Hon. Frank Clement, Jr., Judge DAVIDSON COUNTY No. 01C01-9809-CR-00360
The opinion of the court was delivered by: Norma Mcgee Ogle, Judge
(Leaving the Scene of an Accident Resulting in Death)
The appellant, Deborah Leigh Goins, appeals her conviction by a jury in the Davidson County Probate Court *fn1 of leaving the scene of an accident without complying with the requirements of Tenn. Code Ann. § 55-10-103(a) (1998) when she knew or should have known that the accident resulted in a death. The trial court imposed a sentence of two years incarceration in the Davidson County Workhouse but suspended the sentence and imposed an equal period of probation. On appeal, the appellant presents the following issues for our consideration:
1. Whether the appellant was "involved in an accident" within the meaning of Tenn. Code Ann. § 55-10-101 (1998) and Tenn. Code Ann. § 55-10-103 in the absence of any physical contact between her vehicle and a person or another vehicle. *fn2
2. Whether the trial court erred in instructing the jury that the defenses of duress, necessity, and self defense applied only to the homicide charges contained in the appellant's indictment.
3. Whether the trial court erred in refusing to permit the appellant to present evidence at trial concerning the victim's "habit" of aggressive driving pursuant to Tenn. R. Evid. 406.
4. Whether the trial court erred in sentencing the appellant.
Following a thorough review of the record and the parties' briefs, we modify the length of the appellant's sentence to one year incarceration in the Davidson County Workhouse and otherwise affirm the judgment of the trial court.
On November 12, 1997, a Davidson County Grand Jury indicted the appellant, in the alternative, on one count of vehicular homicide, one count of reckless homicide, and one count of criminally negligent homicide. The Grand Jury also indicted the appellant on one count of leaving the scene of an accident resulting in a death. The appellant's case proceeded to trial on May 18, 1998. On May 21, 1998, following the parties' presentation of proof, the jury acquitted the appellant of the homicide charges and returned a verdict of guilt of leaving the scene of an accident resulting in a death.
The appellant's conviction arose from an accident at the intersection of Franklin Pike and Franklin Pike Circle in Davidson County, which resulted in the decapitation and consequent death of Paul Christian Kelly. According to the State's proof, the accident was the culmination of a race between the appellant and Mr. Kelly, occurring over a two or three mile segment of Franklin Pike, between the intersection with Otter Creek and Hogan Roads and the intersection with Franklin Pike Circle. Between these intersections, Franklin Pike is a four lane road, with two lanes proceeding north toward Nashville and two lanes proceeding south toward Brentwood. Witnesses observed the appellant and Mr. Kelly driving in the southbound lanes at speeds approaching one hundred (100) miles per hour while weaving in and out of traffic. According to these witnesses, the appellant and Mr. Kelly appeared to be racing. Indeed, Paula Galui, one of the State's witnesses, recalled that, before the cars moved beyond her field of vision, "neither of [the cars] were slowing down or backing down. [The appellant's] car stayed on . . . the tailend [of Mr. Kelly's car]." Another witness, Marty Sullivan, recalled that the appellant and Mr. Kelly "were going for the gusto." None of the witnesses ever observed the appellant's brake lights or observed the appellant attempt to evade Mr. Kelly or otherwise disengage from the race.
As the appellant and Mr. Kelly neared the intersection with Franklin Pike Circle, they were racing side by side, the appellant's car in the left lane and Mr. Kelly's car in the right lane. Meanwhile, the traffic light controlling the intersection had turned red and both the appellant's and Mr. Kelly's lanes were occupied by other vehicles. However, the two southbound lanes of Franklin Pike widen at this intersection to include a far right lane and a left turning lane, the latter providing access to a Wendy's Restaurant and other businesses. Upon reaching the intersection, both the appellant and Mr. Kelly attempted to move into the far right lane. At this point, Mr. Kelly lost control of his car.
Mr. Kelly's car drove into the embankment on the right side of Franklin Pike and hit a steel pole. As Mr. Kelly was ejected from his car, he was decapitated and a quantity of his blood sprayed against the appellant's car. Several witnesses stopped their vehicles at the intersection or otherwise approached the intersection in order to provide any necessary assistance, but the appellant continued driving south through the intersection.
The appellant drove to a nearby Shell gas station and informed an attendant, Toni Clendenon, that two cars had been racing, and one car had driven into an embankment. She then asked Ms. Clendenon to call 911 and also requested a car wash in order to wash the victim's blood from her car. Upon observing the appellant's car, Ms. Clendenon noted that "[t]here was blood from the front of the car windshield, the top of the car, and over the back." Another attendant, Will Brown, also noticed "spots" of blood on the right side of the appellant's car. According to both attendants, the appellant appeared "panicky" and "scared." The appellant departed the gas station after washing her car.
Jeff Goforth, an officer employed by the Traffic Division of the Nashville Metropolitan Police Department, was dispatched to the location of the accident at the intersection of Franklin Pike and Franklin Pike Circle. According to Officer Goforth, the appellant returned to the scene of the accident approximately forty minutes after the accident. He obtained the following written statement from the appellant:
[Mr. Kelly's] car went out of control at stoplight intersection of Franklin Road and Franklin Road Court. I just witnessed his car going out of control at stoplight and going over embankment because he was speeding.
