State of Tennessee v. Larquietta Taylor-Fisher

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 13, 2010

STATE OF TENNESSEE v. LARQUIETTA TAYLOR-FISHER

Direct Appeal from the Criminal Court for Shelby County

No. 08-07356 John T. Fowlkes, Jr., Judge

No. W2009-02040-CCA-R3-CD - Filed April 29, 2010

The defendant, Larquietta Taylor-Fisher, pled guilty in the Shelby County Criminal Court

to DUI, first offense, a Class A misdemeanor; leaving the scene of an accident, a Class B

misdemeanor; and three counts of reckless aggravated assault, a Class D felony, and was

sentenced by the trial court to an effective sentence of two years, with thirty days to serve

and the remainder of the time on supervised probation. In a timely appeal to this court, she

argues that the trial court abused its discretion in denying her request for judicial diversion.

Following our review, we affirm the sentencing determinations of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

A LAN E. G LENN, J., delivered the opinion of the Court, in which JOHN E VERETT W ILLIAMS

and N ORMA M CG EE O GLE, JJ., joined.

Jennifer D. Fitzgerald (on appeal) and Brett Stein (at trial), Memphis, Tennessee, for the

appellant, Larquietta Taylor-Fisher.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney

General; William L. Gibbons, District Attorney General; and Susan Taylor, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

This case arises out of a December 14, 2007, Memphis traffic accident in which the

intoxicated defendant struck another vehicle, causing it to burst into flames, and then fled

from the scene.

The defendant was indicted by a Shelby County Grand Jury on three counts of

aggravated assault; one count of DUI, first offense; one count of reckless driving; and three

counts of leaving the scene of an accident. On July 1, 2009, the defendant pled guilty to

three counts of reckless aggravated assault, one count of DUI, and one count of leaving the

scene of an accident in exchange for concurrent sentences of two years for each of the

reckless aggravated assault convictions, eleven months, twenty-nine days for the DUI

conviction, and one day for the leaving the scene of an accident conviction.1 The manner of

service of the defendant’s sentence, including whether she would be granted judicial

diversion for the assault offenses, was left to the trial court’s later determination. The

prosecutor recited the following factual basis for the pleas at the guilty plea hearing:

Had this matter gone to trial, the State would have . . . shown that on

December 14th of 2007, at 9:29 p.m., [the defendant] was involved in an

accident at Lamar Avenue and Airways where she hit the . . . victim’s vehicle

causing it to burst into flames and then left the scene.

Post-office police officers in Unit Number 72 . . . observed the suspect

leaving the intersection of the accident and followed her to [the residence of

her in-laws] . . . where they observed her behind the steering wheel of the

vehicle.

They then observed her get out of the vehicle and go into [the

residence] and they called for the [Memphis Police Department (“MPD”)] to

make the scene. MPD officers made the scene and found the suspect laying

[sic] in a bed in the front room of the house.

Officers on the scene advised the suspect to get up out of the bed and

she was unable to get up and needed help to get out of bed because she was too

intoxicated.

She smelled strongly of alcoholic beverage, had slurred speech and was

. . . unable to stand or walk on her own without assistance.

Once in custody, the suspect freed herself from her handcuffs and

became enraged and abusive towards the officers. A DUI unit was called.

They attempted to give her the [blood-alcohol content test,] but she refused to

take it.

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The State nolle prosequied two of the counts of leaving the scene of an accident and the reckless

driving count.

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Three victims were injured in the other vehicle that the suspect hit and

were transported to the [Regional Medical Center] in stable condition.

At the sentencing hearing, the thirty-nine-year-old defendant testified that she had two

children and was currently separated from her husband. She said she had been employed at

Swift Transportation for nine years and was confident that she would be able to abide by the

conditions of probation, including the payment of probation fees and restitution.

When asked by the trial court to describe how the accident occurred, the defendant

testified that she had been studying at home for her board examination for her master’s

degree, during which time she had drunk two glasses of wine, when her computer crashed,

which meant that she had to go to her office to complete her assignments. As she was

returning home, she noticed a car beside her that was weaving in and out of traffic, which

frightened her. The defendant explained that she had been receiving threatening telephone

calls since the previous weekend when her vehicle, containing her cell phone and

identification, had been stolen. Believing that the people in the erratically driven car were

the ones who had stolen her vehicle and threatened her, she sped up in an attempt to escape,

turned a corner wide without yielding to oncoming traffic, and struck the victim’s vehicle.

The defendant testified that she returned to consciousness after the collision to hear

someone say, “[W]e’re going to kill this ‘B’.” She said she had been prepared to check on

the occupants of the other vehicle, but, after her life was threatened, she “just tried to secure

[herself]” and get to a safe place to call the police. For that reason, she drove to the home

of her in-laws, only two to three miles away, instead of to her own home in Millington. The

defendant insisted that she wanted to return to the accident scene, but the police would not

let her, which, she said, made her “very irate and livid.”

Upon further questioning, the defendant testified that she did not call the police

because she could not find her cell phone and there was no telephone in her relatives’ home.

