The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE SESSION, 1998 FILED
August 12, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9711-CR-00425
) Cecil Crowson, Jr.
Appellate C ourt Clerk
Appellee, )
)
) SHELBY COUNTY
VS. )
) HON. CHRIS CRAFT
GARY PRUDE, ) JUDGE
)
Appe llant. ) (DUI - 4th Offense, Reckless Driving)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF SHELBY COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT A. WAMPLER JOHN KNOX WALKUP
P.O. Box 3410 Attorney General and Reporter
Memphis, TN 38173-0410
PETER M. COUGHLAN
Assistant Attorney General
425 5th Avenu e North
Nashville, TN 37243
JOHN W. PIEROTTI
District Attorney General
DAN BYER
Assistant District Attorney General
Criminal Justice Complex, Suite 301
201 Poplar Street
Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of
Appe llate Procedure . The Defe ndant was convicted on a Shelby Co unty jury
verdict of driving while under the influence of an intoxicant (fourth offense) and
reckless driving. On this appeal he argues (1) that the trial judge erred by
charging the jury regarding criminal responsibility for the conduct of another, and
(2) that under the circumstances of this case, the inclusion of this jury instruction
violated the Defendant’s constitutional right to a unanimous verdict. We find no
reversible error and affirm the ju dgme nt of the trial co urt.
On February 11, 1996, the Defendant was in possession of a van provided
by his em ployer . At app roxim ately 2:0 0 a.m ., the D efend ant, alo ng with a ma le
and a female companion, were proceeding in the van along a street in Mem phis
when the van struck a p ickup truc k parke d in the stre et, traveled across a yard,
and then went up on the fron t porch o f a house and ram med in to the hou se itself.
Mem phis Police Officer Larry Skelton was the first officer to arrive on the scene.
Ambulance person nel were already p resent. When the police officer arrived, the
Defendant had been placed in the ambulance. Officer Skelton entered the
ambulance where he detected a strong odor of intoxicants about the Defendant
and noticed that the Defen dant’s speec h was slurred and his eyes w ere watery.
The officer testified that the Defendant told him he was driving the van and had
hit a bump which caused him to lose control of the van. The officer stated that
beer cans were scattered around the inside of the van and in the yard. Based on
his observations of the Defendant and the statements the Defendant made, the
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officer determined that the Defendant had been the driver of the van and that the
Defendant was intoxicated.
Mem phis Fire De partm ent Paramedic Harry Perry stated that when he
arrived at the scene, a Shelby County Sheriff’s Deputy car was already present
and some people were “milling” near the van. Mr. Perry testified that he
examined the Defendant, who had a lip laceration and some blood on his face.
He said he detected an odor of intoxicants about the Defendant and noted that
he staggered somewhat and that his “gait” and demeanor indicated “somewhat
imbala nce.” Mr. Perry said that the Defendant advised him that he (the
Defen dant) had been driving the van. In addition, Mr. Perry heard the Defendant
advise a policeman that he (the Defendant) had been driving, and he heard the
Defendant apologize to the female com panion for “driving an d having this
acciden t.” On cross examination, Mr. Perry emphasized that he was certain the
Defendant told him th at he ha d been driving the va n. Finally, he testified the
Defen dant’s sp eech w as slurred .
The owner of the pickup truck and house struck by the van testified that
although he was no t at home w hen the wre ck occurred , he arrived shortly
thereafter. He observed all three occupants of the van and claimed that they
were all “drunk” — they we re “unsteady, speech was slurred and smelling real
strong [of alcohol].” He also said that the Defendant told him that he (the
Defen dant) had been driving. Although this witness testified that the driver of the
van had been placed in the police squad car, other evidence showed that the
Defendant had been placed in the ambulance and the male passenger had been
placed in the sq uad car.
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A Shelby County deputy sheriff testified that when he arrived at the scene,
only the occu pants o f the van a nd the o wners o f the house were present. He
stated that he responded to the call because he was close to th e scen e. He sa id
that he asked who had been driving and the Defendant said that he (the
Defen dant) had been. He stated that all three van oc cupa nts sm elled o f alcoh ol.
When he later advised the Defendant of his “implied consent rights,” the
Defendant advise d him that he had n ot, in fact, been driving. The Defendant then
refused to take a b lood-alco hol test.
The deputy also stated that prior to talking with the Defendant, the other
male occupant of the van advised him that he (the other occupant) had been
driving. Wh en the dep uty started advising the occupant of his rights under the
implied consent law, the occupant then said “<I’m not going to jail for something
I didn’t do . . . .’” The male occupant then stated that the Defendant had been
driving the van.
