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State v. Keathly5/21/2003
Factual Background
On November 18, 2000, at 4:30 p.m., the Appellant was traveling on Highway 70 from his primary residence in Brentwood to his farm in Sparta. At the same time, the victim, Gary Herron, was traveling toward Smithville. Herron stopped behind Michael Cantrell's truck and trailer, which was signaling to turn left. The Appellant testified that he was "traveling about forty-five (45) miles an hour because there was construction on left." He began to dial his wife on his cellular phone, when he "looked up to see the tailgate" of the victim's truck. He "hit his brakes to late to stop and rearended the truck." The force of the crash caused the victim to clip Cantrell's trailer and pushed his vehicle approximately one-hundred and fifty feet into a yard. Herron suffered a broken neck and injured spinal cord, resulting in a twenty-five percent permanent disability.
Amanda McDaniel witnessed the crash. She testified that, when the Appellant exited his vehicle, he "appeared drunk because he was staggering." She also testified that she could "smell the liquor on him" and " e was stuttering."
Trooper Sherry Beaty responded to the accident scene. She testified that the Appellant "kept his head down, . . . appeared to be unsteady, . . . was stumbling, . . . spoke very low," and she "could smell alcohol on his breath." According to Trooper Beaty, when she went to the Appellant's vehicle to retrieve his registration papers, she noticed that "there was a plastic cup that had fallen over, . . . and there was an alcoholic beverage that had spilled in the floor." The Appellant initially refused a blood alcohol test; however, he then consented and was driven to DeKalb County Hospital. The Appellant's blood alcohol content was determined to be .09%. The Appellant stated that, two and one-half hours earlier, he consumed one gin and tonic before he left his home, but "judged [himself] to be sober enough to drive."
Following a trial by jury, the Appellant was convicted of vehicular assault and driving under the influence (DUI), second offense. The DUI conviction merged with the vehicular assault conviction. A sentencing hearing was conducted on January 25, 2002. The trial court imposed a sentence of four years, suspended after service of one year. The trial court also imposed a six-year probationary period and levied a fine of five thousand dollars. This timely appeal followed.
ANALYSIS
I. Allocution
At the conclusion of the sentencing hearing, the Appellant requested that he be allowed to read a statement to the trial court. The State objected, asserting that, in order to read a statement to the court, the Appellant must first be placed under oath and thus subject to cross-examination. The trial court agreed. After rejection of his request, the Appellant was placed under oath, read his statement to the court, and was rigorously cross-examined by the prosecutor and the trial judge. On appeal, he argues that this procedure denied him his statutory right of allocution.
Allocution has been defined "as the formality of the court's inquiry of a convicted defendant as to whether he has any legal cause to show why judgment should not be pronounced against him on the verdict of conviction." State v. Stephenson, 878 S.W.2d 530, 551 (Tenn. 1994) (citing Black's Law Dictionary 76 (6th ed. 1990)) (footnote omitted). It is "an unsworn statement from a convicted defendant to the sentencing judge or jury in which the defendant can ask for mercy, explain his or her conduct, apologize for the crime, or say anything else in an effort to lessen the impending sentence. This statement is not subject to cross-examination." Black's
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