IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

May 20, 2014 Session

STATE OF TENNESSEE V. DARRYL ALAN WALKER

Appeal from the Criminal Court for Greene County

No. 12CR183 John F. Dugger, Jr., Judge

No. E2013-01914-CCA-R3-CD - Filed August 8, 2014

Darryl Alan Walker (“the Defendant”) was convicted by a jury of driving under the influence

(“DUI”) and unlawfully carrying another person on a motorcycle. Following a sentencing

hearing, the Defendant received a total effective sentence of eleven months and twenty-nine

days, suspended to supervised probation after the service of sixty days. In this direct appeal,

the Defendant asserts that the trial court erred in denying his motion to suppress the results

of a warrantless mandatory blood alcohol test, arguing that the mandatory blood withdrawal

provision of the implied consent statute is unconstitutional and that the term “injury” within

that provision is unconstitutionally vague. The Defendant also asserts that the trial court

erred in denying his motion to suppress certain statements he made to police. After a

thorough review of the record and the applicable law, we affirm the judgments of the trial

court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments

of the Criminal Court Affirmed

JEFFREY S. BIVINS, SP.J., delivered the opinion of the Court, in which THOMAS T. WOODALL

and NORMA MCGEE OGLE, JJ., joined.

Jonathan Sevier Cave, Greeneville, Tennessee, for the appellant, Darryl Alan Walker.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;

C. Berkeley Bell, District Attorney General; and Cecil Mills, Assistant District Attorney

General, for the appellee, State of Tennessee.
OPINION

Factual and Procedural Background

A Greene County Grand Jury indicted the Defendant on one count each of driving

under the influence and unlawfully carrying another person on a motorcycle. Prior to trial,

the Defendant filed a motion to suppress both the results of the blood alcohol test and certain

statements he made to police.

Suppression Hearing

At the suppression hearing, Trooper Sollie Rabun testified that he was working as a

state trooper with the Tennessee Highway Patrol on November 20, 2011, when he was

dispatched to the scene of a crash. When he arrived at the scene of the crash, around 6:00

p.m., there were already multiple ambulances and paramedics present. The only vehicle

involved in the crash was a motorcycle. At the time Trooper Rabun arrived, paramedics were

already in the process of transporting the driver, whom he later learned was the Defendant,

to the hospital for medical attention. However, the passenger on the motorcycle at the time

of the crash, Leann Pierce, was still at the scene. When Trooper Rabun spoke with Pierce,

he noticed that Pierce “had an odor of alcoholic beverage on her person and that she had

what appeared to [be] a busted lip, she had blood around her mouth, and also had scrape

marks . . . on her arms.”

Trooper Rabun testified that the motorcycle was damaged and appeared to have driven

off the road into a ditch. After he spoke with Pierce and the paramedics still on the scene,

he called a tow truck to remove the motorcycle from the ditch. He estimated that the tow

truck took between twenty and thirty minutes to arrive. When the tow truck did arrive, the

driver was alone, and Trooper Rabun had to assist the driver in getting the motorcycle on the

truck. Trooper Rabun testified that he was on the scene for a total of “approximately an hour

or more.”

After leaving the scene, Trooper Rabun went to Laughlin Memorial Hospital, where

the Defendant had been taken for medical attention. It took approximately twenty minutes

for him to drive to the hospital. When Trooper Rabun arrived, he noticed that the Defendant

had a cut on his lip, and hospital staff already were preparing his lip to receive stitches.

Trooper Rabun was wearing his uniform when he arrived at the hospital. Trooper Rabun

testified, “I told [the Defendant] that I was investigating the crash . . . and I asked him what

happened.” The Defendant stated that “he had missed the curve and ran into the ditch.”

While he was speaking with the Defendant, Trooper Rabun noticed that the Defendant had

“an obvious odor of alcoholic beverage coming from his breath [and] that his eyes were

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bloodshot.” He further testified that the Defendant “was having trouble staying awake and

keeping up with the conversation,” and Trooper Rabun “had to repeat things on multiple

occasions.” Trooper Rabun later left the room so that hospital staff could put stitches in the

Defendant’s lip. After the Defendant’s lip was stitched up, Trooper Rabun placed him under

arrest for DUI.

