### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE

STATE OF TEN

NESSEE v. M

ICHAEL S. RE

ID

Direct Appeal from the Circuit Court for Williamson County No. II-136-698 Timothy L. Easter, Judge

No. M1999-00305-CCA-R3-CD - Decided July 12, 2000

The Williamson County grand jury indicted t he appellant, Michael S. Reid, with one (1) count of driving under the influence, third offense, one (1) count

of driving on a revoked license and one (1)
count of criminal impersonation. The appellant pled guilty to driving on a re voked lice nse and criminal impersonation and, after a jury trial, was found guilty of driving

under the influence, third offense. The trial court sen tenced the appellant to concurrent terms of eleven (11) months and twenty-nine

(29) days, suspended after ser vice of 180 days, for driving under the influence, third offense and six (6) months, suspended after service of ten (10) days, for driving on a revoked license. In addition, the appellant received a consecutive sentence of six (6) months, suspended after service of five (5) days, for criminal impersonation. On appeal, the appellant argues that the trial court erred in (1) admitting hearsay evidence over his objection by allowing a Williamson County Sheriff’s Deputy to testify as to the

contents of a dispatch he received prior to stopping the appellant; and (2) allowing the state to introduceevidence concerning a prior stop of the appellant for which he was
notcharged. We hol d that the officer’s testimony concerning the dispatch was nonhea rsay and relevant and, as a result, properly admissible. Ad dit ion all y, we conclude that the appellant has waivedthe issue regarding the prior stop as a result of his failure to object to this evidence at trial andhis failure to include this issue in the motion for new trial. Therefore, we affirm the judgment of the trial court

.

T.R.A.P. 3 Appeal as of Right; Judg ment of the Circ

uit Court of Will

iamson County is Affirmed

S MITH , J., delivered the opinion of the court, in which H AYES , J., and O GLE , J., joined.

Tony L. M

aples, Nashville,

Tennessee attor

ney for the

appellant Michae

l S. Reid

Paul G. Summers, Attorne y General & Reporte

r, Marvin E . Clements, Jr., Assistant Attorney General for the appellee State of Tennessee

### -2- OPINION

FACTUAL BACKGROUND

At approximately 11:15 p.m. on May 1, 1998, Deputy David Henley with the Williamson County Sheriff’s Department received a notice from his dispatcher to be on the lookout for a male driving a small blue or green pickup truck. The dispatch requ ested that the officer determine the well-being of the driver and advised that the driver’s pregnant wife was in labor in a hospi tal in Shelbyville. Approximately fifteen (15) minutes later, the officer observed a vehicle matching the description from

the dispatch and followed the vehicle. When the officer observed that the driver of the vehicle was driving “erratically,” he stoppe d the vehicle. Deputy Henley approached the vehicle and noticed an odor of alcohol fr om the interior of the truck. He asked the driver if he was alright, and the driver responded that he was on his way to

a hosp ital inShelbyville because his wife was in labor. The officer identified the driver of the vehicle as the appellant.

When Deputy

Henley asked

for his driver’s license, the appellant stated that he did not have his lice

nse with him. The ap

pellant then state

d that his name was “Randall Eugene Reid” and gave

the officer his date of birth. Using this information, the officer checked the status of the appellant’s driver’s license and determined that his driver’s license was valid. The appellant admitte

d to the officer th

at he had been dr

inking and agr

eed to perform f

ield sobriety tests. The appellant did not perform the fiel

d sobriety tests to the officer’s satisfaction, and Deputy Henley con

cluded that the ap

pellant’s ability

to drive was impaired. However, because he believedthat the appellant’s w ife was in labor, the deputy decided not to arrest him. Inste ad the officer transported the appellant to alocal convenience store so that the appellant could arrange for transportation to the hospital. The officer waited with the appellant for a

taxi, but Henley was called away on official business before the taxi arrived. Approximately

one (1) hou r la ter in t he ea rly mor ning hours of May 2, Deputy He nley received a call that the ap

pellant left the c

onvenience stor

e in another vehicle and was heading towards the location where he left his vehicle. As the officer traveled to that location, he observed the appellant driving his truck. The deputy followed the

appellant for approximately 400 yards and observed his vehicle crossing bo th the cen ter line and the right line at least twice. When Henley stopped the appellant’s vehicle, he again detected the odor of alcohol and o b served that the appellant’s speech was mumbled and slurred. The officer also noted that the appellant leaned on his vehicle in order to steady himself as he exited. Pursuant to the officer’s

