1 IN THE COURT OF CRIMINAL A PPEALS OF TENN ESSEE AT JA

CKSON AUGUST

1999 SESSION STATE OF TENN ESSEE V. No. W1998-00582-CCA-R3-CD MARK LEE BOONE Concurring and Dissenting Opinion

I concur in the majority ’s opinion, except for the affir mance of the defendant’s DUI conviction. In my view, this court should hold under the plain error rule that double jeopardy principles dictate the reversal of the DUI conviction and the dismis sal of that case.
The aggravated vehicular homicide convicti on was based upon Tennessee Code Annotated sections 39- 13-213 (a) (2) and -218. Section 39-13- 218 establishes the conditions for making a section 213 v ehicular homicide an aggravated offense, and secti on 213 proscribes general ly vehicular homic ide. The basis for a vehicular homicide prosecution under section 39 -13-213 (a)(2) is “a reckless killing of another . . . [a]s the proximate result of the driver’s intoxication as set forth in § 55-10-401.” Tenn. Code Ann. § 39-1213 (a)(2)(1997). Code s

ection 55-10-401 is the statut e which defines and proscribes drivin g under the influence.

In like manner, the defendant’s v ehicular assault convi ction was based upon Tennessee Code Annotated secti on 39-13-106, which proscribes vehicular assault pr

oximately resultin g from the defendant’s “intoxi cation as set forth in § 55-10-401.”

The defendant’s fourth-offense DUI convic tion was based upon section 55-10-401, whic h proscribes the under-the- influence operation of a motor vehicle “on any of the publ ic roads and highway s of the state, or on any str eets or alleys, or whil e on the premises of any shopping center, trailer park or any apartment house complex, or any other premises which i s generally frequented 

# FILED
December 29, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk2

by the public at large.” Tenn. Code Ann. § 55-10-401(a) (1997).

The DUI conviction was based upon the November 9, 1996 conduct which resulted in the v

ehicular homicide and assault.

In State v. Burdine , 888 S.W.2d 463 (Te nn. Crim. App. 1994), this court held that, for purposes of cons truing the provisi ons for eligibility for pretrial diversion, “D.U.I. is an lesser included offense of vehicular assault.” Id . at 464. In State v. McKinney , 605 S.W.2d 842 (Te nn. Crim. App. 1980), this court, in deciding a jury-instruction issue, accepted without resistance McKinney’s claim that DUI was a lesser

include offense of vehicular homicide.

In State v. Rhodes , 917 S.W.2d 708 (Te nn. Crim. App. 1995), this court held that convic

tions for v

ehicular as

sault and DU I resultin g from the sam e conduct could not both stand because “the legislature int

ended for vehicular assault to include DUI as a lesser included offense.” Id . at 712-13. We concluded that “for double jeopardy pur poses, a person cannot be punished separately for DUI and vehicular assault for one act of driving under the influence . . . .” Id . at 713.

In Rhodes , this court rejected the state’s argument that, because the DUI statute contained the el ements of driving “on a publ ic road or designated areas frequented by the publi c,” and that because these elements are not contained in the vehicular assault statute, DUI shoul d not be considered a lesser include d offense o

f vehic ular as

sault un der the p rincip les of Blockburger v. Uni ted States , 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932). Rhodes , 917 S.W.2d at 710. The Blockburger

test for analyzing whether two offenses may r esult from one action focuses upon “whether each [statutory] prov

ision requires proof of an additional fact which the other does not.” Blockburger , 284 U.S. at 304, 52 S. Ct. at 182. The Rhodes court acknowledged tha t legislative int

ent is the determinative factor in deci ding whether multiple punishments may be imposed for a single act or ev

ent, Rhodes , 917 S.W.2d at 711, but it characterized the Blockburger

test as just one measure of leg islative intent. The cour t found compelling

the fact that the legisla ture, in it s 1989 enactme nts, used the same language to proscribe vehicular assault w hich it presumptively

knew had been3

previously inter

preted as establishing D UI as a lesser included o ffense. Id . at 712. Furthermore, the court reas oned that the DUI statute and both the vehicular homicide and assault statutes “reflect a legislative expression of greatly overlapping interests.” Id . For these reasons, the court concluded that because the legislature intended that a defendant should not be punished both for vehicular assault and the underlying DUI, he may not be.

