State v. Moss, C

• Decision Date: 20 October 1986
• Docket Number: No. C,C
• Citation: 727 S.W.2d 229
• Parties: STATE of Tennessee, Appellant, v. Leonard MOSS, Defendant-Appellee. C.A. 931
• Court: Tennessee Supreme Court

Page 229

727 S.W.2d 229

STATE of Tennessee, Appellant, v. Leonard MOSS, Defendant-Appellee.

No. C.C.A. 931

Supreme Court of Tennessee at Knoxville.

Oct. 20, 1986.

W.J. Michael Cody, Atty. Gen. and Reporter, Wayne E. Uhl, Asst. Atty. Gen., Nashville, for appellant.

Don W. Poole, Chattanooga, for appellee.

David L. Raybin, Tennessee Ass'n of Criminal Defense Lawyers, Nashville, for amicus curiae.

OPINION

DROWOTA, Justice.

The issue in this case is whether the Sentencing Reform Act of 1982, as amended, embodies a policy that sentencing determinations should begin with the presumption that the minimum sentence should be imposed. Defendant, Leonard Moss, was convicted of second degree murder in the Hamilton County Criminal Court on September 27, 1984.

I.

In the early evening of Friday, May 6, 1983, Defendant was observed by Chattanooga police officers driving at an extremely high rate of speed on a heavily traveled street in Chattanooga. Chattanooga Police Officer Lee Stewart estimated that Defendant was driving close to 100 miles per hour when he saw him. Officer Stewart attempted to give chase, with his lights and siren on, and despite reaching speeds of 55 to 60 miles per hour, he could not safely overtake Defendant. Officer Stewart saw Defendant driving recklessly, weaving in and out of traffic to pass cars. After unsuccessfully pursuing Defendant for about a mile, Officer Stewart slowed and tried to maintain sight of Defendant's car, noting that Defendant ran several traffic lights. When Officer Stewart initially observed Defendant, he had notified the police dispatcher of the situation. He finally lost sight of Defendant after approximately three miles.

Another Patrol Officer, Brian Bergenback, also observed Defendant speeding. He estimated the speed of Defendant's car to have been 70 to 80 miles per hour and accelerating. Officer Bergenback was unable to pursue Defendant safely and reported the sighting by radio. He continued to follow Defendant as long as he could. Having heard the reports on the radio, Chattanooga Police Investigator Doug Gray and his partner, operating in an unmarked car, sighted Defendant's speeding car but they were not able to pursue him through the heavy traffic.

Despite pursuit by at least three police vehicles, two of which were marked cars running with their emergency equipment operating, Defendant continued to speed through the streets of Chattanooga over a distance of seven miles. As Defendant entered the intersection of Holtzclaw and Bailey against the red traffic signal, his car collided with that of Robert Formicola, who had the right of way through the intersection on the green light. Mr. Formicola's car was struck so forcefully on the passenger's side that it was thrown to the side of the intersection against a utility pole and traffic control box. Mr. Formicola was severely injured and died soon after the collision. Defendant was arrested and charged with reckless driving and driving under the influence of an intoxicant.

In indictments filed June 22 and July 27, 1983, Defendant was charged with violating the vehicle registration laws, operating a vehicle without a license, and with second degree murder. He was tried on March 13, 1984, and the jury convicted him of the vehicle and license violations but could not agree on a verdict in the second degree murder charge. Retrial on the second degree murder indictment was held from September 25 to 27, 1984. At this second trial, three of the pursuing police officers testified. Two other witnesses testified that Defendant had been seen by them traveling at a high rate of speed and had run a stop light at an intersection several miles from the scene of the collision. One of these two witnesses estimated Defendant's speed at 100 miles per hour. Two other witnesses saw the crash at the intersection of Holtzclaw and Bailey. Mr. Yunginger watched as Defendant's car entered the intersection and struck Mr. Formicola's car; he described the impact as being extremely violent, twisting the victim's car into a horseshoe shape and pushing the car to the side of the intersection. Parking his motorcycle, Mr. Yunginger attempted to assist the victim, who was unconscious, although still breathing, and bleeding profusely. When the police arrived shortly after the impact, Mr. Yunginger then went to see if he could help Defendant, whom he described as being very disoriented but otherwise apparently unhurt. At one point in his cross-examination, Mr. Yunginger described the Defendant's car as it entered the intersection as looking like a streak of lightning. The other eyewitness to the collision also emphasized the violence of the impact of the Defendant's car against the victim's.

