        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                     SEPTEMBE R SESSION, 1998


STATE OF TENNESSEE,        )
                                                           FILED
                               C.C.A. NO. 02C01-9710-CR-00388
                           )                                January 5, 1999
      Appellee,            )
                           )                               Cecil Crowson, Jr.
                           )   SHELBY COUNTY               Appellate C ourt Clerk
VS.                        )
                           )   HON. ARTHUR T. BENNETT
JAMES M. WILLIAMS,         )   JUDGE
                           )
      Appe llant.          )   (Leaving the Scene of an Accident
                           )   Involving Death)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:             FOR THE APPELLEE:

ROBERT M. BRANNON, JR.         JOHN KNOX WALKUP
295 Washington, Suite 3        Attorney General and Reporter
Memphis, TN 38103
                               ELIZABETH T. RYAN
THOMAS E. HANSOM               Assistant Attorney General
659 Freeman                    425 Fifth Avenu e North
Memphis, TN 38122              Nashville, TN 37243

                               WILLIAM GIBBONS
                               District Attorney General

                               THOMAS D. HENDERSON
                               PERRY HAYES
                               Assistant District Attorneys General
                               201 Poplar Avenue
                               Memphis, TN 38103


OPINION FILED ________________________

CONVICTION AFFIRMED; SENTENCE MODIFIED

DAVID H. WELLES, JUDGE
                                OPINION

      The Defendant was tried before a jury on charges of vehicular homicide,

driving while under the influence of an intoxicant, reckless driving, and leaving the

scene of an accident involving death. The jury found him guilty of the Class E

felony of leaving the scene of an accident involving death and found him not

guilty of all other ch arges. The trial judge imposed a sentence of two years and

denied any form of alternativ e sen tence .     The D efend ant ap peals from h is

conviction and his sente nce. W e affirm his conviction and modify his sentence.



      Although the Defendant does not challenge the sufficiency of the convicting

evidence, we will review the facts in detail because of their relevancy to the

sentencing issues. On Ju ly 29, 1995, sho rtly before 4:00 p.m., the Defendant

drove an automobile which struck and killed the victim, Bobb y E. Ru ssell, Jr., on

a residential country road in Shelby County, Tennessee. At the time he was

struck and killed, the victim had been using a gas-operated weed-eater along the

edge of the front yard of his residence near the roa dway . The v ictim a ppare ntly

was either stand ing in the roadway or stepped into the roadway in the path of the

vehicle the Defendant was operating.           There was no evidence that the

Defe ndan t’s vehicle left the roadway or that the Defendant was speeding at the

time his vehicle struck the victim. The speed limit on the road at the scene of the

accident was forty-five miles per hour, and all the proof indicated that the

Defendant was trave ling within the speed limit. The surface of the roadway was

dry, and the Defendant apparently did not apply his brakes prior to the impact

with the victim. Testimony indicated that there were patches of shade and



                                         -2-
sunshine alternating along that portion of the roadway on that afternoon. The

Defen dant testified that he ne ver saw th e victim prio r to the imp act.



      At the time of the accident, the Defendant was a twenty-one-year veteran

of the Memphis Police Department who had attained the rank of major. Although

off-duty, he was driving the unmarked police department vehicle assigned to him.

The force of the impact of the victim’s body with the Defendant’s car was qu ite

severe.   The hood of the vehicle on the passenger side wa s sub stantia lly

damaged, and the entire passenger side of the front windshield was shattered.

Although the windshield remained substantially intact, some glass from th e

winds hield shattered onto the front seat of the vehicle. The victim’s body was

thrown a pproxim ately forty-nine feet by the im pact.



       Imm ediate ly after the impact, although the Defendant apparently slowed

his vehicle to a stop or n ear-stop, it is undispute d that he then d rove further,

event ually traveling about a mile to his own driveway. The Defendant testified

that after the impact, he was covered by glass, and he thought he ha d pos sibly

struck his head on the steering wheel. He said that he stopp ed an d imm ediate ly

picked up his police radio to attempt to get help because he knew then that he

had hit a person an d that eme rgency medical he lp wou ld be n eede d. He s aid

that he also a ttempte d to use a cellular ph one bu t that he could no t get a

response by using either the radio or the phone. He then assumed that he was

in a “dead spot” insofar as using the phone or radio, so he proceeded up the

road, continuously attempti ng to summon emergency assistance by radio and

phone. He said that when he got to his house, he was still unable to establish

contact by way of radio or cell phone and that he was going to go into his house

                                          -3-
to use the phone to summon help. He then heard a siren in the distance,

assumed that pe rhaps he ha d in fac t been succe ssful in g etting h elp on the way,

and immediately drove back to the scene of the accident.             The testimony

presented varied the length of time between the impact and the arrival of the

Defendant back at the accident scene from five to fifteen or twenty minutes.

According to records maintained by the Shelby County Sheriff’s Department

dispatcher, the first call came at 3:58 p.m., and a call was received from the

Defendant at 4:08 p.m. Several witnesses testified that the Defendant was

appa rently attempting to use his radio and/or his cellular phone after he returned

to the accident scene.