The Defendant offered no proof. The State requested that the judge
instruct the jury concernin g criminal respo nsibility for the conduct of an other. 1
The assistant district attorney stated that the defense contended the State did not
prove sufficie ntly that the Defendant had been driving rather than the other m ale
occupant of the van. The State therefore argued that a charge on criminal
respon sibility was warranted by the evidence. In addition, the State argued the
proof clearly showed that the Defendant had legal possession of and
respon sibility for the van and that if the other individual was operating the van, he
1
Tenn. Code Ann. § 39-11-402(2).
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did so while in toxicated a nd with the Defe ndant’s p ermiss ion. The judge agreed
to charge the jury on criminal re spons ibility over the ob jection of the Defen dant.
Although the judge ga ve a standard jury instruction conce rning the need for a
unanimous verdict, no special instruction was given on the need for a unanimous
verdict on either criminal respon sibility for the conduct of ano ther or actual
com miss ion of the offenses. The jury returned a general verdict of guilty for
driving a motor vehicle while under the influence of an intoxicant and reckless
driving. After hearing additional evidence, the jury found the Defendant guilty of
driving under the influence of an intoxicant, fourth offense.
The Defendant first argues that the trial judge erred b y charging the jury
concerning criminal responsibility because it was not charged in the indictment
and becau se the S tate did no t give the Defe ndan t notice of this alternate theory
of prosecution. He argues that his due process rights were violated because the
indictment failed to provide him notice that he was being tried for the conduct of
a third party.
An indictment or presentment must provide notice of the offense charged,
an adequate basis for the entry of a proper judgment, and suitable protection
against double jeopard y. State v. T rusty, 919 S.W.2d 305, 310 (Tenn. 1996);
State v. Byrd, 820 S.W.2d 739, 74 1 (Ten n. 1991 ); State v. Lindsay, 637 S.W.2d
886, 890 (Tenn. Crim. App., 1982). The indictment “‘must state the facts . . . in
ordinary and co ncise lan guage . . . in such a manner as to enable a person of
common understanding to know what is intended, and with that degree of
certainty which will enable the court, on conviction, to pronounce the proper
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judgm ent.’” Wa rden v. Sta te, 381 S.W.2d 244, 245 (Tenn. 1964). (quoting Tenn.
Code A nn. § 40-180 2 (recodified as a mende d at § 40-13-2 02).
The indictment in the case at bar charged the Defendant with driv ing wh ile
intoxicated, requiring that the following elements be proved: (1) that the
Defendant was driving or in control of a motor vehicle; (2) that the vehicle was
driven on a public road; and (3) that the Defendant was under the influence of an
intoxicant. Initially, we note that criminal responsibility for the conduct of another
is not a statutory offense , but rather a legal theory of criminal liability by which a
defendant may be convicted for an offense when there are m ultiple actors
involved. See Tenn. Code Ann. § 39-11-402. We do not believe that “criminal
responsibility” must have been included in the indictment. Th e indictment g ave
the Defendant notice of the events charged, and an adequate basis for the entry
of a prope r judgm ent, and protection against double jeopardy. Because the
evidence at trial raised the issu e, we be lieve it was a ppropria te for the S tate to
request the charge at the conclusion of the proof, and the trial judge did not
comm it prejudicial e rror in gran ting the req uest.
The second p art of the Defendant’s issue on appeal is a more troubling
one. The Defendant argues that because the criminal responsibility instruction
was includ ed, it is im poss ible to d eterm ine wh ether th e jury in this case reached
a unanimous verdict conce rning the facts supporting the offense for which he was
convicted. Although the court instructed the jury on the need for a unanimous
verdict, the court did not instruct concerning the jury’s need to render a
unanimous verdict on whether the Defendant was guilty of DU I base d on h is
conduct as the driver of the van or whether the Defendant was guilty of DUI
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based on his crimin ally responsibility for the conduct of another individual. The
Defendant cites Burlison v. State, 501 S.W.2d 801 (Tenn. 1973), for the
proposition that the State should have been required to elect and that the judge
shou ld have“ properly instruct[ed] the jury so that the ver dict of e very juro r would
be united on the one offens e.” Id. at 804.
The requirement that the State elect, at the close of its case in chief, which
proof it relies upon for a conviction most commonly occurs where the State has
introduced evidence of several instances of sexual misconduct, especially when
the proof presen ted could sup port a finding of more criminal conduct than is set
forth in the indictm ent or indic tments . Jamis on v. State , 94 S.W.2d 675 (Tenn.
