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State v. Walker

Court of Criminal Appeals of Tennessee, Knoxville

September 17, 2019

STATE OF TENNESSEE
v.
JOHNTHONY K. WALKER

          Assigned on Briefs July 24, 2019

          Appeal from the Criminal Court for Hamilton County No. 302476 Don W. Poole, Judge

         Defendant, Johnthony K. Walker, was convicted of six counts of criminally negligent homicide, eleven counts of reckless aggravated assault, seven counts of assault, one count of reckless endangerment, one count of reckless driving, and one count of the use of a portable electronic device by a school bus driver after a school bus he was driving crashed leaving six children dead and numerous other children injured. The trial court sentenced Defendant to an effective sentence of four years for the convictions and denied judicial diversion after a sentencing hearing. On appeal, Defendant argues that the trial court improperly denied judicial diversion and/or an alternative sentence. After a thorough review, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

          Amanda B. Dunn, Chattanooga, Tennessee, for the appellant, Johnthony K. Walker.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; Neal Pinkston, District Attorney General; and Crystle Carrion, Assistant District Attorney General, for the appellee, State of Tennessee.

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

          OPINION

          TIMOTHY L. EASTER, JUDGE

         On November 21, 2016, Defendant was the driver of bus 366 at Woodmore Elementary School. After school that day, Defendant picked up thirty-seven elementary school children between the ages of five and eleven. At approximately 3:20 p.m., a call to 911 reported a crash involving the bus on Talley Road near the intersection with Sunset Avenue. As a result of the crash, six children were killed and more than twenty other children were injured. Defendant was indicted by the Hamilton County Grand Jury for six counts of vehicular homicide, seventeen counts of reckless aggravated assault, seven counts of assault, one count of reckless endangerment, one count of reckless driving, and one count of the use of a portable electronic device by a school bus driver.

         Trial

         Although Defendant does not challenge the sufficiency of the evidence supporting his convictions on appeal, the facts underlying the convictions are relevant to our determination of the issues. At the time of the accident, Defendant was working two jobs-he drove a school bus and worked at Amazon. On the day of the accident, Defendant picked up thirty-seven children at Woodmore Elementary and started his route, which included a stretch of Talley Road. Talley Road was described as a narrow, two-lane, residential street with a speed limit of thirty miles per hour. While Defendant was driving the school bus, at 3:17 p.m., Takisha Nixon called Defendant on his cell phone. Ms. Nixon worked with Defendant at Amazon. Defendant answered the phone via his Bluetooth earpiece. Ms. Nixon asked Defendant if he was driving. When he said, "Yes," she told him to be careful and hung up. She recalled that their conversation was short, but phone records indicated that the call lasted for three minutes and 50 seconds. Ms. Nixon did not hear children in the background during the call and did not hear a crash occur. Defendant claimed that the call lasted seven to ten seconds but explained that he did not hang up at the conclusion of the call because he assumed Ms. Nixon would hang up. Ms. Nixon sent Defendant several text messages after the call. The first text message, sent at 3:21:59 p.m. read, "Text me if you want to talk, whenever you're done, I'm getting back in the bed." A second text message, sent at 5:40 p.m., asked, "Are you still busy, babe?" Defendant did not respond to either text message.

         Ann Jones Pierre, a longtime resident of the area, described Talley Road as a "winding road" with "some dips in it." She explained that the road was "narrow and curvy" with no shoulder and turns that "are hard to maneuver because of the way the road is" designed. On the day of the accident, Ms. Pierre picked up her great-granddaughter from Woodmore Elementary and drove toward Brainerd Road, coming to a stop at the intersection of Midland Pike and Talley Road. When she reached the intersection, bus 366 was to her right. Ms. Pierre motioned for the bus to turn onto Talley Road first, and she followed behind it. She thought that the bus "left the stop sign a little fast" as it turned onto Talley Road. Ms. Pierre followed the bus down Talley Road for a bit but lost sight of the bus as it "went over the rise" after Gayle Drive. She did not see the bus again until it was near the intersection of Talley Road and Sunset Avenue. As Ms. Pierre "came down the rise," she saw a "cloud of dirt in the air" and what she thought was fire. She soon realized that what she saw was the "bus in the yard" of a house on the left-hand side of Sunset Avenue. The bus was "tipped to the left" and "crumpled on the right side." There was a black mailbox across the street that was "bent back toward the direction from which the bus came" and a broken electric pole. Ms. Pierre called 911 as she approached the scene of the accident. She saw Defendant get out of the bus and open one of the side doors. She stayed on the scene of the accident for about an hour and a half, during which she filled out an accident report indicating that the bus "went to the right side and veered to the left and slid left." Ms. Pierre did not include in her accident report that the bus accelerated quickly away from the stop sign. Ms. Pierre was not contacted further by police after filling out the accident report.

