State of Tennessee v. Michael Ashley

Citation: Not availableDocket: W2004-01319-CCA-MR3-CD

Court: Court of Criminal Appeals of Tennessee; November 30, 2010; Tennessee; State Appellate Court

Original Court Document: View Document

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Michael Ashley was indicted for criminally negligent homicide related to the death of James Graham. At trial, the jury was instructed on felony reckless endangerment and misdemeanor reckless endangerment as lesser included offenses. The jury acquitted Ashley of criminally negligent homicide but convicted him of felony reckless endangerment, leading to a two-year confinement sentence without probation. On appeal, Ashley contended that the trial court improperly charged the jury on felony reckless endangerment as a lesser included offense of criminally negligent homicide and argued against his confinement sentence. The appellate court found that felony reckless endangerment is not a lesser included offense of criminally negligent homicide, and since the jury acquitted him of the greater charge, it reversed and dismissed the conviction. The court's opinion highlighted that the evidence supporting the conviction stemmed from an incident where Ashley and others engaged in dangerous behavior with a loaded firearm, demonstrating awareness of the gun’s loaded status.

The victim, after taking a shower, returned to the kitchen where Defendant handed him a loaded gun, asking, "Do you trust me?" The victim mistakenly pulled the trigger instead of using the decocking mechanism, resulting in a fatal gunshot wound to the head. Testimony indicated that the gun was pressed to the victim's skin when discharged, as confirmed by the assistant medical examiner. The jury acquitted the Defendant of criminally negligent homicide. 

During the trial, the court considered charging misdemeanor reckless endangerment as a lesser included offense of criminally negligent homicide. The State requested a charge on felony reckless endangerment, which defense counsel opposed, noting both offenses are Class E felonies. Despite the objection, the trial court instructed the jury on both felony and misdemeanor reckless endangerment.

Defendant contends the trial court erred in including felony reckless endangerment. The State argues that Defendant waived appellate review by failing to file a timely motion for new trial within thirty days of sentencing, as mandated by Tennessee Rules of Criminal Procedure. The motion was filed late, and the court appointed new counsel for the appeal due to prior counsel's oversight. The State maintains that without a timely motion for new trial, the appellate court can only consider issues that would result in outright dismissal of the conviction.

Errors that affect the substantial rights of a defendant may be reviewed for the sake of substantial justice under the plain error doctrine, as per Tenn. R. Crim. P. 52(b) and relevant case law. Specifically, if a trial court incorrectly instructs a jury on lesser included offenses and this error is not harmless beyond a reasonable doubt, the remedy depends on the case's specifics. If a defendant is convicted of the charged offense, yet the court failed to instruct the jury on appropriate lesser included offenses, the conviction must be reversed and a new trial ordered, as established in State v. Burns. 

Should a defendant be convicted of an offense that is not a lesser included offense of the charged crime, and the jury has not reached a decision on any appropriate lesser included offenses, the conviction must also be reversed, leading to a new trial on those offenses. However, if the jury rejected all relevant lesser included offenses or if no lesser offenses exist than the wrongly charged one, the conviction must be reversed and dismissed. 

In this case, since felony reckless endangerment is not a lesser included offense of criminally negligent homicide, and if there are no lesser included offenses of criminally negligent homicide, the court may consider the defendant’s argument despite an untimely motion for a new trial, as this could lead to dismissal. The determination of whether felony reckless endangerment qualifies as a lesser included offense under the Burns criteria involves assessing if all statutory elements of the alleged lesser offense are present in the charged offense. Criminally negligent homicide requires proof of criminally negligent conduct that results in death, defined as failing to be aware of a significant risk.

Felony reckless endangerment occurs when an individual recklessly engages in conduct that places another person in imminent danger of death or serious bodily injury while using a deadly weapon. Misdemeanor reckless endangerment includes the same elements but does not require the use of a firearm. The term "recklessly" is defined as acting with awareness of and consciously disregarding a substantial and unjustifiable risk. Both criminally negligent conduct and reckless conduct involve a gross deviation from the standard of care expected from an ordinary person, assessed from the accused's perspective.

In Rush, the Supreme Court determined that felony reckless endangerment is not a lesser included offense of attempted second degree murder because felony reckless endangerment necessitates proof of a deadly weapon, which is absent in attempted second degree murder. Furthermore, the element of using a gun in reckless endangerment does not inherently indicate a lesser risk of harm compared to failing to recognize a significant risk. 

Criminally negligent homicide does not require proof of a deadly weapon. Thus, following the Rush analysis, felony reckless endangerment cannot be considered a lesser included offense of criminally negligent homicide, as it mandates proof of a deadly weapon. Additionally, the intent required for reckless endangerment is greater than that for criminally negligent homicide, which is classified as a lower-tier intent. When recklessness can establish an element of an offense, it also covers intentional or knowing actions. The Rush court noted that differing intent elements are typically not considered "differing statutory elements" due to their connection to varying degrees of culpability. However, in this context, the higher intent requirement for reckless endangerment compared to criminally negligent homicide qualifies as a differing statutory element under the Burns analysis, necessitating compliance with the requirements laid out in part (b)(1) of that analysis.

