 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Hester6/4/1998
HAMILTON COUNTY
Hon. Stephen M. Bevil, Judge
(Second Degree Murder--Two Counts;Attempted
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
The defendant, Harvey Phillip Hester, was convicted of two counts of second degree murder and one count of attempted second degree murder. The trial court imposed twenty-five-year terms for each murder conviction and a twelve-year term for the attempted second degree murder conviction. Because the three sentences are to be served consecutively, the effective sentence is sixty-two years. In this appeal of right, the defendant presents the following issues for our review:
(I) whether the evidence is sufficient to support the convictions;
(II) whether the trial court committed reversible error by refusing to charge vehicular homicide as a lesser grade offense of first degree murder;
(III) whether prosecutorial misconduct occurring during the trial requires reversal;
(IV) whether the trial court erred by allowing the blood alcohol test results of two of the victims to be admitted, where the individuals who conducted the tests were not called as witnesses; and
(V) whether the trial court erred by imposing the maximum sentence for each conviction and by ordering the sentences to be served consecutively.
The trial court committed error by failing to instruct the jury on the lesser offense of vehicular homicide; thus, the second degree murder convictions are reversed and new trials ordered. The conviction and sentence for attempted second degree murder is affirmed.
On August 8, 1994, Richard Serna (Richard), his daughter, Angela, and his brother, Paul Serna (Paul), drove to the "blue hole" on Suck Creek Road at Signal Mountain to swim. Upon their arrival, the defendant was in the parking lot. Richard Serna briefly engaged in friendly conversation with the defendant after which the Sernas walked to the swimming area. Sometime later, the defendant approached them and asked if they had seen his wallet. The defendant searched unsuccessfully for his wallet and then left. Angela described this exchange as "pleasant."
About five minutes later, the defendant returned and again inquired about his wallet. He pointed out that the Sernas were the only others in the area and explained that his wallet contained around $2,200. The defendant left but soon returned and insisted his wallet had to "be here somewhere." When he mentioned that he had a gun in his car, the Sernas were surprised. Paul placed a knife in his pocket but made no threats to the defendant.
After the defendant left, the Sernas gathered their belongings and returned to their car. When they reached the parking lot, the defendant asked permission to search. While the Sernas allowed a search, the defendant did not find his wallet. The Sernas then drove away. After driving on a short distance, the Sernas noted the defendant was following them. He rammed the back of their car several times and, at one point, the Sernas' car "fishtailed" around a bigger truck.
At trial, Angela testified that the defendant struck their vehicle in the rear "over and over again ... continuously the whole way down the mountain." She estimated that their vehicle was struck more than twenty times. As their car passed by the Suck Creek Boat Ramp, Angela yelled out the window asking for someone to call the police.
She recalled that at the bottom of the mountain, Suck Creek Road terminates at its intersection with Signal Mountain Boulevard, a four-lane road. She remembered that the defendant rammed their car into the four-lane road. At another intersection, o
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Tennessee DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|