IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JANUARY SESSION, 1999 May 27, 1999
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9804-CC-00182
)
Appellee, )
)
) WILLIAMSON COUNTY
VS. )
) HON. HENRY DENMARK BELL
JOEL GUILDS, ) JUDGE
)
Appe llant. ) (Direct Ap peal - D UI)
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID H. KING JOHN KNOX WALKUP
KING, TURNBOW & BRISBY Attorney General and Reporter
203 T hird Aven ue Sou th
Franklin, TN 37064 TIMOTHY BEHAN
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
JOE D. BAUGH, JR.
District Attorney General
JEFF BURKS
Assistant District Attorney
P. O. Box 937
Franklin, TN 37065-0937
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
On April 14, 19 97, the Williamson County Grand Jury indicted Appellant
Joel P. Gu ilds for d riving un der the influence of an intoxicant, second offense,
and for driving on a re voked license. On October 15, 1997, Appellant filed a
motion to have th e two ch arges tried separa tely. The trial court initially denied
the motion, bu t after Appellant’s trial began on Octob er 29, 1997, the trial court
granted the mo tion to sever. Later that sam e day, a W illiamson Cou nty jury
convicted Appellant of driving under the influence of an intoxica nt. On Febru ary
13, 1998, the trial court imposed a sentence of eleven months and twenty-nine
days. Appellant challenges his conviction, raising the following issues:
1) whether Appellant was prejudiced by the late severance of the charges;
2) whether the trial court abused its discretion when it allowed a witness
to testify w ho ha d not b een d isclose d to Ap pellan t until the day of tr ial;
3) whether the evidence was sufficient to support Appellant’s conviction;
and
4) whether a comment by the prosecutor during closing argument
constituted prosecutorial misconduct that deprived Appellant of a fair trial;
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
I. FACTS
Officer Daniel Aloy of the Franklin, Tennessee Police Department testified
that while he was responding to a call in downtown Franklin on February 13,
1997, he heard a loud crash. Aloy then turned around and saw that a car had
struck a large flowerpot and a light pole a short distance away. When Alo y
arrived at the scene, he saw that Appellant was in the driver’s seat and was the
only person in the car. Aloy then made contact with Appellant and observed that
-2-
Appellant had slurred speech, appeared to be only semi-conscious, and had
difficulty answ ering qu estions.
Officer Frank Soto of the Franklin Police Department testified that he
arrived at the acc ident soo n after it occu rred and he “took over the s cene.”
Shor tly after Soto approached Appellant, Soto recognized him because Soto had
known Appellant for approximately five or six years. Soto smelled the odor of
alcohol coming from both the inside of the car and from Appe llant’s person and
he saw a beer can on the floor of th e car. So to also observed that Appellant had
slurred speech and glassy, red eyes. Soto further observed that Appellant
appeared to have a head injury and that the windshield of Appellant’s car had
been b roken b y what S oto gue ssed w as prob ably App ellant’s hea d.
Soto testified that shortly after he arrived at the scene, Appellant was
transported to the hospital by some paramedics. Soto subsequently met
Appe llant at the hos pital and a sked h im to take a blood a lcohol tes t. W h en
Appellant refused, Soto asked him whether he had been drinking. Appellant then
responded, “You know me.” Appellant then stated that he ha d fallen aslee p while
he was driving his vehicle.
Soto testified that he did not ask Appellant to take a breath test for alcohol
because the breathalyser was at the Williamson Coun ty Jail and Appe llant co uld
not be transported there because of his medical condition. Soto also testified that
he did not have A ppellant perform any field so briety tests because Appellant was
injured. Soto ad mitted tha t he could not be su re wheth er App ellant’s slurred
speec h and b ehavior w ere due to intoxication or to injury.
-3-
Nancy Steagal testified that she was one of the paramedics who treated
Appellant at the s cene of the a ccident. Wh en Stea gal ma de con tact with
Appellant, he complained of pain in his back, neck, wrist, and knee. Steagal
observed that Appellant’s words were not plain and sounded “sluggish.” Steagal
also noticed that an odor of alcohol was coming from the car and the odor
became stronge r when s he app roache d Appe llant. Steag al also testified that
Appellant was awake, alert, and oriented; he denied drinking alcohol and stated
that he ha d fallen as leep at the wheel.