      Dell Russell, the widow of the victim, was working in the yard near her

husband when she heard the impact. She immediately ran to the house and

called 911 for emergency help. She testified that it was perhaps fifteen minutes

before the Defendant’s vehicle returned to the scene, although in a previous

statement she had estimated the time at five to ten minutes.



      Fran klin Perry Cathey, who was the victim’s friend, brother-in-law, and

neighbor, was among the first to arrive on the scene of the acc ident. He was a

fireman who had some emergency medical training, and he and another person

attempted to revive the victim. Mr. Cath ey knew tha t the injuries were very

serious and said the victim never regained consciousness. The Defendant

arrived back at the sce ne while Mr. Cathey was there. Mr. Cathey said the

Defendant was outside his car “punching on his telephone,” and that he asked

the Defe ndan t to call for an emergency medical helicopter. He said that the

Defen dant told h im that he could no t get a sign al.

                                         -4-
       Mr. Ca they’s son, Russell Cathey, also arrived on the scene shortly after

the accident. He knew the Defendant because he had played on a high school

footba ll team with the Defendant’s son. He said the Defendant drove up while he

was there and he saw him talking on his radio. He asked the Defe ndant to try to

get them some help and the Defendant responded, “I’m trying. I’m trying.” He

testified that he smelled alcohol on the Defendant. The witness was about

eighteen years old at the time of the acc ident.           He said that h e asked the

Defendant if he had been drinking and the Defendant told him that he “‘had a

coup le of beers at eleven o’clock.’” The witness said, “I’ll say he was pretty much

heavily intoxicated.” The witness acknowledged that he did not tell anyone at the

scene that he believed the Defendant was impa ired du e to into xication . He sa id

that it was n ot until s ome time la ter at a “fa mily mee ting” with his family lawyer that

he told them he had smelled alcohol a nd thou ght that the Defen dant’s ab ility to

operate a vehicle w as imp aired.



       Dorothy Burk was near the accident scene at the time of the acciden t. She

heard the impact and saw the Defendant’s vehicle leaving the scen e “very fast.”

Later, at the s cene , she s aid she heard the Defendant tell Russell Cathey that he

“‘had a drink e arlier an d ano ther on e, but I’m not dru nk.’”



       Michael Barry Cole, a firem an with the Sh elby County F ire Department,

arrived at the scene in response to the emergency call for assistance. He and

two co-work ers joined the effort to h elp the victim . He said the victim was “in very

bad, bad shape, real bad shape.” He could find no vital signs. He said the

Defendant approached him a nd as ked if the victim was going to make it, and he

advised the Defendant that he did not think he was. He said the Defendant was

                                            -5-
very calm, but was smoking cigarettes and chewing bubble gum. He said he

detected an odo r of alcoho l about the Defen dant but that he did not form an

opinion concerning whether the Defendant was under the influence of an

intoxicant. He worked with the victim until the helicopter arrived and the victim

was transpo rted to the h ospital. La rry Crawfo rd, anoth er firema n who a rrived with

Cole in response to the emergency call, did not talk with the Defendant or

observe him closely but did see him at a distance. He stated that by the way the

Defendant was walking, he “could have been” under the influence of an

intoxicant.



       John Scott Harper, a patrolman with the Shelby County Sheriff’s Office,

was the first law enforcement officer to arrive at the scene. He was approached

by the Defendant who introdu ced h imse lf as Major Williams with the City Police

Department. Patrolman Harp er app arently did not kn ow the D efenda nt prior to

this time. He said the D efenda nt told him that he w as the one involved in the

acciden t. He said the D efendant told h im that he ha d attempted to raise his

dispatcher on the radio and to use his cellular phone, but he could not make

contac t. Therefore, he went home to call law enforcement and medical personnel

and then returned to the scene. Harper said he noticed that the Defendant had

bloodshot eyes and that while the Defendant was in his patrol ca r, he noticed a

“slight smell of intoxicant on him.” He transported the Defendant downtown after

he was charge d.



       On cross-examination, the officer testified that he did not believe the

Defe ndan t’s driving ability was impaired. He stated that while he was taking the

Defendant downtown, the De fenda nt told h im that he ha d been drinking la te into

                                          -6-
the hours of the night before.      This officer signed the affidavit of complaint

charging the Defendant with DUI, reckless driving, and leaving the scene of an

acciden t, but he testified that he was ordered to place these charges against the

Defen dant. He was not asked and did not say who ordered him to charge the

Defen dant.



      Mem phis Police Officer Donald Leon Goldsby, Jr. testified that at the time

of this accident he was assigned to the Metro DUI Squad, which was a combined

unit of the M emp his Police Department and the Shelby County Sheriff’s Office.

