IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JULY SESSION, 1998 November 20, 1998
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9707-CR-00309 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. FRANK G. CLEMENT TURNER P. WILLIAMS, ) JUDGE ) Appe llant. ) (Direct Ap peal - D .U.I.)
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES R. RAY JOHN KNOX WALKUP 211 T hird Aven ue No rth Attorney General and Reporter P. O. Box 198288 Nashville, TN 37219-8288 LISA A. NAYLOR Assistant Attorney General JAME S BR YAN L EW IS 425 Fifth Avenu e North 217 Se cond A venue N orth Nashville, TN 37201-1649 Nashville, TN 37201-1649 VICTOR S. JOHNSON District Attorney General
GEORGE BONDS Assistant District Attorney Washington Square, Suite 500 Nashville, TN 37201-1649
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
On May 19, 1997, a Davidson County jury found Appellant, Turner
Williams, guilty of Driving Under the Influence of an Intoxicant, first offense. The
trial court sentenced Appellant to eleve n months and twenty-nine days
incarceration, all suspended except for two days, the remainder to be served on
probation. Appe llant filed a time ly notice of app eal, raising two issues on appe al:
(1) Wh ether th e trial co urt erre d in ad mitting into evid ence highly p rejudicial statem ents made by Appellant wh ich were not pro bative of guilt and we re allege dly introduced for the purpose of inflam ing an d preju dicing the jury in violation of Rule 403 of the Tennessee Rules of Evidence; and (2) Whether the trial court erred in refusing to suppress the results of a field sobriety test where the officer gave the test under such adverse conditions that the results were inva lid and should n ot have bee n presented to the jury.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
FACTS
On May 1 ,1996 Serg eant R obert N orton, O fficer W illiam Turbeville, and
Officer Shane Stokes were at the Kwik Sak Convenience Market on West End
Avenue, when A ppellant a pproac hed the m. Acc ording to Serge ant Norton,
Appellant asked whether the three knew Lieutenant Glen Yates. When one of the
officers replied that he knew the name, Appellant responded, “well, next time you
see him, tell him to kiss my ass.” Sergeant Norton testified that Appellant’s eyes
were glassy and blood-shot and Appellant’s speech was slurred. He further
indicated Appellant smelled of an alcoholic beverage. Sergeant Norton advised
Appellant not to drive, and Appellant assured him that he would not. One of the
officers looked outside and observed that another individual was pumping gas
-2- into the car which seem ed to be the one in which A ppellant h ad arrived . W hen
Appellant left the store and got into the driver’s side of the ca r, the three officers
pursued.
Officer Turbeville stopp ed Appe llant’s car at the corner of 18th Ave. and
West End. According to Officer Turbeville, Appellant stated that the officer
“needed to get Lieutenant Yates or Chief Turner on the phone.” Appellant also
made a “vulgar comment” towards Officer Turbeville, indicating that the officer
was in trouble because Appellant knew Emmitt Turner and helped him get
elected.
Sergeant Norto n testifie d that th e hee l-to-toe field sobriety test pre ferably
shou ld be performed on a flat surface. He further related that were the test
performed on a steep grade, the incline could invalidate the results of the test.
Sergeant Norton described the point at which Appellant was stopped as a valley
“midway between two hills.” Officer Turbeville testified and that there w as a wh ite
fog line alongside the road at the point where Appellant was stopped and that the
line was used in administering the heel-to-toe test. Once shown photographs of
the site, Officer Turbeville stated that perhaps he was mistaken in testifying that
there had been a fog line. He testified that according to the photograph of the
location, th ere was no fog line at the site.
According to Officer Turbeville, Appellant did not pass the heel-to-toe field
sobriety test, and the officers did not perform the one-leg-stand test for fear
Appe llant would injure him self. During the heel-to-toe test, Appellant began the
test before instructed to do so, m issed some of the steps from heel to toe, and
-3- stepped off the line. Additionally, Appellant made 12 steps before turning around,
although the instructions were that he was to make 9 steps before turning. An
officer advised Appellant of the implied consent law, and Ap pellant refu sed to
consent to a brea th test. Officer Turbe ville testified that he did not obse rve
Appellant driving in an erratic or otherwise unsafe manner, and that he did not
see Appellant break any traffic laws. Officer Turbeville also testified that Appellant
continued to ma ke thre atenin g rem arks to him a bout th e towin g of Ap pellan t’s
vehicle. Once in the booking room, Officer Turbeville reported that Appellant
asked, “ you d on’t plan on m aking captain, d o you?”
