### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs F

ebruary 14, 200 1 STATE OF TENNESSEE v. STEPHEN LESTER THOMAS Appeal from the Circuit Court for Williamson County No. I-25-198 Donald P. Harris, Judge

No. M2000-02440-CCA-R3-CD - Filed March 22, 2001

The defendant was charged in the Williamson County Circuit Court with DUI, first offense, after a police officer observed

him operating his vehicle in an erratic fashion. A videotape was made and admitted into evidence of thedefendant's taking field sobriety tests, upon which the officer testified that he did poorly. Following his conviction for this offense, the defendant timely appealed. In his appeal, he raised several issues, including the refusal of the trial co urt to instruct as to a lesserincludedoffense, complaints about the admission of evidence, the conduct of t he trial, an d rulings of the trial court

. Based upon our r

eview, we affir

m the judgment of t

he trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J OSEPH M. T IPTON , J., joined. Lee Ofman, F

ranklin, Tenness

ee, for the appe

llant, Stephen L

ester Thomas. Paul G. Summers, Attorne y General

and Reporter; Pat

ricia C. Kussmann,

Assist ant Attor ney General; Ronald L. Davi

s, District Attorne

y General ; and Lee E. Dryer, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION The defendant was convicted in the Williamson County Circuit Court of driving under the influence of an intoxicant, first offense, and was sentenced to confinement for elevenmonths and twenty-nine

days, with all but forty-eight hours suspende d, and eleven m ont hs, twe nty- nin e days supervisedprobation. Additionally , the defendant’ s driver's lice nse was revoked for one year, and he was ordered to pay a fine o f $1,100 and to attend alcohol safety school. The defendant filed a timely appe

al, presenting t

he following issu

es: I. Whether

the court erred in allowing the prosecutor to play tha t portion of a videotape of

defendant’s arrest which included the-2- Horizontal Gaze Nystagmus (“HGN”) field s

obriety tes

twhich had previously been ordered excluded pretrial, as a result of defendant’s amended motion in limine.
II. Whether

the court erred in refusingto charge defendant’s special jury instruction on Tenn. Code Ann. § 55-10-418(a) as a lesserinclu ded of fense of DUI.
III. Whe ther

the trial court er

red in allowing th

e prosecuto

r t o qualify the arresting officer as an emergency medical

technician (“EMT”).
IV. Whether

the court erred in allowing the prosecutor to ask defense witness, Milton Johnson, whether or not the defendant’s wife was intoxicated.
V. Whether

the court erred in allow ing the prosecutor to ar gue, in closing, that defendant’s wife did not testify at

trial because she was too intoxicated o

n the night of def

endant’s arres

t. VI. Whether

the pr ose cutor’s conduct d uring the trial w

as so unprofessional a

nd unethical as to r

equire a rever

sal. Based upon our review of the record and applicable authorities, we affirm the conviction and sentence. FACTS
On October 25, 1997,

shortly after midnight,

the defendant’s

vehicle was stopped by Officer John Maxwell after he had observed the car

swerve to the rig

ht side of the road

, swerve to the le

ft, crossing the centerline, and then swerve back to the right. During the time that Maxwell followed the vehicle, it cr

ossed the center

line four times. Officer Maxwell turned on his blue lights, which activated the patrol car’s video camera, and stopped the vehicle. He approached the car on the driver’s side and spoke with t he driver, the defendant, asking the defendant for his driver’s license and vehicle reg istration. Noticing an odor of an intoxic ant abo ut the defendant, Maxwell asked him to step out of the car, and observed that the defendant supported himself on the vehicle as he did so.
As Maxwell

and the defendant were standing in front of the officer’s car, the defenda nt was askedto perfo rm fiel d sobriety tests. He was first instructed to recite the alphabet, which he was unable to do correctly

