITS RESULT, WHETHER THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY ON THE “CONDUCT” COMPONENT OF THE MENTAL ELEMENT OF “INTENTIONALLY”; WHETHER THE COURT SHOULD HAVE CONFINED ITS INSTRUCTION TO THE “RESULT” COMPONENT OF THE MENTAL STATE OF “INTENTIONALLY.”

5. WHETHER THE DEFENDANT WAS DENIED DUE PROCESS OF LAW AND THE RIGHT TO A JURY TRIAL BY THE INSTRUCTION THAT THE JURY COULD CONVICT THE DEFENDANT OF BOTH SECOND DEGREE MURDER AND VEHICULAR HOMICIDE WHEN IN FACT THE LATTER OFFENSE IS A LESSER GRADE OR CLASS OF THE FORMER, IN VIOLATION OF THE UNITED STATES AND TENNESSEE CONSTITUTION.

STATEMENT OF THE CASE

The automobile collision giving rise to the criminal charges occurred on April 7, 1995. (T. 297). On May 12, 1995, the defendant was indicted by the Warren County Grand Jury. (T.R. 1-3). Count 1 charged the defendant with murder in the second degree of Ms. Prince. Count 2 charged vehicular homicide of Ms. Prince by reason of intoxication. Count 3 charged vehicular homicide of Ms. Prince by reason of reckless driving. Count 4 charged vehicular assault of the surviving victim, Mr. Miller, by reason of intoxication. Count 5 charged reckless driving. Count 6 charged driving under the influence. Count 7 charged driving on a revoked driver’s license. (T.R. 1-3).

The trial commenced on October 18 and continued until October 20, 1995. (T.R. 44-58). As to Count 1, the jury found the defendant guilty of murder in the second degree concerning the death of Ms. Prince. (T.R. 47-48). As to Count 2, the jury found the defendant guilty of vehicular homicide by intoxication concerning the death of Ms. Prince. (T.R. 49-50). As to Count 3, the jury found the defendant guilty of vehicular homicide by reckless driving concerning the death of Ms. Prince. (T.R. 51-52). As to Count 4, the jury found the defendant guilty of vehicular assault as relates to the injuries inflicted on Mr. Miller. (T.R. 53-54).

As to Count 5, the jury found the defendant guilty of reckless driving. (T.R. 55-56). As to Count 6, the jury found the defendant guilty of driving under the influence. (T.R. 57-58). With respect to Count 7 of the indictment, charging the defendant with driving on a revoked driver’s license, the defendant changed his plea from not guilty to guilty, and the Court accepted the defendant’s plea for that offense. There was no agreed or bargained sentence for that crime. (T.R. 57). See also (T. 515).

The sentencing hearing was conducted on December 22, 1995 and those proceedings are contained in a separate volume of the record. The Judge imposed the maximum sentence of 25 years for the offense of murder in the second degree. As reflected in the judgment form, the two counts charging vehicular homicide by intoxication and by reckless driving were found to “merge into Count One of this indictment.” (T.R. 80).

As to the conviction for vehicular assault, the Judge imposed the maximum sentence of four years. (T.R. 81). As to the offense of reckless driving, the Judge imposed the maximum sentence of six months. (T.R. 82). As to the offense of driving under the influence, the Judge imposed the maximum sentence of 11 months and 29 days. (T.R. 83). As to the offense of driving on a revoked driver’s license, the Court imposed the maximum sentence of six months. (T.R. 84). As to all counts upon which sentence was imposed, the Court ran all of the sentences consecutively to one another for a total effective sentence of 30 years, 11 months and 29 days. (T.R. 80-85). Hereinafter, the sentence will be referred to generally as a sentence of 31 years.

Within 30 days of the imposition of sentence, the defendant filed his Motion for New Trial on January 19, 1996. (T.R. 77-78). The hearing on the Motion for New Trial is contained in a separate transcript of the record. On April 26, 1996, the Trial Judge overruled the Motion for New Trial. (T.R. 86). The defendant filed his Notice of Appeal on May 16, 1996. (T.R. 89). On November 22, 1996, this Court allowed trial counsel to withdraw and permitted the substitution of the undersigned counsel as attorney of record for Mr. Kelly. Mr. Kelly remains incarcerated in the Tennessee Department of Correction.

