State v. Lee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

MARCH 1997 SESSION

FILED

May 28, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

STATE OF TENNESSEE, )

) C.C.A. No. 03C01-9607-CR-00277

Appellee, )

) Knox County

V. )

) Honorable Richard R. Baumgartner, Judge

)

DONALD C. LEE, ) (Felony murder, robbery, reckless

) endangerment, aggravated assault, and

Appellant. ) vehicular homicide)

FOR THE APPELLANT: FOR THE APPELLEE:

Leslie M. Jeffress Charles W. Burson

Attorney at Law Attorney General & Reporter

1776 Riverview Tower

900 S. Gay Street Michael J. Fahey, II

Knoxville, TN 37902 Assistant Attorney General

Criminal Justice Division

450 James Robertson Parkway

Nashville, TN 37243-0493

Randall E. Nichols

District Attorney General

Gregory H. Harrison

Assistant District Attorney General

City-County Building

400 Main Street, P.O. Box 1468

Knoxville, TN 37901-1468

OPINION FILED: ___________________

AFFIRMED

PAUL G. SUMMERS,

Judge

OPINION

The appellant, Donald C. Lee, was convicted by a jury of felony murder,

robbery, reckless endangerment, aggravated assault, and vehicular homicide.

He was sentenced to life for the felony murder conviction. This sentence was

ordered to run consecutively to the 37 years he received on the other

convictions. He appeals raising the following issues for review:

1) whether the evidence is sufficient to support a felony murder

conviction;

2) whether the evidence is sufficient to support a vehicular

homicide conviction;

3) whether a state rebuttal witness was properly allowed to express

his opinion regarding the driver of the appellant's vehicle; and

4) whether his sentence is proper.

Upon review, we affirm the judgment of the trial court.

FACTS

The appellant entered the Super-X drug store in Knoxville. He forced the

pharmacist to open the safe and give him all Schedule II, III, and IV narcotics. A

witness saw him leaving the pharmacy in a white truck. The driver of the white

truck let the appellant out in an adjacent parking lot. The police immediately

apprehended the driver. He informed the police that the appellant left in a brown

Ford containing one passenger. Approximately 25 minutes later the appellant

was spotted by the police and a high-speed chase ensued. In an effort to get

away, the appellant struck the side of the police car. He erratically cut in front of

other motorists. He slammed on his brakes causing the police car to slam into

the rear of his car. The appellant eventually swerved into the oncoming lane of

traffic and struck a Jeep. The appellant's passenger and the driver of the Jeep

were killed in the head-on collision.

I

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In his first issue the appellant contends that the evidence was insufficient

to support a conviction for felony murder. He argues that the killing of the victim

did not occur during the perpetration of the robbery. He claims that he had

successfully completed the robbery and made a successful getaway when the

police chase ensued. We disagree.

The purpose of Tennessee's felony murder statute is to prevent the death

of innocent persons likely to occur during the commission of certain inherently

dangerous felonies. The applicable statute reads in pertinent part:

First degree murder. (a) First degree murder is defined as:

(2) A reckless killing of another committed in the perpetration of, or

attempt to perpetrate any first degree murder, arson, rape, robbery,

burglary, theft, kidnaping or aircraft piracy.

Tenn. Code Ann. § 39-13-202(a)(2) (1991). The appellant's contention is simply

that the robbery had been completed when he collided with the Jeep causing the

death of its driver. We note that the protraction of events over time and distance

accentuate the problem of determining whether the underlying felony had

reached completion before the death occurred. However, other jurisdictions

have held that a person is engaged in the commission or perpetration of a

robbery while the criminal is trying to escape with the property taken in such

robbery. Campbell v. State, 227 So. 2d 873 (Fla. 1969). Factors to be

considered in determining whether there has been a break in the chain of

circumstances include the relationship between the underlying felony and the

homicide in point of time, place, and causation. One commentator suggests that

in the case of flight, the most important consideration is whether the fleeing felon

has reached a "place of temporary safety." LaFave, Substantive Criminal Law, §

7.5 (1986). We also note that the determination of whether the act of escape or

flight is a continuous part of the accomplished crime or whether the defendant

has reached a place of temporary safety is a question for the trier of fact. See

Commonwealth v. Dellelo, 209 N.E.2d 303 (Mass. 1965).

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In this case the appellant was spotted by a police officer approximately 25

minutes after the robbery occurred. The appellant, in his brief, states that he and

his accomplice planned to rendezvous and split up the fruits of the robbery. We

find that a rational trier of fact could find, and indeed did find, that the homicide

occurred in furtherance of the robbery. Nothing in the record indicates that the

appellant had reached a place of temporary safety. The homicide was clearly a

result of the high-speed chase necessitated by the appellant's attempt to flee the

area of the crime. It is a legitimate and logical assumption that one who plans a

robbery and carries it out has also planned to escape from the scene of the

crime. His flight is an integral part of the crime. Since asportation is an element

of robbery, the felony is still in progress while the defendant is fleeing from the

scene with the stolen property. We find the evidence sufficient to support the

appellant's felony murder conviction.

