IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED
AT KNOXVILLE December 29, 1999
Cecil Crowson, Jr.
OCTOBER SESSION, 1999 Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9812-CR-00424 )
Appellee, )
)
) HAMILTON COUNTY
VS. )
) HON. DOUGLAS A. MEYER, DON PALMER BLACK, ) JUDGE )
Appe llant. ) (DUI-Second Offense)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF HAMILTON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
JERRY H. SUMMERS PAUL G. SUMMERS 500 Lindsay Street Attorney General and Reporter Chattanooga, TN 37403-3496 MARVIN S. BLAIR, JR.
Assistant Attorney General 425 Fifth Avenu e North
Nashville, TN 37243
BILL COX
District Attorney General
DEAN FERRARO
Assistant District Attorney General City and County Court Building Chattanooga, TN 37402
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE
OPINION
The Defen dant, Don Palmer Black, appeals as of right his conviction
pursuant to a Ham ilton Cou nty jury verdic t finding him guilty of second offense driving under the influence of an intoxicant. He raises the following four issues for review:
I. Whether the trial court erred in not finding the Defendant's stop to be illegal when the reasonable suspicion supporting the stop consisted solely of weaving within the c onfines o f a single lane and when no traffic violation occurred.
II. Whether the conviction should be reversed because the evidence was insufficient to suppo rt a guilty verdict since no rational trier of fact could have found that the D efenda nt was into xicated to the point that his driving was impaired.
III. Whether the trial court erred in not allowing th e Defe ndant to assert the invalidity of his pr ior 198 8 DU I convic tion in th is proceeding when State v. McClintock is no longer valid law after the 1996 a mend ments to the Po st-Con viction Pro cedure Act.
IV. Whether the trial court erred in not allowing the Defendant to suppress evidence that he had not taken a chemical test because the implied c onsen t form was vague and failed to apprise the Defendant of the significant consequences of not taking the chem ical test.
The only two witnesse s at trial were Officer Ro bert Starnes of the Hamilton Coun ty Sheriff’s Department and the Defendant. Officer Starnes testified that on December 17, 1994, he was a patrolman on the DUI task force in Hamilton County, and his job was to travel around Hamilton Coun ty to look for people who were driving under the influence. Shortly before 12:54 a.m. on December 17, 1994, Officer Starnes observed a 1975 GMC pickup truck traveling westbound on Brainerd Road in Hamilton County. He gave the following account of what he observed:
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The vehicle was driving in the far right-hand lane over near the cu rb line, and the vehicle was driving all over that one lane.
On one or two occasions I observed the vehicle almost actua lly strike the right edge o r curb of th e edge of the roadway.
This seem ed ver y pecu liar to m e at this time, and this vehicle for no other appa rent re ason -- a dog hadn ’t run ou t in front o f the ca r, it didn’t appear any other reason, the brake lights didn’t come on, any other reason wh y the vehicle shou ld swerve over to ward the right side of the curb, so I – to check the driver o ut to verify if everything was okay, I activated my emergency equipment, which included blue lights and siren, to pull the person over to make sure everything was okay.
W hile Officer Starnes testified that the vehicle was swerving to the right, he stated that the vehicle did no t leave its lane of traffic. He activated his lights, and when he got no response from th e vehic le, he a ctivated his sire n. The vehicle pulled over to the right-hand side of the road and up and over the sidewalk.
After this testimony, counsel for the Defendant moved to suppress the stop of the Defendant’s vehicle based on a lack of reasonable suspicion to make the stop. During a jury-out hearing, Officer Starnes again explained why he stopped the vehicle:
The vehicle, I observed the vehicle traveling westbound. The vehicle was we aving in tha t lane, in the right-hand lane, and the vehicle almost struck the curb on the right edge of the road twice, and that was my primary reason to investigate, stop the driver, see if there w as po ssibly a problem why he was swerving toward the curb, beca use I d idn’t see h im apply for his brakes [sic] or anything of that nature or any dog or anything run out in front of him to cause him to go to the right.
The trial court expressed reservations about the stop, but reserved ruling on the issue until afte r the trial.