STATEMENT OF THE FACTS

In early 1995, Mr. and Mrs. Kelly were experiencing domestic difficulties. On April 7, Mrs. Kelly came home and found a note from Mr. Kelly saying that he had “went to see his lawyer.” (T. 209). Mrs. Kelly “got mad” and left for Dunlap, Tennessee. While in Dunlap, Mrs. Kelly saw the defendant near a red light and believed that he was out “looking for me.” (T. 211). A number of witnesses for the state testified to seeing the defendant in the hours before the fatal collision and described his increasing state of intoxication as he was driving around looking for his wife. Sue Lewis testified that she saw the defendant at the tavern called Steve’s Place at around 4:30 p.m. and the defendant had a beer with him. (T. 267). She saw him again at around 6:30 and he wanted a “beer to go.” (T. 271). The owner, Steve Robertson, testified that he saw the defendant at around 7:00 and that “he was upset and said he was looking for his wife.” (T. 285-286). Mr. Robertson said that the defendant “had been drinking.” (T. 288).

From statements made by the defendant to his wife and other individuals after the collision, it is apparent that the defendant consumed at least five or six beers that evening. (T. 230). Venita Spearman testified that the defendant told her he had had a six-pack of beer and that the collision was “his fault because he had been drinking and driving.” (T. 507). Billy Cook said that the defendant admitted later that “his drinking got hold of him.” (T. 511).

The surviving victim, David Miller, testified that he and his girlfriend, Ginny Prince, left her house at about 6:00 p.m. on the day of the collision. (T. 298). They were in a white 1989 Ford Probe. (T. 298). They ate at a restaurant and left the restaurant at about 7:45, went to a store to go shopping, and left the store at about 8:30 p.m. (T. 299). Mr. Miller and Ms. Prince had had nothing to drink that evening. (T. 299). At about 9:15 or so, they were going back to Ms. Prince’s home on Highway 70. All Mr. Miller can remember is that he saw headlights and there was a wreck. (T. 300). The collision was essentially head-on. (T. 315). As a result of the collision, Mr. Miller sustained serious injury including cuts requiring over a thousand stitches as well as suffering the loss of vision in his right eye. (T. 318). A nurse who came up on the wreck shortly after its occurrence, testified that Ms. Prince was dead at the scene. (T. 339). The parties stipulated that Ms. Prince suffered fatal injuries as a result of the collision. (T. 477). The testimony at the trial indicated that Highway 70 is a two-lane winding road. The stretch of road at issue is marked by double yellow — no passing–lines. The victims’ vehicle, a Ford, was going east and the defendant’s vehicle was going west. The collision occurred when the defendant’s vehicle entered the on-coming lane occupied by the victims. (T. 459). When the two vehicles collided, there was a head-on contact with a 50 percent overlap according to the accident reconstruction expert. (T. 462).

This report indicates that vehicle number one (driven by the defendant) had just improperly passed another vehicle prior to the collision. The vehicle which had just been passed was driven by Mr. Bobby Joe Perry. Mr. Perry testified that, shortly after 9:00 p.m., he was on his way home following choir practice. (T. 322). As he was getting up near the airport, “I looked back through the mirror and I saw headlights coming at me from behind — coming pretty swift.” (T. 322). Mr. Perry said he was traveling about 50 miles per hour. (T. 324). At this point, the defendant’s vehicle got right behind him and “swung out to pass.” (T. 324). The center lanes were marked for no passing. (T. 325). After the defendant’s car passed him, they were approaching the curve but the defendant’s “driver’s side wheels stayed on the other side of the yellow line.” (T. 327).

At this point, Mr. Miller’s vehicle was coming from the other direction also heading into the curve. Mr. Perry saw the defendant’s vehicle collide with the victims’ vehicle. As Mr. Perry put it, “just as their headlights met on the curve, the [defendant’s vehicle] veered to the left straight across into the path of the [victims’ vehicle].” (T. 328).

Mr. Perry stopped to render such aid as he could. Emergency and law enforcement vehicles soon came to the scene. A sample of blood was taken from the defendant before he was taken to the hospital to be treated for his injuries sustained in the wreck. (T. 354-355). Multiple witnesses testified to the fact that the defendant had a strong odor of alcohol about him. (T. 332, 399). The laboratory report disclosed that the defendant’s blood alcohol level was 0.28 gram percent. (T. 473).

ARGUMENT

1. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR SECOND DEGREE MURDER IN THAT THE STATE FAILED TO ESTABLISH THAT THE DEFENDANT “KNOWINGLY” KILLED MS. PRINCE; THE EVIDENCE WAS, HOWEVER, SUFFICIENT TO SUPPORT A CONVICTION FOR VEHICULAR HOMICIDE REQUIRING A RECKLESS KILLING.

 

This is a case of first impression. There have been no other convictions under the 1989 Criminal Code for murder in the second degree resulting from a traffic collision involving a drunk driver. An analysis of our current homicide statutes will demonstrate that while the defendant recklessly caused death, he did not do so “knowingly” as required for second degree murder. Thus, the second degree murder conviction should be dismissed, and the “merged” conviction for vehicular homicide reinstated.