         Michelle Brogdon, who lived on Howard Circle near the intersection of Talley Road and Sunset Avenue, was working in her yard on the day of the accident. She "heard a bunch of kids, coming from the opposite side of Talley Road, . . . and it was a little odd because of the time of day, there's usually not a lot of kid traffic." She walked toward the intersection of Talley Road and heard kids "squealing." She thought that the kids were "squealing" because of the "little dips" on Talley Road. She saw bus 366 as it "zipped by." In her opinion, the bus was speeding. She saw the bus enter an "awkward" curve and noticed that the back of the bus "kind of swiveled a little bit." As the bus went around the curve "there was another vehicle that was coming toward him." She described the other vehicle as a "little white" bus. Ms. Brogdon explained that the white bus was "mountain driving" or "cutting off a corner" and actually driving in the other lane of traffic as it approached the school bus. Soon thereafter, the bus crash occurred. After the school bus crashed, Ms. Brogdon saw the white bus pull over near Howard Street and park. Ms. Brogdon called 911 and ran to the accident scene to help children get out of the bus. Defendant was "sitting on the top of the bus" trying to get children out of the bus. Ms. Brogdon eventually gave statements to the police and to the "NTSB," the National Transportation Safety Board.

         Officer Adam Cavitt of the Chattanooga Police Department was the lead investigator on the crash from the traffic division. He obtained video camera footage from the bus. There were three video cameras on the bus-a front camera, pointed toward the rear of the bus; a camera above the driver's head, pointed toward the right side of the bus where the double-swing doors are located; and a rear camera, pointed toward the front of the bus. From the footage, it appears that Defendant has a cell phone in his hand as children are entering the bus at the school. Defendant maintains the phone in his hand as the bus departs the school. According to the investigation, it was determined that the crash occurred at 3:20 p.m. Officer Cavitt observed that immediately prior to the crash, a white vehicle is seen on the video going the opposite direction. Surveillance video from a Sonic Drive-in, located on Brainerd Road facing Talley Road, showed a white bus travelling in that direction at approximately 3:09 p.m. Further investigation, including an interview of Ms. Brogdon, did not result in any additional information about or identification of the white bus seen in the video from the bus or the restaurant.

         Investigator Joe Warren of the Chattanooga Police Department testified as an expert in the area of accident reconstruction. He reconstructed the accident based on observations and measurements made at the accident scene. Once on the scene, he observed "critical speed scuff marks or critical speed yaw marks" in the road leading to the utility pole. He described these marks as the type made by tires based on driving activity. The marks were "curved instead of straight," leading Investigator to believe that the bus was "out of control, sliding sideways" immediately prior to impact. Based on measurements taken from the crash scene, Investigator Warren opined that the bus lost control at the intersection of Sunset Avenue and Talley Road and that Defendant tried to steer to the right to maintain the lane of travel. The bus then went into the ditch on the right side of the roadway, and Defendant tried to steer to the left to get the bus back onto the road. According to Investigator Warren, when the bus came out of the ditch and back into the road, it was "totally out of control." The bus clipped the black mailbox on the left hand side of the road with the back end of the bus, crossed the road, and began to overturn when it struck a utility pole before finally slamming into a tree. Investigator Warren opined that the bus was travelling between 46 and 51 miles per hour at the bottom of the hill and between 44 and 45 miles per hour at the scene of the crash. Investigator Warren determined that the bus was involved in a single-vehicle crash based on the absence of paint transfer from another vehicle onto the bus and/or any other evidence that another vehicle influenced the crash sequence. He explained:

When I reviewed video evidence, got speed from the video, when I got speed from the yaw marks and all these other things, you know, I still have a bus that's speeding and out of control and it just helps me understand . . . why he might have steered so hard to try and maintain his lane, because he saw there's a car coming and he wanted to try to stay on his side of the road, when he could have borrowed from the other side, at the speed he was going, to negotiate that curve safely and get through the curve without . . . losing control, but he wasn't able to do that because of his excessive speed. So, . . . I guess because he saw there was a white vehicle coming, he probably ...

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