*1 STATE of Tennessee FARNER, R. Jr.
John Tennessee, Supreme Court of Knoxville, Heard at Gallatin.1
Dec. 2001. Opinion on Denial Rehearing
Jan. 2002. Students) 1. part vancing Legal project This case was heard as Education October 5, 2001, Gallatin, (Supreme County, S.C.A.L.E.S. Court Ad- Tennessee. Sumner *3 Culbertson, Spi- A. Richard Wayne R. Wilderson, Kings- Reid vey, Timothy Tennessee, R. appellant, for the John port, Farner, Jr. Summers, & Attorney
Paul G. General Moore, Reporter; Gener- Michael Solicitor Kussmann, al; Attor- Patricia C. Assistant Wells, General; Greeley District ney H. General; Murray- Attorney and Teresa Smith, Attorney Gener- District Assistant *4 al, Tennessee. appellee, for the State of
OPINION C.J., III, DROWOTA,
FRANK F. court, in which opinion delivered the ANDERSON, E. RILEY ADOLPHO A. BIRCH, JR., M. HOLDER JANICE BARKER, JJ., joined. WILLIAM M. ap- primary presented in this issue peal recognizes is whether Tennessee law co-perpetrator defen- rule which bars the criminally negligent dant’s for convictions homicide basis that the victims were on the in the race. After co-participants record fully carefully considering in this authori- light case in relevant ties, we that no rule of Tennessee conclude law bars the convictions defendant’s a matter criminally negligent homicide as criminal of law. hold that causation in We question fact for generally cases jury, victim’s properly instructed that a complete contributory negligence is not a may defense be in deter- but considered not the con- mining whether or defendant’s death, and proximate duct was a cause of causation jury’s that a determination of the on under appeal issue will reviewed stan- sufficiency familiar of the evidence long disturbed so as the dard and not jury’s support evidence is sufficient court in Because the trial determination. provide jury case with an failed causation, ro, victim, Baker, proximate instruction on an es- and the Landon who was offense, sential element of the driving because his white Mitsubishi 3000 GT. The race, erroneously provided an in- which occurred between 9:30 20, 1997, responsibility, p.m. began struction as to criminal a 10:00 March at a theory inap- that the State now concedes Heights Coastal Mart the Colonial plicable, neighborhood just the defendant’s convictions for Kingsport, south of criminally negligent Mart, homicide must be re- Tennessee. From the Coastal versed. defendant and Baker raced northbound to- Drive, Kingsport Henry ward on Fort prevent To needless and to litigation 3,432 highway, four lane for a distance of promote judicial economy, our we exercise feet, approximately six and one-half tenths discretion and other address two issues of a mile. The Baker race ended when likely any will arise at retrial-the lost control of his Mitsubishi a curve propriety testifying of Officer Farmer as and collided with two other travel- vehicles expert an admissibility and the of the com- ing City, toward Johnson in the south- puter animated visualization of the acci- bound, oncoming Henry lanes of Fort dent. We conclude that Officer Farmer Drive, Chrysler green minivan and a may properly testify expert long so *5 Baker, passenger, Volvo. and his Christo- the trial court is assured that Officer Bostrum, pher died as a result of the opinions Farmer’s on are based relevant persons driving collision. The the other methods, data, scientific processes, and vehicles, and Red- Teresa Gilliam Priscilla However, speculation. and not mere wine, injuries. The de- sustained serious we further conclude that the ani- car physically fendant’s was not involved mated visualization should not be admitted However, defendant, the collision. the and unless the State can establish that Moore, alleged passenger, his Steven were visualization is based on accurate and com- charged each with two counts of vehicular plete fairly information and that it illus- homicide, aggravated two counts of as- expert opinion trates the of Officer Farm- sault, drag racing, one count of and one er as to how the accident occurred. The leaving count of the scene of an accident criminally negligent convictions for homi- knowing that it death. involved reversed; cide are therefore the convic- endangerment tions for reckless with a proceeded The case to trial on these deadly weapon, drag leaving racing, proof, charges. At the close of the State’s the scene of an accident involving injury trial court entered a directed verdict judgment Farner, death are affirmed. The of the respect favor of Moore. With Appeals Court of Criminal is affirmed proof offered State established part, part, reversed case is instigated drag race. Prior to that he Mart, remanded to the trial court for further arrival at the Coastal Baker’s proceedings opinion. Harris, consistent with this Holly defendant had asked who Camaro, driving they was when were
Background “Yeah, responded, to race. Harris going arrived, Harris right.” This case arose from race be- As soon as Baker defendant, Farner, Jr., tween the John R. overheard the defendant ask Baker when merely driving who red he wanted to “run them.” Baker his Chevrolet Cama- a.m., accident, following calling ized it was the defendant because the 2. About Although appeared page. paged did number "03” at the end of the defendant Harris. Harris number, previously he recognize telephone real- The defendant had told Harris she in the market commented but a worker head side to side. When his from shook Shipley Mart a short cars had wrecked. the defendant left the Coastal two later, parking he lot two to time drove from of the accident arrived the scene Road, stopped in the Heights leaving onto Colonial the market. after three minutes road, Intending revved engine. his astride sitting He saw a red Camaro exit, Baker waited for leave the same south, white, fine, in the di- facing dotted pull up light the defendant traffic jumped City. rection of Someone Johnson Heights the intersection of Colonial Camaro, of the passenger into the side red However, Henry Road and Fort Drive. it then made a U-turn and drove north in the the defendant remained middle speed. high at a rate of Kingsport toward the road some intersec- distance windows, Ship- but The car had tinted side tion, Eventually, his Bak- revving engine. identify person who ley could not Heights pulled onto Road er Colonial for say nor he jumped the car could into stopped at the ahead defendant the same sure that red Camaro was turning right before onto Fort light, red car he had earlier. seen immediately Henry Drive. The defendant driving Kregg Klingman, southbound Baker, yielding oncoming followed City, Fort Drive toward Johnson Henry traffic. Texaco when he heard was south of the Shipley, driving Tracy who was north cars, engines loud and saw two revving Drive, Kingsport Henry on Fort toward by side, on Fort going side northbound approached intersection and a red saw Drive, Kling- Henry Kingsport. toward Camaro with tinted side windows turn onto traveling man estimated the vehicles were Henry immediately Fort Drive behind hour, approximately eighty per miles but Toyota car. Shipley pickup white said *6 make, model, or he to see the was unable truck, car approximately lengths two Although Klingman color of saw the cars. lane,3 him right ahead of in the had to in his disappear the cars around