IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1996 SESSION
July 3, 1996
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) No. 03-C-01-9503-CR-00107
)
APPELLEE, ) Carter County
)
v. ) Lynn W. Brown, Judge
)
DANIEL G. HAMPTON, ) (DUI, Driving on a Revoked
) License, and Violation of
APPELLANT. ) Implied Consent Law)
FOR THE APPELLANT: FOR THE APPELLEE:
Daniel G. Hampton, pro se Charles W. Burson
Route 8, Box 1885 Attorney General & Reporter
Elizabethton, TN 37643 450 James Robertson Parkway
Nashville, TN 37243-0497
Darian B. Taylor
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
David E. Crockett
District Attorney General
Route 19, Box 99
Johnson City, TN 37601
Steven R. Finney
Asst. District Attorney General
Carter County Courthouse Annex
Elizabethton, TN 37643
OPINION FILED: ____________________________
AFFIRMED
JOE B. JONES, PRESIDING JUDGE
OPINION
The appellant, Daniel G. Hampton, was convicted of driving under the influence,
second offense, a Class A misdemeanor, two counts of driving on a revoked license, Class
B misdemeanors, and violation of the implied consent law by a jury of his peers. The trial
court sentenced the appellant to eleven months and twenty-nine days in the Carter County
Jail with all but seventy days suspended for the driving under the influence, second
offense; six months suspended in the Carter County Jail for driving on a revoked license
on April 9, 1994 which was ordered to run concurrently with the other sentences; and six
months in the Carter County Jail with all but twenty days suspended for driving on a
revoked license on April 1, 1994 which was ordered to run consecutively to the driving
under the influence, second offense conviction.
The appellant appeared pro se at trial and on appeal. In this Court, the appellant
contends that the evidence contained in the record is insufficient, as a matter of law, to
support a finding by a rational trier of fact that he was guilty of driving on a revoked license.
He challenges the authority of the Tennessee Highway Patrol to conduct roadblocks. He
claims he was denied his constitutional right to a trial by a jury. Finally, the appellant
claims he was denied a fair trial. After a thorough review of the record, the briefs of the
parties, and the law governing these issues, this Court is of the opinion that the convictions
and sentences should be affirmed.
FACTS
On the evening of April 9, 1994, the appellant was stopped at a Tennessee Highway
Patrol roadblock in Elizabethton, Tennessee. The appellant had bloodshot eyes, an odor
of an intoxicating beverage on his breath, and his speech was “just a little bit slurred.” An
alcohol detection device called a passive alcohol sensor indicated a strong presence of
alcohol coming from the appellant’s vehicle. The sensor indicated that the sample of air
was .10 or above. Tennessee Highway Patrol Officer Glover administered field sobriety
tests. The horizontal gaze nystagmus test resulted in nystagmus during smooth pursuit
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and at maximum deviation with the angle of onset at approximately 45 degrees. While
performing the HGN test, the appellant was unsteady on his feet. He swayed back and
forth. He refused to perform the one-leg-stand test and the walk-and-turn test due to an
alleged pulled hamstring muscle in his leg. Based upon his observations and training,
Trooper Glover believed the appellant was under the influence of alcohol.
The appellant was read the implied consent form. He advised the state trooper that
he would not submit to a chemical breath test. The appellant’s refusal to submit to a
breath test was admitted at trial. Appellant signed a written waiver of his right to an
attorney and voluntarily and knowingly exercised his right to self-representation.
SUFFICIENCY OF THE EVIDENCE FOR DRIVING ON A REVOKED LICENSE
When an accused challenges the sufficiency of the convicting evidence, this Court
must review the record to determine if the evidence adduced at trial is sufficient "to support
the finding of the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e).
This rule is applicable to findings of guilt based upon direct evidence, circumstantial
evidence, or a combination of direct and circumstantial evidence. State v. Dykes, 803
S.W.2d 250, 253 (Tenn. Crim. App.), per. app. denied (Tenn. 1990).
In determining the sufficiency of the convicting evidence, this Court does not
reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App.), per. app. denied (Tenn. 1990). Nor may this Court substitute its inferences for those
drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298,
305, 286 S.W.2d 856, 859, cert. denied, 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956).
To the contrary, this Court is required to afford the State of Tennessee the strongest
legitimate view of the evidence contained in the record as well as all reasonable and
legitimate inferences which may be drawn from the evidence. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978).
Questions concerning the credibility of the witnesses, the weight and value to be
given the evidence, as well as all factual issues raised by the evidence are resolved by the
trier of fact, not this Court. Cabbage, 571 S.W.2d at 835. In State v. Grace, 493 S.W.2d
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474, 476 (Tenn. 1973), our Supreme Court said: "A guilty verdict by the jury, approved by
the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State."