Trooper Rabun testified that, when he placed the Defendant under arrest, he read him

the implied consent form. Trooper Rabun read aloud “exactly what was on the page.” The

implied consent form, entered into evidence without objection, was signed by the Defendant

indicating that he consented to providing a blood sample for testing. The implied consent

form, designated “for use in mandatory test cases per [Tennessee Code Annotated section]

55-10-406(f),” contained the statement, “[U]nder [Tennessee Code Annotated section] 55-

1

10-406(f) I must obtain a chemical test to determine the alcohol and/or drug content of your

blood. If you refuse such test I will obtain a sample of your blood either with or without your

consent.” Trooper Rabun signed the form at 8:05 p.m., which he testified was also the time

that he placed the Defendant under arrest. Trooper Rabun testified that, in order to secure

a search warrant at that time, he would have first needed to call a supervisor to obtain a

search warrant to fill out and then to locate a magistrate to approve it.

On cross-examination, Trooper Rabun agreed that he did not mention in his report the

injuries he observed on Pierce. At the time Trooper Rabun spoke with the Defendant in the

hospital, the Defendant already had been given an anesthetic. However, Trooper Rabun

clarified that it was merely a “local anesthetic given by needle into his . . . lip.” According

to Trooper Rabun, the Defendant stated that he had consumed one beer that evening. When

asked whether the Defendant was free to leave at the time of the questioning, Trooper Rabun

responded, “Not until I questioned him about the accident.” Trooper Rabun admitted that

he did not read the Defendant his Miranda rights. He confirmed that he was wearing a

weapon at the time of the questioning.

On redirect examination, Trooper Rabun testified that the Defendant also told him that

he had been coming from the “the County Line Bar” that evening. Trooper Rabun identified

a document as the Tennessee Bureau of Investigation (“TBI”) report indicating the results

of the blood alcohol analysis performed on the blood sample provided by the Defendant. The

report indicated that the Defendant’s blood alcohol content was .15 at the time the sample

was taken.

In its current version, this provision is now codified at Tennessee Code Annotated section 55-10- 1

406(d)(5)(A) (Supp. 2013).

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In considering the Defendant’s motion to suppressthe results of the blood alcohol test,

the trial court concluded that the mandatory implied consent form did “show some coercion.”

However, the trial court considered the totality of the circumstances and concluded that “it

was not reasonable for [Trooper Rabun] to leave and go try to find a judge to try and write

up a warrant.” Based on that conclusion, the trial court denied the Defendant’s motion to

suppress the results of the blood alcohol analysis.

Jury Trial

At trial, Trooper Rabun testified consistently with his testimony in the suppression

hearing. Regarding the events at the hospital, Trooper Rabun testified that, when he arrived

at the hospital, the Defendant “was being treated by emergency room personnel” who were

cleaning his lip and preparing the Defendant for stitches. Trooper Rabun clarified that, while

they were working on the Defendant, he “was just standing in the room trying to kind of stay

out of the way and let them do what they needed to do.” When hospital staff “moved away

from [the Defendant] to prepare to put the stitches in and get the equipment necessary,”

Trooper Rabun “stepped forward and started speaking with [the Defendant].” When he

asked the Defendant “what happened” during the accident, the Defendant “stated that they

were traveling on Oasis Road and missed the curve and ran into the ditch.” The Defendant

also stated that he was the driver. Regarding the consent form, Trooper Rabun testified that,

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after he read the form to the Defendant, “he agreed to consent to the test and he did sign

stating that.” Trooper Rabun had a lab tech at the hospital draw a sample of the Defendant’s

blood, and he submitted that blood to be tested.

Melanie Carlisle, a forensic scientist with the TBI, testified thatshe performed a blood

toxicology analysis on the Defendant’s blood sample. Carlisle identified a copy of her report

summarizing the results of her analysis, and the report was admitted into evidence without

objection. Carlisle testified that the report showed the Defendant’s blood alcohol content to

be .15 at the time the sample was taken.

At the conclusion of the State’s proof, the defense moved for a judgment of acquittal,

and the trial court denied the motion. The Defendant chose not to testify on his own behalf

and submitted no proof. Following deliberations, the jury found the Defendant guilty of DUI

and unlawfully carrying a person on a motorcycle. The trial court sentenced the Defendant

to a total effective sentence of eleven months and twenty-nine days, suspended to supervised

probation after the service of sixty days. The Defendant timely filed a motion for new trial

which the trial court subsequently denied. In this direct appeal, the Defendant asserts that

At trial, Trooper Rabun did not testify regarding the Defendant’s other statements testified to in 2

the suppression hearing.

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the trial court erred in denying his motion to suppress the results of a warrantless mandatory

blood alcohol test, arguing that the mandatory blood withdrawal provision of the implied

consent statute is unconstitutional and that the term “injury” within that provision is

unconstitutionally vague. The Defendant also asserts that the trial court erred in denying his

motion to suppress his statements to Trooper Rabun.