despite two attemp

ts. He was then aske

d to take nine steps forward heel-totoe, turn around, and t

ake nine steps ba

ck. The videotape

of this attempt s

hows that he took nine-3-

steps forward and

then nine steps backward, rather than turning around as he had been instructed. He slu mpe d to his lef t as he h ad n earl y re turned to the starting point. On his second attempt, he turnedaround after taking nine steps forward. However, he did not walk heel-to-toe on either of the tests. The defe

ndant was next instructed to stand on one foot and count from 1,001 to 1,030. The videotape, as well

as M axw ell ’s t est imo ny, showed that the defendant had difficulty in standing on one foot, and after coun ting upward fr om 1,001, as instructed, he jumped from 1,010 to 1,030, skipping all of the numbers in between. At that point, he was advised that he was being arrested for driving under the influence.
Robert Milton Johnson, a friend of the defendant, testified as the first witness for the defense. He said that he and his

wife had met the de

fendant and the d

efendant’s wif

e about 7:00 p.m., the nightbefor e the defendant’s arrest, at the Richland Country Club. The defendant had two dr inks before dinner and one after dinner, which consisted of four or five courses. He did not remember the defendant’s drinking wine during dinner. After dinner, about 10:00 p.m., the two couples went to Johnson’s house, where the defe ndant did not have anything else to drink. Neither the defendant nor his wife seemed to be intoxicated as they left Johnson’s house, and the defendant seemed normal as he left.
Teresa Farmer, an

employee at the Richland Country Club, testified that she had served the defendant one drink of Jack Daniels on the rocks the night before his arrest. She did not believe that the defendant

was intoxicated that night. She testified during cross-examination that the Richland members owned the club, and agreed that, for that reason, she worked for the de fendant. Ash leyWiltshir e, a legal aid a ttorney and

friend of the def

endant for twent

y-five y ears, testified that he had been called b y the defendant’s wife in the early morning hours when the defendant was arrested to go to the Williamson County Hospi tal, where the defendant was being treated. The defendant did not seem to be intoxicated, although he was coughing badly . Wiltshire posted bail for the defe

ndant. On cross-e

xamination, he said th

at he had not been acting as the defendant’s attorney th

at night and was n

ot competent to adv

ise the defendan

t whether to submit to the blood alcohol test.
The defendant testified that he had three drinks of Jack Daniels

on the rocks and on

e glass of wine at the Richla

nd Country Club

the night before

his arrest. He also testified that he remembered

while a t the club th at he did not have his asthma medicine with him and had started experiencing tightness in

his chest about 9:00 p.m. The defendant testified that he did not know why his car had been pulled

over and said that

he did not tell the of

ficer about his a

sthma during the f

ield sobriety tests because he was thinking about what he was doing and wanted to get home to

take his medication. As for the alphabet test, thedefendant said that he was a

nxious and having a

hard time cat ching his breath. He sa id that while doing

the one leg stan

d test, he did not cou

nt past 1 ,01 0 because he had high arc

hes which affec

te d his ba lance. The defendant testified that the implied consent form had not been read to him and that he had not said that he wanted an

attorney before he signed the form. He testifie

d on cross-examina

tion that he had bee

n capable of driving the night that he had been arre sted, alth ough he was having pr oblems because o

f his asthma. He sa

id that his wife-4-

was not intoxicated. He testified that he had not been asked to take a blood test and did not ask for a lawyer.
Dr. Howard Taylor, a forensic toxicologist, at temp ted to extrapolate what the defendant’s blood alcohol reading would have been, based upon the defendant’s proof as to the alcohol which he had consumed prior

to his arrest. Following an objection by the State as to a lack of foundation for this testimony, the defense recalled T eresa Farmer to provide additional information as to the drinks served to the defendant. She said that each drink with Jack Daniels contained one andonehalf ounces of 86% proof Jack Daniels and that the wine had been served in n ine-ounce glasses. Based upo n th is t est imo ny, Dr. Taylor then testified that, considering the defendant’s statements a s to t h e manner in which the drinks had been consumed, as well as his size, the defendant’s blood alcohol reading