Since a verdict of guilt removes the presumption of innocence and replaces it with
a presumption of guilt, the accused, as the appellant, has the burden in this Court of
illustrating why the evidence is insufficient to support the verdicts returned by the trier of
fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This Court will not disturb a
verdict of guilt due to the sufficiency of the evidence unless the facts contained in the
record are insufficient, as a matter of law, for a rational trier of fact to find that the accused
is guilty beyond a reasonable doubt. Tuggle, 639 S.W.2d at 914.
The appellant argues that the evidence was legally insufficient to support a guilty
verdict on the charges of driving a motor vehicle after his driver’s license was revoked
because (1) the state could not revoke his license when he consciously let the license
expire, and (2) he did not have the criminal intent to violate the law because he was
unaware that his driver’s license had been revoked.
The custodian of the Tennessee State Driving Records for the Department of
Highway Safety in Nashville testified that the appellant’s license was revoked on June 17,
1986. The appellant’s license was on revoked status when he committed the offenses.
Tenn. Code Ann. § 55-50-504(a)(1) makes it illegal for any person to drive a motor
vehicle on any public road “when the person’s privilege to do so is canceled, suspended,
or revoked. . . .” Tenn. Code Ann. § 55-50-102 (42) defines “Revocation of driver license”
as “the termination . . . of a person’s driver license or privilege to operate a motor vehicle
on the public highways.” Here, the appellant intended to drive his car knowing that his right
to operate a motor vehicle had been terminated by the state. The fact that appellant did
not know or understand that the law proscribed the conduct he intentionally undertook
provides no legal excuse. State v. Hayes, 899 S.W.2d 175, 182 (Tenn. Crim. App.), per.
app. denied (Tenn. 1995); State v. Anderson, 894 S.W.2d 320 (Tenn. Crim. App. 1994).
This issue is without merit.
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LEGALITY OF THE ROADBLOCK
Tenn. R. Crim. P. 12 (b)(3) requires that all motions to suppress be filed prior to the
day of the trial. State v. Aucoin, 756 S.W.2d 705, 709 (Tenn. Crim. App.), cert. denied,
489 U.S. 1084, 109 S.Ct. 1541, 103 L.Ed.2d 845 (1989). The appellant filed a motion to
suppress on September 22, 1994, prior to the September 27, 1994 trial. However,
appellant did not get a motion date for a suppression hearing on the motion. Rather,
appellant wanted his motion heard on the day of trial. The trial court informed the appellant
that he was required to schedule a hearing so the motion could be heard prior to trial. As
such, the appellant has waived this issue. Tenn. R. Crim. P. 12(f); Tenn. R. App. P. 36(a).
An accused who validly asserts his constitutional right to represent himself does so at his
own peril. Faretta v. California, 422 U.S. 806, 835-36, 95 S.Ct. 2525, 2541, 45 L.Ed.2d
562 (1975).
The trial court considered the motion to suppress while the jury was excused.
Appellant’s motion to suppress raised the following issue:
Defendant’s Fourth Amendment rights were violated due to an
unconstitutional/unlawful stop by said named officer, without
probable/reasonable cause in a “D.U.I. Sobriety Checkpoint
Roadblock”. Defendant also holds that a Tennessee Statute
granting authorization for such an unlawful stop does not exist.
The trial court denied the motion.
The Tennessee Highway Patrol, with the help of local officers, was conducting a
roadblock as part of a program called “Checkpoint Tennessee,” which is sponsored by the
Tennessee Department of Safety. The officers stopped all vehicles traveling towards and
traveling away from Elizabethton on Highway 67. Once stopped, the officers checked the
drivers’ licenses, vehicle registration, and looked for signs of intoxication. If there was no
indication that the driver had been drinking and the driver had a valid driver’s license and
registration, he or she was allowed to drive away. However, if the officer developed a
reasonable suspicion that the driver had been drinking, he or she was detained for
investigation of driving under the influence.
The appellant alleges that roadblocks are illegal because they are conducted
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without a suspicion of wrong-doing. However, the United States Supreme Court has held
that such stops do not violate the Fourth Amendment. Michigan Dept. of State Police v.
Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). Article I, Section 7 of the
Tennessee Constitution is interpreted no differently than the Fourth Amendment in the
context of suspicionless roadblock stops. State v. Sarah Hutton Downey, Hamilton County
No. 03-C-01-9307-CR-00221 (Tenn. Crim. App., Knoxville, October 10, 1995), per. app.
granted (Tenn., April 1, 1996). Given the strong interest of the state in preventing drunk
driving, the minimal intrusion imposed on individuals stopped in this roadblock, and the lack
of officer discretion in deciding which vehicles to stop, this roadblock did not violate the
Tennessee or United States Constitutions.