Doctor Paul H agan te stified that he was the emergency room physician
who treated Appe llant when Ap pellant was bro ught to the hos pital. Whe n Dr.
Hagan made contact with Appellant, Appellant complained of pain in his cheek,
jaw, left knee, and right arm. Other than the pain in his cheek and jaw, Appellant
made no other complaint of any head injury. Dr. Hagan observed that Appellant
had a strong odor of alcohol on his person and had slu rred speech and other
sympto ms of into xication su ch as ny stagm us of the e yes.
Dr. Hagan testified that the radiology report indicated that Appellant had
suffered an injury to the head. Dr. Hagan then acknowledged that nystagmus
could be caused by a head injury, but he stated that he had never seen the type
of nystagmus that Appellant had in a head injury ca se. Dr . Hag an sta ted tha t in
his opinion, a patient with nystagmus similar to that o f Appe llant wo uld us ually be
uncon scious.
-4-
II. SEVERANCE
Appellant contends tha t he was prejud iced by the late severance of the
charge for driving under the influence from the charge for driving on a revoked
license. We find otherwise.
The record indicates that after the trial court informed the jury about the
nature of the case, a jury-out hearing was conducted. During this hearing, the
court granted Ap pellant’s motion to s ever the two ch arges. W hen the jury
returned, the court instructed th e jury that this case on ly involved a charge for
driving under the influence. The court further instructed the jury that they sh ould
disrega rd the se cond c harge.
W e conclude that Appellant has failed to show that he was prejudiced by
the late severance of the charges. The record indicates that the charges were
severed before any evidence was introduced about the charge of driving on a
revoked license. Further, the trial cou rt clearly instructed the jury that it shou ld
only be concerned with the charge o f driving un der the influen ce an d it sho uld
disregard the other charge . “It is well-establish ed that juro rs are pre sume d to
follow the instructions given by the trial judge.” State v. Cribbs, 967 S.W.2d 773,
784 (Tenn. 1998). See also State v. Math is, 969 S.W.2d 418, 422 (Tenn. Crim.
App. 19 97). Th is issue ha s no m erit. 1
1
However, we do caution trial courts that motions to sever offenses for trial should be resolved
prior to the com me nce me nt of tr ial and the im pan elling o f the ju ry.
-5-
III. UNDISCLOSED WITNESS
Appellant contends that the trial cou rt abus ed its d iscretio n whe n it allowed
a witness to testify who had not been disclosed to the defense until the day of
trial. We again must disagree.
The record indicates that the State failed to include Nancy Steagal’s name
on the indictment as required by Tennessee Code Annotated section 40-17-106,
which provides:
It is the duty of the district attorney general to endorse on each indictment
or presentment, at the term at which the same is found, the names of such
witnesses as the district attorn ey gen eral inte nds s hall be sum mon ed in
the cause, and sign such indictment or presentment name thereto.
Tenn. Code Ann. 40-17-106 (1997). However, it is well-established that the du ty
created by this statute is mere ly directory, not mand atory. State v. Harris , 839
S.W.2d 54, 69 (Ten n. 1992 ); State v. Kendricks, 947 S.W.2d 875, 947 (Tenn.
Crim. App. 1996). The State’s failure to include a witness’ name on the
indictment will not a utom atically disqualify the witness fro m testifying . Harris , 839
S.W.2d at 69; Kendricks, 947 S.W .2d at 947 . Rather, a defendant will be entitled
to relief for non disclosu re only if he o r she can demo nstrate prejudice, bad faith,
or undue advanta ge. Harris , 839 S.W .2d at 69; Kendricks, 947 S.W.2d at 947.
The determination of whether to allow the witness to testify is left to the sound
discretion of the trial cou rt. Kendricks, 947 S.W .2d at 947 ; State v. Underwood,
669 S.W .2d 700 , 703 (T enn. C rim. App . 1984).
Here, Appellant has not even alleged that the State acted in bad faith or
had an undue advantage because of the failu re to dis close Steag al’s iden tity until
-6-
the da y of trial. Indeed, neither of these allegations would be supported by the
record. Further, a lthough Appellant complains that he was “completely surprised”
by Steagal’s presence as a witness, he has failed to indicate how he was
prejudiced by that surprise. Indeed, the record indicates that wh en Ap pellan t’s
counsel informed the trial court that he had not previously been notified that
Steagal would be a w itness, the court gave him an opportunity to interview
Steagal before she testified and he took advanta ge of that oppo rtunity. Further,
Appe llant’s counsel subsequently conducted a very able cross-examination of
Steag al. In this case , Appellant has simply failed to indicate anything that he
could or wou ld have done differen tly if he had known abou t Steag al earlie r. This
issue ha s no m erit.