Analysis

Motion to Suppress Blood Sample

The Defendant first argues that the trial court erred when it denied his motion to

suppress the evidence arising from a blood sample provided by the Defendant pursuant to the

mandatory provision of the implied consent statute. See Tenn. Code Ann. § 55-10-406(f)(1)

(Supp. 2011). Specifically, the Defendant asserts that the mandatory blood draw provision

is unconstitutional in that it violates the right to be free from unreasonable searches and

seizures guaranteed by the Fourth Amendment of the United States Constitution and Article

I, section 7 of the Tennessee Constitution. In support of this argument, the Defendant cites

a recent opinion of the United States Supreme Court, Missouri v. McNeely, ___ U.S. ___,

133 S.Ct. 1552 (2013). Furthermore, the Defendant argues that the term “injury” contained

in the mandatory provision of the implied consent statute is unconstitutionally vague.

Both the Fourth Amendment to the United States Constitution and Article I, section

7 of the Tennessee Constitution guarantee the right to be free from unreasonable searches and

seizures. “[A] warrantless search or seizure is presumed unreasonable, and evidence

discovered as a result thereof is subject to suppression unless the State demonstrates that the

search or seizure was conducted pursuant to one of the narrowly defined exceptions to the

warrant requirement.” State v. Yeargan, 958 S.W.2d 626, 630 (Tenn. 1997). “[A] trial

court’s findings of fact in a suppression hearing will be upheld unless the evidence

preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Likewise,

“[q]uestions about witness credibility and ‘resolution of conflicts in the evidence are matters

entrusted to the trial judge.’” State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001) (quoting

Odom, 928 S.W.2d at 23). “Our review of a trial court’s application of law to the facts,

however, is conducted under a de novo standard of review.” Walton, 41 S.W.3d at 81 (citing

State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999)); Yeargan, 958 S.W.2d at 629. Finally,

we note that the prevailing party on a motion to suppress “is entitled to the strongest

legitimate view of the evidence adduced at the suppression hearing as well as all reasonable

and legitimate inferences that may be drawn from the evidence.” State v. Munn, 56 S.W.3d

486, 494 (Tenn. 2001) (citing Odom, 928 S.W.2d at 23; State v. Binette, 33 S.W.3d 215, 217

(Tenn. 2000)).

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In McNeely, the United States Supreme Court reiterated that “a compelled physical

intrusion beneath [a defendant’s] skin and into his veins to obtain a sample of his blood for

use as evidence in a criminal investigation” constitutes a search under the Fourth

Amendment. McNeely, 133 S.Ct. at 1558; see also Schmerber v. California, 384 U.S. 757,

770 (1966). However, the Court recognized that the exigency of “the imminent destruction

of evidence” may give rise to an exception to the warrant requirement regarding

nonconsensual blood draws in the context of drunk driving cases. McNeely, 133 S.Ct. at

1558; see also State v. Humphreys, 70 S.W.3d 752, 760-61 (Tenn. Crim. App. 2001).

Indeed, as the Court noted, “a result of the human body’s natural metabolic processes” is that

“the alcohol level in a person’s blood begins to dissipate once the alcohol is fully absorbed

and continues to decline until the alcohol is eliminated.” McNeely, 133 S.Ct. at 1560 (citing

Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 623 (1989); Schmerber, 384 U.S.

at 770-71). That possibility notwithstanding, the Court declined to adopt a per se exigency

for nonconsensual blood testing in all drunk driving cases and instead held that “[w]hether

a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by

case based on the totality of the circumstances.” Id. at 1563. In doing so, the Court noted

that “some circumstances will make obtaining a warrant impractical such that the dissipation

of alcohol from the bloodstream will support an exigency justifying a properly conducted

warrantless blood test.” Id. at 1561. However, the Court maintained that “[i]n those drunkdriving investigations where police officers can reasonably obtain a warrant before a blood

sample can be drawn withoutsignificantly undermining the efficacy of the search, the Fourth

Amendment mandates that they do so.” Id.

