IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBE R SESSION, 1998 FILED
December 11, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9709-CR-00344
) Cecil Crowson, Jr.
Appellate C ourt Clerk
Appellee, )
)
) SHELBY COUNTY
VS. )
) HON. JOSEPH DAILEY
JOHNNY LAWRENCE, ) JUDGE
)
Appe llant. ) (DUI—Second, Reckless Driving)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF SHELBY COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
A.C. WHARTON JOHN KNOX WALKUP
Public Defender Attorney General and Reporter
WA LKER GW INN GEORGIA BLYTHE FELNER
Assistant Public Defender Assistant Attorney General
201 Poplar Avenue 425 Fifth Avenu e North
Memphis, TN 38103 Nashville, TN 37243
WILLIAM GIBBONS
District Attorney General
DAVID C. HENRY
Assistant District Attorney General
Criminal Justice Complex, Suite 301
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant, Johnny Lawrence, pursuant to Tennessee Rule of
Appe llate Procedure 3(b), appeals as of right his convictions for driving under the
influence of an intoxicant—second offense and reckless driving. The sole issue
for review by this Court is whether his conviction on both charge s unde r the facts
of this case violates Defendant’s right against double jeopardy as provided by the
Tennessee Constitution. We conclude that it does not, and we affirm the verdict
of the jury as approve d by the trial c ourt.
According to the proof at trial, Defendant was stopped in his vehicle at
appro ximate ly 7:00 a.m. on October 8, 1995 by Officer Williams of the Mem phis
Police Depa rtment. O fficer Williams testified at trial that he noticed Defendant
drive both right tires of his car over a curb as he exited the parking lot of a bank
and entered a Memphis street. Williams followed Defendant for a short distance
and observed the car “weaving across lanes of traffic.” When the officer stopped
Defen dant an d aske d him to step out of the car, Defendant staggered, smelled
of alcoho l, and had slurred sp eech.
Officer Williams determined that, based upon his experience, Defendant
had been driving in an impaired state due to alcohol consumption; and the officer
drove Defendant to the location of DUI Officer E.W . W hite to u nderg o field
sobriety testing. One of the officers informed Defendant of his rights and of the
implied consent law; Defendant then refused to submit to an alcohol content test.
Officer Wh ite video taped the field sobrie ty tests a dmin istered —h eel-to- toe wa lk
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and index finger-to-nose—which Defendant failed. According to the DUI Field
Sobriety Report entered into evidence, Officer White also observed that
Defe ndan t’s eyes appeared bloodshot and sleepy and that the odor of alcohol
was strong. In th e report, Wh ite con curred in Office r W illiams’s conclusion that
the effects of alcoho l upon Defe ndant were “extreme.”
This case is governed by the do uble je opard y analy sis announced by the
supreme court in State v. Denton, 938 S.W.2d 373 (Tenn . 1996). Curiously, the
State neither cites this controlling opinion nor addresses its test, relying instead
only upon an examination of this issue in terms of the “same elements” te st of
Blockburger v. United States, 284 U.S. 299 (19 32). 1 The Blockburger test is on ly
a part of what we must consider for a double jeopardy challenge under the
Tenn essee Constitu tion.
In Denton, the su prem e cou rt exam ined d ouble jeopa rdy prin ciples in this
state and clarified how Ar ticle I, section 1 0 of the T ennes see Co nstitution
provides greate r protection for the criminal defendant against double jeopardy
than does the federal constitution. That clarification emerged as a four-pa rt test:
[R]esolution of a double jeopardy punishment issue under the
Tennessee Constitution requ ires the following: (1) a Blockburger
analys is of the statutory offenses; (2) an analysis, guided by the
principles of Duchac, of the evide nce us ed to prove the offenses; (3)
a consideration of wh ether the re were m ultiple victims or discrete
acts; and (4) a comparison of the purpose s of the respec tive
statutes. None of these steps is determinative; rather the results of
each m ust be weigh ed and co nsidered in relation to each other.
Denton, 938 S.W.2d at 381 (discussing Blockburger v. United States, 284 U.S.
299 (1932), and Duch ac v. State , 505 S.W .2d 237 (Tenn . 1973)); see State v.
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Though, curiously again, the State does not cite to Blockburger as support for the
“same elements” test.
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Winningham, 958 S.W.2d 740, 743 (Tenn. 1997); State v. Hall, 947 S.W.2d 181,
183 (Ten n. Crim. App . 1997).
Applying that test to this case, we conclude that the factors weigh in favor
of affirming Defendant’s convictions for DUI and reckless driving as not violative
of our double jeopardy protections under the state constitution. First, under the
federal double jeopard y principles of Blockburger, the offenses are not the same
and deserve no Fifth A mend ment p rotection. See Blockburger, 284 U.S. at 304.
The Supreme Court stated in Blockburger that “the test to b e app lied to
determine whether there are two offenses or only one is whether each provision
requires proo f of an additional fact wh ich the other doe s not.” Id.
In 1995 the offense of DUI required (a) any person or persons to drive or
be in physical control of a vehicle; (b) on any public road, highway, stree t, or
alley, or on the premises of any shopping center, trailer park, apartm ent comp lex,
or other place generally frequented by the public at large; (c) while under the
influence of any intoxicant, marijuana, narcotic drug, or drug producing
stimulating effects on the central nervous system. Tenn. Code Ann. § 55-10-401.