He was dispatched to the scene of the crime. At that time he had known the

Defendant for about twenty years, had worked with him in the Memphis Police

Depa rtment, and considered the Defe ndan t a friend . Beca use o f his rela tionsh ip

with the Defendant, he objected to being asked to investigate the Defendant on

a charge of DUI. He told his supervisors that he did not feel comfortable about

testing the Defe ndant. He told them that he believed it was inappropriate for him

to do the te sting. Ne vertheles s, he wa s ordere d to do the testing.



      Officer Goldsby activated a video camera and filmed the Defendant as he

was question ed and interviewe d and a s he pe rformed field so briety tests. He

testified that the Defen dant’s eyes we re red and watery and that he did notice an

odor of an intoxic ant. He recorded on the form he was filling out at the time that

he believed any effect of alcohol on the Defendant was “very slight.” On the form,

he checked that the odor of alcohol was “faint,” that the Defendant’s attitude was

“cooperative and polite,” and that his speech was normal. He testified that his

eyes were normal on the nystagmus test. He said the Defendant declined to take

a breath-alcohol test. The jury viewed the video tape of the questioning and

                                         -7-
testing of the Defendant, including a “one leg stand” and a “toe to heel walk.”

The witness testified that in his opinion the Defendant’s ability to drive was not

impaire d.



      Accident reconstruction experts testified that the speed of the De fenda nt’s

vehicle was a pprox imate ly forty to fo rty-five miles per hour at the time of the

accident. Th e speed lim it on the road wa s forty-five miles per hou r.



      The State presen ted prior sworn tes timony that had b een give n at a

General Sessions Court proceeding by a witness who was in the area doing

construction work on the da y of the acc ident. He testified that immediately after

the impact, he observed the Defendant’s vehicle speeding away from the scene

at a high rate of s peed and th at he s ubse quen tly observed the Defendant at the

scene an d he believed th e Defend ant was “very im paired.”



      The Defendant presented several witnesses on his behalf. Justin Gates

was about sixteen years old at the time of the accident and play ed footb all with

the Defendant’s son. He said that on the day of the accident, the Defendant

came by his house at about one o’clock to bring some materials about a fund-

raising project for the football team. He said that he and the Defendant talked

and watched a football game on TV for about an hour.             He said that the

Defendant was not drinking at the time and did not give him any indication that

he had been drinking or was impaired.



      Lieutenant Samm y Jones testified that he h ad bee n with the S helby C ounty

Sher iff’s Department for about nineteen years. He arrived at the accident scene

                                        -8-
shortly after the accident and talked with the Defendant. He did not know the

Defendant at that time .   He said he called for the DUI i nvestig ation s imply

because someone told him that the Defendant had stated that he had had a beer

and because the Defendant was a policeman.



      An acciden t reconstru ction expert employed by the Tennessee Highway

Patrol also testified for the Defendant. He went to the accident scene the day

after the accident occurre d. His pu rpose in in vestigating this matte r was to

critique and review the investigative information gathered by the Shelby C ounty

Sher iff’s Depa rtment. He ex press ed his opinion that the victim “had been weed

eating the grass on the shoulder of the road and stepped back into the road into

the path of the vehicle driven by the Defendant.”       He also opined that the

Defe ndan t’s vehicle was trave ling betw een forty and forty-five m iles per hour.

The Defen dant introd uced re cords from the Shelby County Sheriff’s Office that

indicated that the first call concerning the accident came in at 3:58 p.m. and that

the first call from the Defendant was recorded at 4:08 p.m.



      The Defendant testified in his defense. He joined the Memphis Police

Department in 1974 as a patrolman. During the course of the next twenty years,

he worke d his way up throug h the ra nks a nd wa s prom oted to majo r in 1994 at

the time he took over command of the auto theft division. He is married and has

two children w ho are b oth adu lts. The accident occurred on a Saturday. He said

that he got up at about 7:00 a.m. on that day, which was his day off. After having

coffee and reading the paper, he went out and started working around his house.

He mowed the yard, did some weed eating, and sprayed his dogs for ticks. After




                                        -9-
he finished cutting the grass, he sat on his deck, throwing a ball for his dogs, and

drank tw o beers . He did n ot drink an y more alcoholic b everage s that day .



      About one o’clock, he got in his car and drove over to the Gates’ residence

to turn in som e mon ey that he had for the football team. He stayed there for

about an hour talking with Justin Gates and watching a football game. He arrived

back home at about 2:30 and flea-dipped his dogs. He then put some sacks of

garbage in his patrol car and took them to a dumpster. When he was returning

home around four o’clock, as he was driving through some intermittent shade and

sunshine, his vehicle struck the victim . He sa id he d id not see the victim until the

body hit his windshield. The glass shattered and blew back in his face. He

proceeded a little further, stopped and immediately reached for his car radio. His

first thoug ht was to get o n the ra dio to try to get m edical assistance. When he

got no response, he though t he was in a “dead spot,” so he proceeded along the

roadway, trying to get someone to respond to his calls. He drove on to his house

so that he could make a call there; and wh en he started to get out of the car, he

heard a siren and went back to the scene of the accident. He said he was gone

four to five minutes. When he got back to th e accide nt scene , he contin ued to

try to get a res ponse on his rad io and ce ll phone.