at 12:20 a.m. the mor

ning of his

arrest wold have been 0.047. He said that he had viewedthe videotape of t he defendant’s

arrest and could not

say that he was impaired, although he could neither say that the defendant could safely drive. Officer Maxwell was called as a rebuttal witness and testified that the defendant’s wife had been too intoxicated to re cite the alphabe

t, both skipping and mixing up letters. He called a cab to take her home after h

e had arrested t

he defendant. H

e said that while

at the hospital a physician had asked to draw a sample of blood from the defendant, but the defendant refused. ANALYSIS I. Showing of Videotape Whic h Included HGN Test Prior to the trial, the defendant had filed a motion in limine, as well as an amended motion in limine, asking that the videotape showing the stop of the defendant’s vehicle and his performance on the field sobriety tests be edited so as to remo ve that po

rtion show

ing the Ho

rizontal G

aze Nystagmus(“HGN”) test. A lthough the trial

court granted

these motions,

the arrest tape, as shown to the jury, included the portion showing the HGN test being administered. No contemporaneous objection or motion for a mistr ial was made by

the defendant to

this tape as it was sho wn t o th e ju ry. The defendant has assigned aserror the showing of the tape which included this portion, asserting his rights to

due process and to a fair trial were violated. The State responds that this issue was waivedin the trial court because there was no contemporaneous objection. Even if the assignment is evaluated onits merits, according to the State, it is without basis because the jury’s perspective of the test was from the defe

ndant’s back, an

d Officer Maxwel

l neither made comments on the tape as to the defendant’s performance on the HGN test nor testified about it during the trial.
The State has accurately described the officer’s a dministering the HGN tes t. A ccor din gly, this assignment is w

ithout merit.-5- II. Refusal to Instruct as to Driving While Impaired The defendant has also assigned as error the refusal of the trial court to instruct the jury as to the lesser-included offense of driving while impaired. Tenn. Code Ann. § 55-10-418. Although the defendant

requested an instruction as to driving while impaired, the trial court declined to give this instruction.
In State v. Burns , 6 S.W.3d 453, 467 n.12 (Tenn. 1999) (citing Tenn. Code Ann. § 55-10- 415(c) (1998)), our supreme court, setting outexamples of lesser-included offenses, observed that “the offense of unde

rage drivin

g while impaired is a lesse r-included offe

nse of driving wh

ile intoxicated.” As set out in the defendant’s brief, this court has held, in State v. James Russell Neill, Jr. , No. 02 C01-9 503-CC-00067, 1996 WL 102349, at *3 (Tenn. Crim. App. Mar. 6, 1996), that underage driving while impa ired is a lesse

r-inclu ded offense of driving under the influence. However, in arg

uing that the tria

l court erred in n

ot instructing as

to adult driving whi

le impaired, Tenn. Code Ann. § 55-10- 418(a), as a

lesser-included offense of driving under the influence, Tenn. Code Ann. § 55-10-401, the defenda nt overlooks the fac

t that the adult driv

ing while impaire

d statute was not enacted

until 1998, with an effective date of July 1, 1998. 1998 Tenn. Pub. Acts 1046, § 4. The defendant w as charge d with a n offense occurring on October 25, 1997. Thus, the conduct proscribed

by the adult driving

while impaired statute was not a criminal offense at the time of the defendant’s arrest. Had the trial court instru

cted as to driving

while impaired, and the defendant been convicted of this offense, we would have made an ex post facto analysis of the matter. Miller v. State , 584 S.W.2d 758, 761 (Tenn. 1979). The defendant was not entitled to an instruction a s to driving wh ile impaired because the statute proscribing it had not been enacted at the time of the incident which re

sulted in the defe

ndant’s arrest. This assignment is

without merit. III. Attempt to Qualif y Officer Maxwell a s an Exper t to Testif y Regardin g Asthma During direct examination, Officer Maxwell testified as to his training as an emergency medical technician (“EMT”). He then was asked by the prosec utor whether, in his opinion, the def endant was f