request, the appellant once again performed field sobriety te sts. The officer determined that th

e appellant’s pe

rforma nce on th ese tests was unsa tisfactory and, thus, arrested him for driving under the influence. The app ellant ref used the officer’s request that he consent to a chemical blood test. Although the appellant still maintained that his na me wa s “Randall Eugene Reid,” an identi fication only license bearing the name “Michael S. Reid” with the appellant’s picture was found in his vehicle during an inventory. During the booking proce ss, the appellant

revealed his true identity to Deputy Henley. The office r ran a driver’s licen se check and determined that the appellant’s license had been revoked.1 At the beginning of the trial, the appellant pled guilty to driving on a r evokedlicense and criminal impersonation.



### -3- The appellant testified

on his own behalf at trial. He stated that, on the night of May 1, he

was driving to Shelby

ville to visit his mother when he dropped his cellular phone in the floorboard of his vehicle. This c

aused him to

swerve. Hetestified that, when the officer stopped him, he was

nervous because he realized that his driver’s license had been revoked, so he concocted a story that his wife was in labor in a Shelbyville hospital. He stated that he was not married at the time he was arrested and denied that he had a wife or a girlfriend in the hospital on May 1. Although he acknowledg

ed that he had bee

n drinkin g that

evening, the appellant testified that his driving ability was not impaired. He stated that he is blind in his right ey e and received

a back injury in 1989 which affects his balance on occasion. He disagreed with Deputy Henley ’s testimony that he did not satisfactorily perform the field sobriety tests during either s top. The appellant admitted his guilt on the charges of driving on a revoke d l icense and criminal impersonation; however, he test

ified that he was n

ot intoxicated when t

he officer stopp

ed him on either occasion. The jury found the appellant guilty of driving under the influence. The appellant wa

ived his right to a jury trial on Count Three of the indictment alleging third off ense drivi ng u nder the influence. In a separate pr oceeding, the trial court found the appellant guilty of driving under the influence, third offense. 1 The trial court sentenced the appellant to eleven (11) months and twe ntynine (29) day

s, suspended after service of 180 days, for driving under the influence, third offense, six (6) months, suspended after service of ten (10) days, for driving on a revoked license and six (6) months, suspended after

service of five (5) days, for criminal impersonation. The court ordered that the driving under the influence and driving on revoked license sentences run concurrently with one another, but consecutively to the criminal impersonation sentence. From his conviction for driving under the influence, third offense, th e appellant now brings this appeal.

HEARSAY STATEMENT - CONTENTS OF DISPATCH

The appellant argu

es that the trial c

ourt erroneously

allowed Deputy

Henley to te

stify as to the contents of the “beon the lookout” disp atch he receive

d prior to origina

lly stopping

the appellant. He contends that this te

stimony was he

arsay and inadmissible

because none of

the exceptions to

the hearsay rule apply. He further argues that the testimony wa s inadmissible

at trial because

it is irrelevant. According to the Tennessee Rules of Evidence, hear

say is “a sta

tement, other than one made by the declarant w

hil e testifying at the trial or hearing, offered to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c). Hearsay evidence is gene rally inadmissible. Tenn. R. Evid. 802. However, extrajudicial statements offered to prove the effect on the h earer constitute nonhearsay evidence and are admissible. State v. Venable , 606 S.W.2d 298, 301 (Tenn. Crim. App. 1 980); see also N. Cohen, S. Sheppeard & D. Paine, Tennessee Law of Evidence § 801.6 (3d. ed. 1995). In this case, the officer testified that he received

a dispatch to be on

the lookout for a sm

all
green or blue pickup truc

k. The dispatch ad

vised the office

r that the driver’ s wife was in labor in

a Shelbyville

hospital and requested that the officer check on the driver’s well-being. This testimony

### -4-

was not offered to prove the truth of the matter asserted, i.e., that the appellant’s wife was in labor in Shelbyville. Rather, the testimony was introduced to prov e the effect on Deputy Henley as the hearer to explain why the officer initially followed the appellant’svehicle and, ultimately, stopped the vehicle. Moreover, the statement also explains the officer’s actions in allowing the appellant to leave after the first

stop, even though the officer believed that the appellant was driving under the influence. Because the te stimony was no

t offered to prov

e the truth of the ma

tter asserted, it

is nonhearsay

andadmissible. See State v. Miller

, 737 S.W.2d 556, 558-59 (Tenn. Crim. App. 1987). The appellant also argues that the testimony was irrelevant because the validity of the initial stop was not