In affirming the totality of this circumstances approach, the McNeely Court relied

heavily on Schmerber v. California, 384 U.S. 757 (1966). In Schmerber, as in the instant

case, the defendant was arrested for driving under the influence of alcohol while he was at

the hospital receiving treatment that resulted from an automobile accident. Id. at 758. While

at the hospital, a police officer took a sample of the defendant’s blood over the defendant’s

objection. Id. at 759. There, the Court applied the totality of the circumstances approach and

held that the warrantless blood draw was admissible because the delay necessary to obtain

a warrant would have led to the dissipation of the alcohol in the defendant’s bloodstream and,

thus, to the destruction of evidence. Id. at 770. In support of that conclusion, the Court

noted that “[p]articularly in a case such as this, where time had to be taken to bring the

accused to a hospital and to investigate the scene of the accident, there was no time to seek

out a magistrate and secure a warrant.” Id. at 770-71.

In the instant case, Trooper Rabun arrived on the scene after the Defendant had been

transported to the hospital. Trooper Rabun had to stay on the scene in order to interview

Pierce and to aid the tow truck driver in removing the motorcycle from the ditch. He traveled

to the hospital, and, although he was able to speak with the Defendant when he arrived, his

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investigation further was delayed by the necessity of stitching up the wound that the

Defendant had sustained in the accident. By the time he was able to fully question the

Defendant, over two hours had passed since the time of the accident. Indeed, Trooper Rabun

arrived at the scene of the accident around 6:00 p.m. and arrested the Defendant at 8:05 p.m.

Trooper Rabun also testified that he would have encountered considerable further delay in

obtaining a search warrant and locating a magistrate to approve that warrant. These

circumstances “ma[de] obtaining a warrant impractical such that the dissipation of alcohol

from the bloodstream . . . support[ed] an exigency justifying a properly conducted

warrantless blood test.” McNeely, 133 S. Ct. at 1561. Therefore, the results of the blood

alcohol analysis were admissible under the exigency exception to the warrant requirement,

irrespective of the validity of the Defendant’s consent under the implied consent statute.

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Alternatively, we also note that nothing in the record suggests that the Defendant

expressly refused to consent to providing a sample. As this Court has stated:

Under the express provisions of Tenn. Code Ann. § 55-10-406, “[a]ny person

who drives any motor vehicle in the state is deemed to have given consent” to

a test for blood alcohol or drug content, provided that the law enforcement

officer has “reasonable grounds to believe such person was driving under the

 We can find no authority, and indeed the Defendant cites us to no authority, to support his claim

3

that our implied consent statute prohibits a lawful search based upon the exigent circumstances exception

to the warrant requirement independent of consent. Because it is not supported by citation to authority, the

Defendant has waived this argument. See Tenn. Ct. Crim. App. R. 10(b). Furthermore, this Court has held

that “a motorist’s right to refuse to submit to a breath test under Tennessee’s implied consent law is not a

constitutional right” which leads to the exclusion of evidence otherwise constitutionally obtained.

Humphreys, 70 S.W.3d at 760-61. The exigency exception to the warrant requirement is an exception

separate and distinct from the voluntary consent exception. State v. Shirley Larhonda Gagne, No. E2009-

02412-CCA-R3-CD, 2011 WL 2135105, at *7 (Tenn. Crim. App. May 31, 2011). Indeed, this Court has

specifically recognized that the exigency created by diminishing blood alcohol content “falls within the

exigent circumstances exception to the warrant requirement” and creates a justification for a search “[i]n

addition” to the implied consent statute. Humphreys, 70 S.W.3d at 760-61 (emphasis added); see also State

v. Michael A. Janosky, No. M1999-02574-CCA-R3-CD, 2000 WL 1449367, at *4 (Tenn. Crim. App. Sept.

29, 2009). Therefore, “[t]he Implied Consentstatute’srefusal provision does not affect the constitutional and

statutory basis for performing a warrantless search of a motorist’s blood.” Gagne, 2011 WL 2135105, at *9.

The purpose of the implied consent statute is “‘not to carve out a rule of exclusion when the provisions

. . . have not been followed,’” and non-compliance with the requirements of the implied consent statute,

alone, “does not warrant suppression of the Defendant’s blood alcohol test results at trial.” State v. Kelly

A. Hancock, No. 0C01-9804-CC-00191, 1999 WL 298219, at *7 (Tenn. Crim. App. May 12, 1999) (quoting

State v. Huskins, 989 S.W.2d 735, 738 (Tenn. Crim. App. 1998)). We also note that our legislature recently

amended the implied consent statute to clarify that refusal to consent under that statute does not prohibit a

search otherwise authorized by a search warrant or court order. See Tenn. Code Ann. § 55-10-406(d)(1)

(Supp. 2013). 

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influence of an intoxicant or drug.” Tenn. Code Ann. § 55–10–406(a)(1).

