IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED APRIL SESSION, 1997 June 26, 1997
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9605-CC-00227 )
Appellee, )
)
) HUMPHREYS CO UNTY
VS. )
) HON. ROBERT E. BURCH JAMES R. LEMACKS, ) JUDGE )
Appe llant. ) (DUI)
ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF HUMPHREYS C OUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
J.P. BRADLEY JOHN KNOX WALKUP 110 West Main Street Attorney General and Reporter Wa verly, TN 37185 JANIS L. TURNER
Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243
DAN ALSOBROOKS
District Attorney General
GEORGE SEXTON
Assistant District Attorney General Humphreys County Courthouse Room 206
Wa verly, TN 37185
OPINION FILED ________________________ REVERSED AND REMANDED DAVID H. WELLES, JUDGE
OPINION
The Defendant appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Pro cedure. He was convicted by a Hum phreys Co unty jury of driving while intoxicated and sentenced to 11 months and 29 days, suspended except for 30 days with the remainder to be served on p robatio n. His d river’s license was suspended for one year an d he w as ord ered to attend DUI s choo l. He appeals his conviction raising two issues for review: (1) That the trial court erred in chargin g crimina l respons ibility when the Defen dant was not fo rmally indicted on this charge; and (2) that the trial court erred in chargin g criminal respon sibility when the other party involved was never charged with any offense. Although not precisely on either of the issues raised, we reverse and remand for a new trial.
The Defendant and three other individuals, Sanchez, Duncan, and Lucas planned to attend a party on October 3 0, 1993 . The fou r were so ldiers at Ft. Campbell Army Po st near Clarksville, Te nnessee and they drove to Wa verly, Tennessee for the party. The Defendant drove the others in his vehicle, a tan Ford Bronco. The party was being held at Rosie Matthews’ (a.k.a. Rose Bramlett’s) house, who was Sanchez’ girlfriend. The four went to the party and to Pippin’s, a bar in Waverly. They returned to the house in the early morning hours of October 31 to continue the party. All of them had been drinking beer that night, although Luc as testified that she stop ped drinking b efore the others because the Defendant began acting strangely and s he did not kno w him very
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well. After they returned to the house, Sanchez and his girlfriend had a fight and he wanted to leave the party.
It is at this p oint in the evening when the testimony of the witnesses at the trial conflicts reg arding w ho was driving the B ronco. T he State presen ted the following evidenc e. The fo ur left the party and proceeded down Clydeton Road. It is undisputed that Duncan was in the left rear passenger seat and that Lucas was in the right rear passenger seat. Less than a mile from the house, the vehicle left the roadway on the right side and traveled 285 feet in a ditch before it came to rest at an embankment. Lucas testified at trial that the Defendant was driving the Bronco. She stated that she offered to drive because she was relative ly sober, b ut that the D efenda nt refuse d. She testified that the Defendant started in reverse with the emergency brake still on, but then took the brak e off and procee ded do wn the ro ad. Soon thereafter, the veh icle left the roadway. Lucas testified that, afte r the wr eck, S anch ez op ened the drive r’s side door from the outsid e and unloc ked th e Def enda nt’s se atbelt. T he De fenda nt fell dia gona lly into the passenger seat because the vehicle was at an angle. Lucas heard two thumps and it appeared that the Defendant’s head was cut and bleeding. Sanchez explain ed tha t the D efend ant hit h is hea d on th e wind shield and the dashboard after his seatbelt was removed. Another vehicle pulled up and Sanchez got a ride back to the house to get help.
Tennessee State Troop er Mike S mothe rs was d ispatche d to the accident scene, along with an ambulance. Sanchez had a bump on the head and Lucas had a back injury and had to be extracted from the vehicle. The Defendant was being treated in the back of the ambulance when Trooper Smothers interviewed
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him. He testified that the Defendant was initially uncooperative and would not answ er his questions. He appeared intoxicated and was arguing with the EMT perso nnel. Lucas had state d that the Defendant was driving and the trooper confronted him. Trooper Smothers asked whether he was driving, and the Defendant admitted that he was driving and that he just missed the curve and ran off the road. The Defendant was taken to a hospital and consented to a blood alcoh ol test, re sulting in a .20 % blo od alc ohol le vel.
Trooper Smothers testified regarding the head injuries received by the Defendant and Sanchez as they corresponded to the c rack in the veh icle’s passenger side windshield. He stated that Sa nche z cou ld have hit the w indsh ield without receiving cuts because of the safety glass. He also testified that the Defe ndan t’s cuts on the right side of his h ead co uld poss ibly be attribu ted to hitting the windshield if his head was turned to the left, but were not consistent with a passenger facing forward because the cuts would be on the front of the head.