The appellant also argues that no law exists which authorizes the Highway Patrol
to conduct these roadblocks. Tennessee Highway Patrol Officers have the statutory duty
to enforce all laws regulating the use of Tennessee Highways. Tenn. Code Ann. § 4-7-
104. This would obviously include laws against drunk driving. There are no laws
prohibiting the use of roadblocks for drunk driving detection.
This issue is without merit.
NOTICE OF THE CHARGES
The appellant complains that despite repeated requests of the trial court and the
assistant district attorney general, he was never offered laws or statutes to inform him of
“the nature and cause of the accusations.” Based on the transcript of the proceedings, the
appellant’s main complaint is that when the trial court denied his motions to suppress and
to dismiss, it did not cite an exact statute or case law that the appellant was charged with
violating.
The transcript indicates that the appellant was furnished with a copy of the
indictment which contained all of the charges against him prior to trial. Each count
identified the specific statute the appellant was charged with violating. A review of the
indictments indicates adequate notice of the charges facing the appellant. See State v.
Mayes, 854 S.W.2d 638, 640 (Tenn. 1993); State v. Sowder, 826 S.W.2d 924, 928 (Tenn.
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Crim. App. 1991), cert. denied, U.S. , 114 S.Ct. 229, 126 L.Ed.2d 184 (1993).
This issue is without merit.
RIGHT TO WAIVE A TRIAL BY JURY
The appellant claims that the trial court required him to be tried by a jury over his
objection. The only evidence in the record that the appellant waived his right to a trial by
jury appears at the motion for new trial. The appellant recalled that at his arraignment he
“simply made the statement that [he] did not feel a jury was necessary” and was then told
by the judge “[w]e’re going to have a trial by jury.” The court did not remember this
conversation. The appellant admitted that he never filed a written motion to waive the jury
trial. The record supports this assertion. Absent a written waiver of the right to a trial by
jury, the court must provide a trial by jury. Tenn. R. Crim. P. 23(a); State v. Bobo, 814
S.W.2d 353, 359 (Tenn. 1991) (citing State v. Durso, 645 S.W.2d 753, 758 (Tenn. Crim.
App. 1983)).
This issue is without merit.
DUE PROCESS
The appellant claims that he was denied a fair trial because he did not know the trial
would start the same day the jury was selected. However, the record does not contain a
defense motion for continuance. Nor does the record indicate that the appellant’s lack of
preparation was brought to the attention of the trial court. Appellant’s brief, which was filed
on November 17, 1995,1 indicates that he did not present a defense in the trial court
because he mistakenly believed he could introduce facts in this Court. This issue is
therefore waived. Tenn. R. App. P. 36(a); State v. McPherson, 882 S.W.2d 365, 373
(Tenn. Crim. App.), per. app. denied (Tenn. 1994); State v. Gregory, 862 S.W.2d 574, 578
(Tenn. Crim. App. 1993); State v. Thomas, 818 S.W.2d 350, 364 (Tenn. Crim. App.), per.
app. denied (Tenn. 1991).
1
The appellant filed three appellate briefs in this case.
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The appellant also argues that his trial was fundamentally unfair because the trial
court refused to consider the law cited in the appellant’s motion to suppress. As a result,
the appellant chose to “stand mute” during the trial.
The appellant’s decision to “stand mute” during the trial was a knowing and
voluntary choice. The appellant was not denied the opportunity to present his case, cross-
examine witnesses, or appeal the judge’s rulings of law. Moreover, the appellant executed
a written waiver of the right to counsel. The appellant felt it in his best interest to represent
himself even after all the verdicts in this case except the second offense of driving under
the influence were returned. The following colloquy took place in regards to additional
charges of driving on a revoked license:
The Court: [Y]ou have the -- the same three choices
regarding representing yourself, hiring an
attorney, or asking the Court to appoint you an
attorney as we -- as I explained the last time. . .
. [W]hat do you want to do in that case regarding
a lawyer?
Appellant: Represent myself.
The Court: And, state for the record why you want to do
that.
Appellant: I feel it’s my best interest.
The Court: [A]re you still under the belief what you told me
about Abraham Lincoln?
Appellant: Oh, I still believe that.
The Court: What -- what did Mr. Lincoln say?
Appellant: He said, anyone who has a -- anyone who
represents himself in a court of law has a fool for
a client, and Abraham Lincoln was an attorney.
The Court: This is true. So, you understand that -- that you
are -- are held to all of the technical knowledge --
Rules of Evidence, Rules of Procedure that --
that a lawyer would be?
Appellant: Yes, sir.
The trial court took extra precautions to assure a fair trial. The court sua sponte excluded
testimony elicited by the state that was objectionable. In short, the appellant was not
denied a fair trial.
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This issue is without merit.
JOE B. JONES, PRESIDING JUDGE
CONCUR:
JOHN H. PEAY, JUDGE
DAVID H. WELLES, JUDGE
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