State v. Hicks

• Court: Court of Criminal Appeals of Tennessee
• Decided: May 13, 1997
• Docket: 03C01-9602-CC-00064
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED MARCH 1997 SESSION May 13, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, ) ) C.C.A. NO. 03C01-9602-CC-00064 Appellee, ) ) WASHINGTON COUNTY VS. ) ) HON. ARDEN L. HILL, CHRISTOPHER R. HICKS, ) JUDGE ) Appellant. ) (DUI)

FOR THE APPELLANT: FOR THE APPELLEE:

ROGER A. WOOLSEY JOHN KNOX WALKUP 118 S. Main St. Attorney General & Reporter Greeneville, TN 37743 GEORGIA BLYTHE FELNER Counsel for the State 450 James Robertson Pkwy. Nashville, TN 37243-0493

DAVID CROCKETT District Attorney General

KENT GARLAND Asst. District Attorney General P.O. Box 38 Jonesborough, TN 37659

OPINION FILED:____________________

AFFIRMED

JOHN H. PEAY, Judge OPINION

A jury convicted the defendant of DUI. In this direct appeal, he contends

that the trial court erred in prohibiting defense counsel from impeaching a witness through

the use of a publication. Upon our review of the record, we affirm the judgment below.

Officer Mark Tipton testified that he had been sitting in his squad car as it

was parked in a lot near an intersection on the East Tennessee State University campus

when he saw the defendant drive through a four-way intersection without stopping at the

stop sign. He and Officer John Smith, who had been sitting in his squad car near Officer

Tipton’s, pursued the defendant in their cars with their blue lights on. When the

defendant stopped, Officer Tipton approached the car. He testified that he had walked

up to the driver’s side of the car, the defendant had rolled his window down and,

according to Officer Tipton, there was “a strong smell of alcohol coming from the car.”

He testified, “I then asked the driver if he had been drinking, and he stated that, yes, he’d

been drinking, he’d drunk five beers.”

Officer Tipton then administered several field sobriety tests including the

“one leg stand” and the “walk and turn.” Officer Tipton testified that the defendant had

failed both of these field sobriety tests. Officer Tipton further testified that he had also

administered the horizontal gaze nystagmus test, and that the defendant had also failed

this field sobriety test. Officer Tipton then arrested the defendant. Officer Tipton also

testified that he had been to “DUI school.”

On cross-examination, defense counsel showed Officer Tipton a manual

from the University of Tennessee, Memphis, Health Science Center Department of

Clinical Laboratory of Science [sic] and asked him if it was the student manual from which

he had been trained. Upon Officer Tipton’s affirmative response, defense counsel

2 introduced the publication (or a portion thereof) as an exhibit. This exhibit, included in

the record, contains information on the administration and interpretation of certain field

sobriety tests, including the horizontal gaze nystagmus test, the “walk and turn” test, and

the “one leg stand” test. When it became apparent that defense counsel was going to

ask questions concerning the text contained in the writing, the State objected. The trial

court sustained the State’s objection and it is this ruling from which the defendant now

appeals.

As correctly noted by the State, Officer Tipton was not tendered as an

expert witness.1 And, as correctly noted by the trial court, “the only time you can use a

book like that to impeach a witness is if the witness is an expert witness and you can

show [him] other expert books to impeach him to show that he might be wrong.” See

Tenn. R. Evid. 618. The trial court committed no error by refusing to allow defense

counsel to impeach Officer Tipton by reading into the record from the training manual and

cross-examining him about his memory thereof and/or his application of the information

with which he had been trained. This issue is without merit.

The judgment below is affirmed.

______________________________ JOHN H. PEAY, Judge

1 This C ourt has previous ly noted that “fie ld sobriety tes ts are no t

3 CONCUR:

______________________________ PAUL G. SUMMERS, Judge

______________________________ CORNELIA A. CLARK, Special Judge