# FILED October 30, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE SEPTEMBE R SESSION, 1998
STATE OF TENNESSEE, ) C.C.A . NO. 01C01-9708-CC-00335 ) Appellee, ) ) RUTHERFORD COUNTY V. ) ) ) HON. J.S. DANIEL, JUDGE CHAR LES M ADISO N BL ACKM AN, JR. ) ) Appe llant. ) ( DUI, SECOND OFFENSE)

FOR THE APPELLANT : FOR THE APPELLEE : SAM E . WALL ACE, JR . JOHN KNOX WALKUP 227 Se cond A venue, N orth Attorney General& Reporter Second Floor Nashvill e, TN 37201 GEORGIA BLYTHE FELNER Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 WILLIAM C. WHITESELL Distri ct Attor ney General Third Floor J udicial Building Murfreesboro, TN 37130

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION
Charles Madis on Bla ckm an, Jr., a ppea ls as of r ight follo wing h is convic tion in the Rutherford Count y Criminal Court. Fol lowing a trialby jury, the Defendant was convicted of driv ing under the influence, second offense. Defendant f iled a motion forjudgment of acqui ttal and f or new tri al which was deni ed by the tri al court. In this appe al, Defendant contests the suffi ciency of the evidence. We affirm the judgment of the trial cou rt.

When an accused chall enges the suff iciency of the convic ting evi dence, the stand ard is whether, after r eviewing t he evidence i n the li ght most favor able to th e prosecution , any rati onal trier of fact could have found the essent ial el ements of the crime beyon d a rea sona ble doubt. Jack son v. V irginia , 443 U.S. 307, 319 (1979 ). On appeal, the State is ent itled to t he strongest legitimate view of t he evidence and all inference s therefro m. State v. Cabbage , 571 S.W
. 2d 832, 83 5 (Tenn. 19 78). Because a verdict

of guil t removes thepresumption of innocence and replaces it with a presumption of

guilt, the accused hasthe burden i n this cour t of il lustrat ing why the evidence is insuffic ient to s uppo rt the ve rdict retu rned b y the trie r of fact. State v. Tug gle , 639 S.W .2d 913, 914 (T enn. 1982); State v. Grace , 493 S.W.2d 474, 476 (Tenn. 19 73).
Questions concerning the credib ilit y ofthe witnes ses, the w eight and value to be given the ev idence, as wel l as allfactua l iss ues raised by th e evidence, are resol ved by the trier of fa ct, not this co urt. State v. Pappas , 754 S.W.2d 620, 62 3 (Tenn. Crim. A pp.), perm . to appeal deni ed , id . (Tenn. 198 7). Nor ma y this court r eweigh or reevalu ate the ev idence
. Cabbage , 571 S. W.2d at 835 . A jury verd ic t-3-

approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts in favor of the State. Grace , 493 S.W.2d at 476.

As no transcri pt of thetrialwas availabl e, the Defendant f iled a statement of the evidence pursuant to Rule 24(c) of the Tennessee Rules of Appell ate Procedure. Following the trial c ourt’s a pprov al, this statemen t was mad e part of the recor d for our review . Tenn. R . App. P. 2 4(f).

Carrie Blair testified that she was driving on Sou th Lowery Streetin Smyrna, Tennessee, proce eding south in the fast lane on November 27, 1996 when s he was involved in a wreck with the Defendant’ s vehicl e. She was driv ing approxi mately 35 miles per hou r in the lane closest to th e turning lane. Wh ile Blair d id not see t he Defe ndan t’s vehicle u ntil af tershe had been hit, she believed his vehi cle was moving in the turn lane. That vehicle st ruck her car on the l eft side , then the b ack bumper struck th e front bumper of her vehi cle. After spinning ar ound and ending up in the turning lan e, the two vehicles w ere locke d togeth er.

Blair stated th at foll owing the acci dent the Defendant approached her a nd asked if she was alright. H e was “noticeably staggering,” wi th slurr ed speech. Defendant stated that he was g oin g to call the poli ce, then wal ked away from the scene. When he returned to the scene, a woman was with him and Blair has since learned that thewoman is the Defendant’s wi fe, Dolores Blackman. Blai r witnessed Mrs. Blackman removi ng a cup of alcoholfrom the Defendant ’s vehic le.

On cross-examination, Blai r admitted that she was in shock during these events and that she had not advis ed the poli ce about anythi ng being removed fr om-4-

the Defendant’s vehicle, and that she coul d not be sure i t was a cup whi ch Mrs. Blackman removed.

Jeff Dwyer, an officer w ith the Smyr na Police Depart ment, testified that he was dispatched to the scene of a traff ic accident

on South Lowery Str eet on November 27, 1996. When Dwyer arrived to inter view the acci de nt victims, he found the Defendant to h ave an “ uncoo perative d emea nor and was un steady o n his feet.” Dwyer further obse rved D efend ant’s eyes to be glassy and red and that

he had the odor of an intoxicant. When Defendant attempted to retri eve his driver’ s license from his wallet, he dropped the wal let to t he ground. Dwyer des cribed traffic as heavy at the time. During his i ntervi ew of the Defe ndan t, Defe ndan t stated that Bla ir’s vehic le had stru ck his ow n vehicle.

