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State v. Claffey

Court of Criminal Appeals of Tennessee, Jackson

December 14, 2016

STATE OF TENNESSEE
v.
SHERRY ANN CLAFFEY

          Session August 2, 2016

         Appeal from the Circuit Court for Tipton County No. 7671 Joe H. Walker, III, Judge

         Sherry 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed

          Mark 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 of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which John Everett Williams and Camille R. McMullen, JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         I. Factual and Procedural Background

         On January 4, 2013, the Defendant was involved in a fatal car accident with Shelly Harvey, and her mother, Peggy Harvey.[1] 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.[2] 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 Reconstruction Report:

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.

         After 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.

         Both 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.

         In July 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.

         At the 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."

         Three 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 trial court.

         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.

         Regarding 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.

         On 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."

         After 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 ...


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