Thereby, anyone who exercises the privilege of operating a motor vehicle in

this state has consented in advance to submit to a breath alcohol test. Indeed,

by virtue of the provisions of Tenn. Code Ann. § 55-10-406(a)(1), our

legislature has declared that consent of all motorists is implied. Therefore, if

probable cause exists to believe that (1) the suspect motorist has consumed

intoxicating liquor and (2) evidence of the motorist’s intoxication will be

found if the blood is tested, see Schmerber, 384 U.S. at 768-72, 86 S.Ct. at

1834–36; see also State v. Greene, 929 S.W.2d 376, 380 (Tenn. Crim. App. 1995),

it is unnecessary for law enforcement officers to obtain the voluntary consent

of an individual motorist before administering a breath test for alcohol

concentration level. Id.

Humphreys, 70 S.W.3d at 761. Indeed, the implied consent statute does not require an

officer to inform an accused of his right to refuse. Id. at 762. Rather, “[t]he clear purpose

of the admonition requirement is to warn drivers of the consequences of failing to comply

with the implied consent law,” and it is “not a Miranda-type warning that the driver is not

compelled to give evidence against himself.” Huskins, 989 S.W.2d at 737; see also State v.

Collins, 166 S.W.3d at 727 (“[T]he purpose of the implied consent statute is not to allow

motorists suspected of driving under the influence to make an ‘informed choice’ about

whether to take an alcohol or drug test; rather, it is to advance the State’s objective of

keeping intoxicated drivers off the roadways.”). In fact, the implied consent statute requires

an officer to inform the accused only that his license will be suspended if he refuses, nothing

more. Collins, 166 S.W.3d at 727; Humphreys, 70 S.W.3d at 762. Indeed, “only a motorist’s

‘express refusal’ affects the admissibility of a drug or alcohol screen” under the implied

consent statute, and “the absence of his subjective consent does not affect such a test’s

admissibility.” Gagne, 2011 WL 2135105, at *9; see also Humphreys, 70 S.W.3d at 762.

Because consent occurs at the point that a driver undertakes the privilege of operating

a motor vehicle in the State of Tennessee, not at the point the implied consent form is read,

the Defendant’s argument that his consent was rendered involuntary by the potentially

coercive nature of the mandatory implied consent form read to him by Trooper Rabun is

misplaced. Rather, at the time the implied consent form is read, “voluntary consent is

unnecessary as consent has already been obtained by the act of driving the motor vehicle

upon the public roads of this state.” Humphreys, 70 S.W.3d at 752. Moreover, we note that,

in Humphreys, this Court upheld the admissibility of a blood test under the implied consent

statute when the officer did not read an implied consent form to the defendant and told the

defendant that the law “requir[ed]” him to provide a sample. See id. at 759. In the instant

case, the form that Trooper Rabun read to the Defendant accomplished the requirement of

informing the Defendant that his license could be suspended if he refused to provide a

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sample. As in Humphreys, there was no further requirement that the Defendant be made

aware of his right to refuse to provide a sample. Because there is no proof that the Defendant

refused to submit to the test, his implied consent remained valid, and his contention that his

consent was involuntary is without merit. Therefore, we also hold that, in addition to the

exigency discussed herein, the results of the blood alcohol test were alternatively admissible

under the implied consent statute.

Based on the foregoing, we hold that the trial court properly denied the Defendant’s

motion to suppress the results of the blood alcohol test. Accordingly, we need not assess the

constitutionality of the mandatory blood draw provision of the implied consent statute or the

vagueness of the term “injury” contained therein. The Defendant is entitled to no relief on

this issue.

Motion to Suppress the Defendant’s Statement

The Defendant next asserts that the trial court erred when it denied his motion to

suppress his statement made to Trooper Rabun at the hospital. According to the Defendant,

his statements to Trooper Rabun were inadmissible because they were made absent Miranda

warnings.

Both the Fifth Amendment to the United States Constitution and Article I, section 9

of the Tennessee Constitution guarantee a criminal defendant’s fundamental constitutional

right against compelled self-incrimination. In accordance with that right, a suspect

must be warned prior to any questioning that he has the right to remain silent,

that anything he says can be used against him in a court of law, that he has the

right to the presence of an attorney, and that if he cannot afford an attorney one

will be appointed for him prior to any questioning if he so desires.