I witnessed the car going out of control at stoplight and going over embankment. I immediately went to Shell Gas Station and made sure someone called 911 and told location of accident. Traveling South on Old Hickory Blvd. going straight right lane. Other car going north in left lane. At stoplight other car spinned around - by time I reached stoplight - I was stopped when his car went over embankment and possibly hit pole.
Subsequently, Officer Goforth received a slightly different, oral statement from the appellant, who informed him that Mr. Kelly's car had passed her approximately five tenths of a mile from the intersection of Franklin Pike and Franklin Pike Circle as she was driving south on Franklin Pike toward Brentwood. According to the appellant, when she arrived at the intersection, she observed that Mr. Kelly's car had wrecked. The appellant explained to Officer Goforth that she did not remain at the scene of the accident, because she was upset. Instead, she drove to the Shell gas station and reported the accident before driving home and taking some prescription medication for a migraine headache. Officer Goforth noticed that the appellant's car had been washed, although "there was still some speckled locations of blood on the front right side of the car."
The appellant testified on her own behalf at trial. She testified that she was a partner and shareholder of The Resource Company, Incorporated, an agency that recruits physicians for various healthcare entities throughout the United States. She had worked for this company as a physician recruiter since 1988. Her office was located in Brentwood. On the morning of the accident, the appellant went to work but soon began experiencing a migraine headache. Accordingly, she left work and drove to the Green Hills Medicine Shop to obtain medication that had been prescribed by her doctor. She planned on returning home to take the medication, because her doctor had instructed her to avoid driving when under the influence of the medication. However, en route to her home, she decided to return to work briefly. Accordingly, she turned onto Franklin Pike and drove south toward Brentwood.
The appellant was driving in the right southbound lane as she approached the intersection of Franklin Pike and Otter Creek and Hogan Roads. The traffic light was red, and the appellant slowed her vehicle to a stop. However, she first moved her vehicle into the left lane. She explained:
[W]hen I have a migraine, I'm very light sensitive, my hearing is sensitive, and I felt like things were in slow motion. I thought I needed to maybe go a little faster myself and get to work and get home so I could take my medication.
When the light turned green, she began to drive through the intersection. She noticed that she was accelerating somewhat slower than the cars in the right lane and suddenly heard a car horn behind her. She looked in her rear-view mirror and observed that the driver of the car behind her, Mr. Kelly, was also flashing his car lights and "waving his arms or his fist or something . . . ." In order to allow Mr. Kelly to pass, the appellant increased her speed, passed several cars in the right lane, and moved into the right lane. When Mr. Kelly drew abreast of her car, he slowed his car and began shouting and making frightening gestures. The appellant testified that she "started getting afraid . . . ." Mr. Kelly then increased his speed, cut in front of the appellant in the right lane, and applied his brakes, whereupon the appellant moved into the left lane to avoid hitting Mr. Kelly's car. The appellant testified that she attempted on several occasions to allow Mr. Kelly to pass. However, "[t]here was no position on the road, in which I would be, that he [w]ould not be beside me threatening me or gesturing me or scaring me." According to the appellant, Mr. Kelly called her "a bitch and a whore. He shook his fist at me. He gave me the finger. He said something of the nature of, I will get you." On two occasions, Mr. Kelly attempted to force her car into the oncoming lane of traffic. She observed, "[I]t was like, to me, he was using his car as a weapon on me. I felt like he was using it as a power tool and something to just petrify me, and he did."
The appellant further testified that she was unfamiliar with Franklin Pike and that the side streets appeared wooded. She was therefore afraid that, if she stopped on a side street, Mr. Kelly "would injure me or actually kill me; he was that angry." Accordingly, she decided to drive to a more populated section of Franklin Pike. Specifically, she testified:
I knew that I had to make it down to the Shell station or Wendy's. I knew that I wanted to get somewhere to a place of business where someone could help me. Where if I went in, if he followed me, someone could help me. There was no fleeing from him; there was no escape from him.
I don't remember going real fast; I don't remember looking at my speedometer. I was so scared I wanted to get somewhere where I could get help.
The appellant recounted that, as she and Mr. Kelly entered the intersection of Franklin Pike and Franklin Pike Circle, Mr. Kelly was driving in the left lane, and she was driving four or five car lengths behind him in the right lane. According to the appellant, Mr. Kelly's car swerved to the left before spinning toward the embankment on the right side of Franklin Pike. She observed the car slide into the embankment, heard a crash, and blood splattered on her car.
The appellant testified that she stopped at the traffic light, "laid [her] head down on [the] steering wheel and cried." She recalled that, at this time, she was no longer afraid of Mr. Kelly but was still "traumatized." She recounted:
I thought I have got to go get help, so I went to the Shell station. I parked my car there and I told them inside that there had been an accident and that there was blood on my car. I knew someone had been hurt because there was blood on my car. I told them that someone needed to call 911 as quickly as possible. So they said they would call, and they did.
The appellant denied ever informing Ms. Clendenon that two cars had been racing. Moreover, the appellant asserted that, when she informed the attendants at the gas station that an accident had occurred, she did not realize that Mr. Kelly had died and, in any ...