      The Defendant said he refused the breathalyzer test because the type of

machine used by the Memphis police was known to malfunction. He stated he

did not want to participate in the test for that reason. He also confirmed that on

the evening before the accident, ending at about midnight, he had d rank a coup le

of beers.




                                         -10-
       On cross-examination, the Defendant admitted that he told Officer Goldsby

that he had had nothing to drink that day, but he explained that he meant that he

had not anything immediately prior to the accident. He denied that his driving

ability was im paired due to alcoh ol, denied any reckless driving, and insisted that

the only reason he drove away from the scene of the accid ent was to try to find

a place w here his c ar radio o r cellular ph one wo uld functio n.



       At the conclusion of all proof, the trial judge instructed the jury concerning

charges of vehicula r homic ide by into xication, vehicular homicide by

recklessness, reckless homicide, leaving the scene of an accident when the

driver knew or should h ave kno wn that a death re sulted from the accid ent,

leaving the scene of an accident resulting in injury or death, driving under the

influence, and reckle ss drivin g. The jury retu rned a verdict o f not gu ilty on all

charges except the Class E felony of failing to stop at an accident when the driver

knew o r should re asona bly have k nown th at death resulted fro m the a ccident. 1



       On appeal, in addition to sentencing issues, the Defendant raises the

following issues: (1) the jury instruction concerning the charge of leaving the

scene of an a ccide nt did not fairly state the statutory requirements of the offense,

and the instruction concerning the definition of “forthwith” was neithe r necessary

nor correct; (2) the trial court erred in instructing the jury concerning “flight”; and

(3) when the jury returned its verdict of guilt on the charge of leaving the scene



       1
             Initially, the jury reported a verdict of “guilty of leaving the scene of an accident
involving death.” The judge instructed the jury to retire and deliberate and clarify whether they
were finding the Defendant guilty of the Class E felony offense set forth at Tennessee Code
Annotated § 55-10-101(b)(2) or the lesser included Class A misdemeanor offense found at
Tennessee Code Annotated § 55-10-101(b)(1). The jury subsequently reported a verdict of
guilty of leaving the scene of an accident involving death “as charged.”

                                              -11-
of the accident, the trial cou rt erred by not further instruc ting the jury p rior to

additional deliberation concerning whether their guilty verdict was for the Class

E felony charge found in Tennessee Code Annotated § 55-10-101(b)(2) or the

Class A m isdemea nor charge found at § 55 -10-101(b)(1).



       The trial court conducted the Defendant’s sentencing hearing on

September 3, 1997 and sentenced the Defendant on that date. The judgment

whic h sentenced the Defendant appears to have been entered on the date of

sentencing. The Defendant requested a delay in the “execution” of the judg ment,

and the trial judge eventually set the Defendant’s appeal bond but stated that the

judgment would not be “executed” until October 6, 1997, the date upon which he

would hear the motion for a new trial. The judge stated that if the motion for a

new trial was overruled, the Defendant could make his appeal bond on that date.

The Defendant did not file his motion for a new trial until October 6, 1997.



       A mo tion for new trial is required to be filed “w ithin thirty days of the date

the order o f sente nce is e ntered .” Ten n. R. C rim. P . 33(b) . This tim e perio d is

manda tory and cannot be extended. Tenn . R. Crim. P . 45(b); State v. Martin ,

940 S.W .2d 567 , 569 (T enn. 19 97); State v. Dodson, 780 S.W.2d 778, 780

(Tenn. Crim. A pp. 198 9). A trial cou rt does n ot have jurisdiction to hear and

determine the m erits of a motio n for ne w trial wh ich has not been timely filed.

Martin , 940 S.W .2d at 569 ; Dodson, 780 S.W .2d at 7 80. Th us, a tria l court’s

erroneous consideration of an u ntime ly motion for new trial does not validate the

motion. Id. The fa ilure to file a motion for n ew trial in a timely man ner renders

waived those iss ues wh ich ma y result in the granting of a new trial. Id. In other




                                          -12-
words, an appellate co urt will not consider any issue raised in the motion unless

it would res ult in dism issal of the p rosecu tion. Id.



       In the case sub judice, the order of sentence was entered on September

3, 1997. Th e Defend ant filed a motion for a new trial on October 6, 1997, after

the expiration of the thirty-day period. As a result, we must conclude that the

Defendant has waived consideration of the issues re lating to the trial court’s jury

instructions. 2



       In addressing the issu es wh ich the Defe ndan t raises conc erning his

sentencing, we are faced with an other problem stemm ing from a failure to file a

motion for new trial in a timely fashion. A notice of appeal is required to be filed

with the clerk of the trial court within thirty days after the date of entry of the

judgment or order from which relief is sought. Tenn . R. App. P . 4(a). T imely

filing of a motion for new trial tolls this period until entry of the order denying the

motion for a new trial. Tenn. R. App. P. 4(c). In the present case, because the

untim ely motion for a ne w trial wa s a nu llity, it did not toll the thirty-day period for

filing a notice o f appea l. See State v. Davis , 748 S.W.2d 206, 207 (Tenn. Crim.