The Defendant called Jennifer Barker, a woman who was also at the party, to testify that she saw Sanchez, not the Defendant, get into the driver’s seat of the Bronco and drive away. She stated that everyone had been drinking and that Sanchez “was very intoxicated.” Sanchez had a problem backing up and “spun gravel” when he pu lled on to the ro ad. Sh e testifie d that h e retur ned s hortly, “saying that he’d h ad a wre ck and that he tho ught he ’d killed one of them .” Howeve r, Barker also said that Sanchez told her that the Defendant was driving and that it thre w him (San chez ) out the pass enge r side window and threw the Defen dant into th e pass enger s eat.
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The Defendant testified that Sanchez was driving the vehicle prior to the acciden t. After th e wrec k, he s aw Sa nche z at the driver’s side window saying “we got in a wreck” and that he would get help. The Defendant testified that he felt blood on his head and passed out again on the dashboard. He was pulled out of the truck through the driver’s side because the passenger door was obstructed by the em bankm ent. He stated that Sanchez was drinking but that he could n’t answe r whethe r Sanch ez was intoxicated and ho w muc h he’d ha d to drink.
The Defendant was indicte d in Hu mph reys C ounty for veh icular a ssau lt and driving while intoxicated. Sanchez was not prosecuted for any crime. The jury found the Defendant guilty of driving while intoxicated.1
In his first issue, the Defendant argues that the court erred by charging the jury with criminal responsibility because it was not formally charged in the indictme nt. After the conclusion of the proof in this case, the State requested that the jury be charged on crim inal respo nsibility 2 based on the proof at trial suggesting that Sanchez may have been the driver of the vehicle.
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. Trusty, 919 S.W .2d 305, 310 (Tenn. 199 6); State v. Byrd, 820 S.W .2d 739 , 741 (T enn. 19 91); State v. Lindsay, 637 S.W.2d 886, 890 (T enn. C rim. App .1982). T he indictm ent “mu st state the facts in
1 Tenn. Code Ann. § 55-10-401.
2 Tenn. Code A nn. § 39-11-402(2),(3).
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ordinary and concise language in a manner that would enable a person of common understanding to know what is inte nded, a nd with a d egree o f certainty which would enable the court upon conviction, to pronounce the proper judgmen t.” Wa rden v. Sta te, 214 Ten n. 391, 381 S .W.2d 244, 245 (19 64).
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 re spons ibility 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 th ere are mu ltiple actors involved. See Tenn . Code Ann. § 3 9-11-40 2.
The State decided that criminal responsibility was raised by the proof as a theory of liability based on the Defendant’s position that he was not the driver of the vehicle and the State requested that an instruction be given to that effec t. W e do not believe that criminal responsibility must have been included in the indictme nt. The indictment gave the Defendant notice of the offense charged and an adequate basis for the entry of a proper judgment, and also provided protection against doub le jeopardy. The Defendant was only charged with and at risk of being convicted for DUI. 3 He was apprised of the elements of the crime against which he was to defend and for which the trial court entered a judgm ent. Although we do not know upon what theory the jury based its verdict, the
3 W e note tha t the Defe ndant w as also c harged with vehicu lar assa ult and wa s acqu itted of that offense.
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Defendant cannot be charged with another DUI offense based on that same incident. T hus, he is not at risk fo r double jeopard y.
W e do not believe that our law requires c riminal responsibility for the conduct of anothe r to be cha rged in the indictme nt. In this case, the State had no notice of the d efense that S anchez m ay have bee n the driver. Because the evidence at trial rais ed the issue, it was not improper to request the charge at the conclus ion of the p roof.
In his second issue, the Defendant contends that the trial court erred by charging the jury on criminal res ponsibility when the other person was never charged with the offense and no proof was presented at trial regarding his degree of intoxication . We first note that the fact that a party to an offense has not been charged or con victed is not a defense. However, we conclude that charging criminal responsibility for the cond uct of another led to error in the case sub judice for anoth er related reason .
One is crimina lly respons ible as a p arty to an o ffense “if the offense is committed by the person’s own conduct, by the conduct of another for which the person is criminally respons ible, or by both.” Ten n. Code A nn. § 39-11-4 01. Furthermore, the legislature h as pro vided th at a de fenda nt ma y be crim inally respo nsible based on the conduct of another “on proof of commission of the offense” and that the defendant was a party. Tenn . Code Ann. § 3 9-11-40 7. It is not a defen se tha t “[t]he pe rson fo r whos e con duct th e defe ndan t is crim inally respo nsible has been acquitted, has not been prosecuted or convicted, has been convicted of a differe nt offen se or d ifferent ty pe or c lass of offens e, or is immune
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from prosecution.” Tenn. Code Ann. § 39-11-407(2). The Sentencing Commission Com men ts to se ction 4 07 sta te the fo llowing policy determination for offenses ba sed on crim inal responsibility for the con duct of anothe r:
This section reflects a policy determination that, in a case involving multiple offenders, a c onviction should be sustained where there is sufficient evidence to sup port it, re gardle ss of w hethe r there is a failure of proof in ano ther case involving other people. Thus, the defendant may be co nvicted whethe r the other parties to the offense are convicted, ac quitted, or incapab le of criminal respo nsibility.