Opportunity to exercise these rights must be afforded to him throughout the

interrogation. After such warnings have been given, and such opportunity

afforded him, the individual may knowingly and intelligently waive these

rights and agree to answer questions or make a statement. But unless and until

such warnings and waiver are demonstrated by the prosecution at trial, no

evidence obtained as a result of interrogation can be used against him.

Miranda v Arizona, 384 U.S. 436, 478-79 (1966); see also State v. Dailey, 273 S.W.3d 94,

101-02 (Tenn. 2009). However, the requirements of Miranda only apply to a suspect who

has been “taken into custody or otherwise deprived of his freedom by the authorities in any

significant way.” Miranda, 384 U.S. at 478; Daily, 273 S.W.3d at 102. Therefore, our first

step in any Miranda analysis is to determine whether the defendant was in custody at the time

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of questioning.

In State v. Anderson, 937 S.W.2d 851 (Tenn. 1996), our supreme court held that the

applicable test for determining whether a suspect is in custody for the purposes of Miranda

is “whether, under the totality of the circumstances, a reasonable person in the suspect’s

position would consider himself or herself deprived of freedom of movement to a degree

associated with a formal arrest.” Id. at 855. A seizure of a lesser degree than a formal arrest,

such as a temporary investigative detention or a traffic stop, does not constitute custody

within the meaning of Miranda. Maryland v. Shatzer, 559 U.S. 98, 113 (2010). In

establishing the totality of the circumstances approach, the Anderson court listed several

factors relevant to the analysis including, but not limited to: (1) the time and location of the

interrogation; (2) the duration and character of the questioning; (3) the number of police

officers present; (4) any limitation on movement or other form of restraint imposed on the

suspect during the interrogation; (5) any interactions between the officer and the suspect,

including the words spoken by the officer to the suspect, and the suspect’s verbal or

nonverbal responses; (6) the extent to which the suspect is confronted with the law

enforcement officer’s suspicions of guilt or evidence of guilt; and (7) the extent to which the

suspect is made aware that he or she is free to refrain from answering questions or to end the

interview at will. Anderson, 937 S.W.2d at 855. Determining whether a suspect was in

custody is a “very fact specific inquiry” for which the trial court is best suited. Id. As such,

“[t]his Court is bound by the trial court’s determination that the Defendant was not in custody

at the time of questioning unless it ‘clearly appear[s] that there ha[s] been an abuse of

discretion and a violation of the rights of the accused.’” State v. Smith, 868 S.W.2d 561, 570

(Tenn. 1993) (quoting Childs v. State, 584 S.W.2d 783, 788 (Tenn. 1979)).

We first note that, although the Defendant filed a motion to suppress his statements,

the Defendant’s argument during the hearing on the motion to suppress was devoted

exclusively to the admissibility of the blood alcohol test, and he made no argument regarding

his statements. As such, the record contains no ruling by the trial court on this issue, and no

findings by the trial court were made as to whether the Defendant was in custody within the

meaning of Miranda. Tennessee Rule of Appellate Procedure 36(a) states that “[n]othing in

this rule shall be construed as requiring relief be granted to a party responsible for an error

or who failed to take whatever action was reasonably available to prevent or nullify the

harmful effect of an error.” This Court has stated that, “[w]hen the defendant fails to bring

a motion to the attention of the trial judge and have the trial judge rule upon the motion prior

to trial, the defendant waives the issues raised in the motion.” State v. Aucoin, 756 S.W.2d

705, 709 (Tenn. Crim. App. 1988) (citing State v. Burtis, 664 S.W.2d 305, 310 (Tenn. Crim.

App. 1983)). In other words, “[t]he mere filing of a motion to suppress is not sufficient to

raise an issue for the court to decide. The proponent must bring the motion to the attention

of the trial judge and obtain a ruling thereon; otherwise the issue is waived.” State v. Marvin

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K. Ferguson, No. 03C01-9406-CR-00235, 1997 WL 401825, at *2 (Tenn. Crim. App. July

17, 1997); see also State v. Charles M. Thomas, No. M2000-02576-CCA-R3-CD, 2002 WL

122930, at *1 (Tenn. Crim. App. Jan. 23, 2002) (finding that the defendant waived the issue

when he raised it in a motion to suppress but “failed to pursue” the motion prior to trial).

Based on the foregoing, the Defendant waived consideration of the Miranda issue when he

failed to secure a ruling on his motion from the trial court. Accordingly, the Defendant is

entitled to no relief on this issue.

CONCLUSION

For the reasons set forth above, we affirm the judgments of the trial court.

_________________________________

JEFFREY S. BIVINS, SPECIAL JUDGE

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