She said she became abusive with the police officer because he asked her what she was doing

in that area, which made her believe that he was “stereotyping [her].” In support for her

claim that the victims had threatened her life, the defendant related that the police officer

who had responded to the accident scene, whom she later encountered at the Regional

Medical Center, “said that he had to apprehend one of the suspects because he was . . . a

hothead.”

At the conclusion of the hearing, the trial court found that the defendant was not a

suitable candidate for judicial diversion or full probation and therefore sentenced her to serve

thirty days in the county jail, with the remainder of her time on supervised probation.

ANALYSIS

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The defendant contends on appeal that the trial court did not afford enough weight to

the factors in her favor, including her lack of a serious criminal record and positive

educational, familial, and employment history. The State argues that the trial court’s denial

of judicial diversion or a sentence involving full probation was proper. We agree with the

State.

Following a determination of guilt by plea or by trial, a trial court may, in its

discretion, defer further proceedings and place a qualified defendant on probation without

entering a judgment of guilt. Tenn. Code Ann. § 40-35-313(a)(1)(A) (Supp. 2008). A

qualified defendant is one who is found guilty or pleads guilty or nolo contendere to a

misdemeanor or Class C, D, or E felony; has not been previously convicted of a felony or a

Class A misdemeanor; and who is not seeking deferral for a sexual offense, a violation of

Tennessee Code Annotated sections 71-6-117 or 71-6-119, or a Class A or B felony. Id.

§ 40-35-313(a)(1)(B)(i). If the defendant successfully completes the period of probation, the

trial court is required to dismiss the proceedings against him, and the defendant may have the

records of the proceedings expunged. Id. § 40-35-313(a)(2), (b).

The decision to grant or deny a qualified defendant judicial diversion lies within the

sound discretion of the trial court. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn.

Crim. App. 1998); State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997); State

v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993). As such, it will not be disturbed

on appeal absent an abuse of discretion. Electroplating, 990 S.W.2d at 229; Cutshaw, 967

S.W.2d at 344; Bonestel, 871 S.W.2d at 168. To constitute an abuse of discretion, the record

must be devoid of any substantial evidence in support of the trial court’s decision. Cutshaw,

967 S.W.2d at 344; Bonestel, 871 S.W.2d at 168; State v. Anderson, 857 S.W.2d 571, 572

(Tenn. Crim. App. 1992).

In determining whether to grant diversion, the trial court considers (a) the accused’s

amenability to correction, (b) the circumstances of the offense, (c) the accused’s criminal

record, (d) the accused’s social history, (e) the accused’s physical and mental health, (f) the

deterrence value to the accused as well as others, and (g) whether judicial diversion will

serve the interests of the public as well as the accused. Electroplating, 990 S.W.2d at 229;

Bonestel, 871 S.W.2d at 168. A trial court should not deny judicial diversion without

explaining the factors in support of its denial and how those factors outweigh other factors

in favor of diversion. Id.

The record reflects that the trial court considered each of the above factors in its

determination of whether the defendant should receive judicial diversion. The court noted

that the defendant had several “very positive factors” weighing in her favor, including the

fact that her physical health was good, she was well-educated, she had “had very solid jobs,”

and her family supported her. The court further noted that the defendant’s criminal record

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was minimal, consisting merely of a disorderly conduct charge that had been dismissed and

minor driving offenses that had occurred over ten years earlier. The court found, however,

that these positive factors were outweighed by the seriousness of the offense, the need for

deterrence in a county in which there were a substantial number of alcohol-related traffic

accidents, and the fact that the defendant had not evidenced real amenability to correction.

With respect to the defendant’s amenability to correction, the trial court stated in pertinent

part:

But what is a truly true concern is the defendant’s amenability to

correction.

I know acceptance of the responsibility is not the controlling factor, but

it is at least a factor to take into account.

The prosecutor is correct in making the observation about the

defendant. Although towards the end of her testimony she said that she

accepts the responsibility.

That was not demonstrated in her . . . testimony. Everyone else seemed

to be at fault. People who were weaving in and out of traffic. Also, after the

accident occurred, apparently someone said something that she heard.

Although there’s nothing in the officer’s information that indicates and

supports that.

The officers that arrested her, they said something to . . . upset her. And

she seems to place blame on everyone but herself.

And so, in balancing the positive factors about the defendant and her

history against the circumstances of the offense, amenability to correction,

which just doesn’t seem as though I can place amenability to correction in the

defendant’s favor, as well as deterrence value and whether diversion would

serve the interests of the public or the defendant. Those negative factors far

outweigh the positive factors about the defendant’s history.

The record supports the trial court’s determination that those factors favoring the grant

of diversion were outweighed by those favoring denial. The intoxicated defendant struck

another vehicle occupied by at least three individuals, causing it to burst into flames; fled the

scene rather than attempting to render aid to the victims or call for assistance; was belligerent

with the police officers who arrived to arrest her; and later attempted to cast blame for the

accident and her subsequent behavior on others rather than accepting responsibility for her

own actions or expressing any genuine remorse. We, therefore, conclude that the trial court

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did not abuse its discretion in denying the defendant’s request for judicial diversion.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the sentences imposed

by the trial court.

_________________________________

ALAN E. GLENN, JUDGE

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