Other witnesses testified for the State concerning the conditions at the scene of the wreck and their initial observations of Defendant. Chattanooga Police Officer Dan Willmon, who conducted the investigation at the scene, concluded from Defendant's behavior and appearance that he was under the influence of an intoxicant, although no officer was able to detect the odor of alcohol. State Trooper Dayton Harris was called to testify that Defendant had not had a valid driver's license since August 30, 1979.

The defense called two witnesses. A Chattanooga Fire Department Paramedic, John Vlasis, testified that, while he routinely made notations at an accident scene concerning indicated influence of intoxicants in injured persons, he made no such notes regarding Defendant because he saw no evidence that Defendant was under the influence of an intoxicant. The defense then called Tennessee Bureau of Investigation Toxicologist Samuel Manuel. He testified that he tested the blood samples drawn from Defendant at the direction of Officer Willmon and after two separate tests, he obtained negative results for the presence of alcohol or of the other drugs or intoxicants for which Defendant's blood had been tested.

Subsequent to the verdict of guilty on the second degree murder charge, the trial court held a sentencing hearing on October 24, 1984. The State presented one witness and offered among the documents submitted to the trial court the Defendant's driver's record. Defendant's driver's record showed that he had an extremely poor history of irresponsible and reckless driving; at the time of this incident in 1983, his license had been indefinitely revoked since 1979. The pre-sentence report indicated that Defendant did not have a significant criminal record, although he had been arrested on two occasions, neither of which resulted in incarceration. The more serious charge had been dismissed and the disposition of a misdemeanor charge of loitering was unavailable. Defendant is a native of Chattanooga; he was about 23 years old at the time of the incident in 1983. He is single and was engaged to be married at the time of his trial; he has one child and his fiance was pregnant at the time of trial. Defendant has a high school education. Although unemployed at the time of the wreck, he had been previously employed on an as-needed basis with Chattanooga Glass Company. In addition, his father had been killed in a non-duty related argument with a police officer about 16 years before the trial of this case.

At the sentencing hearing, three witnesses testified for Defendant. His mother recounted his remorseful behavior and attitude since the collision and described some of his early family history. With his family's help, he had made restitution for the property damage caused by the wreck. She also described the injuries Defendant received in the collision. Two other witnesses testified that Defendant had shown remorse for having caused Mr. Formicola's death. The Defendant made an unsworn statement to the court, expressing his belief that God would forgive him and asked for mercy from the court.

The trial judge announced his sentencing decision, recognizing that degrees of culpability exist and had been provided for by the Legislature. He then determined that Defendant was a Range I, Standard Offender and calculated the applicable sentencing range at between ten and 35 years. The trial judge remarked that the Legislature had not provided much guidance concerning how the mitigating and enhancement factors in the Sentencing Reform Act were to be weighed and stated that the Legislature:

"listed some things that could be considered by way of enhancement of punishment and some things that might be considered in mitigation. They did not make either list exclusive, and caused some difficulty in that respect. Nor did they say where you start [within the range], whether you start at the bottom and work up, or whether you start in the middle, or whether you start at the top and work down. And I may not start exactly at either place."

As enhancement factors, the trial court listed the vehicle and license violations, reckless driving, and the circumstances surrounding this offense, in which Defendant had driven at such excessive speeds through heavy traffic. Weighed against these factors, the court found as mitigating factors Defendant's social and family background and his remorse for the death of the victim.

In his sentencing deliberations, the trial court also noted that, although letters and testimony concerning the character of the victim had been submitted, he thought that such matters were irrelevant to determining the appropriate sentence for Defendant. He also rejected a preliminary psychological assessment of Defendant; this report had been obtained by Defendant's counsel for his first trial and primarily concerned Defendant's competency to stand trial and a possible drug abuse problem. The purposes of punishment and of the Sentencing Reform Act were also considered by the trial court. The trial judge then concluded that the appropriate sentence in this case was 20 years in the Department of Correction. ¹ Sentences for the license and registration convictions were also...