the curve into the avoid hitting swerve left lane to mirror, seeing he did recall rearview the red Camaro. The cars then accelerat- fights car. brake on either sight, Shipley ed out but saw them at the Reynolds, Elizabeth who worked curve, again when he a going rounded side on Texaco station the corner service trestle, across by side the railroad with the Drive, Henry Fort Drive and Moreland left, lane, red Camaro inside and the shortly p.m. on was outside before 10 in the right, Ship- white car outside lane. 20,1997 she the roar of March when heard ley traveling estimated the cars were engines traveling car and two cars north hour, per of seventy excess miles and he speed a Kingsport toward at excess not see on either As fights did brake car. miles could per Although hour. she Shipley stopped Roadrunner at the Market noise, not the make or model of trestle, determine he heard near railroad a cars, in the Reynolds said the red car was he made believed was the shift- truck, left, lane, and the white car was of a ladder the back of his inside ing collision, only explaining that he seen identify paged use "03” himself if had would to he her, objects stop did because road and explaining is a Dale in the that he Earnhardt was he scared. fan. When Harris returned defendant’s call, she asked if he and Baker had been “No, replied, police to racing. The not real- efforts defendant 3. The record indicates Toyota got truck were ly. He took off and left me before I to the locate the driver of seeing denied Texaco.” defendant unsuccessful. right, outside lane. Neither car ap- when he a white car a saw and red Camaro plied its disappeared brakes the cars traveling high toward him at a rate of around the Reynolds speed. curve. almost right, imme- Taylor veered to the and he boom, diately a heard loud and believing said the wind from shook the cars his van wrecked, the vehicles had she called for past. as they Looking in drove his rear- emergency assistance. mirror, Taylor sparks view saw and brake lights from almost both vehicles and imme-
Anthony stopped Bowman was at a traf- diately pop. Taylor heard loud turned fic light at the intersection of Moreland around, accident, drove the scene of the Drive, Drive Fort Henry headed assistance, called emergency and ad- south, when he revving heard loud en- police vised to be looking for red car. gines. He saw two vehicles approaching Taylor only place was the witness direction, opposite from the “neck and left, white car in the lane and inside neck,” very high speed, at a rate at least right, red car in the outside lane. seventy seventy-five per miles hour. left, Bowman said the car in the inside lane Gilliam, Neither Teresa driver of the near him was red. Minivan, Chrysler Redwine, nor Priscillia Volvo, green driver of the remembered Bishop Stanley
Brian Hodges, de- any about details the collision. Gilliam tectives with the Judicial Drug Second Force, driving Fort Henry remembered south on parked Task were near the inter- Bridge, Drive toward Hammond but her section of Moreland Drive and Fort Henry memory being next an shortly p.m. Drive before 10 inside ambu- they when just lance. said she heard the sound of Redwine had crossed approaching vehicles Bridge something Hammond high speed rate of when Colonial area, left her She Heights attracted attention. remem- heading Kingsport. toward seeing bered Bishop cars, appeared then what to be Officer did not see but heading white her. Her Hodges left, Officer saw car in bullet toward air a red lane, bag deployed, and pass intersection, she was covered with through inside glass and approximately Noticing blood. unusual eighty-five per miles fire, fearing got smell and immediately” hour. “Almost after the Redwine out red car the car. passed the officers heard sound of *7 skidding and a Both collision. officers Gilliam, multiple injuries sustained who assistance, emergency reported called for multiple including, the collision broken accident, proceeded the and to the scene. foot, splintered left leg bones in her and car, They searched the for the red area foot, heel, right right femur and crushed flashlight using a to look over the side of elbow, ankle, left and a lacer- broken guardrail. Hodges the Officer directed head, ation on three spent her weeks in traffic at the scene for hours but two did hospital, the and received physical therapy However, red car see the return. he for her home two months thereafter. said the car red could have returned with- trial, using At was a crutch Gilliam still out his notice within the first five minutes undergoing physical therapy. walk and after the accident occurred because he was prognosis Gilliam’s as to further treatment attending injured then the and traffic had or improvement was uncertain. Redwine yet congested. become suffered on her head and left lacerations south, arm, Taylor driving leg,
Michael was in- bruises on her arm and embed- hand, turn tending glass left at intersection ded in her on her burns Drive, Henry deployment. air bag Moreland Drive and Fort face from the Her feet, ten bridge and continued permanently are scarred from the hands opined these Farmer injuries she sustained. inches. Officer trav- that the Mitsubishi marks establish Robert Dale Farmer of the Officer lane of right from northbound eled Department Police testified as Kingsport Drive, across the left north- Fort Henry He expert in accident reconstruction. mi- lane, Chrysler striking bound Gilliam’s dispatched the accident on Fort was Red- lane and nivan the left southbound p.m. and Henry Drive around 9:50 arrived right in the green wine’s Volvo southbound p.m. The at the scene 10:16 vehicles impact involved in collision had not lane. of the colli- been The Mitsubishi’s green moved. Redwine’s Volvo with ex- Chrysler caused sion with the minivan damage resting front-end was tensive pavement. At that gouge mark guardrail against on southbound engine com- point, the front wheels and Chrysler of the shoulder road. Gilliam’s split Mitsubishi partment of the in the sitting minivan was crosswise south- portion car. passenger and rear of the guardrail on the facing bound lanes airborne, rotated, The rear portion became southbound shoulder. Part of white white and struck the Volvo. From the against guard- Mitsubishi was located paint parts on and the the Volvo rail on the shoulder southbound lying Mitsubishi across the Volvo’s found roadway. part Another of the Mitsubishi bumper, front Officer Farmer determined upside down in the left southbound initially the Vol- that the Mitsubishi struck lane. undercarriage. rear vo with its left Farmer Officer testified the colli- passenger compartment rear of the sion occurred near the intersection of Fort Mitsubishi landed the southbound Drive, Henry Drive and Moreland north of guardrail The front behind Volvo. bridge the railroad that travels underneath compartment of the engine wheels and 3,432 Henry Forth This location Drive. upside in the Mitsubishi came to rest down feet, approximately six one-half left lane. southbound mile, of a tenths from where the race Henry Officer Farmer said that Fort began. point Officer Farmer located the to the left the railroad Drive curves impact by following yaw marks from bridge speed that the limit where beginning they their ended where with a per accident is 45 miles hour. occurred