App. 1987). The Defendant filed his notice of appe al on O ctobe r 6, 199 7, aga in

beyond the 30-day period from the entry of the judgment of conviction on

September 3, 1997. Of course, Rule 4(a) of the Tennessee Rules of Appella te

Procedu re provides that the notice of appeal document is not jurisdictional and



       2
          Of course, this Court has discretion to review the record for apparent errors to prevent
needless litigation, injury to the interest of the public, and prejudice to the judicial process.
Tenn. R. App. P. 13(b). Furthermore, it is within this Court’s discretion to notice at any time an
error affecting a substantial right of the defendant, even though not raised in a motion for new
trial, where necessary to do substantial justice. Tenn. R. Crim. P. 52(b). We decline to
exercise our discretion in the case at bar.

                                              -13-
that timely filing may therefore be waived in the interest of justice. The Defendant

points out that the trial court delayed “execution” of the sentence until the date

that the motion for a new trial was to be heard. We have determined to exercise

our discretion and waive the timely filing of the notice of appeal in order to

consider the Defendant’s sentencing issues.



      The Defendant asserts that the trial court erred in sen tencing him b y: (1)

errone ously admitting into eviden ce victims ’ stateme nts at the s entencing

hearing; (2) admitting irrelevant testimony and/or unreliable hearsay at the

sente ncing hearin g; (3) not finding the Defendant to be an especially mitigated

offender; (4) denying the Defendant ju dicial diversion; and (5) denying the

Defendant any form of alternative sentencing.



      When an accused challenges the length, range, or manner of service of a

sentence, this Court has a duty to conduct a de novo review of th e sente nce with

a presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-35-401(d). This presumption is ?conditioned u pon the affirma tive

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 19 91).



      In conducting a de novo review of a senten ce, this court mu st consider: (a)

the evidence, if any, received at the trial and sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and arguments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statu tory mitigatin g or enh ancem ent factors ; (f) any statement

                                        -14-
that the defendant made; and (g) the potential or lack of potential for rehabilitation

or treatme nt. State v. S mith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 19 87);

Tenn . Code Ann. §§ 40-35-102, -103, -210.



      If our review reflects that the trial court followed the statutory sentencing

procedure, that the trial court imposed a lawful sentence after having given due

consideration and p roper weigh t to the fa ctors a nd prin ciples set out under the

sentencing law, and that the trial court’s findings of fact are adequately supported

by the record, then we m ay not mod ify the sentence e ven if we would h ave

preferred a different re sult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991 ).



      The trial court conducted a sentencing hearing during which bo th the Sta te

and the Defe ndant intro duced additiona l proof. Th e first witness for the Sta te

was the victim’s widow, who read a lengthy letter which she had prepared and

which was included with the presentence report. She described the impact that

her husba nd’s dea th had on her life. She acknowledged the jury’s verdicts of not

guilty of vehicula r homic ide, DU I, and reckless driving, but asserted that although

the Defendant was found “not guilty,” he was not “innocent.” She testified that at

the time of the accident, the Defendant’s driving ability was impaire d due to

alcoh ol. She described the emo tional a nd fina ncial h ardsh ip that h er hus band ’s

death had placed on the family. She quite forcefully and dramatically expressed

and emphasized her heartfelt and sincere grief over the loss of her husband.

She asked that the Defendant not receive any special treatment because he was

a major in th e Memphis Police Dep artmen t and ask ed that he be sen tenced to

the maximum punishment allowed by law.

                                         -15-
      The victim’s sister was also allowed to give “victim impact” testimony. She

also read a letter which she had prepared. She described her grief and the

impact that her brother’s death had on her family. She expressed her opinion

that the Defendant was “a menace to society.” She said that the Defendant

“plowed into m y broth er like a n anim al in the road, leaving him to die.” She

questioned, “And did this jury really make it’s [sic] own mind up? Or did someone

tell them they must come back w ith a not gu ilty verdict? O r mayb e, a last m inute

plea bargain.” The State then called the victim’s daughter to testify. She was

allowed to read a letter that her cousin had written. The letter referred to the man

who had “murdered” the victim. The witness also expressed her grief over the

death of her father. In addition, the victim’s bro ther-in-law was allow ed to give

“victim impact” testim ony.



      The Defendant presented character evidence on his behalf. He was

described as a “genuine, sincere, caring person.” The witnesses described the

Defe ndan t’s remors e over the acciden t. The Defendant was described as a good

police officer, a good family man, conscientious, honest, caring, and generous.



