State v. Simmons

• Decision Date: 21 December 2018
• Docket Number: No. M2018-00937-COA-R3-CV,M2018-00937-COA-R3-CV
• Parties: STATE OF TENNESSEE v. CHRISTOPHER BERNARD SIMMONS
• Court: Tennessee Court of Appeals

STATE OF TENNESSEE v. CHRISTOPHER BERNARD SIMMONS

No. M2018-00937-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT NASHVILLE

Assigned on Briefs December 3, 2018

December 21, 2018

Appeal from the Criminal Court for Davidson County

No. 2014-D-3063

Joseph P. Binkley, Jr., Judge

Defendant appeals the trial court's refusal to dismiss the State's claim that he violated Tennessee's implied consent statute. Discerning no error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which FRANK G. CLEMENT, JR., P.J., M.S., and JOHN W. MCCLARTY, J., joined.

Christopher Bernard Simmons, Nashville, Pro Se.

Herbert H. Slatery, III, Attorney General and Reporter; and Alexander C. Vey, Assistant Attorney General, for the appellee, State of Tennessee.

MEMORANDUM OPINION¹

Background

This is a civil matter concerning an alleged implied consent violation committed by Defendant/Appellant Christopher Bernard Simmons.² On September 15, 2013, policeresponded to a car collision in Nashville, Tennessee. Upon arrival, Mr. Simmons was standing near the wreck. Due to Mr. Simmons's condition and the smell of alcohol on his person, a police officer asked Mr. Simmons to perform a field sobriety test. Mr. Simmons refused, responding "all rights reserved." Mr. Simmons thereafter supplied the police with his driver's license, again stating "all rights reserved" and informing others at the scene that he was not subject to Tennessee's laws and that the officers had no right to arrest him. The police thereafter placed Mr. Simmons under arrest for driving under the influence ("DUI"), read the implied consent form to Mr. Simmons, and told Mr. Simmons that they were requesting that he perform a chemical test for intoxicants, either a breath, urine, or blood test, and that his refusal would result in a violation of the implied consent law. When asked if he understood, Mr. Simmons responded: "With all rights reserved and no, I do not understand." Mr. Simmons refused to perform any tests or to sign the implied consent form.

Mr. Simmons was later indicted for one count of DUI and one count of violating the implied consent law. The case was assigned to the Second Circuit Court for Davidson County. There is no dispute that the DUI charge was eventually dismissed. On March 22, 2017, Mr. Simmons filed a pro se "Affidavit to Dismiss Case," which indicated that Mr. Simmons was entering a special appearance as "administrator of CHRISTOPHER BERNARD SIMMONS Trust."³ In this filing, Mr. Simmons argued that dismissal was warranted because the Petitioner/Appellee State of Tennessee ("the State") failed to respond to his "Notice of Bill of Particulars" and his "notice of TENNESSEE OPEN RECORDS ACT REQUEST," that the State had committed a trespass against the trust, and that the State lacked "Power of Attorney through the IRS, FTC, or the SEC." The motion also alleged that the State failed to state a claim and that the court did not have personal or subject matter jurisdiction. The trial court eventually denied Mr. Simmons's motion by order entered on or around May 12, 2017.

On June 21, 2017, Mr. Simmons filed a "declaration of rebuttal" to the trial court's order, as well as a notice of interlocutory appeal "in the nature of a writ of error." The relief that Mr. Simmons requested in his interlocutory appeal "notice" was to reverse the trial court's finding of personal and subject matter jurisdiction and award Mr. Simmons costs and fees. Mr. Simmons thereafter attempted to appeal to this Court, which appeal was dismissed for lack of jurisdiction. See State v. Simmons

, No. M2017-02008-COA-UNK-CV (Tenn. Ct. App. Oct. 12, 2017) (holding that this Court lacked jurisdiction as no final order had been entered, nor had an interlocutory or extraordinary appeal ever been granted). The case was thereafter transferred to the Fifth Circuit Court for Davidson County.

A bench trial on the implied consent violation was set for November 13, 2015. On that day, Mr. Simmons raised a constitutional challenge to the implied consent law. As a result, the trial court continued the trial in order to notify the Tennessee Attorney General of the challenge. In his later filings on this issue, Mr. Simmons argued that the implied consent law violated state and federal constitutions "when private property is extracted at the scene without a warrant" and as well as the defendant's right to travel. The Tennessee Attorney General thereafter declined to intervene in the case, but the State responded in opposition to Mr. Simmons's constitutional challenge. Mr. Simmons responded again with his contentions regarding the lack of jurisdiction of the trial court, as well as an argument that the implied consent law was "an attempt of theft of property by government agency in violation of right to religion."