Criminally negligent homicide and reckless endangerment both involve conduct that significantly deviates from the standard of care expected of an ordinary person, evaluated from the accused's perspective. The key difference lies in awareness: reckless conduct involves a conscious disregard of a substantial and unjustifiable risk, while criminal negligence pertains to an individual's failure to be aware of such a risk. The Burns analysis indicates that a lesser culpable mental state must differentiate the two offenses. Consequently, reckless endangerment (both felony and misdemeanor) does not qualify as a lesser included offense of criminally negligent homicide in this case, leading to the conclusion that the trial court incorrectly instructed the jury on these offenses. The court reversed the trial judgment and dismissed the conviction, ruling that the defendant did not waive his right to appeal the erroneous jury instruction despite not filing a timely motion for new trial, as the conviction was for an offense not included in the indictment. The court noted that if a new trial motion had been filed, it would have sought to reverse the conviction based on this discrepancy. Additionally, the court indicated it would consider the defendant's challenge regarding the trial court's rejection of alternative sentencing and the sentence length. Victim impact statements revealed that the victim's family was significantly affected by the death, with acknowledgment of the victim's partial fault, yet criticism of the defendant's lack of remorse and responsibility.

Defendant testified at his sentencing hearing, revealing he was employed and had relocated his family to Virginia to mitigate expenses in anticipation of possible incarceration. He acknowledged having two prior motor vehicle registration violations and two convictions for driving on a suspended license. Defendant claimed to be drug-free and limited his alcohol consumption to special occasions. He suggested the incident could have been avoided had the victim or he acted differently. After the victim's self-inflicted gunshot wound, Defendant called 911 and followed paramedic instructions to assist the victim.

The trial court denied Defendant's request for alternative sentencing, emphasizing the necessity for deterrence against similar offenses. The court determined that probation was inappropriate, stating such conduct must not be tolerated in the community. It also considered the nature of the offense, inferring that Defendant acted for "weird self-gratification" and deemed the behavior unsuitable for probation. Factors influencing the two-year confinement sentence included Defendant's history of motor vehicle violations, the severity of the victim's injury, and the high risk to human life at the time of the offense.

The document notes that amendments to Tennessee Code Annotated regarding sentencing factors, effective June 5, 2005, do not apply to Defendant's case, as his offenses and sentencing predated this date. For challenges to the length or manner of service of a sentence, the court conducts a de novo review, presuming the trial court's decisions are correct unless the record lacks evidence of consideration of sentencing principles and relevant facts. The trial court's considerations include trial evidence, pre-sentence reports, sentencing principles, the nature of the criminal conduct, enhancement and mitigating factors, and the defendant's potential for rehabilitation.

A lawful sentence imposed by a trial court, following statutory procedure and supported by the record, cannot be modified by the appellate court, regardless of preference for a different outcome. The defendant must demonstrate that the sentence is improper. As a Range I standard offender convicted of a Class E felony, the defendant is presumed eligible for probation, which the State must rebut. While the defendant does not belong to a category prioritizing incarceration, the trial court can impose confinement if evidence overcomes this presumption. Factors such as the defendant's criminal history, the need to protect society, and the effectiveness of less restrictive measures inform the court's decision. 

The defendant contends that the trial court incorrectly emphasized deterrence without evidence of increasing similar offenses in Memphis. However, a confinement sentence can be justified if a reasonable person could conclude that deterrence is needed in the community and that incarceration could deter similar crimes. The court also noted that repeated criminal behavior necessitates a strong reminder of consequences. Though the trial court failed to substantiate the need for deterrence as required, it based its decision also on the defendant’s long criminal history, which included prior motor vehicle violations but no felony convictions.

Defendant's denial of illegal drug use is supported by a lack of contrary evidence. His prior criminal history does not constitute a 'long history' of criminal conduct, making it insufficient to justify a sentence of confinement under Tennessee law (T.C.A. § 40-35-103(a)(A)). There is also no indication that Defendant lacks rehabilitation potential (T.C.A. § 40-35-103(1)(C)). The trial court's rationale for imposing confinement to preserve the seriousness of the offense does not align with legal standards, which require the offense to be exceptionally violent or egregious to warrant such a decision (State v. Hartley, 818 S.W.2d 370, 374-75). Defendant's conviction stemmed from reckless conduct resulting in a victim's death, but the circumstances do not meet the Hartley and Cleavor standards. Tennessee law allows for alternative sentencing even in cases of reckless endangerment resulting in death, prioritizing confinement for severe offenses with a clear disregard for laws. Evidence indicates that Defendant has no prior probation, a history limited to motor vehicle violations, stable employment, and family support. The review concluded there is insufficient evidence to overcome the statutory presumption favoring alternative sentencing. Although some confinement may be justified, the presumption means the State must provide contrary evidence. If alternative sentencing is warranted, the Defendant must prove eligibility for full probation. Consequently, the court reverses Defendant’s conviction for felony reckless endangerment and dismisses the indictment.