      The Defe ndan t testified that this event had “devastated” his life. He related

that he had lost his job and his career, that he was earning much less than he

had before, and tha t his family was on the ve rge of losing its home.            He

expressed his remorse and said that he would give an ything if h e cou ld change

what had ha ppene d. He sa id, “I’d give an ything if he w as a live [sic] to day. I

think about it slee ping an d eating a nd getting up and I’m sorry. I’m sorry, but I

can’t bring him ba ck.”




                                        -16-
       The presentenc e report reflected that at the time of sentencing, the

Defendant was forty-four years of age and married with two children. He began

employment with the Memphis Police Department immediately after graduating

from college in 197 4. His employment with the Memphis Police Department was

terminated several weeks after the automobile accident.                 At the time of

sentencing he wa s em ployed with Mid -Sou th Gra phics in Mem phis with a salary

of nine dollars an h our.



       In sentencing the Defendant, the trial judge first noted the severity of the

impact of the vic tim’s b ody with the De fenda nt’s veh icle an d expr esse d his

concern with the fact that the Defendant drove away knowing that he had struck

a pedes trian with great force. The trial judge stated that he did not believe the

Defe ndan t’s explanation that the only reason he drove off was to try to summon

assistance.     The jud ge expre ssed h is strong b elief that anyon e wou ld

imm ediate ly want to stop an d try to determine how serious the injuries were and

try to offer assistance. He also expressed his opinion that the Defendant’s law

enforcement training and e xperie nce s hould have he ightene d his resp onsibility

to immediately stop and render assistance if possible.



       The court found no statutory mitigating factors other than the fact that the

Defendant had no prior reco rd, had b een ga infully emp loyed for o ver twenty

years with the Memphis Police Department and had a stable family and social

history. Althou gh the trial cou rt did no t spec ifically m ake a finding in this regard,

the court apparently applied as an enhancement factor that the Defendant

abused a position of public trust because he was a police officer convicted of

violating the law.

                                          -17-
      In enhancing the Defendant’s sentence from the presumed minimum of

one year up to the maximum of two years, the court stated, “Based on all of the

facts and circumstances in this case, that it will set the punishm ent at two years

as a Range I standard offender in this matter.” In denying judicial diversion, the

Court cited the fact that the Defendant was a police officer, and under the

circumstances of this case, that factor d ictated against judicial diversion.

Concerning the Defendant’s request for probation or other alterna tive sentencing,

the trial court stated, “The Court also feels from all of the facts and circumstances

that probation at this time, based on all of the facts and circumstances is denied.

And alternative sentencing also, at this time, denied.” The trial judge also stated

that he was declining to sentence the Defendant as a mitigated offender based

again upon the Defendant’s status as a police officer and his heightened

obligation to comply with the law.



      When determining the length of a sentence, the trial judge shall start at the

minimum sentence, increase it considering approp riate enhancement factors, and

decrease it considering appropriate mitigating factors. Tenn. Code Ann. § 40-35-

210(e). The Defendant herein was convicted of a Class E felony and sentenced

as a standard offender, and thus was entitled to the presumption that he is a

favora ble candida te for alternative sentencing. Tenn. Code Ann. § 40-35-10 2(6).

Because the record do es not affirmatively sho w that the trial court cons idered

these sentencing principles, we review the sentence de novo without a

presumption of correctn ess. State v. Ashby, 823 S.W.2d 166, 169 (Ten n. 1991).




                                        -18-
      The Defendant argues that the trial judge erred by admitting into evidence

the victims’ state ments at the sentencing hearing and also by admitting irrelevant

testimony and/or u nreliable h earsay. The Defendant argues that the crime of

leaving the scene of an accident involving death is not a crime with a “victim” and

the family of the deceased should not have been allowed to testify relevant to the

sentencing of the Defendan t.      See Tenn. Code Ann. § 40-35-209(b).          The

Defendant ackno wledge s that reliab le hearsa y is adm issible at a sentencing

hearing, but he argues that some of the hearsay admitted was not reliable and

that some of the testimony presented was not relevant.                Although we

acknowledge that so me o f the tes timon y given by the v ictim’s fa mily was of

limited relevance to the sentencing issues properly before the trial judge, we

believe the trial judge acted w ithin his disc retionary authority in allowing the

testimony and hearsay to be presented.



      The Defendant next contends that the trial judg e erred or abu sed h is

discretion by not classifying him as an esp ecially mitiga ted offend er instead of a

standard offender.    A trial court may find a d efend ant to b e an e spec ially

mitigated offender if the defendant has no prior felony convictions and the cou rt

finds mitigating, but no enhancement factors. Tenn. Code Ann. § 40-35-109. As

the sentenc ing co mm ission com men ts poin t out, a fin ding o f an es pecia lly

mitigated offend er is dis cretion ary with the trial court. F rom this record, we

cannot conclude that the trial judge abus ed his discretion in sentencing the

Defenda nt as a standa rd offender.