IV. SUFFICIENCY OF THE EVIDENCE
Appellant contends that the evidence was insufficient to supp ort his
conviction for driving under the influence of an intoxicant. We disagree.
When an a ppellant challenges the sufficiency of the evidence , this Court
is obliged to review that challenge according to certain well-settled principles. A
verdict of guilty by the jury, approved by the trial judge, accredits the testimony
of the State’s witnesses and resolves all conflicts in the testimony in favor of the
State. State v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94). Although an accused
is originally cloaked with a p resump tion of innocenc e, a jury verdict remo ves this
presumption and re place s it with one o f guilt. State v. Tug gle, 639 S.W.2d 913,
914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with Appellant to
demo nstrate the insufficie ncy of the convicting eviden ce. Id. On appeal, “the
-7-
[S]tate is entitled to th e strong est legitimate view of the evid ence as we ll as all
reaso nable and legitimate inferences that m ay be drawn therefrom.” Id. Wh ere
the sufficiency of the evidence is contested on appeal, the relevant question for
the reviewing court is wh ether an y rational trier o f fact could have found the
accused guilty of every element of the offense beyond a reason able do ubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560
(1979). In conducting our evaluation of the convicting evidenc e, this C ourt is
precluded from rew eighing o r recons idering the evidenc e. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996). Moreover, this Court may not
substitute its own inferences “for those drawn by the trier of fact from
circumstantial evidence.” State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Finally, Rule 13(e) of the Tennessee Rules of Appellate Pro cedure
provides, “finding s of gu ilt in criminal actions wheth er by the trial court or jury
shall be set aside if the evidence is insufficient to support the findings by the trier
of fact beyo nd a rea sonab le doub t.”
In order to establish that Appellant had committed the offense at issue
here, the Sta te was require d to pro ve that A ppella nt drov e his ve hicle o n a pu blic
street while he w as “[u]nd er the influe nce of an y intoxicant, marijuana, narco tic
drug, or drug producing stimulating effects on the central nervous system.” Tenn.
Code Ann. § 55-10-401(a)(1) (1998). Appellant concedes that the State proved
that he operated his vehicle on a public street. However, Appellant contends that
the State did not prove that he was under the influence of an intoxicant (alcoh ol)
when he did so.
-8-
Appellant basically argues th at because the case is circum stantial, the jury
could not have found that the facts presented excluded eve ry other re ason able
theory or hypothesis except that of guilt. Specifically, Appellant argues that the
jury could have a ccepted his the ory that his slurred spe ech and n ystagmus were
actually caused by his head injury rather than intoxication. It is true that where
the eviden ce is en tirely circumstan tial, the eviden ce mu st allow the jury to
exclude every othe r reason able theo ry or hypo thesis exc ept that of g uilt. State
v. Ball, 973 S.W.2d 288, 292 (Tenn. Crim. App. 1998). Of course, “[l]ike all other
fact ques tions, th e dete rmina tion of w hethe r all reas onab le theo ries or
hypothese s are excluded by the evidence is primarily a jury question.” Id.
W e conclude that the evidence, when viewed in the light most fav orable to
the State, was sufficient for a rationa l jury to exclude Appellant’s theory and find
beyond a reas onab le doubt that Appellant had committed the offense of driving
under the influence of an intoxicant. The evidence showed that Appellant was
involved in a single vehicle accident in which he drove his car off the road and
into a flowerpot and light pole. Further, Soto testified that he found a beer can
in Appella nt’s car. Soto and Steagal both testified that there was an odor of
alcohol comin g from A ppellant’s car. Soto, Steagal, and Hagan all testified that
they could smell alcohol on Appellant’s person. Aloy, Soto, Hagan, and Steagal
all described Appellant’s speech as either slurred or sluggish and Aloy testified
that Appellant was only sem i-conscio us and had difficu lty answering questions.
Soto testified that Appellant had red, gla ssy eyes. Dr. Hagan testified that
Appellant had nystagmus of the eyes, which was consistent with intoxication.