Again before the jury, Officer Starnes testified that as he approached the vehicle, the Defendant exited the vehicle, and Starnes observed that the Defendant was “very unsteady on his feet.” Officer Starnes asked for the
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Defe ndan t’s driver’s license, which the Defendant produced, though he “fumbled excessively” getting the license. Officer Starnes stated th at he noticed a very strong odor of an a lcoho lic beve rage c omin g from the De fenda nt’s perso n as w ell as coming from the vehicle. He also noticed that the Defendant’s eyes appeared to be “bloo dshot a nd glass y.”
Officer Starnes testified that he asked the Defendant to perfo rm so me fie ld sobriety tests and asked the Defendant if he had any conditions which might impa ir his ability to perform the tests. The Defendant replied that he was blind in his right eye. Officer Starn es then had the Defend ant perform the “one-leg stand” and the “walk and turn” tests, which the Defendant failed. On cross- examination, defense counsel directed Officer Starnes’ attention to a student manual which the officer used to teach other officers how to detect DUI offenders. Officer Starnes admitted that the m anual sta tes that for th e field sob riety tests to be valid, they must be administered in the prescribed, standardized manner and that if any one of the standardized field sobriety test elements is changed, the validity is compromised. H e also ackn owled ged th at acc ording to the m anua l, “[p]ersons who cannot see ou t of one e ye ma y . . . have trouble with [the walk and turn] test bec ause of poo r depth perce ption.”
Officer Starnes arrested the Defendant and took him to the Hamilton Cou nty Jail. Once at the jail, Officer Starnes requested that the Defendant subm it to a chemical test to determine the alcohol content of his blood. The Defendant refuse d to su bmit to the test and signed the standard implied consent form in use at the time.
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The Defendant testified that his righ t eye is a glass eye, which he has as a result o f an ac ciden t with an aeros ol can . He sa id that h is eyes natura lly become red every day, and he had his glass eye painted red so that it would match his other eye. He takes two medications for seizures three times a d ay. He stated that he is not supposed to drink alcohol with his medication, but on the evening in que stion, h e dec ided to have a drink b ecau se he had n ot take n his evening dose. He had a scotch a nd wa ter with h is dinn er at a re staura nt in Chattanooga. He stated that after dinner, he was going home when he saw a friend of his pulling into the parking lo t of a ba r. The Defe ndan t followe d his friend and went into the bar to buy his friend a Christmas drink. He said that he ordered a drink for h imself, bu t drank o nly abou t two sips o f it.
After leaving the bar, the Defe ndan t was g oing h ome . He sa id that he was driving in the right-hand lane of Brainerd Road and that he did not know Officer Starnes was behind him until he heard the siren. He testified that the siren “scared me to death,” so he pulled over and got out of the officer’s way so that the officer could go around him. He stated that when he was stopped, he had not done anything wrong, and he did not believe his driving abilities were impaired in any wa y.
The Defendant further testified that as he was pulling ove r to the side of the road, he had a “mini seizure” triggered by being startled, which lasted only a rew seconds. He explained that such a seizure “makes you floppy.” He stated, “Your arms will hurt and you’re - - you just do n’t operate right.” When asked to take the breathalyser test, the D efenda nt refuse d beca use he had be en told th at “those machine s . . . aren’t accurate.”
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The jury returned a verdict finding the Defendant guilty of second offense driving under the influence. The trial court then sentenced the Defendan t to eleven months, twenty-nine days incarceration, with all but forty-five days suspended, as well as fifty days of co mm unity service . After the trial, the Defendant again challenged the legality of the stop of his vehicle. The trial cou rt uphe ld the sto p statin g, “I’m g oing to rule against [the Defendant] for one reason: On a factual basis, that articulable suspicion is increased when he failed to stop in a half a mile, so that strengthens the articulable susp icion.” The cou rt went on to explain, ?I’m finding there was an articulable suspicion to stop him, based on the fact that he was weaving in that lane, almost hit the curb a couple of times. . . . But the fac t it took him a half a mile to stop I think is the clinch ing point.”
I. MOTION TO SUPPRESS
On appe al, the D efend ant on ce ag ain ch alleng es the initial stop of his automobile, arguing that the evidence discovered as a result of that sto p sho uld have been suppressed. W hen review ing the gra nt or den ial of a mo tion to suppress,
[q]uestions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the eviden ce are ma tters entruste d to the trial jud ge as the trier of fact. The party prevailing in the trial cour t is entitled to the strongest legitimate view of the evidence adduc ed at the suppressio n hea ring as well as all reaso nable and legitimate inferences that may be drawn from that evidence. So long as the greater weigh t of the evidence supports the trial court’s findings, those findings shall be upheld. In other words, a trial co urt’s findings of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise.