aking his asthma attack. Defense counsel objected, asserting that a proper founda tion hadnot been made for

the witness to answer the question, and the trial court sustained the objection. The defendant now objects that “[t]he jury was made aware that the officer believed that the Appellant was faking an asthma attack.” This is speculation. This question is certainly not of the type that the

mere asking of i

tviolated the defendant’s right to due process, as he has alleged. The trial court has substantial discretion as to whether a witness has qualified an expert, and there can be no reversal on appeal absent an abuse of that discretion. State v. Ballard , 855 S.W.2d 557, 562 (Tenn. 1993). Here, we

cannot conclude

that the trial court a

bused its discretion in considering Officer Max wel l as an ex pert EMT . Ad dit ion all y, we note that the c omplaint in this

regard is not that Maxwell was allowed to opine on a subject for which he was not qualified, but, rather, that the error occurred by the State’s

asking a question which the witness was not allowed to answer. Given Of ficer Maxwell’s training

and experience,

we cannot conclu

de that this question

was c learl y-6-

improper or that the asking of the que stion resulted in the

defendant’s not r

eceiving a fa

ir trial. The authority cited by the defendant, Capps v. State , 523 S.W.2d 213 (Tenn. Crim. App. 1975), is not supportive of his position. This assignment is

without merit. IV. Question of Defense Witness as to Whether Defendant’s Wife Was Intoxicated Robert Milton Johnson, a defe

nse witness who tes

tified that he and

his wife had dinne

r with the defendant and the defendant’swife and that they all then went to the Johnsons’ residence, was askedon cross-examination whether the defendant’s wife was intoxicated. Over the objection of the defendant,

Johnson testified that, in his opinion, she was not. The defendant argues that this question andanswer were irrelevant, that it was the State’s way of pr oving “guilt by association,” and that “[w]hen taken as a whole, the objectionable

question more than

likely planted th e seed of Appellant’s guilt in the jury’s mind by atte mpting to prove his

wife’s int oxication.” This is speculation. “The propriety , scope, manner a

nd control of the cross-examination of witnesses, however, rests within the sound discretion of the trial court.” State v. Dishman , 915 S.W.2d 458, 463 (Tenn. Crim. App. 1 995) (citatio ns omi tted). Absent a clear showing that the discretion was abused, a trial co urt’s ruling on evidentiary matters will not be disturbed. State v. Cauthern , 967 S.W.2d 726, 743 (Tenn.), cert. denied , 525 U.S. 967, 119 S . Ct. 41 4, 142 L. Ed. 2d 336 (1998). Given this witness’s testimony during direct examination, we cann ot conclu de that the trial court erred in allowing the question. This assignment is

without merit. V. Evidenc

e of Intoxic

ation of De

fendant’s W

ife The defendant arg

ues that the prose

cutor im proper ly asserted during final argument that Officer Maxwell had testified that the defendant’s wife was intoxicated at the time of the defendant’s arrest. In mak ing this claim, the defendant relies upon a court order, entered on April 21, 1998, which states in ful

l as follows:
This Court, hav ing heard evi dence from b oth defenda nt, through counsel, Lee Ofman, a

nd the State, throug

h Assistant Distri ct Attorney Lee Dryer, upon Defe

ndant’s Motion In Lim ine to edit cer tainportions of a video film taken of Mr. T

homas’ arrest by the Bren twood Police Departm ent on October 25,

1997, hereby

ORDERS that the portion of the video tape depicting other stops by the Brentwood

Police Department shall not be shownto the jury and that portion of t he video film which shows conversations between the arresting police officer and the Defendant’s wife, shall not be shown to the jury exce

pt motion is fir

st ma de outside the presence of the jur y.-7-

When the videotape of the arrest was shown during the trial, the jury did not see that portion showing Of