gouge asphalt, mark Officer Farmer speed calculated the Officer Farmer yaw explained marks are caused per miles hour when Mitsubishi at 95.45 sliding sideways car while wheels con- began to and he determined that the case, yaw,4 In this tinue to rotate forward. began traveling per mile yaw just marks before railroad Mitsubishi was 64.11 *8 speed by Officer Farmer testified that 4. Officer Farmer calculated this lo- reconstruction. point cating began the rear applied the at which tires in- the had been to accident formula tires, tracking outside of the front de- vestigations years, appeared several in yaw, termined radius of subtracted many manuals used in instructional that are car half of the track width of the from the reconstruction, police training accident in speed radius to determine the of the center commonly throughout the and had used been car, these mass of and entered calcula- speed. United to determine Officer States tions, along drag with a factor or coefficient procedure Farmer same to calculate used this by computed using of friction which he had speed travel- at which the Mitsubishi was sled, speed into a ob- formula he ing Chrysler it collided mini- when Technology tained from the Institute of Police van. part training in Florida as of his in accident hour Chrysler when it struck the gave copy minivan. Officer Farmer of his com- explained speed He that a car’s decreases pleted report and photographs accident during yawa and that the Mitsubishi’s the area and the accident scene to Profes- speed per decreased 31 miles hour dur- Owen, sor Robert Neal director of the ing yaw, the 544 foot though even the Advanced Laboratory Visualization at East evidence indicated that none of the cars University. Tennessee State Professor applied involved the collision their by stipulation expert Owen testified as an brakes. computer visualization. He described
Officer Farmer computer testified that the critical way animated visualization as a speed of a curve is the maximum speed telling story by creating a “copy of vehicle, make, model, any regardless of reality” computer. awith Professor Owen year, successfully can traverse a curve in a explained computer that a animated visual- particular lane. Officer Farmer calculated computer ization differs simulation speed the critical of the right lane of the in that an animated visualization utilizes curve in which the Mitsubishi was travel- testimony expert of an to recreate the ing it began yaw when per 73.88 miles event, such, and as is an illustration of the hour.5 Officer Farmer did not calculate expert’s testimony opinion, while a speed critical of the left lane of the computer simulation utilizes a apply curve which the defendant’s car was such, physics, purports laws of and as allegedly traveling, and he conceded that duplication be an exact Pro- event. speed the critical would be different but laboratory previous- fessor Owen’s had not vary said “would not a tremendous ly created a animated visualiza- amount.” Because of the absence of road- accident, tion of an automobile but he said evidence, way Officer Farmer did cal- process similar, the creation regardless speed culate the of the defendant’s car or depicted. of the event Professor Owen of the vehicles with which the Mitsubishi provided by used information Officer collided. Farmer to create this animated visualiza- Shortly after beginning investiga- tion, including the make and model of the tion, Officer Farmer Kingsport directed vehicles, speeds at which they were police officers to locate the Al- defendant. traveling, physical characteristics of though Ralph spent Detective Cline size, roadway, shape slope, such as rest of night early morning and the and the locations of the vehicles after the 21,1997, hours of March searching, he was collision. not able to locate the defendant or the red Because Officer Farmer’s accident re- Camaro. The defendant him- surrendered port stated that the cars were side side police lawyer’s self to the at his office the beginning at the bridge, the railroad There, following p.m. afternoon at 5:30 animation shows the Camaro slightly inspected Officer Farmer the defendant’s front of the beginning car but found no Mitsubishi at the indicating evidence defendant’s car had been in- the visualization. Professor ex- physically Owen that, volved the collision. plained because the Camaro had to circumference, speed by 5. Officer Farmer calculated this first ordinate to calculate chord, *9 measuring straight the which is a line he calculated the coefficient of friction or mark, yaw drag between the two of the ends then factor of the road with an instrument ordinate, information, calculating drag the which is the called a sled. From all middle speed distance from the center of the chord to the Farmer calculated the critical of Officer yaw the end of mark. He used the middle the curve. beginning of the railroad slightly at the traveling than the Mitsubishi slower begins to Mitsubishi then a colli- The bridge. the curve to avoid when it entered causing of sion, bridge, near the end the slightly yaw had ahead the Camaro to be the southbound sideways to toward of the turn beginning of the Mitsubishi the through the The continues the Mit- lanes. Camaro visualization be located beside lane, in the northbound acceler- the The anima- curve left bridge. subishi at railroad just of and out of the curve ahead ating the the curve traveling tion shows Camaro the left hour, yaws the Mitsubishi across which before per at or below 73.88 miles into the left south- as critical northbound lane and Owen described the Professor of the passenger lane. The side speed the bound of curve. Professor Owen was Chrys- front the had strikes the of not aware that Officer Farmer not Mitsubishi minivan, portion of the the front speed the of curve ler and calculated critical the car. from the rest of the splits lane in which Mitsubishi for the the Camaro was that, compartment por- rear opined, if The and traveling, passenger but he the critical becomes airborne only by the lanes one tion of the Mitsubishi speed of two differed rotates, hour, the striking the front of Volvo per accuracy miles and or two the lane. The visual- signifi- right the southbound animated visualization would not be striking the Mitsubishi cantly ization ends with affected. continuing Volvo and Camaro The trial court admitted the as left lane the accident northbound and animated visualization occurs behind it. played tape jury. for the The animat- proof, jury convict- upon this portrayed ed visualization the collision at Based criminal- ed of two speeds speed, three different one-half the defendant counts —full homicide, two counts of reck- speed, one-quarter speed ly negligent —and deadly weapon, viewpoints endangerment five less with different over- —that Camaro, count of drag racing, one one view and those of the the Mitsubi- count shi, minivan, involving Chrysler of an accident leaving and the Volvo. scene all, The trial court sen- injury.6 In fifteen the video contained visualiza- death I summarized, a Range as stan- Briefly tions the collision. tenced defendant on each count years in the dard offender to two visualization shows the Camaro two criminally negligent homicide and to slightly left lane traveling northbound endanger- years on each count of reckless traveling