State v. Gilbert

• Decision Date: 16 February 1988
• Citation: 751 S.W.2d 454
• Parties: STATE of Tennessee, Appellee, v. George B. GILBERT, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 454

751 S.W.2d 454

STATE of Tennessee, Appellee, v. George B. GILBERT, Appellant.

Court of Criminal Appeals of Tennessee at Nashville.

Feb. 16, 1988.

Permission to Appeal Denied by

Supreme Court May 2, 1988.

Charles Ray, Nashville, for appellant.

W.J. Michael Cody, Atty. Gen. & Reporter, Miriam Nabors Banks, Asst. Atty. Gen., Lawrence R. Whitley, Dist. Atty. Gen., Dee D. Gay, Asst. Dist. Atty. Gen., Gallatin, for appellee.

OPINION

JONES, Judge.

The defendant, George B. Gilbert, was convicted of driving under the influence, second offense, by a jury of his peers. The trial court sentenced the defendant to pay a fine of $1,500, the amount recommended by the jury, and confinement in the Sumner County Jail for eleven months and twenty-nine days. The trial court suspended all but ninety (90) days of the sentence.

In this Court the defendant has presented a multitude of issues for review.

The defendant contends the trial court committed error in denying his motions to suppress his initial seizure, the results of the field sobriety test, and dismiss the indictment, permitting the results of the blood-alcohol test to be introduced as evidence, permitting the toxicology report to be introduced as evidence, denying his motion for judgment of acquittal, and permitting the introduction of incompetent evidence during the first stage of the proceeding. The defendant also contends the assistant district attorney general was guilty of prosecutorial misconduct when he induced a police officer to comment upon the defendant's silence at the time of his arrest and inserted facts not in evidence during summation.

MOTION TO SUPPRESS INITIAL SEIZURE AND FRUITS OF SEIZURE

The defendant contends the trial court committed prejudicial error in denying his pretrial motion to suppress his initial seizure as well as the fruits of the seizure. We disagree.

A private citizen, who was en route home from his place of employment, noticed a small pickup truck being driven erratically. The truck was weaving between the shoulder of the roadway and the left-hand lane. When the truck stopped in obedience to stop lights, the driver stopped between fifty and sixty feet short of the intersection.

When the citizen reached Hendersonville, he noticed Officer Brake in the parking lot of a doughnut shop. The citizen stopped, told Officer Brake what he had observed, and pointed to the truck being driven by the defendant as it proceeded southwardly towards Nashville. The officer pursued the defendant.

While following the defendant, the officer observed him weaving between the left and right-hand lanes on several occasions. He decided to stop the vehicle, and turned on the emergency lights in Sumner County. The defendant stopped his vehicle just inside Davidson County. When the officer approached the pickup truck and asked the defendant for his driver's license, he smelled an alcoholic beverage upon his breath. The defendant's eyes were "red and bloodshot looking." The officer then asked the defendant to perform three field sobriety tests to see if the defendant's driving of the vehicle was impaired by the alcohol he had consumed. Apparently the defendant voluntarily attempted to perform these tests. He performed them poorly, and the officer placed him under arrest. Subsequently, the defendant agreed to have blood drawn for the purpose of a blood-alcohol test. The blood specimen was forwarded to the Tennessee Bureau of Investigation--Crime Laboratory for an analysis.

Contrary to the assertion of the defendant, Officer Brake was not required to have probable cause to arrest the defendant before stopping him. State v. Denson, 710 S.W.2d 524, 525 (Tenn.Crim.App.1985). See State v. McLennan, 503 S.W.2d 909, 910-911 (Tenn.1973); State v. Yarbro, 618 S.W.2d 521, 523 (Tenn.Crim.App.1981); State v. Foote, 631 S.W.2d 470, 472 (Tenn.Crim.App.1982). As stated by this Court in State v. Foote: "It is now well settled that probable cause is not required to justify an investigative stop; all that is required is that the officer have reasonable suspicion supported by specific and articulable facts." 631 S.W.2d at 472. We are of the opinion Officer Brake had reasonable suspicion, which was supported by sufficiently specific and articulable facts, to stop the defendant. The officer had the benefit of the private citizen's observations as well as his own observations of the defendant's erratic driving. What was observed by both is characteristic of a person operating a motor vehicle while under the influence of an intoxicant. See State v. Denson, supra.

When the officer discovered that the defendant had been drinking, and exhibited symptoms of being under the influence of an intoxicant, it was permissible for the officer to detain the defendant for the purpose of having him perform the field sobriety test. As heretofore noted, the defendant performed, or attempted to perform, these tests voluntarily. After the defendant had performed the tests poorly, and the officer's suspicions were confirmed, he had probable cause to arrest the defendant.