II

The appellant next contends that he cannot be convicted of vehicular

assault because there was insufficient proof that he was the driver of the vehicle.

We disagree.

Jury verdicts accredit state's witnesses and resolve all evidentiary conflicts

in the state's favor. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State

v. Banes, 874 S.W.2d 73, 78 (Tenn. Crim. App. 1993). On appeal, the state is

entitled to both the strongest legitimate view of the evidence and all reasonable

inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832

(Tenn. 1978). When appellants challenge the sufficiency of the evidence, this

Court must only determine whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of a crime beyond a reasonable doubt. Jackson v. Virginia,

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443 U.S. 307 (1979); Tenn. R. App. P. 13(e); State v. Duncan, 698 S.W.2d 63

(Tenn. 1985).

The record reveals that the vehicle was registered to the appellant. At

trial two police officers testified that they observed the appellant driving the

vehicle during the high speed chase. Also, an uninterested motorist identified

the appellant as the driver of the car. Finally, a member of the rescue squad

testified. He stated that when he arrived on the scene the appellant's car was

found resting on the driver's side door. The appellant's right foot was entangled

in the driver side floorboard, and he was trapped behind the steering wheel

underneath the other passenger in the car.

Based upon the evidence supplied by several witnesses, a rational trier of

fact could have concluded that the appellant was driving the vehicle when the

deadly collision occurred. We find the evidence sufficient to support the

appellant's conviction for vehicular assault.

III

The appellant next contends that the trial court erred in allowing rebuttal

testimony of a rescue squad worker in the form of opinion testimony. He argues

that the rescue worker was not qualified as an expert in accident reconstruction

and should not have been allowed to give his opinion.

At trial the appellant attempted to defend the vehicular assault charge by

proving that he was not driving the Ford when the collision occurred. In rebuttal,

the state called the member of the rescue squad that extracted the appellant

from the wreckage. The witness testified that he had years of experience in

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removing individuals from wrecked vehicles.1 He testified regarding the positions

of the bodies in the appellant's car and the process of removal. He then gave his

opinion that the appellant had been driving the car.

The record is ambiguous as to whether the trial judge considered the

rescue worker to be an expert. It does reveal that he considered the appellant's

objection and allowed the rescue worker to state his opinion. We think this

decision was proper.

This Court finds that, had the proper procedures been followed, the

rescue worker would have qualified as an expert. His extensive experience, skill,

and training qualified him to testify in this capacity. Tenn. R. Evid. 702.

However, regardless of his status as a expert or lay witness, his testimony was

proper. His testimony was rationally based on his perception and was helpful to

gain a clear understanding of his testimony. Tenn. R. Evid. 701(a).

Furthermore, we note, that if there was error regarding this testimony, it was

harmless. The state produced three other witnesses that testified that the

appellant was the driver of the vehicle. This issue is without merit.

IV

In his final issue the appellant contends that his sentences are excessive.

He argues that the trial court misapplied enhancement factors and improperly

ran the sentences consecutively.

When a sentencing issue is appealed, this Court shall conduct a de novo

review with the presumption that the trial court’s findings are correct. State v.

Byrd, 861 S.W.2d 377, 379 (Tenn. Crim. App. 1993).

1

The rescue worker testified that has been a paramedic for over ten years and has been a member of the rescue

squad s ince 198 2. He testified that, as a m embe r of the rescu e squad , he has e xtracted bo dies from wrecke d cars

somewhe re between 300 to 500 tim es.

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The appellant was classified as a Range II offender. The trial court found

that Tenn. Code Ann. §§ 40-35-114(1), (2), and (13) enhancement factors

applied to all of the appellant's convictions. The appellant offered no mitigation

evidence. Our review of the record suggests that none exists. After careful

consideration, we find that the trial court followed the principles of sentencing.

The sentences imposed were proper. This issue is without merit.

Regarding the issue of consecutive sentences, the record reveals that the

trial court found the appellant's record of criminal activity to be extensive. 2 The

trial court also found that the appellant was clearly a dangerous offender whose

behavior indicates little regard for human life and no hesitation about committing

crimes in which the risk to human life is high. Furthermore, the appellant was on

parole when he committed these crimes. The trial court found that society needs

protection from the appellant. We find that the trial court correctly interpreted

and applied Tenn. Code Ann § 40-35-115 in ordering the appellant's sentences

consecutively. This issue is without merit.

CONCLUSION

After carefully considering the appellant's issues, we find no error of law

mandating reversal. Accordingly, we affirm the judgment of the trial court.

__________________________

2

The ap pellant's pres entence report indica tes that he has bee n arrested and/or co nvicted fo r the followin g crimes :

robbery, aggravated robbery, possession of a controlled substance, public intoxication, criminal trespassing, DUI, assault and

battery, carrying a weapon with intent to go armed, reckless driving, evading arrest, several moving violations, and several

parole violations. It should be noted that the appellant has been arrested and/or convicted of several of the above listed

crimes o n more than on e occasio n.

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PAUL G. SUMMERS, Judge

CONCUR:

______________________________

JOHN H. PEAY, Judge

______________________________

CORNELIA A. CLARK, Special Judge

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