State v. Radzvilowicz

Decision Date12 May 2022
Docket NumberM2021-00671-CCA-R3-CD
PartiesSTATE OF TENNESSEE v. JAMES STANLEY RADZVILOWICZ
CourtCourt of Appeals of Tennessee. Court of Criminal Appeals of Tennessee

Assigned on Briefs April 13, 2022

Appeal from the Circuit Court for Moore County No. 2020-C2-1547 Forest A. Durard, Jr., Judge

The Defendant, James Stanley Radzvilowicz, pled guilty in the Moore County Circuit Court to aggravated assault and was sentenced by the trial court to four years, six months, with eight months in confinement before release on supervised probation. On appeal, the Defendant argues that the trial court erred by denying his request for either judicial diversion or, in the alternative, full probation. After review, we affirm the judgment of the trial court.

Tenn R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

Robert T. Carter, Tullahoma, Tennessee, for the appellant, James Stanley Radzvilowicz.

Herbert H. Slatery III, Attorney General and Reporter Richard D. Douglas, Assistant Attorney General; Robert J. Carter, District Attorney General; and Holly Hewgley, Assistant District Attorney General, for the appellee, State of Tennessee.

John W. Campbell, Sr., J., delivered the opinion of the court, in which J. Ross Dyer and Jill Bartee Ayers, JJ., joined.

OPINION

JOHN W. CAMPBELL, SR., JUDGE

FACTS

On November 20, 2020, the Moore County Grand Jury returned an indictment charging the Defendant with aggravated assault and possession of a handgun while under the influence. On January 29, 2021, the Defendant pled guilty to aggravated assault with the sentencing left to the trial court's later determination. Pursuant to the terms of his negotiated plea agreement, the second count of the indictment was dismissed. At the guilty plea hearing, the prosecutor recited the proof that the State would have relied on had the case gone to trial:

So, Your Honor, if the State would put proof on it would be on May 2 of 2020 in the afternoon Moore County 911 received a call from Lisa Scaramuzzino requesting help with her husband known as [the Defendant] stating he was armed with a 9-millimeter handgun, he was intoxicated and threatening suicide.
Deputies were dispatched and arrived and made contact with him. Found him to be armed with a handgun and he was uncooperative. He originally was inside the house, but came outside still armed, and he fired shots from the gun at which [] time the deputies requested backup. Additional officers arrived and around that time the [D]efendant went into his barn on his property. He left the barn a little later and a standoff occurred.
They had also learned there were additional weapons in the house and the decision was made by law enforcement not to allow him in the home where they were.
Dustin White[1] and Shane Taylor blocked off entry to the back of the house by positioning themselves between him and the back door, established communication with him and were trying to deescalate the situation. The Defendant appeared to be intoxicated and was yelling and making threats to shoot them if they came near him and did in fact fire into the woods, which happened to be the direction of the officers that were positioned there. While he was doing this, he was walking back and forth in his field and pointing the gun in various directions. And on three separate occasions approached Officers White and Taylor where they were positioned to keep him from going in the house where the other weapons were.
On the third time he approached them he appeared to be coming in the backyard through the gate at which time they advanced on him. He had already put the gun in his waistband behind his back. Officer Shane Taylor deployed a taser in an attempt to subdue him and Justin [sic] White jumped over the fence into the pasture where he was located and attempted to get a hold of him. The taser was ineffective and the [D]efendant ran backwards breaking the wires of the taser and he began reaching around his back where the firearm was located. He pulled the pistol out of his waistband, fired a round that actually went through his shorts and at which time Justin [sic] White pulled his duty weapon and fired two rounds striking him to prevent him from firing additional rounds. The [D]efendant fell to the ground and dropped the gun and was taken into custody.

The State presented three witnesses at the May 21, 2021 sentencing hearing: Moore County Sheriff's Department Investigator Dustin White, the officer who shot the Defendant to stop the Defendant's from firing his weapon at the officers; Moore County Sheriff Tyler Hatfield, who arrived on the scene after the Defendant had been taken into custody; and Moore County Sheriff's Department Criminal Investigator Brandon Thomas, who was one of a number of officers on the scene during the standoff.

All three witnesses agreed that theirs was a small county, and all three expressed strong opposition to the Defendant's being granted judicial diversion, with each testifying that he did not believe it would be appropriate in light of the Defendant's violent acts and the message it would send to the community. Investigator White additionally described the emotional and psychological trauma that he and his wife had suffered as a result of the shooting and stated that, although he had been cleared of wrongdoing, the stigma of having been involved in a shooting would continue to follow him for the rest of his career. Investigator White also provided the additional detail that the Defendant repeatedly pointed his weapon directly at Investigator White and Captain Taylor during the standoff, describing the Defendant's actions as "lasering" the weapon at the two officers. On cross-examination, he acknowledged that the Defendant's weapon did not have a laser and that dashcam video did not show the Defendant "lasering" anyone.

The fifty-six-year-old Defendant testified that after graduation from high school in Connecticut, he joined the United States Navy, where he served six-and-a-half to seven years as a submariner before he was honorably discharged. He said he had planned to make the Navy his career but suffered a knee injury that resulted in his being "med-boarded out." He then began working "in the greens industry" for TruGreen and Chem-Lawn, eventually rising to the level of regional manager. At the time of the incident, he had left that industry and was employed "as kind of a regional operations manager" at Tim Ferguson Plumbing in Murfreesboro. In addition, he and his wife of thirteen years operated a small pet boarding facility on their property in Moore County.

The Defendant testified that he lost his job at Tim Ferguson Plumbing after the incident at issue. Because he and his wife knew they would be unable to make their mortgage payments, and because his wife needed help with his care, they had moved to Jacksonville, Florida, where the Defendant's sister, who was in the medical field, could help with care-taking of the Defendant.

The Defendant testified that he was airlifted to Vanderbilt Hospital after he was shot. He said he spent thirty days at Vanderbilt before he was transferred to a physical rehabilitation facility. As a result of his wounds, he had nerve damage in his hand, "Barrett's Esophagus," a condition in which excess acid leads to precancerous cells in the esophagus, and fecal incontinence. The Defendant testified that his lack of bowel control made life difficult for him at times but he had obtained a job on February 22, 2021, as an account manager with Juniper Landscaping in Bradenton, Florida.

The Defendant testified that he was experiencing both work and family-related stress at the time of the incident due to his estrangement from his adult daughter, martial problems with his wife, and his fear that he was about to lose his job due to the pandemic. He said he spent the morning golfing with friends and drinking far more heavily than usual. As a result of his heavy drinking and the trauma from his injuries, he had no memory of the incident itself. The Defendant testified that he had always had the utmost respect for law enforcement and that his actions that day were completely out-of-character. He nonetheless acknowledged his responsibility for his actions, expressed his sorrow and remorse for his behavior, and offered his sincere apology to the law enforcement officers, the district attorney, and the court.

The Defendant testified that he had completed a four-month on-line course that helped him to understand the root causes and behavioral issues that led to the incident. He said he had not drunk alcohol since the incident. He was also currently meeting regularly with a therapist recommended through the Veterans Administration.

On cross-examination, the Defendant acknowledged that he drove himself home from golfing on the day of the incident despite having drunk so much alcohol that he had no memory of the incident. He conceded that he had a felony charge in Florida that was based on using someone else's identification but said the case had been dismissed for lack of evidence. Finally, he acknowledged that, at the time of the incident, he owned an illegal silencer.

Additional evidence the trial court considered in sentencing was the Defendant's presentence report and a handful of supportive letters submitted on the Defendant's behalf by his family, friends, and therapist. At the conclusion of the...

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