The offense of reckless driving required (a) any pe rson to drive any vehicle, (b)
in willful or wanton disregard for the safety of person s or prop erty. Id. § 55-10-
205. DUI, then, lacks the element of willful an d wan ton dis regar d for sa fety, wh ile
reckless driving lacks the element of being un der the influ ence o f an intoxica nt.
In additio n, this C ourt ha s previo usly he ld that reckless driving is not a lesser
included offense o f DUI. Fournie r v. State, 945 S.W.2d 766, 769 (Tenn. Crim.
App. 1996) (citing Ray v. Sta te, 563 S.W.2d 218, 219 (T enn. Crim. A pp. 1977));
cf. State v. Boggs, 865 S.W.2d 920, 921-22 (Tenn. Crim. App. 1992) (holding that
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reckless endan germe nt, in vehicular context, is not a lesser included offense of
DUI). These offenses fail to meet the Blockburger test to qualify as the “same
offense” for double jeopardy purposes.
Next, we an alyze w hethe r, unde r the prin ciples of Duchac v. Sta te, 505
S.W.2d 237 (T enn. 19 73), the sa me evid ence w as use d to convict Defendant of
both DUI and reckless driving. “If the same evidence is not required [to prove
each offense], then the fact that both charges relate to, and grow out of, one
transac tion, does not make a single offense where two are defined by the
statutes.” Id. at 239. Furthermore, “[t]here is no identity of offenses if on the trial
of one offense proof of some fact is required that is not necessary to be proved
in the trial of the other, although some of the same acts may necessarily be
proved in the trial of each .” Id.
Here, the evidence n ecessary to convict Defendant of reckless driving was
the testimony by Officer Williams that Defendant drove over a cu rb in his attempt
to access the public street and that he weaved across lanes of traffic while other
vehicles shared the road way. In contrast, proof that Defendant operated or was
able to ope rate his vehicle ; that he sme lled strongly of alcohol; that he had
bloodshot eyes and a slow, confused response; that he fa iled his field so briety
tests; and that he sta ggered and sw ayed wa s sufficient to convict Defendant of
DUI. We find the necessary burdens of evidentiary proof for each offense
sufficie ntly separate to constitute dissimilar offenses under the Duchac “same
evidence” test. See, e.g., State v. Daniel Long, No. 02C0 1-9610-CC-00362,
1998 WL 74253, at *13 (Tenn. Crim. App., Jackson, Feb. 24, 1998) (concluding
that “same evidenc e” test wa s not m et in rape/sexu al battery case in which
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defendant both digita lly penetrate d victim, fondled victim’s breasts, and forced
victim to masturbate him with her hand during same period o f time); cf. State v.
W illie B. Jackson, No. 01C01-9702-CR-00054, 1998 WL 199992, at *10 (Tenn.
Crim. App., Nashville, Apr. 23, 1998) (concluding that “same evidence” test was
met in sale/delivery of cocaine case in which defendant sold cocaine but another
actua lly delivered it; therefore trial court must have relied upon eviden ce of s ale
to convict defendant of delivery charge). Application of this factor weighs in favor
of not bar ring a con viction for bo th offense s.
Third, we consider whether the proof showed “multiple vic tims or dis crete
acts.” See State v. Denton, 938 S.W.2d 373, 381 (Tenn. 1996). In this case, the
victims of both offenses were the State as the sovereign and the community at
large. State v. Winningham, 958 S.W .2d 740 , 746 (T enn. 19 97). Moreover, for
the purpo se of th is case , we find only one physical act—driving a vehicle from the
bank parking lot down the street. The additional evidence which constituted DUI
was Defendant’s state of impairment, not another “discrete act.” Therefore,
application of this factor tends to demonstrate that double jeopardy should bar
conviction for both offenses.
Our last point of analysis is a comparison of the purposes of both statutes.
In his well-written brief, Defend ant correctly argues that both DUI and reckless
driving “are part of the sam e code title and cha pter and both are designe d to
deter an d punish driving in su ch a wa y as to en dange r others.”
In State v. George Blake Kelly, No. 01C01-9610-CC-0048, 1998 WL
712268 (Tenn. Crim . App., Nash ville, Oct. 13, 1998), a pa nel of this Court
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concluded for double jeopa rdy analysis that vehicu lar assault and DUI ha ve
similar purpos es, stating that the “aim of the DUI statute is to ‘remove from the
highways, prosecute and punish those who engage in the dangerous menace of
driving under th e influenc e.’” Id. at *10. We find that the purpose of reckless
driving is very sim ilar, just a s we fo und re gardin g vehic ular as sault in Kelly. See
id.
Howeve r, we believe that, if surveyed broadly enou gh, nearly any two
criminal offenses can be considered of singular purpose. With respect to the
offenses of DUI and reckless driving, we do not find that the purposes are so
analogous as to cause the Denton scale to shift tow ard dis miss ing De fenda nt’s
conviction for reck less dr iving. Alto gethe r, we co nclud e that a pplication of the
four factors weighs more heavily toward permitting prosecution and conviction for
both offenses as constitutionally appropriate under the Tennessee Constitution.
W e affirm D efend ant’s c onvictions for driving under the influence of an
intoxicant— secon d offense and rec kless drivin g.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
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PAUL G. SUMMERS, JUDGE
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___________________________________
JOE G. RILEY, JUDGE
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