State v. Humphreys

• Decision Date: 26 July 2001
• Docket Number: No. M2001-00333-CCA-R3-CD.,M2001-00333-CCA-R3-CD.
• Citation: 70 S.W.3d 752
• Parties: STATE of Tennessee v. Harold W. HUMPHREYS.
• Court: Tennessee Court of Criminal Appeals

70 S.W.3d 752

STATE of Tennessee v. Harold W. HUMPHREYS.

No. M2001-00333-CCA-R3-CD.

Court of Criminal Appeals of Tennessee, at Nashville.

July 26, 2001.

Application for Permission to Appeal Denied by Supreme Court December 31, 2001.

Lee Ofman, Franklin, TN, for appellant, Harold W. Humphreys.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, John H. Bledsoe, Assistant Attorney General, Lee E. Dryer, Assistant District Attorney General, for appellee, State of Tennessee.

OPINION

DAVID G. HAYES, J., delivered the opinion of the court, in which THOMAS T. WOODALL, J., and L.T. LAFFERTY, Sp.J., joined.

Harold W. Humphreys was found guilty by a Williamson County jury of driving under the influence, first offense. The trial court imposed a sentence of 11 months 29 days, suspended after service of fifteen days confinement. Humphreys challenges both his conviction and sentence raising the following issues on appeal: (1) the trial court's failure to suppress results of the BAC test; (2) the trial court's failure to instruct the jury as to the offense of driving while impaired, Tenn.Code Ann. § 55-10-418(a), as a lesser-included offense of driving under the influence; (3) the trial court's failure to dismiss a juror for cause; (4) the propriety of the prosecutor's opening statement; (5) the propriety of the prosecutor's alleged argumentative question to Humphrey during cross-examination; (6) the propriety of the prosecutor's closing argument; and (7) the length of the sentence imposed. Finding no error requiring reversal, we affirm both the judgment of conviction and the sentence imposed by the trial court.

Background

On October 9, 1998, at approximately 7:00 p.m., Brentwood Police Officer David Hawtin was on uniform patrol when he observed the Appellant operating a motor vehicle southbound on Franklin Road in Brentwood. The Appellant turned onto Moores Lane toward the Cool Springs Mall area. Officer Hawtin observed the Appellant weave back and forth on the road four times within a one-half mile area. He explained that the Appellant would steer toward the "gutter line" then jerk back in the other direction. After the first two movements, Hawtin activated his blue lights and followed the Appellant's vehicle from Landings Drive to Moreland Boulevard. The Appellant repeated the pattern twice more after the lights were activated. Officer Hawtin explained that his patrol car's video and audiotape equipment was activated automatically upon employment of the car's emergency lights. The Appellant slowed down but failed to yield.

Eventually, the Appellant stopped his vehicle in the lane of travel. Officer Hawtin then approached the vehicle on the passenger side via the sidewalk to avoid contact with the oncoming traffic. Standing at the passenger side window, Officer Hawtin first noticed a very strong odor of alcohol emanating from the Appellant. He also observed that the Appellant was slumped forward and his eyes were red and watery. The Appellant appeared sleepy or sedated and his speech was slurred. At this point, Officer Hawtin asked the Appellant to exit the vehicle.

Due to the Appellant's physical condition, Officer Hawtin escorted the Appellant to the safety of the sidewalk and then conducted several field sobriety tests with the Appellant. Based upon the Appellant's appearance and the Appellant's unsatisfactory performance on various field sobriety tests, Officer Hawtin placed the Appellant under arrest for driving under the influence. Officer Hawtin then discussed Tennessee's implied consent law with the Appellant and twice explained to the Appellant the one year driver's license revocation period that would result as a consequence of not submitting to breath or blood alcohol testing. The Appellant consented to a blood test.

The Appellant was then transported to the Williamson County Hospital where a sample of his blood was drawn in Officer Hawtin's presence. Laboratory testing established that the Appellant's blood sample contained an ethyl alcohol level of .28 percent. Based upon these facts, the Appellant was indicted on one count of driving under the influence, Tenn.Code Ann. § 55-10-401(a)(1), and, in the alternative, one count of driving with a blood alcohol concentration of .10 percent or more, Tenn.Code Ann. § 55-10-401(a)(2).

In his defense, the Appellant presented the testimony of his wife, Christine Humphreys. Mrs. Humphreys stated that, on the morning of October 9, 1998, the Appellant had accompanied her to Vanderbilt Hospital where she received treatment for multiple sclerosis. After lunch, Mrs. Humphreys was given medication to make her sleep. Mrs. Humphreys did not see her husband for the remainder of the day.

