 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Cothran11/29/2005
ccused contends would be exculpatory." Id. at 914 (emphasis added). The Defendant has failed to adequately address how the State's preservation of the twelve pack of beer recovered from his truck the night of the accident would be exculpatory. Nonetheless, we will address the three factors outlined in Ferguson.
In this case, the State did indeed have the duty to preserve the physical evidence, i.e., the beer carton and beer cans, but we find its failure to do so was the result of simple negligence rather than gross negligence. Second, in a case involving homicide and serious injury due to intoxication, evidence of beer cans would unquestionably be significant. However, when viewed in the context of the entire record, the secondary evidence of multiple witness testimony concerning the beer cans -- including the number, brand, and condition -- mitigates the loss of the cans themselves. Additionally, the probative value of the cans would be limited; even if most of the twelve Old Milwaukee's Best cans recovered at the accident scene had been full, the State also submitted video evidence of the Defendant purchasing an additional six pack of beer several hours before the accident that was never accounted for. Finally, as addressed more fully above, the sufficiency of the remaining evidence that was presented at trial as to the Defendant's intoxication was substantial.
In summary, the Ferguson factors weigh favorably for the State. In our view the Defendant received a fundamentally fair trial even without the presentation of the beer cans. Accordingly, this issue is without merit.
V. Sentencing
In his final issue on appeal, the Defendant asserts that the trial court erred by imposing an excessive sentence. To support this claim the Defendant argues first that the trial court improperly enhanced his sentences beyond the presumptive sentences for his range. Additionally, the Defendant claims the trial court erred in ordering consecutive service of his sentences. We disagree with both assertions.
A. Standard of Review
Before a trial court imposes a sentence upon a convicted criminal defendant, it must consider (a) the evidence adduced at the trial and the sentencing hearing; (b) the pre-sentence report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) evidence and information offered by the parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-35- 113 and 40-35-114; and (f) any statement the defendant wishes to make in the defendant's own behalf about sentencing. See Tenn. Code Ann. § 40- 35-210(b); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). To facilitate appellate review, the trial court is required to place on the record its reasons for imposing the specific sentence, including the identification of the mitigating and enhancement factors found, the specific facts supporting each enhancement factor found, and the method by which the mitigating and enhancement factors have been evaluated and balanced in determining the sentence. See State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).
Upon a challenge to the sentence imposed, this court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d). However, this presumption "is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If our review reflects that the trial court followe
Page 1 2 3 4 5 6 7 8 9 10 11 12 Tennessee DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|