State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). However, the application of the law to the facts as found by the trial court is a question of law which the app ellate court reviews de novo. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn . 1997)
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(citing Beare Co. v. Tenn essee Dept. of Revenue, 858 S.W.2d 906, 907 (Tenn. 1993)). In uphold ing the sto p of the D efenda nt’s autom obile, the trial court accredited Officer Starnes’ testimony that the Defendant was weavin g within his own lane of traffic and that he swerved to the right twice and alm ost hit the curb of the roadwa y. Thus, we must determine whether these facts justified the stop of the Defendant’s automobile.
The stop of an automobile and the detention of its occupants constitutes a seizure, calling into play the protections of the United States and Tennessee Constitutions, even if the purpose of the stop is limited and the detention is brief. See Wren v. United States, 517 U.S. 8 06, 809 -10 (199 6); Delaware v. Prouse, 440 U.S. 648, 663 (19 79); State v. Vineyard , 958 S.W.2d 730, 734 (T enn. 1997 ). Thus, to justify the seizure of an a utomob ile, an officer must at leas t have reaso nable suspicio n, base d on sp ecific and articulable facts, that the occup ants have been involved in or are about to be involved in criminal activity. See Ornelas v. United States, 517 U.S . 690, 693 (1996); Prouse, 440 U.S . at 663; State v. Simpson, 968 S.W .2d 776 , 780 (T enn. 19 98); Vineyard, 958 S.W.2d at 734. “Reasonable suspicion” is an objective standard, to be determined by the totality of the circu mstan ces. United States v. Cortez, 449 U.S. 411, 417-18 (1981); State v. Watkins, 827 S.W .2d 293, 294 (Tenn. 199 2). Relevant factors to consider include the officer’s personal observations, information obtained from other police office rs or age ncies, infor mation obtained from citize ns, and the pattern of opera tion of certa in offende rs. Simpson, 968 S.W .2d at 783 ; Watkins, 827 S.W .2d at 294 ; Cortez, 449 U.S. at 418. A court must also consider the rational inferences and deductions that a trained office r may dra w from th e facts and circu mstan ces kno wn to him or her. Id.
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When an officer turns on his blue lights, he h as initiated a stop or se izure of an auto mobile . State v. Pully, 863 S.W.2d 29, 30 (Tenn. 1993). Therefore, an officer must have reaso nable susp icion to stop the veh icle before turning on the blue lights. Consequently, we must only consider the Defendant’s actions prior to the tim e Offic er Sta rnes tu rned o n his b lue ligh ts, even thoug h the tria l court upheld the seizure of the Defendant’s vehicle based on both the Defendan t’s driving before the stop and the Defendant’s failure to respond immediately to the officer’s instigation of a stop.
In this case, the Defendant was weaving within his own lane of traffic, and he swerved to the right twice, almost hitting the curb of the roadway. In the words of Officer Starnes, he was “driving all over that one lane.” Such phenomena has been described in other cases we have considered. In State v. Stuart Allen Jenkins, C.C.A. No. 01C01-9712-CR-00590, 1998 W L 917806 (Tenn. Crim. A pp., Nashville, Dec. 21, 1998), the defendant’s vehicle was seized after an anonymous inform ant rep orted th e vehic le’s licen se nu mbe r to polic e and told police that the vehicle contained a possible drunk driver. Then, an officer matched the license number to the vehicle and observed the vehicle “weaving exces sively in the roadwa y.” Id. at *2. After considering the credibility and reliability of the informant, we stated, “[f]inally, the weaving observed by Trooper Bass, albeit within the defendant’s lane of traffic, is another circumstance that lends credence to the potential for a drunk driver as sta ted by the inform ant.” Id. at *4. In State v. Donnie Ray Loden, C.C.A. No. 03C01-9311-CR-00380, 1995 W L 23351 (Tenn. Crim. App., Knoxville, Jan. 19, 1995), we upheld the trial court’s finding of reasonable suspicion when the defendant’s vehicle was observed “weaving extremely bad [sic]” and “sort of hugging the while [sic] line
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on the righ t and ju st wea ving re al bad [sic].” Id. at *1. The vehicle also “darted over” to enter the westbound ramp leading onto the interstate. Id. Similarly, in the case of State v. G uy Binette , C.C.A. No. 03C01-9802-CR-00075, 1999 WL 427606 (Tenn . Crim. A pp., Knoxville, June 28, 19 99), we uphe ld the tria l court’s finding of reasonable suspicion when the officer ob served the d efend ant’s ve hicle swerve and weave within its own lane, approach the dividing lines a number of times, an d touch the cente r line at least tw ice.