contested at trial. However, the contents of the dispatch prove not only why the officer stopped the appellant’s vehicle, but also why the officer did not arrest the appellant a fter the initial stop, even though hebelieved that appellant was under the influence of an intoxicant. The central issue at trial was whether, as a result of h is drinking, the appellant’s driving ability was impaired. The appellant testifi

ed that he was n

ot into xicated and perfo

rmed well on the fi

eld sobriety

tests. However, Deputy

He nley’s testimony directly refuted the appellant’s in this respect. Indeed, the officer testified at trial that, had he not believed that the appellant’s wife was in labor, he w

ould have

arre ste d the appellant for driving under the influence after the first stop. The officer executed the secondstop approximately two (2) hours later, and the appellant was arrested for driving under the influence. Relevant evidenc

e is evidence “having any tendency to make the existence of any fact that is of consequence

to the determinati

on of th e actio n more probable o r less probable th

an it would be without the evidence.” Tenn. R. Evid. 401. Certainly, whether the appellant was intoxicated during the first stop at 11:30 p.m. would be relevant to the issue whether the appellant was intoxicated approximately two (2) hours later. In the same vein, the officer’s determination that the appellant was intoxicated during the first stop was relevant at trial. Thus, the officer’s reasons for failing to arrest the appellant for driving under the influence, even though he had probable cause to do so, would necessa

rily become

relevant to

the jury’s d

etermination in thi

s case. As a result, the
contents of the dispatch, w hile clearly

not dispositive, wer

e nonetheless pro

bative to the iss

ue s presented at tria

l. The officer’s testimony concerning the contents of the “be on the lookout” dispatch was properly a

dmitted. This issue is

without merit.

EVIDENCE OF PRI

OR STOP

In his next issue, the ap

pellant all

eges that th

e trial court err

ed in allowing the

state to introduce evidence concerning the prior stop for which the appellant was not

charged. He contends that the first stop constituted evidence of a prior bad act which would be prohibited under Tenn. R. Evid. 404(b). Furthermore, he argues that this evidence should have been excluded as it was unduly prejudicial. Init ial ly, the appellant failed to object to this evidence at trial. Generally, the failure to objec t will result in waiver o

f the issue. Tenn.

R. App. P. 36(a); State v. Walker , 9 10 S.W.2d 381, 386 (Tenn. 1995). Moreover, the appellant failed to include this issue in his motion for new trial.

### -5-

Therefore, the issue is waived for this reason as well. T

enn. R. App. P. 3(e) ; State v. Maddox , 957 S.W.2d 547, 553 (Tenn. Crim. App. 1 997); State v. Spadafina
, 952 S.W.2d 444, 451 (T enn. Crim. App. 1996). The appellant concedes that he failed to object to this evid

ence and to inclu

de this issue in the motion for new tria

l. However, he c

ontends that this Cour

t should recognize plain error

in this inst ance due to the prejudicial n ature of the evid

ence. This Court ma

y, in an exerc

ise of its discretion, consider an issue which has been waived. How ever, in order f

or this Court to find plain error, the error must affect a substantial right of the accused. Tenn. R. Crim. P. 52(b). After thoroughly reviewing the record, we c onclude that there is no plain error. First, it is arguable whether the first stop could be considered a “separate” offense within the meaning of Tenn. R. Evid. 404(b). See State v. James Ray Bartlett, C.C.A. No. 01C01-9509-CC-00302, 1998 Tenn. Crim. App. LEXIS 429, at *5, Lincoln County (Tenn. Crim. App. filed April 7, 1998, at Nashville) (recognizing that “our appella te courts have he

ld that the rule

operates to exclude evidence of other crimes, wrongs or acts only when they are ‘wholly independent of that for which [the defend

ant] is charged .’ State v. Howell , 868 S. W.2d 2 38, 254 (Tenn. 1993 ); State v. King , 718 S.W.2d 241 (Tenn. 1986).” (emphasis added)). Secondly, evidence regarding the prior stop was relevant to an issue “other than co nduct conformi ng with a character trait.” See Tenn. R. Evid. 404(b). As previously

stated, the circumstances surrounding the initial stop were relevant to the primary issue whether the appellant was intoxicated whenthe deputy st opped him a second

time, merely

two (2) hours later. The appellant’s allegation does not rise to the level of plain error. As a result, this issue has been waived.

CONCLUSION

After thoroughly reviewing the record befor e this Court, we conclude that there is no reversible error. Accordingly, the judg ment of the trial court is affirmed.