The defense presented Wally Kemp, the owner of Valentino’s Ristorante,
a friend and business partner of Appellant’s, who testified that Appella nt was w ith
him p rior to his arrest. The witness indicated that Appe llant ha d a co cktail ea rly
in the night and sh ared a bottle of wine with three other pe ople during dine r. Mr.
Kemp testified that Appellant did not appear to be intoxicated when he left the
restaura nt shortly be fore his arre st.
I. Prejudicial Sta temen ts
Appellant contends that the trial court erred in admitting into evidence
statem ents made by Appellant to the police officers immediately prior to and at
the time of his arrest. Appellant filed a motion in limine to exclude the statem ents
he deemed prejudicial. The trial court’s ruling excluded some of the comments,
but allowed the State to present some of the offensive statements. In evaluating
a trial cou rt’s ruling on a Tenness ee Ru les of Evide nce Ru le 403 m otion to
-4- exclude evidence, the initial inquiry is whether the evidence offered was relevant
to the case under Tennessee Rule of Evidence Rule 401.
The determination of whether eviden ce is relevant, or, if relevant, should be excluded for one of the reasons set forth in Rule 403, addresses itself to the sound discretion of the trial cou rt. State v. Hill, 885 S.W.2d 357, 361 (Tenn . Crim. A pp.), per. app. denied (Tenn .1994). In deciding these issues , the trial court must con sider, among other things, the ques tions of fact that the jury will have to cons ider in d eterm ining th e acc used 's guilt as well as other evidence that has been introduced during the course of the trial.
State v. D ulsworth, 781 S.W .2d 277 , 287 (T enn. C rim. App . 1989).
If a trial court in the exercise of its discretion finds that evidence is relevant within the meaning of Rule 401, and the accused is not entitled to have the evidence excluded for one of the grounds set forth in Rule 403, this Court will not interfere with the exercise of this discretion unless it appears on the fac e of the rec ord that the trial court clearly abu sed its disc retion. State v. Hayes, 899 S.W.2d 175, 183 (Tenn. Crim . App.), per. app. denied (Tenn.19 95).
State v.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JULY SESSION, 1998 November 20, 1998
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9707-CR-00309 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. FRANK G. CLEMENT TURNER P. WILLIAMS, ) JUDGE ) Appe llant. ) (Direct Ap peal - D .U.I.)
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES R. RAY JOHN KNOX WALKUP 211 T hird Aven ue No rth Attorney General and Reporter P. O. Box 198288 Nashville, TN 37219-8288 LISA A. NAYLOR Assistant Attorney General JAME S BR YAN L EW IS 425 Fifth Avenu e North 217 Se cond A venue N orth Nashville, TN 37201-1649 Nashville, TN 37201-1649 VICTOR S. JOHNSON District Attorney General
GEORGE BONDS Assistant District Attorney Washington Square, Suite 500 Nashville, TN 37201-1649
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
On May 19, 1997, a Davidson County jury found Appellant, Turner
Williams, guilty of Driving Under the Influence of an Intoxicant, first offense. The
trial court sentenced Appellant to eleve n months and twenty-nine days
incarceration, all suspended except for two days, the remainder to be served on
probation. Appe llant filed a time ly notice of app eal, raising two issues on appe al:
(1) Wh ether th e trial co urt erre d in ad mitting into evid ence highly p rejudicial statem ents made by Appellant wh ich were not pro bative of guilt and we re allege dly introduced for the purpose of inflam ing an d preju dicing the jury in violation of Rule 403 of the Tennessee Rules of Evidence; and (2) Whether the trial court erred in refusing to suppress the results of a field sobriety test where the officer gave the test under such adverse conditions that the results were inva lid and should n ot have bee n presented to the jury.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
FACTS
On May 1 ,1996 Serg eant R obert N orton, O fficer W illiam Turbeville, and
Officer Shane Stokes were at the Kwik Sak Convenience Market on West End
Avenue, when A ppellant a pproac hed the m. Acc ording to Serge ant Norton,
Appellant asked whether the three knew Lieutenant Glen Yates. When one of the
officers replied that he knew the name, Appellant responded, “well, next time you
see him, tell him to kiss my ass.” Sergeant Norton testified that Appellant’s eyes
were glassy and blood-shot and Appellant’s speech was slurred. He further
indicated Appellant smelled of an alcoholic beverage. Sergeant Norton advised
Appellant not to drive, and Appellant assured him that he would not. One of the
officers looked outside and observed that another individual was pumping gas
-2- into the car which seem ed to be the one in which A ppellant h ad arrived . W hen
Appellant left the store and got into the driver’s side of the ca r, the three officers
pursued.