Thus, upon proof th at an o ffense has b een c omm itted, with multip le actors, even if another person was the principal, a defendant may be convicted for the conduct of the other based on one of three theories:
(1) Acting with the culpability required for the offense, the person causes or aids an innocen t or irrespon sible pers on to engage in conduct prohibited by the definition of the offense;
(2) Acting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, directs , aids, or atte mpts to aid anoth er perso n to commit the offense; or
(3) Havin g a duty impos ed by law or volunta rily underta ken to prevent commission of the offense and acting w ith inten t to ben efit in the proceeds or results of the offense, or to promote or assist its commission, the person fails to make a reasonable effort to prevent commission of the offense.
Tenn. Code Ann. § 39-11-402; see also State v. Williams, 920 S.W.2d 247, 257- 58 (Tenn. Crim. App. 19 95); State v. Gennoe, 851 S.W.2d 833, 836 (Tenn. Crim. App. 19 92); State v. Brown, 756 S.W .2d 700, 703 (Tenn. Crim . App. 1988 ).
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Here, the jury was charged with the latter two theories. The trial court also charged the jury that: “The facts presented in this case allow the jury to find either that (1) the defendant was the driver or (2) that the defendant was not the drive r.” The jury convicted the Defendant of DUI and rendered a general verdict. We do not know upon which theory and upon whose actions as principal the jury relied.4
The jury was given the choice of convicting the Defendan t base d on h is own conduct or criminal responsibility for Sanchez’ conduct. Ordinarily, the fact that the other ac tor was n either cha rged no r convicted of the crim e is not a defense, and we agree that this charge was not error in the case sub judice. Howeve r, the State could only properly convict the Defendant “on proof of commission of the offense.” Tenn. Code Ann. § 39-11-407. This case is unlike a conviction where a n offense has be en prove d to have been c omm itted with multip le actors w here the identity of the actual pe rpetrator is u nclear. See State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995 ). In Williams, the victim was raped by one man when two others were present and participating and the victim c ould n ot iden tify the ac tual pe rpetra tor. Th ere, the jury wa s prop erly charge d with crim inal respo nsibility. Id. at 251, 25 7.
Here, in order to convict the Defendant, it was possible for the Sta te to prove that either the Defendant or Sanchez was driving. The court could then charge the jury with DUI and criminal responsibility and convict the Defendant for
4 We note that the Defendant has included in his brief what is ostensibly intended to be an affidavit from the jury foreperson describing their deliberations and what theory they used to convict. T he De fendan t claims that the trial cou rt adm itted the affida vit at the m otion for ne w trial. First, we have found nothing in the technical record documenting the hearing on the motion for new trial no r the a ffida vit. Se con d, ad mittin g doc um enta tion o f a jur y’s delib eratio ns is inadmissible unless under specific circumstances pursuant to Rule 606(b) of the Tennessee Rules o f Evidenc e. Ther efore, we do not co nsider this affidavit.
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driving drunk himself or for allowing Sanchez to drive drunk . See Williams v. State, 352 S.W.2d 230, 209 Tenn. 208 (1961). Howe ver, it would have been necessa ry to prov e that b oth the Defe ndan t and S anch ez we re intox icated in order to establish that an offense had indeed been committed for the purpose of convicting the Defendant based on alterna te theories of respo nsibility. The State argues that there w as sufficien t evidence to support a finding that Sanchez was driving and that he was intoxicated. The State contends that “[a]ll of the witnesses, including the defen dant him self adm itted that Mr. Sanchez was drunk.”
W e disagree. To determine the sufficiency of the convicting evidence, the standard is whether, after reviewing the evidence in the light m ost favora ble to the prosecution, any rational trier of fact could have found the esse ntial elem ents of the crime beyond a reaso nable d oubt. Jack son v. V irginia, 443 U.S. 307, 319 (1979). After a c areful re view of th e reco rd, we h ave fou nd little evidence to support a finding beyond a reasonable doubt that Sanchez was intoxicated. There is only one statement from one witness, Jennifer Barker, that Sanchez was “very into xicated .” Othe r than th at, the w itness ’ statem ents w ere tha t gene rally everyone was drinking. T he Defen dant stated tha t Sanchez was drinking, but would not confirm how m uch he had to dr ink or wh ether he w as intoxicated. There is no tes timon y rega rding S anch ez’ ap peara nce o r beha vior, no field sobriety tests were conducted and no blood alcohol level was taken. Therefore, we are com pelled to c onclud e that the e vidence was insu fficient to sup port a conviction based on Sanchez’ driving while intoxicated. More proof of intoxication than that which was offered in the case at bar is necessary to uphold a conviction for DUI. See William s v. State , 352 S.W .2d 230 , 209 Te nn. 208 (1961); Hopson
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v. State, 299 S.W .2d 11, 2 01 Tenn. 337 (19 57); State v. Nunn ery, 875 S.W.2d 681 (Tenn . Crim. A pp. 199 3); State v. Vasser, 870 S.W.2d 543 (Tenn. Crim. App. 1993).
