Session August 2, 2016
from the Circuit Court for Tipton County No. 7671 Joe H.
Walker, III, Judge
Ann Claffey ("the Defendant") entered a no contest
plea to two counts of vehicular homicide as a result of
reckless conduct. Following a hearing, the trial court denied
judicial diversion, sentenced the Defendant to concurrent
terms of five years on each count, and ordered the Defendant
to serve 200 days in confinement and to serve the balance of
her sentence on probation. On appeal, the Defendant argues
that because the trial court failed to properly consider the
factors applicable to judicial diversion, no presumption of
reasonableness should apply to the trial court's denial
of judicial diversion, and this court should conduct a de
novo review of the record and grant judicial diversion. After
a review of the record and applicable law, we conclude that
because the trial court unduly considered irrelevant facts
concerning the death of victims and facts not supported by
the proof concerning the Defendant's prescription drug
usage to support the three factors on which it relied to deny
judicial diversion, no presumption of reasonableness applies.
After reviewing the record de novo, we hold that judicial
diversion should be granted to the Defendant and reverse the
judgments of the trial court.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
S. McDaniel, Memphis, Tennessee, and Kevin G. Patterson,
Germantown, Tennessee for the appellant, Sherry Ann Claffey.
Herbert H. Slatery III, Attorney General and Reporter;
Zachary T. Hinkle, Assistant Attorney General; Mike Dunavant,
District Attorney General; and James Walter Freeland, Jr.,
Assistant District Attorney General, for the appellee, State
L. Holloway, Jr., J., delivered the opinion of the court, in
which John Everett Williams and Camille R. McMullen, JJ.,
L. HOLLOWAY, JR., JUDGE
Factual and Procedural Background
January 4, 2013, the Defendant was involved in a fatal car
accident with Shelly Harvey, and her mother, Peggy
Harvey. The Defendant, who was injured in the
accident, did not remember how the accident occurred.
According to the Reconstruction Report prepared by the
Tennessee Highway Patrol Critical Incident Response Team
("the Response Team"), the Defendant prior to the
accident had been driving in the right most, northbound lane
of Highway 51, in Tipton County, Tennessee. This section of
the roadway "is a straight four lane road with two
northbound lanes and two southbound lanes divided by a grassy
median and cable barrier." According to the
As the Defendant's vehicle approached the [victims'
vehicle] from the rear at a higher rate of speed, the
[Defendant] changed lanes in an attempt to pass the
[victims' vehicle] on the left. As the [Defendant's
vehicle] attempted to pass, it suddenly moved back into the
right most lane and struck [the victims' vehicle] in the
rear with its front.
being struck, the victims' vehicle fishtailed, flipped,
and struck a utility pole causing the roof to become
detached, at which point the victims were ejected. The
victims' vehicle then flipped again, struck the top of
the Defendant's vehicle, and landed on the right side of
Highway 51. According to information obtained from the
"crash data retrieval report, " the Defendant's
vehicle was traveling at approximately seventy-two miles per
hour at the time of the initial impact. The speed limit where
the accident occurred was fifty-five miles per hour.
victims were pronounced dead at the scene of the accident;
the Defendant was taken to Baptist Memorial Hospital in
Tipton County and treated for injuries. Later that day, a
sample of the Defendant's blood was drawn for analysis.
The Defendant's blood tested negative for alcohol but
tested positive for phenobarbital, phentermine at .06 UG/ML,
fluoxetine at .08 UG/ML, norfluexetine, and dihydrocodeinone.
In the Reconstruction Report, the Response Team concluded
that the accident resulted from the Defendant's failure
to maintain control of her vehicle while speeding. The
Response Team also concluded that the Defendant was under the
influence of drugs while driving.
2013, the Defendant was indicted on two counts of vehicular
homicide as a result of intoxication. On December 14, 2015,
the State and the Defendant reached a plea agreement by which
the Defendant would enter a no contest guilty plea to two
counts of vehicular homicide as a result of reckless conduct,
the Defendant would seek judicial diversion, and the State
would recommend a concurrent sentence of 5 years imprisonment
for each count.
subsequent sentencing hearing, the State called as its only
witness, Delbert Lee Harvey, Shelly Harvey's brother and
Peggy Harvey's son. Mr. Harvey stated that he had
recently retired and returned home after 22 years in the
military and that he had "intended to reunite with [his
mother and sister] and strengthen those ties." Mr.