ficer Ma xw ell talking with th

e defendant’s w

ife. During his d

irect examination,

as a State’s witness, Officer Maxwell had responded to a general question from the prosecutor as to what the officer

had done after arresting the defendant by stating he had determined that the passeng er was too impaired to drive. The defense then asked that the jury be excused and told the trial court that the understanding was that the State hadnot intended to pre sent this evidence. The prosecutor told the court that he had not

intended to do so and that he would move on in his questioning of Officer Maxwell. After the defense had rested its case, the State, over the objection of the defense, recalled Officer Maxwell, who testifi

ed that the defen

dant’s wife had been intoxicated at the time of the arrest. He said that

her speech was slurred, that there was an odor of intoxicant about her, and that she could not recite the alphabet. He had her taken home in a ca

b because she wa

s not able, in his opinion, to operate a motor vehicle. According ly, there was evidence before the jury of the intoxication of the defendant’s wife, although defense witnesses had testified that she was not intoxicated.
The defendant also co mplains that the prosecutor violated the “missing witness rule,” by arguingthe defendant’s wife had not testified without his first establishing the required foundation. Spe cif ica lly, the defendant claims that the evidence at trial did not establish that the defendant’s wife was available for se

rvice of proces s. We agree tha t Delk v. State

, 590 S.W.2d 435, 440 (Tenn. 1979), requires a showing that the missing witness is, in fact, subject to process before the assertion can be made. Thus, the proper foundation not having been established, it was error for the prosecution to make this

argument. However, since no contemporaneous objection was made, the error is waived. Even if an objection hadbeen made, howe

ver, we would con

clude that rever

sible error did not result from this argument.
The proper meth od for maki ng a missing witness argument or requesting such an instruction is explained in Neil P. Cohen, et al., Tennessee Law of Eviden ce , § 4.01[14][e] (4th ed. 2000) (quoting State v. Francis , 669 S.W.2d 85, 90 (Tenn. 1984)). The lawyer should:

informthe courtat the earliest opportunity so that an evidentiary hearin g, if necessary, can be held to establish whether the requirements for laying

a proper foundation . . . have been met. An advance ruling f rom the trial court on the permissibility of arguing before a j u ry the adverse inference to be drawn fr om the absence of a witness, will ul timate ly save judicial time and the expense of a retrial.
In a recent

application of the rule, this court concluded, in State v. Ho dge , 989 S.W.2d 717, 722-23 (Tenn. Crim. App. 1998), that a p rompt cur ative instruction neither addressed the central problemwith the State’s reminding the jury, during its second argument, that the defendant had not calledhis wife to testify nor stopped the State’s continuing references to the fact that she had not testified.-8-

In the instant appeal, wenote that the prose cutor, also in his se

cond argument,

reminded the jury that of the three people at the scene who knew whether the defendant was intoxicated, only two hadtestif ied, th e defendant and

Officer Maxwell.

No objection was ma

de by the de

fense to this statement, which was made in passing and not elaborated upon during the lengthy

argumen t. We note that, in the defense argument, a similar claim had been made that the prosecution could have issued subpoenas for pe

rsonnel at the Willia

mson County Hospital; the Frank lin Fire Departme

nt; paramedics at the scene, one of whom was said to be a physician; other personnel at the Richland Country Club; and the other police officer shown on the arr est videotape, all of these persons presumably

having some knowledge of the matter. The prosecutor did not object to this argument although no foundation had f irst been made in a

ccord wit h Delk v. State , 590 S.W.2d 435, 440 (Tenn. 1979). Thus, wit

h regard to the missing witness argument, the situation appears to be that bothsides made such an argument, the prosecution’s coming after the defendant had made the argument. In view of the videotape showing the defendant’s difficulty in perf or ming the field sobriety tests, we feel certain that

the State’s defective foundation for the missing witness argument didnot affect the verdict, espe cially when th e content and con

