IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE SESSION, 1998 FILED
August 12, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9711-CR-00425
) Cecil Crowson, Jr.
Appellate C ourt Clerk
Appellee, )
)
) SHELBY COUNTY
VS. )
) HON. CHRIS CRAFT
GARY PRUDE, ) JUDGE
)
Appe llant. ) (DUI - 4th Offense, Reckless Driving)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF SHELBY COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT A. WAMPLER JOHN KNOX WALKUP
P.O. Box 3410 Attorney General and Reporter
Memphis, TN 38173-0410
PETER M. COUGHLAN
Assistant Attorney General
425 5th Avenu e North
Nashville, TN 37243
JOHN W. PIEROTTI
District Attorney General
DAN BYER
Assistant District Attorney General
Criminal Justice Complex, Suite 301
201 Poplar Street
Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of
Appe llate Procedure . The Defe ndant was convicted on a Shelby Co unty jury
verdict of driving while under the influence of an intoxicant (fourth offense) and
reckless driving. On this appeal he argues (1) that the trial judge erred by
charging the jury regarding criminal responsibility for the conduct of another, and
(2) that under the circumstances of this case, the inclusion of this jury instruction
violated the Defendant’s constitutional right to a unanimous verdict. We find no
reversible error and affirm the ju dgme nt of the trial co urt.
On February 11, 1996, the Defendant was in possession of a van provided
by his em ployer . At app roxim ately 2:0 0 a.m ., the D efend ant, alo ng with a ma le
and a female companion, were proceeding in the van along a street in Mem phis
when the van struck a p ickup truc k parke d in the stre et, traveled across a yard,
and then went up on the fron t porch o f a house and ram med in to the hou se itself.
Mem phis Police Officer Larry Skelton was the first officer to arrive on the scene.
Ambulance person nel were already p resent. When the police officer arrived, the
Defendant had been placed in the ambulance. Officer Skelton entered the
ambulance where he detected a strong odor of intoxicants about the Defendant
and noticed that the Defen dant’s speec h was slurred and his eyes w ere watery.
The officer testified that the Defendant told him he was driving the van and had
hit a bump which caused him to lose control of the van. The officer stated that
beer cans were scattered around the inside of the van and in the yard. Based on
his observations of the Defendant and the statements the Defendant made, the
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officer determined that the Defendant had been the driver of the van and that the
Defendant was intoxicated.
Mem phis Fire De partm ent Paramedic Harry Perry stated that when he
arrived at the scene, a Shelby County Sheriff’s Deputy car was already present
and some people were “milling” near the van. Mr. Perry testified that he
examined the Defendant, who had a lip laceration and some blood on his face.
He said he detected an odor of intoxicants about the Defendant and noted that
he staggered somewhat and that his “gait” and demeanor indicated “somewhat
imbala nce.” Mr. Perry said that the Defendant advised him that he (the
Defen dant) had been driving the van. In addition, Mr. Perry heard the Defendant
advise a policeman that he (the Defendant) had been driving, and he heard the
Defendant apologize to the female com panion for “driving an d having this
acciden t.” On cross examination, Mr. Perry emphasized that he was certain the
Defendant told him th at he ha d been driving the va n. Finally, he testified the
Defen dant’s sp eech w as slurred .
The owner of the pickup truck and house struck by the van testified that
although he was no t at home w hen the wre ck occurred , he arrived shortly
thereafter. He observed all three occupants of the van and claimed that they
were all “drunk” — they we re “unsteady, speech was slurred and smelling real
strong [of alcohol].” He also said that the Defendant told him that he (the
Defen dant) had been driving. Although this witness testified that the driver of the
van had been placed in the police squad car, other evidence showed that the
Defendant had been placed in the ambulance and the male passenger had been
placed in the sq uad car.
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A Shelby County deputy sheriff testified that when he arrived at the scene,
only the occu pants o f the van a nd the o wners o f the house were present. He
stated that he responded to the call because he was close to th e scen e. He sa id
that he asked who had been driving and the Defendant said that he (the
Defen dant) had been. He stated that all three van oc cupa nts sm elled o f alcoh ol.
When he later advised the Defendant of his “implied consent rights,” the
Defendant advise d him that he had n ot, in fact, been driving. The Defendant then
refused to take a b lood-alco hol test.
The deputy also stated that prior to talking with the Defendant, the other
male occupant of the van advised him that he (the other occupant) had been
driving. Wh en the dep uty started advising the occupant of his rights under the
implied consent law, the occupant then said “