Harvey testified that he passed the accident on his way to
work on January 4, but he was not aware that his family
members were involved until a deputy sheriff came to Mr.
Harvey's workplace to inform him of the fatal accident.
Mr. Harvey said that granting judicial diversion or probation
to the Defendant "wouldn't . . . be justice in this
case." Mr. Harvey continued: "And just because [the
Defendant] didn't have . . . any prior incidents of any
crimes or anything doesn't mean that she shouldn't
serve time for what she did. She took two lives. We . . .
would like to see her pay for that with something just
besides diversion or probation."
individuals testified about the Defendant's character and
reputation. Sandra Garten-Melline stated that she had known
the Defendant for eighteen to nineteen years and that the
Defendant was a very honest, kind, and compassionate person
who had helped Ms. Garten-Melline and her family in the past.
Ms. Garten-Melline believed that the Defendant could follow
any rules or conditions of probation and obey the law. Rhonda
Dukes testified that she had known the Defendant for five or
six years, that the Defendant was a truthful person, and that
the Defendant would comply with any conditions set by the
trial court. Lynda Darnell testified that she had known the
Defendant for about twenty years and believed that the
Defendant was a truthful and compassionate person who could
follow any conditions of diversion or probation set by the
Defendant, who was sixty-five years old at the time of the
sentencing hearing, testified that her oldest daughter and
three grandchildren lived with her and her husband. The
Defendant and her husband had legal custody over the two
youngest grandchildren, and the Defendant transported all her
grandchildren to and from school, sports practices, and
medical appointments because her husband worked during the
day and was frequently away from home for his employment at
Ford Motor Company. The Defendant said she had previously
worked at Thompson Consumer Electronics as a forklift driver
and in the print shop, but that she has been a homemaker
since the 1990's. The Defendant testified that prior to
the accident, she had no moving violations, no tickets, and
no accidents, and that she had not received any speeding
tickets or moving violations since the accident. Her driving
record which was admitted as an exhibit confirmed her
testimony. Additionally, the Defendant testified that she had
never been arrested before the accident.
the accident, the Defendant testified that she was driving to
pick up her oldest grandchild from school when the accident
occurred, but that she had "little recollection" of
the events leading up to the accident and does not remember
how the accident occurred. The Defendant stated that she
could follow any conditions of diversion or probation that
the trial court ordered. Lastly, the Defendant told the
Harvey family that she was "truly, truly sorry that
unfortunately" [their] "loved ones were taken
away." On cross-examination, the Defendant testified
that she has continued to drive after the accident and also
has continued to take phentermine, fluoxetine, and
dihydrocodeinone, all of which contained a warning to be
cautious when operating a motor vehicle. However, the
Defendant testified that she took the medications in the
manner and dosage prescribed by her physician and that she
confirmed with her doctor that it was not dangerous to take
those medications together.
redirect, the Defendant testified that she authorized Dr.
Henry Spiller, a toxicology expert, to review her medical
records and the blood sample taken after the accident. Dr.
Spiller's report was admitted into evidence without
objection. In the summary section of his report, Dr. Spiller
stated "there is no evidence in the medical record or
toxicology laboratory results that document or suggest
impairment or document that [the Defendant] was under the
influence of drugs." Dr. Spiller noted that there was
"a single note" in the Response Team report
stating, "I noticed her speech was slurred and her eyes
were blood shot red." Dr. Spiller stated that none of
the medications shown in the toxicology report cause blood
shot eyes. Dr. Spiller opined to a reasonable degree of
scientific certainty "that there is no evidence of
impairment from drugs or alcohol."
the conclusion of witness testimony and arguments of counsel,
the trial court announced that "this is not a proper
case to grant diversion due to the circumstances of the
offenses, the deterrence value of driving while having drugs
in your system and that judicial diversion would not serve
the ends of justice where two people lost their life."
The trial court then sentenced the Defendant to concurrent
terms of five years on each count, as a standard offender.
The court stated that the ...