A.

Under the statutes existing prior to 1989 it was permissible to have a conviction for second degree murder for a drunk driving homicide. This was because murder in the second degree required a “malicious” killing which could either be “express” or “implied.”

In State v. Johnson, 541 S.W.2d 417 (Tenn. 1976), the Court undertook to explain the differences between malice for second degree murder and gross negligence required for involuntary manslaughter. Occasionally, the prosecution could show “express malice by the accused to kill the victim by running him down with an automobile.” However, “the more common cases, and …

 

SAMPLE SENTENCING BRIEF

6. AS TO KELLY LEWIS, THE FINE OF $2,000.00 WAS GROSSLY EXCESSIVE WITH RESPECT TO THE CONVICTION FOR SIMPLE POSSESSION OF ONE-HALF GRAM OF MARIJUANA.

7. AS TO KELLY LEWIS, THE COURT ABUSED ITS DISCRETION IN FAILING TO SENTENCE HIM TO JUDICIAL DIVERSION UNDER T.C.A. §40-35-313 FOR THE OFFENSE OF SIMPLE POSSESSION OF MARIJUANA.

8. AS TO KELLY LEWIS, THE FINES OF $2,000.00, $3,000.00 AND $2,000.00, FOR A TOTAL OF $7,000.00, WERE EXCESSIVE; THE EFFECTIVE CONSECUTIVE IMPOSITION OF THESE FINES VIOLATED T.C.A. §40-35-115 REGARDING MULTIPLE CONVICTIONS.

The judge imposed the following sentences on Kelly Lewis. As to the conviction for Simple Possession of Marijuana, the Court imposed a sentence of six months, suspended for 11 months and 29 days, and a fine of $2,000.00. (T.R. Vol. 1, p. 71). As to the felony conviction of Reckless Endangerment, the court imposed a sentence of 0.9 years as a mitigated offender and a fine of $3,000.00. The court suspended the sentence for two years except that Kelly Lewis was to serve 20 days on consecutive weekends in the county jail. (T.R. Vol. 1, p. 72).

As to the conviction for Evading Arrest, the court imposed a sentence of six months and a fine of $2,000.00. The sentence was suspended for 11 months and 29 days. (T.R. Vol. 1, p. 73). All of the judgments reflected that all of the convictions were to run concurrently with one another. Id. All of the judgments reflected that the request for post-trial diversion under T.C.A. §40-35-313 would be denied. Id. The sentencing proceedings are contained in the Appendix as is a copy of the pre-sentence reports and associated documents.

The pre-sentence report as to Kelly Lewis reveals that his is 29 years of age and graduated from Vanderbilt University. He has no physical or mental problems. He was previously employed with Bellsouth and is currently employed with EBM. (A. 715 – 723). The pre-sentence report reflects that his yearly salary is $36,000.00 per year but that he has a substantial amount of debt for the mortgage of his home, car, insurance and school loans. (A. 722). Testifying at the sentencing hearing, Kelly Lewis advised the court that he has been involved in civic activities including the Cystic Fibrosis Foundation. (A. 591). On behalf of Kelly Lewis as well as his parents, the defense introduced a number of letters from reputable members of the community attesting to their outstanding character in the community. See Exhibits 4 and collective Exhibit 5 reproduced in the Appendix at pages 698 – 702. As reflected in the pre-sentence report, Mr. Kelly Lewis has no prior arrests or convictions of any sort. (A. p. 719).

With respect to Kelly Lewis, the judge found that there were a number of factors which weighed in his favor. The court found that there were no enhancing factors and that there were many mitigating factors. Further, he had a stable home life, full work history, participation in civic activities and other productive participation in the system and had no prior record. (A. 628). However, the court found that it was not appropriate to grant diversion under T.C.A. §40-35-313 because Mr. Lewis was the “primary actor in the case.” (A. 629). The court also found that he had not accepted responsibility for his case and that the seriousness of the offense should not be depreciated. (A. 630). Following the sentencing hearing, the undersigned counsel filed a Motion to Modify the Sentence and permit sentencing under T.C.A. §40-35-313 and to reduce the amount of fines and for the fines to run concurrently. (T.R. Vol. 1, 78-79). The trial judge denied that Motion and those proceedings are contained in the Appendix at pages 637 – 696. In summary, the judge found that Mr. Kelly Lewis could afford to pay the fines because he had paid for a transcript of the trial which “cost a bunch of money” and because he had hired Mr. Raybin, who “is not cheap.” (A. 692).

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