After reviewing the law as applied in these cases, we believe the facts articulated by Officer Starnes are sufficien t to establish reasonable suspicion that the Defendant was driving while under the influence. Not only did the Defendant weave within his lan e, but he s werved twice, almost hitting the curb. The comment by Officer Starnes that the Defendant was “driving all over that one lane” indicates that the Defendant was weaving excessively. We conclude that this is evidenc e of erratic d riving justifying th e investigatory stop of the Defen dant’s veh icle.
W hile we uphold the stop of the De fenda nt’s veh icle ba sed o n reas onab le suspicion of criminal activity, we recognize the Defendant’s concern that “a ‘no weaving’ rule could neve r have realistic boun daries [in] determining w hether a stop would be permissible” and caution that we sanction no such rule. We realize that no driver drives perfectly at all times and that some movement inside a driver’s own lane of travel is only natural and does n ot autom atically con stitute reasonable suspicion of criminal activity. There must be specific an d articulate evidence of actions by a driver which would qualify as erratic driving, as opposed to mere in attention to detail and impe rfection , before an inve stigato ry stop is
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justified based only on the manner of driving of a vehicle when no traffic laws have been violated.
II. SUFFICIENCY OF THE EVIDENCE Next, the Defendant challenges the sufficiency of the convicting evidence.
Tennessee Rule of Appe llate Pro cedu re 13(e ) presc ribes th at “[f]indin gs of g uilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable d oubt.” Te nn. R. A pp. P. 13 (e). Eviden ce is sufficie nt if, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reaso nable doubt. Jack son v. V irginia, 443 U.S. 307 (1979). In addition, because conviction by a trier of fact destroys the presumption of innocence and imposes a presumption of guilt, a convicted criminal defendant bears the burden of showing that the evidence was insufficient. McBe e v. State, 372 S.W.2d 173, 176 (Tenn. 196 3); see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W .2d 329 , 331 (T enn. 1977)); State v. Tug gle, 639 S.W.2d 913, 914 (Tenn . 1982); Holt v. State , 357 S.W .2d 57, 61 (T enn. 1962 ).
In its review of the evidence, an appellate court must afford the State “the strongest legitimate view of the evidence as we ll as all reas onable and legitim ate inferences that may be drawn therefro m.” Tug gle, 639 S.W.2d at 914 (citing State v. Cabbage, 571 S.W .2d 832 , 835 (T enn. 19 78)). The court may not “re- weigh or re-evalu ate the ev idence ” in the reco rd below . Evans, 838 S.W.2d at 191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court
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find particular conflicts in the trial testimony, the court must resolve them in favor of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W .2d at 914 .
Taking the evidence in the light most favorable to the State, the evidence shows that the Defendant was “driving all over” his lane of traffic, that he swerved twice and a lmos t hit the curb, that he did not immediately stop his vehicle when Officer Starnes activated his lights, that when he did stop, he pulled his veh icle up and over the sidewalk, that he had a strong odor of alcohol about his person and his vehicle , that his “eye ” appea red bloo dshot and glassy, that he fumbled “excessively” for his driver’s license, that he admitted drinking, that he failed two sobriety tests, and that he refu sed to tak e a brea thalyser te st. All of this evidence, taken together, is sufficient for a rational juror to find the Defe ndan t’s guilt beyon d a reas onable doubt.
The Defendant makes a strong argument in which he attacks a nd attem pts to und ermin e the s ufficien cy of all of this evidence by emphasizing both Officer Starnes’ testimony and the Defendant’s testimony, but the Defendant’s attack goes to the credibility and weigh t of the evidence, which are matters for the determination of the jury. Because we cannot re-weigh the evidence or re- evaluate the witnesses’ credibility and beca use we are required to reso lve conflicts in testimony in favor of the jury verdict, we mus t acce pt the S tate’s evidence. Accordingly, we find that the evidenc e supp orts the verdict rendered by the jury a nd uph old that verd ict.