Although Dr. Hagan testified that nystagmus could be caused by a head injury,
he also testified that Appellant’s head injuries did not appear to be serious and
-9-
further, he had never seen Appellant’s type of nystagmus in a head injury case.
Dr. Hagan also stated that someone with Appellant’s type of nys tagm us wo uld
usua lly be unconscious. When Soto asked Appellant to take a blood alc ohol test,
Appellant refused. Finally, when Soto asked Appellant whether he had been
drinking, A ppellant re spond ed, “You know m e.”
In this cas e, App ellant e ssen tially asks us to reconsider the evidence and
substitute a verdict of n ot guilty in exc hange for the verdict found by the jury.
That is not our function. Instead, we conclude that a rational jury could have
found beyond a re asonable doubt that Appellant had committed the offense of
driving unde r the influ ence of an in toxicant. See Tenn. R . App. P . 13(e) . This
issue ha s no m erit.
V. PROSECUTORIAL MISCONDUCT
Appellant conte nds th at he w as de nied a fair trial when the prosecutor
referred to him as a “clown” during his closing argument. We disagree.
The record indicates that during his closing argument, the prosecutor made
the followin g com ment:
Now we ca n talk a ll day ab out wh at evide nce is c ircum stantia l and w hat’s
direct. I s ubm it that there is a great deal of direct evidence. T he officers
saw the accid ent. They’re standing right across the street fro m it wh en this
clown, driving and saying that he went to sleep, drives right into a lamp
post at 1:30 or so in the morning and then states, although everyone who
testified smelled alcohol, that he hadn’t been drinking. And he refuses a
test.
-10-
W hile we agree w ith Appellant that the re ference to him as a “clown” was
undoubta bly improper, we conclude that Appellant is not entitled to a new trial
becau se of it.
“Wh ere argument is found to be improper the established test for
determining whether there is reversible error is whether the improper conduct
could have affected the verdict to the prejudice o f the defendan t.” State v.
Cauthern , 967 S.W.2d 726, 737 (Tenn. 1998) (citation and internal quotations
omitted). There are five factors th at mu st be e xamin ed in o rder to mak e this
determination: 1) the con duct com plained o f, viewed in ligh t of the facts and
circumstances of the case; 2) the curative measures und ertaken by the c ourt
and the prosecution; 3) the intent of the prosecutor in making the im proper
statem ent; 4) the cumulative effect of the imprope r conduct an d any other erro rs
in the record; and 5) the relative strength or weakn ess of the case. Id. (citations
omitted).
Initially, we note that Appellant waived this issue by filing to make a
contemporaneous objection at trial. State v. Keen, 926 S.W.2d 727, 736 (Tenn.
1994); State v. Green, 947 S.W .2d 186, 188 (Tenn. Crim. App. 19 97); State v.
Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992). How ever, we conclude that
Appellant is not entitled to relief even on the merits. First, the conduct
complained of, when viewed in light of the facts and circumstances of the case,
indicates that the jury w ould no t have been prejudiced b y the use of the term
“clown.” The prosecutor’s use of the term “clown” was only an isolated incident
and it was far less inflamm atory than other co mm ents that the Tennessee
Supreme Court has found to be harmless error. See Cauthern , 967 S.W.2d at
-11-
736–38 (prosecutor’s refere nce to defen dant as “the evil one” was harmless
error); State v. Bates, 804 S.W.2d 868, 881 (Tenn. 1991) (prosecutor’s two
references to d efendant as a “rabid dog” we re harmless errors); State v. Miller,
771 S.W.2d 401, 405 (Tenn. 1989) (prosecutor’s reference to defendant as
“perverted” was harm less error). Second, although no curative mea sures were
taken by the trial court or the prosecution, this was primarily because the defense
failed to object. Third, it appears that the intent of the prosecutor was to point out
the inconsistencies between the defense theory of the case and the evidence that
was presented at trial. Fourth, the cumulative effect of this error and any other
errors was not sufficient to deny Appellant a fair trial. Fifth, the State’s case was
fairly strong. Under these circumstances, we conclude that th e pros ecuto r’s
improper comment did not affect the verdict to the prejudice of the defe ndant.
This issu e has n o merit.
Accordingly, the judgment of the trial court is AFFIRMED.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
JOHN H. PEAY, JUDGE
___________________________________
DAVID H. WELLES, JUDGE
-12-