State v. Lemacks

• Decision Date: 06 July 1999
• Parties: STATE of Tennessee, Appellant, v. James R. LEMACKS, Appellee.
• Court: Tennessee Supreme Court

Page 166

996 S.W.2d 166

STATE of Tennessee, Appellant, v. James R. LEMACKS, Appellee.

Supreme Court of Tennessee at Nashville.

July 6, 1999.

John Knox Walkup, Attorney General and Reporter, Michael E. Moore, Solicitor General, Daryl J. Brand, Senior Counsel, Assistant Attorney General, Nashville, for Appellant.

J.P. Bradley, Waverly, for Appellee.

OPINION

BARKER, Justice.

We granted this appeal by the State of Tennessee to address the issue of jury unanimity in cases where the State relies on alternative theories of guilt to convict an accused under a single count indictment. In this case, the appellee, James Lemacks, was charged with driving under the influence of an intoxicant (DUI). The trial court instructed the jury that it could convict the appellee of DUI based upon evidence that he operated his automobile while intoxicated or that he was criminally responsible for allowing his friend, Clinton Sanchez, to drive the automobile while intoxicated. The jury returned a general verdict convicting the appellee of DUI.

On direct appeal, the Court of Criminal Appeals reversed the conviction holding that the appellee's right to a unanimous jury had been violated by the jury instruction and the general verdict of guilt. The intermediate court further concluded that to the extent the jury may have relied upon criminal responsibility to convict the appellee, the evidence was insufficient as a matter of law to sustain the DUI conviction.

For the reasons that follow, we conclude that the jury instruction and the general verdict satisfied the due process requirement of jury unanimity even though the appellee could have been convicted of DUI either based upon his own commission of the offense or by criminal responsibility for Sanchez' commission of the offense. Moreover, having reviewed the record in this case, we conclude that there was sufficient evidence for the jury to convict the appellee of DUI under criminal responsibility. The judgment of the Court of Criminal Appeals is reversed and the conviction of DUI is reinstated.

BACKGROUND

On October 30, 1993, the appellee drove himself and three friends, Clinton Sanchez, Deborah Lucas and Gregory Duncan, from Fort Campbell, Kentucky to a party in Waverly, Tennessee. The group spent some time at the party and went to a local tavern. Around midnight, the group left the tavern and returned to the party. While at the party, Sanchez borrowed appellee's car keys so he could listen to music in the automobile.

In the early morning hours of October 31, Sanchez had an argument with his girlfriend and decided to leave the party. The appellee, Lucas, and Duncan climbed into appellee's automobile and left the party with Sanchez. It is undisputed that all four occupants had been drinking alcoholic beverages. However, the evidence conflicted on whether the appellee or Sanchez was driving the automobile.

The State presented evidence at trial that when the appellee and his friends left the party, the appellee refused Lucas' offer to drive back to Fort Campbell. Lucas testified that the appellee was the driver and that Sanchez was a passenger in the front seat. According to Lucas, the appellee had difficulty driving the automobile in reverse because the emergency brake was still on. Eventually, the appellee released the brake and proceeded down Clydeton Road.

Approximately one mile from the party, the automobile ran off the road and traveled 285 feet into a ditch where it struck an embankment. Lucas testified that after the wreck, she saw Sanchez open the driver's side door from the outside and release appellee's seat belt. Sanchez told Lucas that he had been ejected from the passenger's side window during the accident. When Sanchez released appellee's seat belt, the appellee fell diagonally into the passenger seat, hitting his head on the windshield and rearview mirror.

Tennessee State Trooper Mike Smothers arrived at the scene and found that both Sanchez and the appellee had already exited the automobile. According to Trooper Smothers, appellee's injuries consisted of cuts and scrapes on the right side of his head. Sanchez appeared to have a knee injury and a slight injury to his head. After refusing medical treatment, Sanchez departed the accident scene and was not questioned by police. The appellee was questioned by Trooper Smothers while he was being treated in an ambulance, and he stated that he had been driving the automobile. The appellee was transported to a nearby hospital where he was tested for intoxication. His blood-alcohol level tested 0.20 percent. He was later indicted and arrested for DUI and vehicular assault. ¹

The appellee testified in his own defense that Sanchez had been drinking alcoholic beverages and was driving the automobile at the time of the accident. ² He testified that he was asleep in the passenger seat when the accident occurred. According to the appellee, he observed Sanchez standing outside the driver's side window after the accident. Sanchez told him that they had driven into a ditch and that he was going to get help. The appellee testified that he lost consciousness while inside the automobile and fell against the dashboard. Because the passenger's side door was blocked by the embankment, emergency personnel had to pull him through the driver's side door. The appellee testified that Sanchez had been drinking all evening, but he was uncertain whether Sanchez was intoxicated.