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III. ATTACK ON PRIOR DUI
The Defendant argues that the trial court erred in not allowing him to assert the invalidity of his facially valid prior 1988 DUI conviction in this proceeding. He asserts that State v. McClintock, 732 S.W.2d 268 (Tenn. 1987), w hich proh ibits collateral attack s on fa cially valid judgments in subsequent proceedings in which the challenged convictions are used to enhance punishment, is no lon ger va lid law after the 1986 and 1995 amendments to the Post-C onviction P rocedu re Act, which placed a statute of limitations on the filing of a post-conviction petition. W e previo usly considered and rejected this precise argument in the case of State v. Phillip Todd Swords, C.C.A. No. 03C01-9807-CR-00239, 1999 WL 222702, *6-7 (Tenn. Crim. App., Knoxville, Apr. 14, 1999), in which we stated,
According to our supreme court in State v. McClintock 732 S.W.2d 268 (T enn. 1 987), “ The rule ha s bee n firmly e stablis hed in Tennessee that a fa cially valid , unrev ersed judgm ent in a court w ith jurisdiction over the subject matter and the person cannot be collate rally attacked in a subsequent proceeding except by the authorized routes of attack .” W e dec line to h old the rule announced in McClintock uncon stitutional follow ing institution of a statute of limitations for post-conviction petitions, as Defendant requests that this Court hold.
Id. at *6 (quoting McClintock, 732 S.W .2d at 272 ). Accordingly, this issue has no merit.
IV. VALIDITY OF IMPLIED CONSENT FORM In his fina l issue, th e Def enda nt argu es tha t the trial c ourt erred in not suppressing evidence that he refused to submit to a chemical test to determine the alcohol content of his blood. He asserts tha t the evidence sh ould have been suppressed because the implied c onsen t form tha t was use d to obtain his refusal was vague and failed to inform him of the significant consequences of refusing or subm itting to such a test.
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In the case of State v. Whaley, 982 S.W .2d 346, 349 (Tenn. Crim. App.
1997), we considered the issue of whether the implied consent form was vague or mislead ing as ap plied to a p erson w ho sub mitted to the test. In that case, the defendant submitted to the breathalyser test and then subsequently argued that the results should h ave been suppressed because the implied consent form was unco nstitutiona lly vague and misleading in that it failed to inform her of the consequences of subm itting to the tes t. We noted that the form clearly indicated that the purpose of the test is to determine the drug and alcohol content of the accu sed’s blood an d that the a verage p erson w ould un derstan d that the re sults will be used against him. If the test could not be used to prosecute the person for the crime charged, then there would be no purpose for administering the test. Id. In addition , we reco gnized the prior ho lding by this Court tha t “admonitions prior to submitting to a blood alcohol test are not req uired to susta in a valid conse nt.” Id. (citing King v. State , 598 S.W.2d 834, 835 (Tenn. Crim. App. 1980)). T herefore , we foun d the form to be neith er vague nor mis leading. Id.
Similarly, we do not find the form to be vague or mislea ding as a pplied to a person who refuses to submit to the test. As required by Tennessee Code Annotated § 55-10-40 6(a), the conse nt form signed by the Defendant informed him that he could refuse the test, bu t that if he refuse d, his d river’s license would be suspended. Though the form did not tell him that his refusal could be used against him as an inference of guilt, we believe that an avera ge pe rson w ould understand that that could be a possible result of refusal. Nothing on th e form could have caused him to believe that his refusal would not have been used against him. In addition, “nothing in the statute requires that a driver be given Miranda-like admo nitions” prio r to reque sting con sent to pe rform su ch a test.
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See King, 598 S.W.2d at 835. We therefore decline to hold that the implied consent form is constitutionally defective and instead hold that the Defe ndan t’s refusal to subm it to the test wa s prope rly admitted into eviden ce. See State v. Frasier, 914 S.W .2d 467 (Tenn . 1996); State v. S mith, 681 S.W.2d 569, 570 (Tenn . Crim. A pp. 198 4).
The judgment of the trial court is affirmed.
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DAVID H. WELLES, JUDGE
CONCUR:
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GARY R. WADE, PRESIDING JUDGE
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DAVID G. HAYES, JUDGE