IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE v. TERRY LYNN BYINGTON

Criminal Court for Sullivan County

No. S46479 Phyllis H. Miller, Judge

No. E2010-01154-CCA-RM-CD - Filed July 19, 2010

Defendant, Terry Byington, was convicted of DUI, fourth offense, and was sentenced

to three years in the Department of Correction as a Range II, multiple offender for this Class

E felony, with a minimum of 150 days to be served day for day. On direct appeal, this Court

held that he waived all issues presented except for the sentencing issue and a challenge of

the sufficiency of the evidence, because the motion for new trial was not timely filed, and

was therefor a nullify. See State v. Terry Lynn Byington, No. E2003-02316-CCA-R3-CD,

2004 WL 1606993, (Tenn. Crim. App. at Knoxville, July 19, 1004) perm. app. denied.

(Tenn. Dec. 28, 2004). Subsequently, Defendant filed a petition for post-conviction relief

and, pursuant to T.C.A. § 40-30-113, a delayed appeal was ordered by the post-conviction

court. Upon delayed appeal, this Court dismissed the appeal because the order denying the

motion for new trial was not in the record. The Supreme Court granted Defendant’s

application for permission to appeal, and subsequently vacated this Court’s judgment and

remanded the case to this Court “for review of the issues raised by [Defendant] in his motion

for new trial.” See State v. Byington, 284 S.W.3d 220, 227 (Tenn. 2009). After review of

the issues presented, the briefs of the parties, and the entire record, we affirm the judgment

of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOSEPH M. TIPTON,

P.J., and D. KELLY THOMAS, JR., J., joined.

Michael F. McClellan Carrico, Gate City, Virginia, for the appellant, Terry Lynn Byington.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant

Attorney General; Mark Fulks, Assistant Attorney General; H. Greeley Wells, Jr., District

Attorney General; and William B. Harper, Assistant District Attorney General, for the

appellee, the State of Tennessee.
OPINION

Facts

The facts of this case were detailed in the opinion of this court the first time the

conviction was appealed, and are set forth herein:

Officer Jason McClain of the Kingsport Police Department testified that on

December 20, 2001, at approximately 1:00 a.m., he observed the defendant

leaving a nightclub in Kingsport. McClain followed the defendant as he

traveled down Sullivan Street and observed him cross over the center line

several times. He stopped the defendant after following him about a half of a

mile. As he approached the defendant’s vehicle on the driver’s side, he

smelled a strong odor of alcohol coming from the vehicle and noticed the

defendant’s eyes were bloodshot. McClain asked the defendant to exit his

vehicle and walk to the area behind his vehicle and in front of the patrol car.

McClain smelled a strong odor of alcohol about the defendant’s person and

noticed that his speech was slurred. The defendant admitted that he drank

three beers while at the nightclub, without specifying the time period within

which he consumed them.

Officer McClain then asked the defendant to perform three field sobriety tests.

As to the one-legged stand test, McClain said the defendant “did not keep his

arms down to his side, he had his arms out to the side, swaying to keep his

balance and he put his foot down several times.” During the ABC’s test, the

defendant jumbled his letters and said, “I’m not drunk, I’m not drunk, I’m just

going to Chuck’s with my girlfriend.” The witness could not recall whether

the defendant ever completed that test. As to the finger count test, the

defendant “didn’t touch the correct fingers to his thumbs.”

Officer McClain testified that he had made seven or eight hundred DUI arrests

during his nine-year career, and, based on this experience and his observations

of the defendant that morning, he believed the defendant was unable to safely

operate a motor vehicle. He arrested the defendant and transported him to the

Kingsport City Jail where he explained the implied consent law and the fact

that he could not force him to take a breathalyzer test. The defendant refused

to take a breath test and refused to sign the implied consent form. McClain

said he could not remember if the defendant had said that he went to the

nightclub to pick up his passenger, who was arrested for public drunkenness.

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The forty-five-year-old defendant testified that he was employed as a sheet

metal mechanic and was a divorced father of three. He said that on December

20, 2001, around 8:00 p.m., he drove his friend, Nancy Doveck, to “Five

Points to the Pub.” After dropping her off at the pub, the defendant returned

home and went to bed between 10:00 and 10:30 p.m. Around 12:00 a.m., Ms.

