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proceeding when State v. McClintock is no longer valid law after the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.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
GARY R. WADE, PRESIDING JUDGE
___________________________________
DAVID G. HAYES, JUDGE
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State v. Don Palmer Black
Combined Opinion