      The Defendant also argues that the trial judge erred in denying him judicial

diversion.   See Tenn. Code Ann. § 40-35-31 3.            Tenne ssee courts h ave

                                        -19-
recognized the similarities between judicial diversion and pretrial diversion and,

thus, have drawn he avily from th e case law gove rning pre trial diversion to

analyze cases involving judicial diversion. For instance, in determining whether

to grant p retrial div ersion , a distric t attorne y gene ral shou ld consider the

defen dant’s criminal record, so cial history, mental and physical condition,

attitude, beha vior since arrest, emotional stability, current drug usage, past

emplo ymen t, hom e envir onm ent, m arital sta bility, fam ily responsibility, general

reputation and amenability to correction, as well as the circumstances of the

offense, the deterrent effect of punishment upon othe r criminal activity, and the

likelihood that pretrial diversion will serve the ends of justice and best inte rests

of both the public and the defend ant. See State v. Washington, 866 S.W.2d 950,

951 (Tenn. 199 3); State v. Hammersley, 650 S.W .2d 352 , 355 (T enn. 19 83). A

trial court should consider the same factors when deciding whether to grant

judicial diversion. See State v. Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App.

1993); State v. Anderson, 857 S.W .2d 571, 572 (Tenn. Crim . App. 1992 ).

Moreover, a trial court should not deny judicial divers ion withou t explaining both

the spec ific reason s supp orting the d enial and why thos e factors a pplicable to the

denial of diversion outweigh other factors for c onside ration. See Bonestel, 871

S.W.2d at 168.



       In addition, this Court applies “the same level of review as that wh ich is

applic able to a review of [a] district attorney general’s action in denying pre-trial

diversion .” State v. George, 830 S.W.2d 79, 80 (Tenn. Crim. App. 1992 ); see

also Bonestel, 871 S.W .2d at 168 ; Anderson, 857 S.W.2d at 572. In other words,

this Court re views the record to determ ine whe ther the trial co urt abused its

discretion. See Bonestel, 871 S.W .2d at 168 ; Anderson, 857 S.W.2d at 572. To

                                         -20-
find an ab use o f discre tion, we must determine that no substantial evidence

exists to support the ruling of the trial court. See Bonestel, 871 S.W.2d at 168;

Anderson, 857 S.W.2d at 572.



      The trial judge did not explain his specific reasons supporting the denial of

judicial diversion or why those factors applicable to the denial outweighed the

favora ble factors. From our review of this record, although the trial judg e wou ld

have acted within his discretionary authority had he granted diversion, we cannot

say that he abuse d his discretionary au thority by denying it. The trial judge

presided over this lengthy trial and obviously was in the best position to

determine factors such as the Defendant’s attitude and demeanor. Althoug h it

is obviou s that th e jury w hich heard the charges against the Defendant

determined that the evid ence w as insufficie nt to find the Defendant guilty beyond

a reasonable doubt of any offense other than leav ing the sc ene of the acciden t,

the trial judge’s decision ob viously was bas ed in part upon his considera tion of

all the evidence presented at trial. On the issue of whether to grant judicial

diversion, we defer to the discretion of the trial judge in the case sub judice.



      W e now address the issue of whether the trial judge erred o r abus ed his

discretion in denying the Defe ndant a ny form o f alternative sentencing. If an

accused has been convicted of a Class C, D, or E felony and sentenced as an

espe cially mitigated or standard offender, there is a rebuttable presumption that

the accused is a favorable candidate for alternative sentencing unless

disqualified by some provision of the Tennessee Criminal Sentencing Reform Act

of 1989 . Tenne ssee C ode An notated § 40-35 -102 pro vides in pa rt:




                                       -21-
      (5) In recog nition that s tate prison ca pacities a nd the fun ds to
      build and maintain them are limited, convicted felons committing
      the most severe offenses, possessing criminal histories evincing
      a clear disregard for the laws and morals of society, and evincing
      failure of past efforts at reha bilitation sha ll be given first p riority
      regarding sentencing involving incarceration; and
      (6) A defenda nt who doe s not fall within the param eters of
      subdivision (5) and who is an especially m itigated or standard
      offender convicted of a Class C, D or E felony is presumed to be
      a favorable cand idate for alternative sentencing options in the
      absence of evidence to the contrary.



      The sentencing proce ss m ust ne cess arily commence with a determination

of whether the accu sed is en titled to the be nefit of the p resum ption. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991). As our supreme court said in Ashby: “If [the]

determination is favorable to the defendant, the trial court must presume that he

is subject to alternativ e sentencing. If the court is presented with evidence

sufficient to overcome the presum ption, then it may sen tence the defend ant to

confinement according to the statutory provision[s].”            Id.   “Evidence to the

contrary” may be found in applying the considerations that govern sentences

involving confinement, which are set forth in Tennessee Code Annotated §

40-35-103 (1):

      (A) Conf inem ent is n eces sary to protec t socie ty by res training a
      defend ant who has a lon g history of c riminal co nduct;
      (B) Confinement is necessary to avoid depreciating the seriousness of
      the offense or confinement is particularly suited to provide an effective
      deterrence to others likely to commit similar offenses; or
      (C) Measures less restrictive than confinement have frequently or
      recently b een ap plied uns uccess fully to the de fendan t.
Tenn. Code Ann. § 40-35-1 03(1); see Davis , 940 S.W .2d at 561 ; Ashby, 823

S.W.2d at 169. The presumption can be successfully rebutted by facts contained

in the presentence report, evidence presented by the state, the testimony of the

accused or a defense witness, or any o ther so urce p rovide d it is made a part of

the reco rd. State v. Bonestel, 871 S.W .2d 163, 167 (Tenn. Crim . App. 1993 ).