Doveck called him to come pick her up at the pub. He arrived there around

12:30 a .m. As he and Ms. Doveck were leaving, he noticed a police cruiser

sitting to his left. The defendant backed out of the parking lot and headed

toward Chuck’s Drive-In. The defendant said that he may have crossed the

yellow line while driving because he was watching the police officer who was

following him and because Sullivan Street was not in good shape. After

seeing the officer’s blue lights, the defendant pulled into the parking lot of a

furniture outlet. Because his window was wired shut, he opened the door to

talk to the officer. The officer asked him how much he had had to drink, and

the defendant replied, “[N]othing.” The officer told him that some chewing

gum was stuck on his teeth. The defendant pulled out his partial denture to

show the courtroom where the gum had stuck to his tooth. The defendant said

the partial caused him to “whistle a lot” when he talked but denied that his

speech had been slurred the morning of his arrest.

The defendant testified that he could not perform the one-legged stand test

because of problems with his back and the nerves in his left leg, explaining

that he had three blown discs and a severed nerve on his left side. As to the

ABC’s test, the defendant explained that he cannot say the alphabet without

starting at the beginning.

The defendant said he refused to take a breathalyzer test without taking a blood

test first because “I was going to jail for something I didn’t, didn’t do and I

wanted an independent test on it that was for sure.” The defendant denied that

he had been under the influence of any intoxicants or alcohol in the early

morning hours of December 20, 2001.

Terry Lynn Byington, 2004 WL 1606993 at *1-2.

Defendant’s motion for new trial, filed after he was granted post-conviction relief to

the extent that a delayed appeal was granted, alleges three grounds for relief, set forth

verbatim as follows:

1 That the court erred in allowing in testimony regarding a perjury charge

that was over 10 years old.

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2. That the [c]ourt should grant a new trial for the reason the verdict of

guilt returned by the jury is against the weight of evidence as presented

at this trial.

3. ThatJudge Miller, while a District Attorney, had previously prosecuted

and sentenced the Defendant on prior charges; therefore, Judge Miller

should have recused herself from presiding over his trial.

No evidence was presented at the hearing on the motion for new trial. Defendant’s

counsel acknowledged, as to the judge recusal issue in the third ground for relief, that the

trial judge, while serving as a prosecutor prior to becoming a judge, was the assigned

assistant district attorney on a case where Defendant had entered a plea of guilty. The trial

court added, without challenge by Defendant’s counsel, that Defendant also received a

negotiated agreed sentence.

Other than colloquy with the trial court concerning the judicial recusal issue,

Defendant’s counsel’s entire argument at the hearing of the motion for new trial is as

follows:

As far as the weight of the evidence itself, the evidence was what it was

as far as the jury [sic]. We feel that as far as the sentence, [sic] even though

the evidence came from the police officer who testified obviously it was a

finding of guilt. We just feel that with the sentence being imposed and I guess

the Court, with you, Judge, being the prosecutor and having the previous

knowledge of this gentleman and prosecuting him that those would basically

be our grounds that we’d ask that the verdict be set aside and [Defendant] be

allowed a new trial.

Defendant did not raise on appeal the issue raised in the motion for new trial

concerning the weight of the evidence. The remaining two issues in the motion for new trial

are raised on appeal.

Proof of Defendant’s Prior Perjury Conviction

Although Defendant did not specifically argue this issue at the hearing on the motion

for new trial, the record on appeal does include the proceedings during the trial concerning

this issue. In a jury out hearing after the State had called its last witness in its case-in-chief,

it was determined that Defendant was released from custody due to the serving of a split

confinement sentence for perjury in January 1991. He was arrested for the DUI offense for

which he was on trial when it was committed in December 2001; thus, more than ten years

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had elapsed between the release from confinement and commencement of the prosecution.

For a prior conviction to be admissible to attack the credibility of a defendant under

such circumstances, Tenn. R. Evid. 609(b) provides that the evidence of the conviction

(beyond the ten-year limit) is admissible,

If the proponent gives to the adverse party sufficient advance notice of intent

to use such evidence to provide the adverse party with a fair opportunity to

contest the use of such evidence and the court determines in the interests of

justice that the probative valve of the conviction, supported by specific facts

and circumstance, substantially outweighs its prejudicial effect.