Because Dwyer suspected t he Defenda nt was i ntoxicated , he aske d him to subm it to seve ral field sobriety tests. First, Defendant was asked to hold one (1) foot near the bumper of the pol ice car while stan ding on his other fo ot, then to c ount to thirty (30) slowly. Defendan t failed th is test “b ecau se he was u nable to kee p his balance on one foo t and had to put both feet on theground.” Next , Dwyer asked Defendant to repeat t he a lphabe t, which he was un able to su ccessfu lly repeat. In Dwye r’s opinion, Defendant was confuse d and into xicated. Defen dant ad mitted to drinkingone (1) beer. Upon observati on of both vehicles, Dwyer stated t hat the dama ge to bo th vehicles was co nsistent w ith Blair’s acc ount of the acciden t.
During cross-examinat ion , D wyer re called that he had m ade a pprox imate ly 100 DUI arrests af

ter recei ving tr

aining in DUI invest igation at the police acad emy. After informing Defendant that hewas under arrest, th e Defenda nt b ecam e-5-

argumentative, cu rsing and p ull ing away when thehand cuf

fs werepla ced on hi m. After being trans ported to t he Smyrna Police Depart ment, Lieuten ant Earl Barnes attempted to administer the intoximeter test to det ermine t he alcohol content of Defe ndan t’s bloo d. Dwyer observed that Defendant eit her could not or would not blow hard enough i nto the machine for a suffi cient sample to be taken.

Lieutenant

Ear l Barne s testi fied that he arrived on the scene after Office r Dwyer, and that he detected an odor of alcohol ab ou t the Defendant . The Defe ndan t’s speech was slurr ed, and after

having b een give n two se parate chances to recite the a lphabe t, the Defe ndant w as still unab le to do so co rrectly. Defendant was also unable to succes sfully complete the “

foot-to-bumper” test . After transport ing the Defendant to the poli ce stati on, he was calm and cooper ative. When Bar nes attemp t ed to administer the intoximeter test, he read the impli ed consent law to the D efenda nt. Defen dant m erely prete nded to blowinto the tube which carried t he ai r to the m achine during se veral attem pts to com plete the te st, with the result of the intoxim eter test being “insufficient sa mple.”

On cross-examinat ion, Barnesstated th at the tube Defendant used was new and had no obstruct ions. Bar n es did not demonstr ate the tests to the Defendant prior to asking hi m to complete the tests, and headmitted t hat the tests administered were “non-s tandardized .”

This wa s the con clusion o f the State ’s case-in -chief.

Dolores Blackman, the Defendant’s wi fe, test ified t hat she was wait ing for her husband to pick her

up after work. He arrived at her of fice, ad vising her

that he had-6-

been involved in an accident nearby. She fol lowed her husband outside to t he scene of the ac ciden t, which was o nly about thi rty (30) yar ds from her office. Mrs. Blackman did not notice any unusual wal k or slurred speech by her husband, nor did she detec t an od or of alc ohol. Upon arrivalat the scene, Blackman stated t hat she did not go into the van a nd rem ove any ite ms. After t he police ar rived on the scene, th e officers attempting to handcuff he r husband were treating him roughly, jerk in g his arm becau se it would not ben d in the wa y the police tried to force it to bend.

Pat Looper, an i nstructor at the pol ice academy, testifi ed a s to the proper performance of fiel d tests on subj ects suspected of intoxication . The thre e (3) tests which are both standardi zed and approved by t he National Hi ghway Transportat ion Safety Ad minist ration are: (1)horizontal gaze nystagmus; (2) wal k nine (9) steps, heel to toe, andreturn; and (3) balance with one (1) foot six (6) inches off

the ground fora perio d of thirty (30) se cond s. On c ross-e xamin ation, L oope r could not rec all how long these tests had been standardiz ed in thi s fashion and r ecollected that he h ad u sed ot her f iel d sobr iet y te sts h imsel f whe n work ing a s a St ate Tr ooper . He acknowled ged tha t the use of these non-standardized te sts did not invali date the Defen dant’s arre st.

Aletta Kelly, a cousin of the Defe ndant, tes tified that he c ame to pick her up on the afternoon of November 27, 1996. After pi cki ng her up and d riving to his residence in Antioch , they dr ove to p i ck up Mrs. Black man at work in Smyrna. During that time period, K elly di d not observe t he Defendant dri nk any alcoholnor did she notice t he odor of any al cohol. From he r observat ions o f the D efend ant’s drivi ng, his appearance, and h is speech, there was nothing to indicate that he was intoxicated
.-7- The Defendant test ified t hat on November 27, 1996, he was of f from work and picked up h is cous in, Ale tt a Kel ly , i n Di cks on. They drove b ack

to S my rna to pick up his wife shortly

after 4: 00 p.m. Defendant st ated that hewas in the t urn lane on South Lowery Street, moving slowl y, and that a van came from his right and st ruck his vehicle. Both vehi cl es bega n to spin and t hen locked bumpers. When Defendant went to check on t he driver of the o ther ve hicle, C arrie Blair, she admitted that the ac cident wa s her fau lt.