Since Officer Brake was in pursuit of the defendant's vehicle within his jurisdiction, he was authorized to stop the defendant after he had crossed into Davidson County. See Francis v. State, 498 S.W.2d 107, 114 (Tenn.Crim.App.1973). Once the officer had stopped the defendant he had every right to continue his investigation at the situs of the stop.

This issue is without merit.

MOTION TO SUPPRESS FIELD SOBRIETY TESTS

The defendant contends the trial court committed error of prejudicial dimensions in denying his motion to suppress the results of the field sobriety test. The defendant predicated his motion on several grounds.

First, the defendant contends the officer made an illegal stop of the defendant's motor vehicle and, therefore, the results of the field sobriety tests given subsequent to the illegal stop were fruits of the poison tree. This ground is without merit. As we have hereinabove ruled, the initial stop of the defendant was lawful, and the field sobriety test did not constitute fruits of the poison tree.

The defendant next argues that there was no requisite probable cause to give rise to the field sobriety tests. We disagree. We are of the opinion there were numerous grounds to justify the field sobriety tests. As we have noted, the officer observed the defendant's erratic driving, the defendant had an odor of an intoxicating beverage on his breath, and his eyes were red and bloodshot. Therefore, this ground is without merit.

The defendant argues the requirement that the defendant participate in the field sobriety tests forced the defendant to give evidence against himself in violation of Article I, § 9 of the Tennessee Constitution and the Fifth Amendment to the United States Constitution. We disagree. First, there is no evidence in the record that the defendant was "required" or "coerced" to participate in the tests. To the contrary, it may be reasonably inferred from the record that the defendant consented to take the field sobriety tests given him. Moreover, the defendant was not required to give evidence against himself when asked to perform the field sobriety tests. Trail v. State, 526 S.W.2d 127, 129 (Tenn.Crim.App.1974). State v. Snapp, 696 S.W.2d 370 (Tenn.Crim.App.1985). This ground is without merit.

The defendant further argues that there is no scientific basis for the field sobriety tests or their results, and, furthermore, the results of such tests confuse the trier of fact. We are of the opinion field sobriety tests are not "scientific tests", and the admissibility of the results is not to be governed by rules pertaining to the admission of scientific evidence.

This issue is without merit.

VAGUENESS OF INDICTMENT

The defendant contends the trial court committed error of prejudicial dimensions in denying his motion to dismiss the indictment returned against him by the Sumner County Grand Jury. The defendant contends the indictment is vague and failed to give the defendant adequate notice. The defendant predicates his motion on the grounds the statutory presumption of .10 percent blood alcohol (a) is constitutionally void because it is so vague and arbitrary to make enforcement on a rational basis impossible, (b) it triggers a penal statute without giving adequate notice to a person with ordinary intelligence, (c) it triggers a penal statute without the ordinary person having any reasonable way of determining whether he has reached the .10 percent level, thereby denying fair notice, and (d) it is an arbitrary and capricious standard that gives little indication of an individual basis as to whether one is impaired to the point of being intoxicated.

We are of the opinion the defendant's argument is predicated upon a false premise. The inference which may be drawn when the blood alcohol level of the accused is 0.10% is not an element of the offense of driving while under the influence. The elements of the offense are: (a) driving or being in physical control of a motor vehicle, (b) upon a public thoroughfare, and (c) while under the influence of an intoxicant or narcotic drug. T.C.A. § 55-10-401; Ray v. State, 563 S.W.2d 218, 219 (Tenn.Crim.App.1977). An accused may be convicted of the offense of driving while under the influence without a blood, urine or chemical breath test indicating the accused's blood alcohol level was 0.10% or greater. See Shiflet v. State, 216 Tenn. 365, 392 S.W.2d 676 (1965); State v. Hall, 675 S.W.2d 208 (Tenn.Crim.App.1984); State v. Wright, 691 S.W.2d 564 (Tenn.Crim.App.1984); State v. Morgan, 692 S.W.2d 428 (Tenn.Crim.App.1985). It has long been established that the offense of driving while under the influence may be established solely by circumstantial evidence. See Hopson v. State, 201 Tenn. 337, 299 S.W.2d 11 (1957); Farmer v. State, 208 Tenn. 75, 343 S.W.2d 895 (1961); Hardin v. State, 210 Tenn. 116, 355 S.W.2d 105 (1962), reh. den. 210 Tenn. 116, ...