Jennifer Barker, a guest at the party, testified for the defense that Sanchez was very intoxicated and was driving the automobile when he and the appellee left the party. Barker was standing on the front porch when the automobile pulled out of the driveway. She testified that Sanchez had trouble reversing the vehicle and "spun gravel" as he turned onto the main road. Barker's testimony conflicted with that of Trooper Smothers, who testified that at the accident scene, Barker told him the appellee was driving the automobile.

At the conclusion of trial, the State requested that the jury be charged on criminal responsibility in addition to the principal charge of DUI. The trial court instructed the jury on the statutory elements of DUI and further instructed that a verdict of guilt could be based upon proof beyond a reasonable doubt that the appellee was driving the automobile while intoxicated or that he was criminally responsible for allowing Sanchez to drive the automobile while intoxicated. In a general verdict, the jury found the appellee guilty of DUI. ³

The Court of Criminal Appeals reversed the trial court's judgment and remanded the case for a new trial. The intermediate court concluded that appellee's right to a unanimous jury had been violated and that there was insufficient evidence to sustain the conviction under the theory of criminal responsibility. The State now requests this Court to reverse the intermediate court and to reinstate the judgment of the trial court.

I.

The State contends that the jury instruction and the general verdict of guilt did not violate the appellee's right to a unanimous jury. We agree.

At the request of the State, the trial court instructed the jury to deliberate and to render a unanimous verdict on the appellee's guilt or innocence under the single-count indictment. The jury was instructed that it could convict the appellee of DUI either by a finding beyond a reasonable doubt that he was driving while under the influence of an intoxicant or that he was criminally responsible for allowing Sanchez to drive the automobile while under the influence of an intoxicant. Although the trial court instructed the jury that its verdict must be unanimous, the court did not tell the jury that it had to be unanimous on the theory of guilt. The verdict form did not indicate the basis of the jury's finding.

Under Tennessee law, a criminal defendant has a constitutional right to a jury trial in cases where he or she is exposed to confinement or a fine of more than fifty dollars. State v. Dusina, 764 S.W.2d 766, 768 (Tenn.1989); Grooms v. State, 221 Tenn. 243, 426 S.W.2d 176 (1968). This constitutional right necessarily includes the right to a unanimous jury verdict before a conviction of a criminal offense may be imposed. State v. Shelton, 851 S.W.2d 134 (Tenn.1993); State v. Brown, 823 S.W.2d 576, 583 (Tenn.Crim.App.1991).

Questions regarding jury unanimity generally arise in cases where the prosecution presents evidence to the jury that tends to show more than one criminal offense, but the underlying indictment is not specific as to the offense for which the accused is being tried. State v. Brown, 762 S.W.2d 135, 136-37 (Tenn.1988); Burlison v. State, 501 S.W.2d 801 (Tenn.1973). ⁴ To insure that the jury renders a unanimous verdict in those cases, the trial judge has an affirmative duty to require the State to elect upon which offense it is submitting for the jury's consideration. Tidwell v. State, 922 S.W.2d 497, 501-502 (Tenn.1996); State v. Shelton, 851 S.W.2d 134, 139 (Tenn.1993).

Similarly, questions of jury unanimity may arise in cases where an accused is indicted and prosecuted for a single offense, but the jury is permitted to consider multiple criminal acts of the type which, if found beyond a reasonable doubt, would each support a conviction of the charged offense. See State v. Brown, 823 S.W.2d at 581-82. To avoid a "patchwork" verdict of guilt in those cases, the trial judge must "augment the general unanimity instruction to insure that the jury understands its duty to agree unanimously to a particular set of facts." Id. at 583.

In the present case, the Court of Criminal Appeals relied, in part, on the decision in Brown, 823 S.W.2d at 583, holding that the jury instructions and the general verdict of guilt did not insure jury unanimity on the factual basis underlying the appellee's conviction of DUI. We respectfully disagree with the intermediate appellate court's decision based upon our conclusion that the...