ahead of the Mitsubishi which is ordered the sen- The trial court right in the northbound lane. The Mitsu- ment. consecutively, tences on the felonies served slightly, bishi accelerates continues curve, for the misde- pulls sentences even with the with concurrent through leaving Camaro, drag racing appears down meanor offenses slow endangerment awith respect defendant of reckless 6. With to counts one and two indictment, five, jury respect deadly weapon. trial court instructed to count With and the lesser of- to vehicular homicide jury as to instructed the trial court criminally fenses of reckless homicide and only, the defen- racing jury convicted jury negligent homicide. The convicted the respect to With count of this offense. dant offense, of the least serious crimi- defendant six, jury the trial court instructed respect nally negligent homicide. With leaving an accident respect to the scene of indictment, three and four of the counts knowing resulted from the accident death jury as intentional trial court instructed the involving leaving an accident the scene of assault, aggravated en- and reckless reckless The convicted the defen- injury or death. weapon, deadly and reck- dangerment with offense. dant of the less serious endangerment. jury convicted the less *10 of an injury trial, scene involving accident may testify new Officer Farmer as an death, for an eight effective sentence of expert long so as the trial court is satisfied years. that Officer opinions Farmer’s are based methods, on relevant scientific processes, The defendant challenged his convic- data, and speculation. mere tions and on appeal, sentences raising The trial court should not admit the com- Finding numerous issues. that double puter animated visualization new jeopardy preclude considerations dual trial unless the can State establish that the convictions for reckless endangerment visualization is based accurate and com- case, under the circumstances plete fairly information that it illus- Court of Appeals Criminal one of vacated expert opinion trates Officer Farmer’s the defendant’s convictions for reckless how accident occurred. In all other endangerment and thereby reduced his respects, the decision of the Court of effective sentence six years. While Appeals Criminal is affirmed. finding that court the trial ad- erred mitting computer-generated visualiza- Negligent Criminally Homicide: tion, Court Appeals of Criminal none- Co-Perpetrator Rule theless concluded that the error was beyond harmless a reasonable doubt Historically, involuntary manslaughter did require reversal. The Court proscribed was by laws of this State Appeals Criminal judgment affirmed the killing and defined as the unlawful of an respects of the trial court in all other other, implied malice, without express or specifically rejected the defendant’s that occurs in the commission of some assertion Tennessee law recognizes Davis, unlawful act. State See v. co-perpetrator precludes rule which his 268, (Tenn.Crim.App.1990). S.W.2d 270-71 for criminally convictions homi- negligent Generally, any violation a statute result cide. ing in death involuntary constituted man “if slaughter the violation of the permission The defendant statute sought ap- proximate peal Court, [was] cause of death.” to this See asserting, other anjong (Tenn. Hale, 307, v. State 840 S.W.2d things, that his convictions were barred 1992) rule); State, rule, (stating Brown v. co-perpetrator that the trial court 50, 848, 201 Tenn. erred in allowing testify Officer Farmer to (1956) (applying uphold the rule to a con expert, as an and that the trial court’s manslaughter involuntary viction for error in admitting animated passenger where the defendant’s car requires grant- visualization reversal. We was killed a collision which occurred application ed the permission appeal, when the defendant violated a statute preventing parties without improperly passing ear at the raising pursuant crest additional issues Tenn. hill); State, 13(a), Osborne v. 512 S.W.2d R.App. specifically P. requested that rule). (Tenn.Crim.App.1974)(stating the parties focus at argument upon oral following issue: Can defendant be Assembly When General enacted criminally held responsible for the death Sentencing Reform Criminal Act co-perpetrators? involuntary manslaughter replaced by reasons, For the following we reverse criminally negligent the offense of homi- the defendant’s criminally Sentencing convictions for cide. See Commission Com- negligent 39-13-212; § homicide and remand this case ments to Ann. Tenn.Code Adams, for a trial charges. new on those At the 473-74 916 S.W.2d
199
Severs,
(Tenn.1995).
the
In
the issue was whether
Assembly sup-
The General
have dismissed the
trial court should
simple
for this offense.
plied a
definition
felony murder because the vic-
charge of
re-
“Criminally negligent conduct which
attempted larceny, rather than
tim of the
criminally negli-
sults in death constitutes
defendant,
co-
killed the defendant’s
§
the
Ann.
39-13-
gent homicide.” TenmCode
Ap-
offense,
The Court of Criminal
212(a).
perpetrator.
plain
the
To establish this
court had erred
that the trial
peals found
requires
language
the statute
State
charge
felony
refusing
in
to dismiss the
beyond a
prove
three essential elements
(1)
recog-
The intermediate court
murder.
“criminally negligent
doubt:
reasonable
(2)
that,
accused;
conviction for felo-
support
nized
part
on
conduct”
law,
(“which
killing
“the
ny murder at common
causes
results
proximately
of,
(3)
in”);
pursuance
rather
must have been
person’s
“death.” Tenn.Code
to,”
39-13-212(a);
Adams,
underlying felony.
§
than collateral
Ann.
also
916
See
Severs,
court in
474;
Owens,
759 S.W.2d
938. The
S.W.2d at
State v.
820 S.W.2d
felony
murder
emphasized
Severs
(Tenn.Crim.App.1991). Criminal
760
adopted
this common
statute
Tennessee
is further
statute as
negligence
defined
by requiring
formulation of the rule
law
follows:
“in
‘perpetration’
murder be
person
negli-
... acts with criminal
”
perpetration’
of the under-
‘attempted
gence
respect
to the circumstances
The intermediate court
lying felony.
Id.
person’s
surrounding that
conduct or
that the circumstances
Severs
concluded
person
of that
result
conduct when
satisfy
perpetration”
the “in
re-
failed to
ought to be aware of
substantial and
because “the death resulted
quirement
unjustifiable risk that the circumstances
rather
than to
from an effort to thwart
or the result
occur. The risk
exist
will
felony.”
Id. The Court of
perpetrate
degree
must be of such a nature and
Appeals
“[a]ny
commented that
Criminal
to perceive
that the failure
it constitutes
meaning
extension of the
statute to
a gross deviation from the standard of
in derogation
the current facts would be
ordinary person
care that an
would ex-
felony-mur-
the common law definition
all
ercise under
the circumstances
court observed
der.”
Id. The Severs
person’s
viewed
the accused
stand-
felony
an
of the
murder
“that
extension
point
beyond its
law limitation to
rule
common
11—106(a)(4);
§
Ann.
see
TenmCode
39 —
accomplice,
and his
acts
the felon
v. Clifton,
also
880 S.W.2d
742-
include
lethal actions of those
act-
Butler,
(Tenn.Crim.App.1994);
43
State v.
scheme,
pursuance
felonious
ing
(Tenn.Crim.App.1994)
S.W.2d
the legislature
action for
appropriate
definition).
(discussing this
Id.
... not the courts.”