W hile there is amp le eviden ce tha t the D efend ant him self drove the veh icle and that he was intoxicated, the jury rendered a general verdict, not specifying upon which theory the y relied to convict. As a res ult, the jury might have convicted the Defendant based on insufficient evidence of Sanchez’ intoxication, and thus, we cannot conclude that instructing the jury on crim inal respo nsibility was harmle ss error. Yet, the insufficiency of the evidence merely highlights the problem of instructing the jury on criminal responsibility without making it clear that the jury was to agree unanimously that either the Defendant or Sanchez was driving and that the driver was intoxicated . Even if the evid ence was le gally sufficient to support a conviction based on Sanchez’ intoxication, it would be impo ssible to assure that the conviction was the result of a unanimo us jury verdict.
A defendant has a funda menta l constitution al right to a unanimous verdict before a conviction for a criminal offense m ay be im posed . State v. Shelton, 851 S.W.2d 134, 13 4 (Ten n. 1993 ); State v. Brown, 823 S.W.2d 576, 583 (Tenn. Crim. App.1991). The unanimity of a verdict is required so that the jury's verdict may not be a matter of choice between offenses in which some jurors convict of one offense and others of another offense, a ll within the sa me co unt. Tidw ell v. State, 922 S.W .2d 49 7, 500 (Ten n. 199 6) Pro tection of this right often requires "special precautions [by the court] to ensure that the jury deliberates over the particular charge d offense , instead o f creating a 'patchwork verdict' based on
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different offenses in evidenc e." Shelton, 851 S .W .2d at 1 34. W here th ere is evidence of multiple offenses, the precaution is the doctrine of election, which requires the state to elect and identify at the end of its ca se-in-ch ief the exact offense for which it seeks conviction. Id.; Burlison v. State, 501 S.W.2d 801, 804 (Tenn.19 73). Where there is technically one offens e, but e videnc e of m ultiple acts which w ould con stitute the o ffense, a d efenda nt is still entitled to the protection of unanim ity. State v. Forbes, 918 S.W.2d 431, 445-46 (Tenn. Crim. App. 1995)
[I]n cases in volving evid ence w hich sho ws a rea l potential that a conviction may o ccur a s a res ult of different jurors concluding that the defendant committed different acts, each of which separately showing the commission of an offense, the trial court must augment the general unanim ity instruction to insure th at the jury un derstands its duty to agree unan imou sly to a p articula r set of fa cts. Th e ass essm ent of th is potential would involve consideration of the allegations made and the statutory offense c harged , as well as the actua l evidence presen ted.
Brown, 823 S.W.2d at 583 (citing United States v. Gipson, 553 F.2 d 453 (5 th Cir.1977) and United States v. Beros, 833 F.2d 45 5 (3rd Cir.1987 )).
In the case at bar, the trial court charged that “T he fac ts pres ented in this case allow the jury to find either that (1) the defendant was the driver or (2) that the defendan t was not the driver.” Also , the jury was charg ed that they were required to reach a unan imou s verdic t. How ever, w e do n ot belie ve that th is instruction effectively communicated to the jury that they were to unanimously agree upon th e facts constituting the offens e, specifically, to unanimously agree whether the Defendant was or was not driving the Bronco. This leaves the possibility that part of the jury could h ave convicted th e Defend ant for driving himse lf, and the others could have c onclu ded th at he d id not d rive. Th e jury did
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not indica te upo n whic h theo ry and set of fa cts it convicted the De fenda nt. It is this potential for confusion that invades the Defendan t’s constitutional rights. Furthermore, this problem is compounded by the fact that the jury ma y have indeed com piled a “patch work v erdict” a nd co nvicted him w ithout sufficient evidence of an offen se. W e hold tha t it was error fo r the trial cou rt to charge criminal responsibility for the conduct of another without clearly communicating to the jury the need for a unanimous verdict on the facts.
Therefore, we must reverse the judgment of the trial court and remand for a new trial.
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DAVID H. WELLES, JUDGE
CONCUR:
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GARY R. WADE, JUDGE
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CURWOOD WITT, JUDGE