1906); Burlison v. State, 501 S.W .2d 801 , 803 (T enn. 19 73); State v. Shelton,
851 S.W .2d 134 , 136 (T enn. 19 93). W here the re is eviden ce of m ultiple
offenses, particularly involving sexual crimes against small children, the
precaution to ensure jury unanimity is the doctrine of election, which requires the
State to elect and identify at the end of its proof the facts that supported the exact
offense for which it seeks conviction . See State v. Walton, 958 S.W.2d 724, 727
(Tenn. 19 97).
In a case such as the one at bar, where a defendant is charged with DUI
and the jury is to be c harge d con cernin g the D efend ant’s g uilt bas ed up on his
own conduct and also based on the conduct of another for which he may be
crimin ally responsible, we do not believe the doctrine of election is applicable.
In the case sub judice, the charge arose out of the driving of one automobile at
one particular time. The charges do not involve evidence of multiple acts, each
of which co uld cons titute the offense of DUI. W here the eviden ce could sup port
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such a findin g, we b elieve th e State is entitled to proceed to the jury under
alternate theories of DUI based upon a defendant’s own driving or on the driving
of another for whom the Defendant may be criminally responsible.
W e do agree with the Defendant, as the cases involving the need for an
election emph asize, tha t the Defe ndant h as a fund amen tal constitutio nal right to
a unanimous verdict before a conviction for a criminal offense may be imposed.
State v. Shelton, 851 S.W.2d 134, 137 (T enn. 19 93); State v. Brown, 823 S.W.2d
576, 583 (T enn. C rim. A pp. 19 91). T he un anim ity of a ve rdict is required so that
the jury verdict may not be a matter of choice between offenses in which some
jurors convict of one offense and others of another offense, all within the same
count. Tidwe ll v. State, 922 S.W. 2d 49 7, 500 (Ten n. 199 6). Pro tection of this
right often req uires spe cial “preca utions [by th e court] to ensure that the jury
deliberates over the particular charged offense, instead of creating a ‘patchw ork
verdict’ based on different offenses in evide nce.” Shelt on, 851 S.W.2d at 137
(citing State v. Brown, 823 S.W .2d 576, 583 (Tenn. Crim . App. 1991 )).
In a case such as the one at bar, the Defendant’s fundamental right to a
unanimous jury verdict requires the S tate to prove to the jury beyond a
reaso nable doubt the facts which constitute the offense. If, for exa mple , six
jurors were convinced beyond a reasonable doubt that the Defendant himself was
driving the van while intoxicated, and the other six jurors were convinced beyond
a reasonable doubt that the Defendant’s male companion was driving the van
while intoxicated, a conviction of the Defendant for DUI would not be based upon
a unanimous jury decision concerning proof of all elements of the offense beyond
a reasonable doubt. The jury’s verdict in that event would not be unanimous.
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W e must the refore co nclude that it was e rror for the trial court to charge
criminal re spons ibility for the conduct of another without clearly communicating
to the jury the need for a unanimous verdict on the facts. The jury did not
indicate upon which theory and set of facts it con victed the D efenda nt. It is this
potential for confusion that invades a defendant’s constitutional rights because
under these circ umsta nces, a jury cou ld indeed comp ile a “patch work verd ict”
regarding the facts o f the offens e. See State v. James R. Lemacks, C.C.A. No.
01C01-9605-CC-00227, Humphreys County (Tenn. Crim. App., Nashville, June
26, 199 7), perm. to app. granted (Tenn. Ma r. 16, 1998).
In the case sub judice, however, based upon the evidence presented at
trial, we conclud e that the error of the trial judge in failing to instruct the jury more
clearly of the ne ed for a unan imou s verdic t is harm less be yond a reaso nable
doubt. Wh ile there w as so me s ugge stion fro m the eviden ce tha t the D efend ant’s
male companion had driven the van on the morning in question, because of the
strength of the overwhelming evidence that the Defendant had in fact been
driving, we do n ot believe that there is any reas onable dou bt that the jury
convicted the Defendant based upon the proof that he in fact had been driving
the van.
The judgment of the trial court is accordingly affirmed.
____________________________________
DAVID H. WELLES, JUDGE
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CONCUR:
___________________________________
PAUL G. SUMMERS, JUDGE
___________________________________
JOE G. RILEY, JUDGE
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