Officer Turbeville stopp ed Appe llant’s car at the corner of 18th Ave. and
West End. According to Officer Turbeville, Appellant stated that the officer
“needed to get Lieutenant Yates or Chief Turner on the phone.” Appellant also
made a “vulgar comment” towards Officer Turbeville, indicating that the officer
was in trouble because Appellant knew Emmitt Turner and helped him get
elected.
Sergeant Norto n testifie d that th e hee l-to-toe field sobriety test pre ferably
shou ld be performed on a flat surface. He further related that were the test
performed on a steep grade, the incline could invalidate the results of the test.
Sergeant Norton described the point at which Appellant was stopped as a valley
“midway between two hills.” Officer Turbeville testified and that there w as a wh ite
fog line alongside the road at the point where Appellant was stopped and that the
line was used in administering the heel-to-toe test. Once shown photographs of
the site, Officer Turbeville stated that perhaps he was mistaken in testifying that
there had been a fog line. He testified that according to the photograph of the
location, th ere was no fog line at the site.
According to Officer Turbeville, Appellant did not pass the heel-to-toe field
sobriety test, and the officers did not perform the one-leg-stand test for fear
Appe llant would injure him self. During the heel-to-toe test, Appellant began the
test before instructed to do so, m issed some of the steps from heel to toe, and
-3- stepped off the line. Additionally, Appellant made 12 steps before turning around,
although the instructions were that he was to make 9 steps before turning. An
officer advised Appellant of the implied consent law, and Ap pellant refu sed to
consent to a brea th test. Officer Turbe ville testified that he did not obse rve
Appellant driving in an erratic or otherwise unsafe manner, and that he did not
see Appellant break any traffic laws. Officer Turbeville also testified that Appellant
continued to ma ke thre atenin g rem arks to him a bout th e towin g of Ap pellan t’s
vehicle. Once in the booking room, Officer Turbeville reported that Appellant
asked, “ you d on’t plan on m aking captain, d o you?”
The defense presented Wally Kemp, the owner of Valentino’s Ristorante,
a friend and business partner of Appellant’s, who testified that Appella nt was w ith
him p rior to his arrest. The witness indicated that Appe llant ha d a co cktail ea rly
in the night and sh ared a bottle of wine with three other pe ople during dine r. Mr.
Kemp testified that Appellant did not appear to be intoxicated when he left the
restaura nt shortly be fore his arre st.
I. Prejudicial Sta temen ts
Appellant contends that the trial court erred in admitting into evidence
statem ents made by Appellant to the police officers immediately prior to and at
the time of his arrest. Appellant filed a motion in limine to exclude the statem ents
he deemed prejudicial. The trial court’s ruling excluded some of the comments,
but allowed the State to present some of the offensive statements. In evaluating
a trial cou rt’s ruling on a Tenness ee Ru les of Evide nce Ru le 403 m otion to
-4- exclude evidence, the initial inquiry is whether the evidence offered was relevant
to the case under Tennessee Rule of Evidence Rule 401.