Defendant walke d over to his w ife’s offic e to ca ll the pol ice, the n he a nd his wife returned to the scene. When Officer Dwye r arrived , Defe ndan t reach ed for h is driver’s license in h is wallet, a nd several ca rds fellout of i t. Defendant denied drinkingany alcohol or being i ntoxicated. He furt her denied that hi s s peech was slurred or that he s taggere d when he walke d. Wh en ask ed to recite the a lphabe t, Defendant became amused and laughed. He did submi t to thetest i n which he was asked to stand on one f oot. Because t he officer twisted h is arm in a “ very unnatur

al position,” D efenda nt jerked h is arm w hile being handc uffed.

After arrivi ng at the po lice station, Defendant agreed to take the i ntoximeter test and blew as h ard as h e could th ree (3) se parate times into the mac hine. O n all three (3) occasions, t he machine registered “zero, ” showing that he had no alcohol to drink. On cross-examinat ion, Defendant admitted to advising the police t hat he had one (1) beer to drink, bu t that i t was a joke. When questioned as to his tel ling an insurance i nvestigator that a r ed car was involved in the accide nt, Defendant admitted that he ha d not told th e police a bout t he red car. While he c laimed the damage to the vehicles was diffe rent than what the police had testifi ed to, he fa iled to bring a pictur

e he had which indicated the actual damages.-8- Charles Blackman, Sr., testif ied that the Defe ndan t is his son. He went to t he police station on November 27, 1996, and observed his son being g iven the intoxi meter test. His s on appea red to blow as hard as possibl e into themachine. The Defendant appeared to be both walki ng and talki ng normally, and, in hi s opinion, was not imp aired in any way.

The State call ed Lieutenant Barnes as a rebuttalwitness. Barnes advised t hat the Defendant was given the into ximete r test in a secure d area, w hich is clos ed to the p ublic, and that Charl es Blackman, Sr., could not have observed th e admin istration of the test.

A person is gui lty of

drivi ng under the i nfluence of an into xicant if h e is drivi ng or in physical controlof a motor vehi cle upon a public thoroug hfare while under the influence of an intoxicant or drug. Tenn. Code Ann. § 55-10-401. Thi s offense may be proven solely by cir cumstantialevidence. State v. Gilbert , 751 S.W.2d 454, 459 (Tenn. Crim. App. 1988) (c itations om itted). The Defendant does not contest the fact thathe wa s driving his vehicle whi le on a publi c thoroughfar e, only t hat he was under the influence of an intoxic ant. T aken in the l ight most favorable to the State, the record in thi s case demonstrates that Defen dant had an unsteady gai t, slur red s peech, odor of alcohol, and gl azed eyes. When asked to show the police hi s driver’s license, he fu mbled a nd drop ped his w allet. In additio n, he wa s unab le to succ essfu lly comp lete any o f the field sob riety tests wh ich th e pol ice officers administered
. Finally , the Defendant himself admit

ted to the p olice of

ficers t hat he had been drinki ng. This is more than sufficient

evidence whereby a rat ional trier of fact could have found the Defendant guil ty beyond a reasonable doubt of drivi ng under the infl uence. There is n o requi r ement tha t any more tha n the above-9-

testimony

is required of the Sta te to prove its case. See State v. Vasser , 870 S.W .2d 543 , 544 (T enn. C rim. App . 1993). T his issue is without m erit.

W hile not addressed in hi s motion for new tr ial, t he Defendant suggests that the State failed to produce “potent ial excul patory evi dence” by decli ning to use t he videotapeequipm ent w hic h the poli ce cars are equi pped with to videotape t he Defe ndan t’s performance on thefield sobriety tests. In Brady v. Mary land , 373 U. S. 83, 87, 83 S.C t. 1194 , 10 L.E d.2d 2 15 (19 63), the United States Supr eme Cour t held thatthe State has a duty to furnish t he accused wi th any excu lpatory evidence pertaini ng to either

guilt or innocence or

to possibl e punishment upon convi ction. In addition to this

issue being waived due to the Defendant’s fai lure to r aise thi s issue in his motion f

or new tri al pursuant to Rule 3(e) of the Tennessee Rules o f Appella te Procedure, the “potential” of exculpa tory evidence does not trigger the mandates of Brady
. As there was no v ideotape, t her e can b e no violatio n of Brady as no exculpa tory eviden ce was available.

After revi ewi ng t he record and the law in thecase sub judice , we affi rm the judgm ent of the tria l court.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Presiding J udge-10-

___________________________________ J. CURWO OD W ITT, JR., Judge