                                          -22-
       Beyond this, a defendant has the burden of establishing his or her

suitability for total probation. Tenn. Code Ann. § 40-35-303(b). To be granted

full probation, a defendant must demonstrate that probation will “‘subserve the

ends of justice and th e bes t interes ts of bo th the p ublic a nd the defen dant.’”

Hooper v. State, 297 S.W .2d 78, 81 (Tenn . 1956); see also State v. Boggs, 932

S.W.2d 467, 477 (Tenn. Crim. App. 1996) (quoting Hooper); State v. Bingham,

910 S.W .2d 448 , 456 (T enn. C rim. App . 1995) (same). The trial court must

consider a sentence w hich is the “least seve re measu re necessa ry to achieve the

purposes for which the sentence is imposed” and “[t]he potential or lack of

potential for the rehabilitation or treatment of the defendant.” Tenn. Code Ann.

§ 40-35 -103(4), (5 ).



       Probation may be denied based on the circumstances of the offense;

however, “as com mitted, [the criminal a ct] must be ‘especially violent, horrifying,

shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated

degree ,’ and the nature of the offense must outweigh all factors favoring

probatio n.” State v. Cleavor, 691 S.W.2d 541, 543 (Tenn. 1985) (quoting State

v. Travis , 622 S.W.2d 529, 534 (T enn. 19 81)). This principle has been codified

in § 40-35-103(1)(B), which considers confinement to avoid depreciating the

seriousness of the offense. State v. Hartley, 818 S.W.2d 370, 375 (Tenn. Crim.

App. 1991); see also State v. Fletcher, 805 S.W.2d 785, 787 (Tenn. Crim. App.

1991). Sentencing decisions should n ot, however, turn on a generalization of the

crime committed, such as the fac t that a dea th occurr ed. State v. Bingham, 910

S.W .2d 448, 456 (Tenn. Crim . App. 1995 ).




                                        -23-
       Probation may also be denied based on whether the sentence will deter

others. The sentencing act provides that “[p]unishment s hall be im posed to

prevent crime and promote re spect for the law b y . . . [p]roviding an effective

general deterrent to those likely to violate the criminal laws of this state.” Tenn.

Code Ann. § 4 0-35-10 2(3)(A).       A lso, our su preme court has reiterated that

“[b]ecause there is a degree of deterrence uniformly present in every case,

however, the significance of this factor ‘varies widely with the class of offense and

the facts of each ca se.’” Davis, 940 S.W .2d 558, 560 (Tenn. 1997) (quoting

State v. Michael, 629 S.W.2d 13, 14-15 (Tenn. 1982)). “[A] ‘finding of deterrence

cannot be co nclus ory on ly but m ust be supp orted b y proo f.’” Id. (quoting State v.

Ashby, 823 S.W .2d 166 , 170 (T enn. 19 91)).



       The Defendant began this trial with the presumption that he was innocent

of all criminal charges.     When the jury returned the verdict of not guilty of

vehicular homic ide, DU I, and reck less driving , this presumption of innocence

became a legal conclusion. Although the victim’s family and friends sincerely and

strong ly disagree with the verdict, the jury absolved the Defendant of any criminal

culpab ility for causing the death of the victim.        Our law cannot allow the

Defendant to be sentenced for crimes of which he has been acquitted.



       W hile the Defendant should certainly receive no leniency or special

consideration due to his status as a police officer, we also do not believe he

shou ld be dealt with harshly just because he was an officer when this accident

occurred. His crime is not one involving public corruption or reflecting a contrived

plan or scheme to violate the law. While it does not appear that he fled the scene




                                         -24-
of the ac ciden t to avoid detection, even if he did, he promptly reconsidered and

returned.



       The Defendant is a first offender convicted of a Class E felony. He has no

history of criminal conduct. The record suggests no negative factors in the

Defe ndan t’s backg round a nd soc ial history; to the contrary, the reco rd reflects an

impressive and solid record as a productive member of society. He clearly is not

an offender for whom incarceration is a priority. His potential for rehabilitation

appears to be excellent.      We believe the factors favoring probation clearly

outweigh any factors suggesting incarceration.



       W e modify the sentence imposed by the trial judge to reflect that the

sentence shall be served on probation, with the terms and conditions of probation

to be set by the trial judge. In all other respects, the judgment is affirmed.




                                   ____________________________________
                                   DAVID H. WELLES, JUDGE




                                         -25-
CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
JOE G. RILEY, JUDGE




                             -26-