Having
of-
set out the elements of the
Clearly,
con-
the Severs decision is an inter-
fense of which
defendant stands
victed,
application
felony
pretation
we turn to the defendant’s first
It
rule
does not
argument
appeal
Tennessee law murder
Tennessee.
—that
co-perpe-
generally applicable
precludes his conviction of this offense be-
announce
Re-
co-perpetrators
suggests.
in trator rule as the defendant
cause the victims were
cently,
Buggs, 995
racing.
As
in State v.
S.W.2d
underlying
crime of
assertion,
(Tenn.1999),
this Court discussed
support for his
the defendant
that,
Severs,
felony
murder rule
reaffirmed
primarily relies
State v.
murder,
killing
must
(Tenn.Crim.App.1988).
felony
constitute
(1914).
“in pursuance
Indeed,
of’
underlying
felony 559-60
the court in Severs
*12
offense. As support for the
in
felony
decision
refused
extend the
murder rule
Buggs,
upon
beyond
this Court relied
its common law
Severs. See
reach
of
because
recognition
its
Buggs,
that such an
For v. 15 race, an during the car the was (1971), defendant’s Ariz.App. 487 P.2d 3 which participant active in the unlawful act convicted the defendant of six counts of law, death, in his and under the resulted vehicular oc- manslaughter. deaths risk the result. he had assumed curred when the automobile with reversed, re- Supreme The Indiana Court racing defendant was collided with a third vehicle, upon following general rule: lying killing co-competitor in the persons drag race five the third not available Contributory negligence is granted vehicle. The trial court the defen- or in a criminal as a defense an excuse trial, dant new but Arizona Court of prosecution; place has no this doctrine jury’s Appeals reversed and reinstated the law, any it cannot in in criminal doing, verdict. In so the Arizona Court degree purge act which otherwise rejected argument the defendant’s that he crimi- public offense of its constitutes guilty could be found because his car Accordingly, nal character. contrib- vehicle, stat- did not collide with other injured person or utory negligence of obvious that the defendant can ing “[i]t is of an- negligence killed the criminal criminally responsible death of not relieve the latter other does racing party racing ... if the the other responsibility. criminal proximate cause of that other explained that this Id. 580. The Court P.2d party’s death.” Id. at 3. weight supported by “great rule is McFadden, authority jurisdictions”7 other In State v. 320 N.W.2d (Iowa upon followingpremise: 1982), founded the defendant was convicted cases). (citing 7. Id. at n.
It concept society is a basic of our we hold that [the defendant’s] conduct of every divinely life man is competing both race bore a suffi- significant. humanly Every death ciently direct [the causal connection to highway is more than a statistic. co-participant’s] support It death [the tragedy is a only which affects not defendant’s] for involuntary conviction individual and his family, but all of soci- manslaughter.... ety. And if death results from the reck- holding, Id. at 944. In so Maryland
less of the highway, use the fact that the pointed court also out that the victim’s joined in activity deceased the reckless reckless conduct does not the de relieve death, does negate the fact of the liability fendant of criminal for his own assuage nor loss family does to the reckless conduct. Id. See also People deceased the community. Cal.App.4th Hansen 59 Cal.Rptr.2d
Reckless homicide is a crime commit- (1997) con (upholding defendant’s *14 Therefore, ted against the state. con- for involuntary manslaughter upon viction trary cases, to the rule in civil the fact finding participated that the in defendant a that the deceased victim was ‘an active game of Russian Roulette with the victim participant in the unlawful act which during who was killed game); Com death,’ in resulted ... his does not bar Atencio, 627, monwealth v. 345 Mass. 189 against an action another the wrong (1963) N.E.2d (upholding 223 the defen which he has against committed manslaughter arising dant’s conviction for peace and of dignity the state. participation out in game of his a of Rus Roulette).8 sian Id. at 580-81. State, general Goldring 728, principles upon
In
The
Md.App.
v.
103
these
(1995),
fied
the victim’s
resulting
his
the act of the
(not
probable consequence”
was the “natural or
injured
corporally
being
death
in operating
defendant),
of the defendants’ conduct
must have been the nat-
their
in such a reckless
motor vehicles
consequence of the
probable
ural and
the public highways.
unlawful manner on
[the defendant].
unlawful conduct of
Id.
601.
Fi
jury’s determination of the causation issue that a right Tennessee defendant has a will be suffi- reviewed under the familiar to a complete charge correct and ciency of the evidence standard and will law so that fact each issue of raised appellate disturbed so court evidence will be submitted long as the support evidence is sufficient to proper instructions. See State v. Garr jury’s determination. ison, (Tenn.2000); 40 S.W.3d State that, recognize Teel, (Tenn.1990).