The determination of whether eviden ce is relevant, or, if relevant, should be excluded for one of the reasons set forth in Rule 403, addresses itself to the sound discretion of the trial cou rt. State v. Hill, 885 S.W.2d 357, 361 (Tenn . Crim. A pp.), per. app. denied (Tenn .1994). In deciding these issues , the trial court must con sider, among other things, the ques tions of fact that the jury will have to cons ider in d eterm ining th e acc used 's guilt as well as other evidence that has been introduced during the course of the trial.
State v. D ulsworth, 781 S.W .2d 277 , 287 (T enn. C rim. App . 1989).
If a trial court in the exercise of its discretion finds that evidence is relevant within the meaning of Rule 401, and the accused is not entitled to have the evidence excluded for one of the grounds set forth in Rule 403, this Court will not interfere with the exercise of this discretion unless it appears on the fac e of the rec ord that the trial court clearly abu sed its disc retion. State v. Hayes, 899 S.W.2d 175, 183 (Tenn. Crim . App.), per. app. denied (Tenn.19 95).
State v. Williamson, 919 S.W.2d 69, 79 (Tenn. Crim. App. 1995)
Tennessee Rule of Evidenc e Rule 4 03 perm its a court to exclude relevant
evidence "if its prob ative va lue is substantially outweighed by the d ange r of unfa ir
prejudice ." The S uprem e Cou rt has state d that unfair prejudice is "[a]n undue
tendency to suggest decision on an improper basis, commonly, though not
necessa rily, an em otional on e." State v. DuBose, 953 S.W .2d 649, 654 (Tenn.
1997) (citing State v. Banks, 564 S.W .2d 947 , 951 (T enn.19 78); see also State
v. McCary, 922 S.W .2d at 515 ).
-5- In State v. Banks, the Supreme Court recognized the "policy of liberality in
the admission of eviden ce in both civil and crim inal case s." Banks, 564 S.W.2d
at 949. The trial court must weigh the probative value against p rejudicial effe ct.
This Court cannot substitute its judgment for that of the trial court or declare error
absent a finding th at the trial cou rt abuse d its discretion . State v. Robinson, 930
S.W.2d 78, 85 (Tenn. Crim. App. 1995 (citing State v. Melson, 638 S.W.2d 342
(Tenn .1982)).
Appe llant’s belligerence and obnoxious behavior toward police officers, at
a time when clear th inking would certain ly call for a more subd ued a pproa ch, is
highly probative on the qu estion of A ppellant’s intoxication . Moreover, although
these statem ents were less than wisely made under the circumstances, they do
not strike a chord that co uld be said to undu ly suggest a decision by the jury on
some basis other that the facts of the case. Finally, there is overwhelming
evidence of App ellant’s guilt of D .U.I. an d even without the statem ents it is
virtually certain he wo uld have been convicted. Under these circumstances, we
find that the trial court did not abuse its discretion in determining that the
statem ents were relevant and that the prejud icial effe ct did n ot sub stantia lly
outweig h the pro bative valu e. This iss ue is witho ut merit.
II. Field Sobriety Test
Appellant further complains that the trial court erred in admitting evidence
of the field sobriety test, because the officer who administered the test failed to
com ply with the guidelines set out by the National Highway Traffic Safety
Administration. W e disagree. The admission of evidence is a matter within the
-6- discretion of the trial court. State v. Banks, supra, at 949. The trial court permitted
defense counsel wide latitude in cross-examining the officers regarding the
results of the field-sobrie ty tests and the circum stance s unde r which the tests
were administered. The defense was able to put before the jury testim ony by a
participating officer that a failure to strictly adhere to the safety guidelines might
affect the reliability of the sobriety test. The conditions under which the tests w ere
preformed relate to the weight to be afforded the test results, not the ad missibility
of the results. The weight to give such evidence is a question fo r the jury . This
Court will not second-gu ess such jury determinations. This issu e is withou t merit.
Accordingly, the judgment of the trial court is affirmed.
____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ PAUL G. SUMMERS, JUDGE
___________________________________ DAVID G. HAYES, JUDGE
-7-