State v. Chad Douglas Poole ( 1997 )

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
STATE OF TENNESSEE, ) FOR PUBLICATION
)
Appellant-Appellee, ) Filed: May 12, 1997
)
v. ) HARDEMAN CRIMINAL
)
CHAD DOUGLAS POOLE, ) Hon. Jon Kerry Blackwood
) Judge
)
Appellee-Appellant. )
)
) No. 02S01-9607-CC-00064
)
FILED
May 12, 1997
Cecil Crowson, Jr.
DISSENTING OPINION Appellate C ourt Clerk
The Legislature has determined that the sentence for certain criminal
offenses may be enhanced if “a victim of the offense was particularly vulnerable
because of age or physical or mental disability. . . .” Tenn. Code Ann. § 40-35-
114 (4) (1990 Repl. & Supp. 1996) (emphasis added). Ignoring the plain
language of the statute, the majority applies a judicial gloss and rules that the
enhancement factor does not apply unless the State shows two things: (1) a victim
of the offense was particularly vulnerable because of age and physical or mental
disability, and (2) the vulnerability of the victim was a factor in the commission of
the offense. As a result, the majority concludes that the factor was erroneously
applied by the trial court in this case. The majority’s interpretation is contrary to
the plain language and express purpose of the sentencing statute and prior
decisions of this Court. For the reasons explained below, it is my view that the
trial court correctly applied the enhancement factor in this case. Therefore, I
dissent from the majority’s decision and would reverse the Court of Criminal
Appeals’ judgment reducing the defendant’s sentence.
STATUTORY INTERPRETATION
The most basic principle of statutory construction is to ascertain and give
effect to legislative intent. Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995).
Legislative intent is to be ascertained whenever possible from the natural and
ordinary meaning of the language used, without forced or subtle construction that
would limit or extend the meaning of the language. Carson Creek Vacation
Resorts, Inc. v. State, Dept. of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993) (emphasis
added). If the legislative intent is expressed in a manner devoid of contradiction
and ambiguity, there is no room for interpretation or constructions, and courts are
not at liberty to depart from the words of the statute. Id. Where the language
contained within the four corners of a statute is plain, clear, and unambiguous, the
duty of the courts is simple and obvious, “to say sic lex scripta, and obey it.” Id.,
quoting Miller v. Childress, 21 Tenn. (2 Hum.) 319, 321-22 (1841).
The language of the enhancement factor at issue in this case is plain, clear,
and unambiguous. The enhancement factor may be applied when the victim is
“particularly vulnerable because of age or physical or mental disability.”
(Emphasis added.) The statute is clearly written in the disjunctive and lists three
separate and independent factors which may support a finding of particular
vulnerability. Therefore, it is the duty of this Court to apply the straightforward
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language of the statute.
Citing State v. Adams, 864 S.W.2d 31 (Tenn. 1993), and State v. Butler,
900 S.W.2d 305 (Tenn. Crim. App. 1994)(no perm. app. filed), the majority
ignores its duty, and in my opinion fails to follow the plain language of the statute.
The majority’s reliance upon Adams as support for its interpretation is misplaced.
Contrary to the majority’s analysis, Adams did not announce a principle which
limited the use of this enhancement factor. Indeed, in Adams we refused to limit
its application and recognized that particular vulnerability could be established by
any one of three separate and independent factors -- age or physical, or mental
disability.
For example, in Adams the trial court had applied the particularly vulnerable
factor to enhance the defendant’s sentence for aggravated rape. The Court of
Criminal Appeals held that the trial court should not have applied that factor
because the age of the child was an essential element of the offense of which the
defendant had been convicted -- aggravated rape. See Adams, 864 S.W.2d at
33; Tenn. Code Ann. § 40-35-114(1990 Repl.)(enhancement factors may not be
applied if they are “themselves essential elements of the offense.”)
The State sought and obtained permission to appeal. In this Court, the
defendant argued that the particularly vulnerable factor was automatically
unavailable to enhance a sentence when age was an essential element of the
underlying conviction offense. We rejected the defendant’s argument and instead
stated that the particularly vulnerable factor
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can be used in an aggravated rape case if the circumstances show
that the victim, because of his age or physical or mental condition,
was in fact ‘particularly vulnerable,’ i.e., incapable of resisting,
summoning help, or testifying against the perpetrator.
Adams, 864 S.W.2d at 35. We instructed that the burden of proving the
limitations rendering the victim particularly vulnerable lies with the State and we
cautioned that appropriate application of the enhancement factor turns on the
specific facts of each case. Therefore, in Adams, we held that when age is an
essential element of the underlying conviction offense, the particularly vulnerable
enhancement factor is not appropriate unless it is also supported by proof of
mental or physical disability. 1
While Adams was not expressly limited to cases wherein the defendant had
been convicted of an offense for which age was an essential element, it is
axiomatic that principles of law are circumscribed by the facts of the case in which
they are announced. Therefore, in my view, the principle announced in Adams
should be limited, as the State argues, to cases wherein age is an essential
element of the conviction offense.