We while causation is an essential every element of homicide analysis applies While harmless error offense, including criminally negligent when trial court fails to in include an homicide,12 seriously disputed it is not in struction on an essential element offense, id., most cases. R. Wayne See LaFave and are we unable conclude that Scott, Jr., Austin W. Substantive error Criminal is harmless in this case. As Law, 3.12(a) (1986) (“In § stated, forcefully the ususal case disputed this issue was difficulty is no in showing argument there the neces trial. Closing focused sary causal connection between conduct element.13 Both the defen *16 result.”). However, and this jury is one of dant listen exhorted to to the law However, rare those cases which was trial given by causation judge. seriously forcefully disputed and at trial on jury criminally instruction negligent appeal by and on proximate the defendant’s reliance homicide not did mention (“It upon the co-perpetrator rule. is the particular cause.14 Given the cireum- 393; Rogers, See deny you night. 12. speeding Tenn.Code to he was that that 39-13-212(a) in”). ("which § deny you you Ann. results He does if to not to that choose race, was, okay?” drag call it a that’s what it example, urged: 13. For the State "Look gentlemen, "Now she talks about ladies Judge gives you. law Look that. things, proximate proximate cause cause. cause, proximate Proximate result of conduct. sense, is In that the crux of this case. those What else are two deaths and those is- Proximate cause.... And that's the whole injuries proximate but the Far- result John proximate in this is sue cause, case causation starting ner’s race.” final conduct In gentlemen. ladies That's what closing argument, again attorney the district to, you're going you’re going to have have to proximate was asserted: "What result or cause, causation, to consider.... Proximate proximate prox- cause this accident. The accident, thing who caused the that’s the here, gentleman right imate cause was this you’re going have to at.” to look defendant, to, agreeing consenting to taking part that race. Had he not homicide, jury 14. As to was vehicular it, today.” we done wouldn't be here guilty, instructed find the defendant argument urged: they The closing killing defendant’s had to find "that was the gentlemen, proximate creating "Ladies and John not sub Farner does result of conduct homi- criminally negligent case, respect to the trial court’s failure stances of this cause, standing cide offenses. proximate on to instruct alone, likely have been viewed would most been this only error in this case Had the requiring reversal. plain error as responsi- Cf. on criminal improper instruction (Tenn. Howard, v. 30 S.W.3d con- able to have been bility, may we well 2000) conviction the defendant’s (reversing clude, that the error argues, as the State instruct on the trial court failed to because the evidence suffi- harmless because was probable consequences the natural and criminally that Farner’s ciently establishes rule). clearly appropriate, Reversal pub- on a drag racing conduct negligent an however, the record also reveals since proximately directly and highway lic other error. instructional However, as the victims’ deaths. caused stated, proper- jury not previously trial instructed the The court' cause, only ly proximate instructed on jury responsibility as criminal with re seriously offense element of homicide criminally negligent to the homicide spect Accordingly, given disputed at trial. asserts, charges. As the defendant case, we of this particular circumstances appeal,15 the defen the State concedes that the instruction- unable to conclude are pursuant guilty dant cannot be found al are harmless. errors responsibility the criminal statute because fairness, recognize that homicide In all we the victims did commit the trial court on agree. Certainly, given by one instruction themselves. We criminally was taken theory negligent to a homicide pursuant cannot be convicted In Jury Pattern verbatim from Tennessee responsibility of criminal if there is no 7.07, § which does person the crime as struction: Criminal guilty other who State, pat cause.16 While the proximate Tenn. mention principal. See Pierce (1914). 24, 46, general contain a instruc tern instructions Accord S.W. death,17 no cross- tion there is ingly, by instructing the trial court erred on cause criminally homi- jury negligent in the responsibility criminal with reference injuries bodily injury arose from the sustained stantial risk of death or serious ner which person.” to a was further State asserts instructed Redwine and Gilliam. The result, proximate "a is the support result is the evidence is sufficient to prod sequence, natural and continuous ... juiy’s to these offenses on either a verdict as concurring occurring act uct theory theory responsibility or on a of direct *17 another, which, happened, had the re responsibility for Baker’s actions. of criminal jury sult would not have occurred." The did agreed the Appeals that The Court of Criminal vehicular homi not convict the defendant of regard, and we is sufficient in evidence cide, given no were similar instructions judgment portion the of the affirm that of homicide, criminally negligent as to nor was Appeals. Criminal Court of proxi jury to instructions on referred the previously given. mate result pre-1989 jury in- Significantly, pattern 16. manslaughter cor- involuntary struction brief the State concedes that trial 15.In its rectly jury that to establish instructed given have a criminal re- court should not prove as one of the guilt, state had to respect to the sponsibility instruction with death was of the offense "that three elements homicide, negligent charges criminally of probable result of the defen- natural and "Obviously stating, Bost- neither Baker nor Instructions: act.” Tenn. Pattern dant’s the offense of homicide with rum committed (1988). § 20.06 Crim. respect asserts to his own death.” The State responsibility instruction the criminal Crim. Pattern Instructions: 17. See Tenn. appropriate logically related to the 42.14(2001). against § endangerment charges Far- reckless indicating general cide instruction visualization animated of the ac- given. 13(b) (“[t]he causation instruction should Un- R.App. cident. See Tenn. P. pattern less the instruction for homi- appellate each may court ... in its discretion cide offense includes a order, causation instruc- consider other among issues oth- tion, general (1) causation instruction er reasons: prevent to litiga- needless be given. majority (2) should In the vast tion, of prevent to to injury the interests cases, not disputed, causation is omit- (3) so public, of the prevent prejudice to ting this instruction would be considered judicial process.”); to the see State Mix- However, harmless error. the fact re- (Tenn.1999). on, 983 S.W.2d mains that causation is an of element ev- Expert Testimony offense, ery jury homicide and the should case, be so instructed.18 In this the trial primary argu The defendant’s court failed to instruct to cau- as ment is that Officer Farmer did not have sation, and the error was harmless. science, sufficient of knowledge engineer Therefore, the defendant’s convictions for ing, and qualify testify math to as an criminally reversed, are negligent homicide expert witness. The points defendant out and the case remanded for a trial new that Officer college degree Farmer has no on these charges. any of these fields. it is not While necessary specifics,