The Rhodes holding is supported by our supreme court’s recent decision in State v. Brenda Anne Burns , — S.W.2d —, No. W 1996-00004-SCR11-CD (Tenn., Jackson, N ov. 8, 1999). In Burns , the supreme court adopted a “definition of ‘lesser included’ offense s”: An offense

is a les ser included offe nse if: (a) all of its statutory

elements are included wi thin the statutory elements of the offense charg ed; or (b) it fails to meet the definition in part (a) only in the respect that it contain s a statutory elem ent of eleme nts establishin g: (1) a different mental state indic ating a lesser kind of culpability; and/or (2) a less serious har

m or risk of h arm to the sam e person, property or publ ic interest; or (c) it consists of [facil itation, attempt to commit the gr eater offense, or solicitation].

Brenda Anne Burns , — S.W.2d at —, slip op. at 22-23. A review of the statutory elements of the g reater offense of vehicular homici de and vehicular assault r eflects that all of the provi sions of section 55-10-401 are incorporated by reference. Succinctly,“all of the statutory elements” of DUI are “included within the statutory elements” of the greater offenses.

Based upon the authorities cit ed above, I conclude that in the present case the DU I offense is barred by princi ples of double jeopardy. See State v. George Blake Kelly , No. 01C01- 9610-CC-00448, slip op. at 1 8-19 (Tenn. Crim. App., Nashv ille, Oct. 13, 1998) (holding th at double jeopardy princi ples bar the prosecution of vehicular h omicide and DUI charges arising out of one act); State v. Robert Glen Gr issom III , No. 02C01-9204-CC00076, slip op. at 10 (Tenn. Cri m. App., Jackson, Mar. 10, 1993)4

(“[O]peration of a motor vehi cle while under the influ ence is an essential element

of the offense [of vehicular homicide ]; and it is a lesser included offense of [vehicular homicide]. ”) (emphasis added). “When an accused is convicted of both a lesser included offense and the greater offense, the convi ction for the lesser offense must be dismissed.” Robert Glen Grissom III , slip op. at 10.
The question then becomes whether the issue should be noticed under the plain err or rule: An error which has affected th e substantial rights of an accused may be noticed at any time, even though not rai sed in the motion for new trial or assigned as error on appeal, in the discretion of the appellate c ourt where necessary

to do substantial justice. See Tenn. R. Crim. P. 52(b).

It is difficult to imagine an error which more “affects the substantial rights of an accused” than one which allows a prohibited conviction to be imposed. As this court stated in Rhodes , “‘Where the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires

that a conviction on that c harge be set aside even i f the conviction was entered pursuant to a counseled plea of guilty.’” Rhodes , 917 S.W.2d at 711 (quoting Menna v. New York , 423 U.S. 61, 62, 96 S. Ct. 241, 242 (1975)). In State v. Epps , 989 S.W.2d 742 (Te nn. Crim. App. 1998), this court noticed as plain error “

that the appellant’s convi ctions for both theft and attempted theft violate principles of double jeo pardy.” Id . at 745. The court reversed the attempted theft conv iction and dismissed that cha rge. See State v. Hodge , 989 S.W.2d 717 (Tenn Crim. App. 1998) (plain er ror noticed in an election of offenses issue “[b]ecause election involves Appellant’s constitutional rights to protection against double jeopardy and to a unanimous jury verdict”); State v. Brooks , 909 S.W.2d 854 (Tenn. Crim. App. 1995) (legi slative-intent analysis used to determine whether aggravated assault and reckless endangerment convictions violated double jeopardy principles, even thoug h the issue was not properly

raised in the trial cou rt).
Based upon the guidance provided by these authorities, I would5

hold the imposition of the DUI conviction is barred and that, as a matt er of plain error, this convic

tion should be reversed an d the charge dismissed.
In all other respects, I ful ly concur in the majori ty opinion.

________________________________ JAMES CURWOOD WITT, JR., JUDGE