In addition to misapplying Adams, the majority decision erroneously holds
that the enhancement factor does not apply, even though the State proves that
the victim was particularly vulnerable, unless the State also establishes that the
victim’s vulnerability was a factor in the commission of the offense. Slip Op. at 8.
1
State v. Kissinger, 922 S.W.2d 482 (Tenn. 1996) does not support the majority’s decision
as it also applied the particularly vulnerable enhancement factor in the sentencing of a defendant
for aggr avated s exual ba ttery, an offen se of wh ich age w as an e ssential ele men t. Id. at 487.
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As authority to support this proposition, the majority cite State v. Butler, 900
S.W.2d 305 (Tenn. Crim. App. 1994) (no perm. app. filed). Conspicuously absent
from the majority decision is a citation to the language of the enhancement factor
or any other authority. Moreover, an examination of Butler reveals that the Court
of Criminal Appeals adopted this suspect proposition without citing any authority,
statutory or otherwise.
Requiring the State to prove that the victim’s vulnerability was a factor in
the commission of the offense is not only contrary to the plain language2 of the
statute, but it also defeats the express purpose of the sentencing statute which is
“to assure fair and consistent treatment of all defendants by eliminating unjustified
disparity in sentencing and providing a fair sense of predictability of the criminal
law and its sanctions.” Tenn. Code Ann. § 40-35-102(2) (1990 Repl. & Supp.
1996). No doubt, inconsistent and unpredictable sentences will follow this
decision as the bench and bar struggle to understand and apply the majority’s
version of the particularly vulnerable enhancement factor. For example, applying
the majority decision in which it held that “it is unlikely that any victim could have
resisted the crime, considering the manner in which it was committed,” it is difficult
to conceive of a scenario in which the particularly vulnerable enhancement factor
would apply when a gun is used in the accomplishment of a criminal offense. Slip
2
I agree with the majority that the “legislature has predicated the application of any
enhancement factor on it being ‘appropriate for the offense.’” However, rather than focusing on the
circumstances of the offense which establish the victim’s vulnerability, as the enhancement factor
requires, the majority’s interpretation of the enhancement factor requires courts to focus on the
defendant’s motivation in committing the offense and allows application of the enhancement factor
only if the victim ’s vulnerab ility influenced the defend ant’s dec ision to com mit the o ffense .
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Op. at 9.3 This is only one example of the peculiar outcomes likely to follow the
majority’s decision.
In my view, it is the duty of this Court to apply the particularly vulnerable
enhancement factor in accordance with the straightforward language of the
statute. In this case, the plain language of the statute fully supports application of
the enhancement factor. The victim in this case was a seventy year old woman,
who lived alone and ran a small grocery store. It was commonly known in the
community that she carried large sums of money on her person. There is nothing
to indicate that she had any type of home security system or guard dog. The plain
language of the particularly vulnerable enhancement factor evidences the General
Assembly’s recognition that the age of a person directly correlates to a person’s
vulnerability. In my view, considering the age of the victim and the circumstances
of the victim,4 the trial court appropriately found that the victim was particularly
vulnerable because of age. I realize it is possible to imagine circumstances in
which application of this enhancement factor would be inappropriate even if the
victim is a seventy year old woman. For example, if the victim in this case had
greeted her assailants with a loaded shotgun, the State would have been hard
pressed to prove that she was particularly vulnerable. However, in my view, it is
3
The ma jority dis mis ses as un foun ded , “the d isse nt’s fe ar” th at the partic ularly v ulner able
enhancem ent factor may never be use d where the defendan t uses a gun and says that the use of a
gun or other deadly weapon is a separate basis for enhancement and is relevant to two other
enhancement factors. The majority’s statement reinforces the basis on which I disagree. While the
use of a gun is relevant to some other enhancement factors, it is not relevant to, nor should it be
considered, by courts applying the particularly vulnerable enhancem ent factor.
4
I disagree with the majority’s assertion that consideration of the circumstances of the
victim, in ad dition to the victim ’s age, is no t proper u nder a p lain langua ge app lication of the statute.
It is the spec ific vic tim’s circu ms tanc es w hich mu st be cons idere d to d eterm ine if th e victim is
particularly vulnerable because of age.
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the age and circumstances of the victim which are relevant to determining the
applicability of this enhancement factor, not the motivation of the defendant who
commits the offense.
I respectfully dissent from the majority’s decision and would reverse the
Court of Criminal Appeals’ judgment reducing the defendant’s sentence and affirm
the trial court’s application of the particularly vulnerable enhancement factor.
______________________________
FRANK F. DROWOTA III,
JUSTICE
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