In we prevent litigation order to recount note needless promote judicial and to that Officer economy, extensively we exer- Farmer testified cise our discretion about his as a prior experience police and address two other offi likely issues which will at any investigating arise retrial- cer automobile accidents and propriety testifying Officer Farmer about his as an accident training recon- expert as an the admissibility of the structionist. admitted that Officer Farmer pattern proximate 18. The current instruction on causa- as a cause. It not a defense appears negligent tion have been drawn conduct deceased may leading proximate cause subject, many but also have been cases 1900’s, the death. early those cases date back to the so However, it is a defense to homicide if the language certainly could be We clarified. proof shows that death was caused recommend that the Commission consider independent intervening act omis- [or supplementing the current instruc- causation deceased or sion] another following language: tion with the or similar defendant, care, ordinary the exercise Before the defendant can be convicted of reasonably anticipated could not have homicide, degree any the State must However, if, likely happen. in the exer- proven beyond have a reasonable doubt care, ordinary cise of the defendant should proxi- that the death of the deceased was anticipated reasonably intervening have mately by the caused criminal conduct of cause, supersede the that cause does not the defendant. conduct, original defendant’s and the defen- proximate is that cause a death proximate dant’s considered the conduct is which, in cause natural and continuous se- necessary cause of death. It is not that the *18 quence, any independent unbroken in- sequence particular injury of or events the cause, tervening produces the death and only necessary is that be foreseeable. It the without which the death would have not general danger death within field fall the of occurred. which the defendant should have reason- The defendant’s not be the conduct need ably anticipated. sole or immediate cause of death. The acts Jury See 11 Wash. Crim- Pattern Instructions: persons may (2d ed.1994); of two or [or omissions] more §§ inal 25.02 & State 25.03 v. Perez-Cervantes, concurrently proximately 468, work to cause the Wash.2d 6 P.3d 141 death, case, Harris, (2000); in a such each the 1163 194 Neb. (1975). regarded participating acts 207 [or omissions] is N.W.2d Florida, it in appears in Technology that college degree and that he did not have framing geometry physics in many he not taken or accident reconstruction had school, manuals, commonly he that he had used high emphasized but it States, separate eighty hour courses taken three and that he throughout the United and had learned in reconstruction accident made with the calculations had checked in physics the needed mathematics radar measure- against speed formula in the explained He detail these courses. formula speed, finding the ments of actual investigating he considers in many factors to be accurate. calculations accident, field, the including, an the debris regard questions In general, impact, yaw marks point of skid marks or admissibility, rele qualifications, the ing the roadway, eyewitness accounts of competency expert testimony vancy and accident, angle impact of the colli- of the trial entrusted to the discretion are sion, at the position of the vehicles Inc., Trans., v. CSX court. McDaniel scene, were trav- the direction the vehicles (Tenn.1997). Tennessee eling, having right and the vehicle govern Rules of Evidence way. he Using speed yaw, a critical calcu- in this adjusted trial court’s exercise discretion using an radius and lates respectively: sled, provide, he calculates the coefficient of friction area and roadway. of the Officer Farmer testified scientific, technical, special- other If or conjunc- in that he uses these calculations substantially will assist knowledge ized speed tion determine a formula to the evi- the trier of fact to understand speed. testified vehicle’s Officer Farmer issue, in a fact dence or determine speed that he obtained this formula from expert by as an knowl- qualified witness in Technology of Police Flori- Institute skill, training, or edu- edge, experience, da, appears many it other also in testify in the of an may cation form manuals, training accident reconstruction opinion or otherwise. commonly throughout used particular case The facts or data 4, supra. note United States. See expert opinion upon which an bases an trial, object to At the defendant did not may perceived those or inference speed reliability of the formula or expert or by or made known to expla- understanding Officer Farmer’s hearing. type If of rea- before the formula. nation of the scientific basis experts in the upon by sonably relied is- attempted The defendant to raise this forming opinions or particular field appeal, sue on but the Court of Criminal subject, the facts inferences that, of a Appeals held absence not be admissible evi- or data need objection, specific trial court did not The- court shall disallow testi- dence. testify allowing err in Officer Farmer opinion or mony of an in- form upon the formula. The Court based or underlying if facts data ference that, had Appeals recognized Criminal indicate lack of trustworthiness. objection trial court interposed, been require trial courts to these rules While required have Officer Farmer would merely “analyze the science and his under- testify specifically more about or conclusions of demeanor qualifications, of the for- standing of the scientific basis weigh experts, the court need Appeals not- mula. Court Criminal conflict- legitimate two but choose between ed that Officer Farmer testified about *19 court instead The ing he scientific views. reliability of the formula when said opinions are itself that it Institute of Police must assure is derived methods, admitted, based on relevant pro- scientific the defendant will have the cesses, data, not upon expert’s an opportunity to test Officer meth- Farmer’s speculation.” McDaniel, mere ods and S.W.2d conclusions on cross-examination. at 265. The trial court’s determination Computer Animated Visualization one of admissibility only. Id. Once the admitted, evidence has been Because will also no doubt be an issue defense is any trial, at given new broad latitude to we consider the validity test the of admissi bility of the expert’s opinion computer on animated visualiza cross examination. Computer tion. generated Id. See is an also Tenn. R. evidence Evid. 705. The weight increasingly common form of given to demonstra expert scientific tive evidence. Bergman Barbara E. evidence and the legitimate resolution of Hollander, Nancy 3 Wharton’s Criminal competing scientific views are matters en- Evidence, (15th 1999) § 16:30 at 972 ed. trusted to the as the trier of fact. (“Wharton’s ”). McDaniel, purpose If the com S.W.2d 265. puter explain evidence is to illustrate and these Applying rules to the witness’s testimony, usually courts refer to case, facts we conclude that the evidence anas animation. See Kristin trial court did not abuse its in discretion Fulcher, Comment, L. Jury The as Wit allowing Officer Farmer testify an ness: Forensic Computer Animation expert accident reconstruction. Officer Transports Jurors to the Scene a Crime Farmer testified knowledge, about his Accident, Dayton or Automobile 22 U. skill, experience, and training the field. (1996); See, g., L.Rev. e. Pierce v. Contrary to the defendant’s assertions at State, 718 So.2d (Fla.Ct.App. trial, the rules do mandate 1997). contrast, In a simulation is based person a college degree have in order to principles or physical scientific and data testify expert. as an only Education is one computer, pro entered into which is qualifying criteria listed Rule 702. grammed analyze the data and draw a Officer Farmer testified about the reliabili it, generally conclusion from and courts ty general usage speed formula require proof to validity show the that he employed in this case. In the science before the simulation evidence is specific objection, absence of a the trial Id.; Cantrell, admitted. see also Clark v. court did err in failing require Offi 339 S.C. 529 S.E.2d 535 n. 2 cer Farmer to testify detail more about (2000). the scientific basis and validity the for trial, mula. At the new will defendant clearly record reveals that have an opportunity to test validity computer evidence admitted in this the formula animation, before the trial court properly deter case is classified as admissibility. mines long So as the trial rather than a simulation. The evidence court is assured that explain Officer Farmer’s was admitted to Offi illustrate opinions are based testimony on relevant scientific cer Farmer’s about how the ac methods, data, processes, and and not stating cident occurred.19 At the risk of speculation, mere obvious, computer the trial court ani we note that a McDaniel, should admit the evidence. an expert’s mation offered to illustrate course, 265. Of if the opinion evidence will not be admissible unless the We admissibility 19. do not now decide the we have not included our discussion cases applicable standards simulations involving simulations. result, offered as substantive As a evidence.
209
it
tend to view
jury
on the
which will
testimony
pursu-
pact
expert
is itself admissible
admissible,
true,
such reconstruc
applicable
and the
Ten-
to be
ant to McDaniel
as
Pierce,
“nearly
of
See
718
identical” to the
nessee Rules Evidence.
must be
tions
event);
City
So.2d at 809.
v.
Clarks
actual
Hinkle
of
Cir.1996)
(4th
416, 424-25
burg,
F.3d
81
proponent
must further es
persua
its
that
of
unusual
(stating
because
computer
animation is a
tablish that
value,
admissible,
computer
a
to be
sive
it
depiction
fair
of the event
and accurate
must be substantial
animated visualization
R.
purports
portray.
See Tenn.
Evid.
event).
to the actual
ly similar
462,
901;
Williams,
v.
913
State
S.W.2d
(Tenn.1996); Phillips v. F.W. Wool
466
Tennessee,
a
Like all evidence
(Tenn.Ct.