The trial court eventually heard oral argument on Mr. Simmons's constitutional challenge prior to trial on April 19, 2018. The trial court orally ruled that Mr. Simmons's right to travel was not infringed and that Mr. Simmons failed to show a violation of his religious liberty. A bench trial thereafter occurred regarding the implied consent violation.⁴ The trial court issued an order on April 20, 2018, finding that Mr. Simmons violated the implied consent law. As such, the trial court revoked Mr. Simmons's license for a period of one year. Mr. Simmons thereafter filed a "declaration of rebuttal" and a notice of appeal. The trial court entered a written order confirming its ruling on the constitutional challenge on May 17, 2018.

Issues Presented

Mr. Simmons raises the following issues, which are taken verbatim from his brief:

1. Whether the trial court erred as the STATE OF TENNESSEE failed to provide pertinent documents associated to the Notice of Bill of Particulars, FILE # 136 534 089 US and RF 136 534 092 US creating a contract/obligation. Pursuant to the Notice of Bill of Particulars AND Tennessee Open Records Act Request resulting in a breach of contract by THE STATE OF TENNESSEE giving rise to a lack of subject matter jurisdiction and lack of personal jurisdiction?

2. Whether the trial court erred via trespass on CHRISTOPHER BERNARD SIMMONS copyright properly published and no one contained Power of Attorney or Affidavit under penalty of perjury showing authorization to administer?

3. Whether the trial court erred by not addressing STATE OF TENNESSEE's failure to respond to the AFFIDAVIT To DISMISS a civil matter and subsequent request for permission for Interlocutory Appeal that had not been heard?

4. Whether the trial court erred by violating Claimant's constitutionally protected liberties to private property and religious belief without a warrant?

5. Whether the trial court erred admitting into evidence a legal binding document without the presence of legal counsel when evidence show a lack of understanding to an implied or adhesion contract where Claimant provided a "Without Prejudice" to the Tennessee Driver's license and rescinded all signatures?

6. Whether the trial court erred by failing to properly certify the constitutional challenge and proceeded to provide a final judgment before rejecting the constitutional challenge, as well as the attorney general failed to properly intervene as prescribed?

Discussion

As an initial matter, we note that Mr. Simmons is proceeding pro se in this appeal, as he did throughout most of the trial court proceedings. As this Court has explained:

Parties who decide to represent themselves are entitled to fair and equal treatment by the courts. The courts should take into account that many pro se litigants have no legal training and little familiarity with the judicial system. However, the courts must also be mindful of the boundary between fairness to a pro se litigant and unfairness to the pro se litigant's adversary. Thus, the courts must not excuse pro se litigants from complying with the same substantive and procedural rules that represented parties are expected to observe.

The courts give pro se litigants who are untrained in the law a certain amount of leeway in drafting their pleadings and briefs. Accordingly, we measure the papers prepared by pro se litigants using standards that are less stringent than those applied to papers prepared by lawyers.

Pro se litigants should not be permitted to shift the burden of the litigation to the courts or to their adversaries. They are, however, entitled to at least the same liberality of construction of their pleadings that Tenn. R. Civ. P. 7, 8.05, and 8.06 provide to other litigants. Even though the courts cannot create claims or defenses for pro se litigants where none exist, they should give effect to the substance, rather than the form or terminology, of a pro se litigant's papers.

Hessmer v. Hessmer, 138 S.W.3d 901, 903-04 (Tenn. Ct. App. 2003) (citations omitted). We keep these principals in mind in considering Mr. Simmons's appeal.

I.

As we perceive it, Mr. Simmons first argument is that the State's failure to respond to his request for a bill of particulars and open records request result in a lack of personal and subject matter jurisdiction in this case. Respectfully, we disagree.

"A 'Bill of Particulars' allows a criminal defendant to seek details of the charge against him." Palmer v. Palmer, No. E2009-00882-COA-R3-CV, 2010 WL 1849268, at *6 (Tenn. Ct. App. May 7, 2010) (citing Tenn. R. Crim. P. 7(c); State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991)). As an initial matter, we note that upon the dismissal of the criminal charge against Mr. Simmons, this matter became solely civil in nature, rather than criminal. According to Tennessee Code Annotated section 55-10-406(a)(1):

A law enforcement officer who has probable cause to believe that the operator of a motor vehicle is driving while under the influence of any intoxicant, controlled substance, controlled substance analogue, drug, substance affecting the central nervous system,

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