The case sub judice was tried on June 16, 2003. The State filed a notice of intent to

use the perjury conviction as impeachment evidence on December 16, 2002. Defendant’s

argument at trial against admissibility of the conviction to impeach credibility was asfollows:

[COUNSEL]: Judge, I think any reference to it is to the contrary, is

more prejudicial than any probative value; that once they

hear the issue of perjury that at that point they will

discount all objective testimony rendered by my client

and I think this case should be tried on the merits of the

DUI and not what happened in 1989, if Your Honor

please.

The trial court, in ruling that the state could impeach Defendant’s credibility with the

perjury conviction, found that credibility of Defendant was a crucial issue as it appeared the

case was “basically [Defendant’s ] testimony versus the officer’s testimony.” Also, the trial

court concluded that “I don’t know any other conviction that’s more probative of . . .

dishonesty than perjury.”

There are two criteria which are especially relevant when a determination is made on

whether the probative value of a prior conviction outweighs any unfair prejudicial effect.

These are the impeaching conviction’s relevance to credibility, and the impeaching

conviction’s similarity to the charged offense. State v. Waller, 118 S.W.3d 368, 371 (Tenn.

2003). A perjury conviction is highly relevant to credibility, and is in no way similar to the

offense of DUI. We believe that the circumstances in this case lead to a conclusion that the

conviction’s probative value substantially outweighed its prejudicial effect. The trial court

did not err in ruling that the prior conviction was admissible to impeach Defendant’s

credibility. Defendant is not entitled to relief on this issue.

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Trial Judge’s Denial of Motion to Recuse

We first note that Defendant has raised for the first time on appeal that he received

ineffective assistance of counsel pertaining to the recusal issue during the proceedings

leading up to the trial. Since this issue was not presented to the trial court in the motion of

new trial or at the hearing on that motion, it is waived and cannot be presented for the first

time on appeal. State v. Johnson, 970 S.W.2d 500, 508 (Tenn. Crim. App. 1996).

As noted above, Defendant did not present any proof at the motion for new trial

hearing held following the grant of a delayed appeal by the post-conviction court. The

transcript of the hearing on the first (and invalid) motion for new trialshows that Defendant’s

then counsel also presented no evidence concerning the recusal issue.

In his brief on appeal, Defendant cites to only one place in the entire appellate record

concerning this issue. This citation is to the following request by his then counsel

immediately preceding jury selection:

[DEFENSE COUNSEL]: Judge, one thing Mr. Byington indicated to me

again, and respectfully we submit that, Your

Honor. He indicated that previously you had tried

and convicted him of a matter when you were

with the DA’s Office and he asked me to renew

that he didn’t think it would be proper for you to

hear the case and the facts with that, where

previously you had prosecuted him and resulted in

jail confinement, Your Honor.

The trial court denied the motion for her recusal and the trial proceeded. At the

hearing on the second motion for new trial, the trial court noted that in the prior case where

she was the prosecutor, Defendant pled guilty and there was an agreed sentence. She found

that there was no basis for her to recuse herself from hearing Defendant’s case which is the

subject of this appeal.

“W]hether recusal is warranted is left to the discretion of the trial judge and such

decision will not be reversed absent a clear abuse of discretion on the face of the record.” Bd.

Of Prof’l Responsibility v. Slavin, 145 S.W.3d 538, 546 (Tenn. 2004). Based upon what we

are able to glean from this record, it is clear that the trial court did not abuse her discretion

by denying the motion for recusal. Defendant is not entitled to relief on this issue.

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CONCLUSION

The trial court’s denial of Defendant’s motion for new trial, which was filed pursuant

to an order from the post-conviction court granting a delayed appeal, is affirmed.

Accordingly, the judgment of the trial court in case number S46,479 in the Criminal Court

of Sullivan County, wherein Defendant is convicted of DUI, fourth offense, is affirmed.

___________________________________

THOMAS T. WOODALL, JUDGE

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