316,
worth, Co., 867 S.W.2d
318
subject to exclusion
computer animation is
973;
at
see also
App.1992);
Wharton’s
substantially out
if “its
value is
probative
Pierce,
809;
So.2d
v.
718
at
Cleveland
prejudice,
weighed by
danger
of unfair
360,
459,
Ga.App.
512
Bryant, 236
S.E.2d
issues, misleading the
confusion of the
(1999);
362
Hutchison v. American Fami
jury,
by
delay,
of undue
or
considerations
Co.,
882,
ly Mut. Ins.
514 N.W.2d
890
time,
presentation
or needless
of
waste of
(Iowa 1994);
Commonwealth,
v.
Gosser
31
R. Evid.
cumulative evidence.” See Tenn.
897,
(Ky.2000);
903
v. Har
Pierce,
403;
Because the be gen admissibility computer animations its suaded life-like nature it be erally rests the sound discretion within an opposing court, comes unable to visualize the trial with the rules evidence event, differing require version of exercise of the trial court’s governing the fairly ment that the animation accu discretion. portray im
rately particularly the event is rules to the facts Applying these portant at issue is a when evidence record, that the trial we conclude animated recreation of event. admitting court abused its discretion See, Trahan, e.g. State v. 576 So.2d in this computer animated visualization (La.1990)(discussing picture motion and accurate it is not a fair case because impressions tri stating vivid on the “[t]he depicted, of the event portrayal viewing er of fact created result, substantially probative its value was pictures particularly diffi motion will preju unfair danger outweighed by Clark, limit....”); 529 S.E.2d cult dice. (recognizing portrayal if the inaccurate, pose Farmer was unable to Although Officer computer animations speed to make determination as to potential to mislead the high Camaro, computer ani- lasting impressions unduly the defendant’s create Sommervold, evidence); depicts mation the Camaro includes override other anima- throughout (stating speeds at various N.W.2d at 737 that because example, beginning im tion. For has a video reconstruction substantial *21 animation, depicted the Camaro is travel- dence indicating speed record ing Later, ahead of the Mitsubishi. prior impact. these vehicles Camaro, Mitsubishi just overtakes the computer Given that the animated occurs, before the collision the animation upon visualization based inaccurate and shows the accelerating Camaro through information, incomplete we conclude that passing curve and the Mitsubishi. the trial erred court it at admitting trial. Professor Owen testified the Camaro We also depicted note that the animation depicted at speed the critical of 73.88 the accident a total of fifteen times per miles hour. speeds. various we While set no limit on many may depict how times visualization depiction The of the Camaro ahead of event, emphasize judges we that trial the Mitsubishi at the beginning of the ani- carefully must monitor such evidence and proof. mation is with the inconsistent The prevent presentation if poses cumulative eyewitness testimony consistently de- risk unfairly prejudicing substantial side-by-side. scribed the as cars Officer the defendant. See Tenn. R. Evid. 403 and dispute Farmer did not or elaborate on stated, R. previously Tenn. Evid. 611. As these descriptions. Professor Owen indi- generally animations have a substantial cated that he not portion did base this impact upon jurors, impact is no evidence, the depiction upon specific but jurors doubt increased where are allowed he said the cars must have been in this to view the animated visualization not once position to have later side-by-side been twice, but fifteen times. separate by eyewitnesses. However, described qualified Professor Owen was not as an reasons, For all these we conclude accident reconstructionist and should not in admitting that the-trial court erred have based the animation his own computer animated visualization. We em assumptions, opinions, or conclusions. The however, phasize, may again that the State depiction is also inconsistent with Officer computer seek animated admission testimony Farmer’s conceding course, that he had visualization at the trial. Of new not speed determined the critical for the prerequisite as a admissibility, lane in which the defendant was traveling. must establish the animation has been opined proba- While Officer Farmer that it fairly corrected to accurately illustrate bly vary amount, would not a tremendous explain testimony of Officer Farm speed guided he testified that er. the critical for the The trial court should be principles defendant’s lane definitely opinion of travel would discussed permit been when per deciding have 73.88 miles whether to the intro hour. Therefore, computer the animation is inaccurate in duction animated visual its ization. depiction of the Camaro We commend trial court for traveling at addition, per clearly instructing miles that the anima 73.88 hour. In depiction of tion is itself evidence and was offered animation’s the Camaro accel- only testimony to illustrate the the ex erating out of curve is not supported pert evidence, fact, ap Such an instruction is witness. seems to be propriate animation whenever inconsistent Officer Farmer’s testimo- ny speed about the critical evidence admitted. which a safely negotiate vehicle could the curve. Conclusion Finally, speed it is not clear what depict herein, animation uses Chrysler mi- For the stated the de- reasons nivan and the no criminally Volvo since there is evi- negli- fendant’s convictions for opinion re- case. every case homicide are vacated and the gent homicide general causation quires giving of charges. trial on these remanded for a new *22 offense the homicide instruction whenever trial, may At new Officer Farmer testi- implicitly explicitly in- not itself or does expert long fy so as the trial court is As instruction. the State clude causation opinions are satisfied that Officer Farmer’s offenses some of the homicide recognizes, methods, pro- based on relevant scientific instruct implicitly elements that include data, cesses, specu- and not mere finding neces- a causation However, animated lation. is the State’s Also without merit sary. not admissi- visualization of accident is pattern jury suggested assertion that it ble unless the State first establishes 18 conflicts out in footnote instruction set accurately fairly has corrected to been law State of existing and relieves testimony. The illustrate Officer Farmer’s petition proof. its State’s burden admissibility trial shall causa- negligence court’s decision criminal confuses proven Both must be be- tion. elements guided principles here- be discussed crimi- yond a doubt to establish reasonable in. reck- The defendant’s convictions for Moreover, we nally negligent homicide. weapon, endangerment deadly less with a in footnote 16 emphasize language that the leaving of an drag racing, and the scene merely suggestion may which ac- involving injury or death are af- accident revised, Pattern cepted, rejected by appeal firmed. Costs of this are taxed to Instruction Committee. Jury Tennessee, execu- State for which necessary. if may tion issue to re- Accordingly, petition the State’s petition
hear is DENIED. Costs of this Tennessee, are taxed to PETITION OPINION ON necessary. if may execution issue TO REHEAR PER CURIAM. peti-
The State of Tennessee has filed a asking tion to rehear to recon- Court portions opinion. sider certain Contrary peti- to the assertions opinion require giving tion the does special “proximate of a cause” instruction