Andy Beecham, the Appellant's brother-in-law, testified that he met the Appellant at the Old Natchez Golf Course at 2:00 p.m. on October 9. At the time of their meeting, the Appellant appeared sober and had no sign or smell of alcohol about his person. Mr. Beecham and the Appellant played nine holes of golf with Richard Means, Mr. Beecham's uncle by marriage. They finished playing shortly before 5:00 p.m., and returned to the club house. Neither Mr. Beecham nor Mr. Means noticed that the Appellant appeared fatigued. At the club house, the Appellant ordered a beer. He then had a rum and Coke. Mr. Beecham left his companions shortly before 6:00 p.m. At this time, Mr. Beecham stated that the Appellant did not appear intoxicated. Dick Means testified that he remained at the club with the Appellant until the Appellant left. Mr. Means stated that he observed the Appellant consume one beer and two "rum and Cokes" after returning to the clubhouse. When Mr. Means and the Appellant left the clubhouse at approximately 7:00 p.m., the Appellant did not appear inebriated.

The Appellant testified that, on October 9, 1998, he was living in Georgetown, Guiana, South America due to his employment. The Appellant had returned to Tennessee to take care of his ailing wife. At approximately 7:00 a.m. that morning, the Appellant visited his wife at Vanderbilt Hospital.

The Appellant remained at the hospital until noon, when his wife suggested that he should meet with some of his friends for a game of golf while she slept. The Appellant went to play golf, arriving at the golf course at approximately 1:30 p.m. to meet Mr. Beecham and Mr. Means. The three men played nine holes of golf, concluding at approximately 5:00 p.m.

After their golf game, the three men went back to the clubhouse and each drank a twelve-ounce can of beer. It took approximately thirty minutes to consume the beer. After this beer, the Appellant drank a Captain Morgan rum and Coke. This mixed drink contained a single shot of rum which was eighty percent proof. It took the Appellant approximately thirty minutes to consume this drink. The Appellant then ordered and drank a second rum and Coke. The Appellant left the clubhouse at approximately 7:00. The Appellant was tired that day from traveling, spending a great deal of time at the hospital, and not sleeping well, having had only two hours of sleep.

The Appellant explained that he told the police officer that he had too much to drink in order to appease the police officer. He believed that if he told the officer what he wanted to hear, the officer would let the Appellant return to his hotel room. The Appellant testified that he believed his driving to be fine. He also explained that his statement to the police officer that he had consumed four "beers" was a "generic" term for alcoholic beverages in general. The Appellant stated, that when he was stopped, he was scared, was "outside of his elements," and under a lot of pressure. He has never encountered the police in this situation before. He did not feel that he was intoxicated at the time of his arrest. On cross-examination, the Appellant admitted that he had lied to the officer about what he had to drink. He also agreed that being tired magnifies the effect of alcohol.

I. Motion to Suppress

Prior to trial, the Appellant filed a motion to suppress the results of the blood alcohol test, alleging that his consent to the blood test was not voluntarily, was taken in violation of his right to be free from unreasonable searches and seizures and was taken in violation of Tenn.Code Ann. § 55-10-406 (1998). At the subsequent hearing on the Appellant's motion, Officer David Hawtin testified that, on October 9, 1998, at 7:20 p.m. he stopped the Appellant's automobile after receiving a dispatch regarding an "erratic driver" in an "off-white color Lincoln Continental" and after observing the suspect vehicle making erratic movements. After administering field sobriety tests, Officer Hawtin determined that the Appellant was intoxicated and placed him under arrest. Officer Hawtin discussed the "implied consent" law with the Appellant. Specifically, Officer Hawtin recalled informing the Appellant that he needed to read the Implied Consent law about the blood sample and he needed to be aware of it. Officer Hawtin conceded, telling the Appellant that, "you need . . . to sign it and then you will be on your way to the hospital." Officer Hawtin admitted that he did not read the Implied Consent Law to the Appellant, despite having the form with him. Officer Hawtin did state, however, that he gave the Appellant the Implied Consent Law Form to read. The Appellant did not inform the officer that he could not read or that he did not understand the Implied Consent Law. The patrol car's videotape recorded at the scene was introduced at both the suppression hearing and the trial. The videotape contained the following colloquy between Officer Hawtin and the Appellant:

APPELLANT: You know I'm just a guy trying to get home.

OFFICER HAWTIN: I understand. What this says is "state law implied consent." What it says is that if you fail to provide me with a blood or urine blood or breath sample we will suspend your license whether you're...