text of the argume

nt is closely scrutinized. This assignment is

without merit. VI. Complaints as to Prosecutor’s Trial Conduct The defendant’s final issue is tha t “the pro secutor behaved in such an unprofessional and unethical manner so as to require a reversal.” His brief then set

s out a number of instances of alleged misconduct, most of which occurred during closing argument.
This court recently discussed, in State v. Thornton , 10 S.W.3d 229, 234-35 (Ten n. Crim. App. 1999), perm. to appeal denied(Tenn. 2000), the limits upon a prosec

utor’s final arg

ument:
In general, closing argument is subjec t to the trial court’s discretion. Counsel for both the prosecution and th

e defense should be permitted wid e la tit ude in a rgui ng th eir case s to the jur y. State v. Bigbee , 885 S.W.2d 797, 809 (Tenn. 1994). Arguments must be temperate, predi cated on evidence introduced during the trial , relevant to the issues being tried, and not otherwise improper under the facts or law. State v. Middlebrooks , 995 S.W.2d 550 (Tenn. 1999).
In asse ssing whether a

lleged misconduc

t constitutes reve

rsible error, the

court mu s t determine whether the conduct had a prejudicial effect upon the verdict, i n l ight of the following factors: (1) the conduct c omplained

of viewed

in context

and in light of the facts and circumstances of the case;-9- (2) the curative measur es underta

ken by the Court and the prosecution; (3) the intent of the pr

osecutor in making

the improper state

ment; (4) the cum ula tiv e eff ect of t he i mpr ope r con duc t an d an y o th er errors in the record; and (5) the relative strength or weakness of the case.
Statev. Buck , 670 S.W. 2d 600, 609 (Tenn. 1984 ) (quoting Judge v. State , 539 S.W.2 d 340, 344 (Tenn. Crim. App. 1976). Utilizing these standards,

we will consider the defendant’s claims as to improper conduct by the prosecutor. A. Claim that Defense Counsel Had Attacked Prosecutor The defendant objects to the prosecutor’s statement that defense counsel had attacked him personally

to draw attenti

on awa y from the weak case of the defendant. Actually , what the prosecutor

did was make the time-worn argument that a defendant who hadno defense would mask that fact by attacking the police and the prosecutor. No c ontemporaneous objectionwas made to this com men t; a nd, acco rdi ngly, the issue is waived. Tenn. R. App. P. 36(a). This claim was made in passing, without elaboration and for the apparent purpose of arguing that the

defense was weak. As such, the argument does not entitle the defendant to relief. B. Argument That the Defense Expert Witness Was Only Recently Retained The prosecutor r

eminded the jury

that the defense

expert witness,

Dr. Howard Taylor,was only recently retained and questioned what that said about how man y experts the defendant had spoken with to obtain favor able testimony. The defense immediately objected to this arg ument, and the trial c ourt sustained the objection, promptly instructing the jury that they should disregard the last statement of the pr

osecutor. On app

eal, the State con

cedes that th

is argument was “intemperate,” andwe agree that it was unquestionably improper. However , taking the statement in context and giventhe prompt curative instructionfrom the trial court that the statement should be disregarded, we cannot say that the defendant was prejudiced by the statement. C. Argument Regarding Defense Witness Ashley Wiltshire During cross-examination, the prosecutor questioned Wiltshire as to whether he was acting as a la wyer or a friend when he visited the defendant at the hospital and whe ther he was bei n g truthful when he testified that he did not know whet her a perso

n suspected of driving under the influence should submit to a Breathalyzer test. We note that the

trial court instru

cted the jury

as to-10-

the credibility of w itnesse s. The record shows a spirited cross-examination of this witness which was wel l wi thi n th e bo und s of pro pri ety. D. “Hand-Picked” Defense Witnesses The prosecutor argu ed t hat the defe nse had “han d-p ick ed” i ts w itn ess es t o cre ate a st ory. This argument was not objected to; therefore, any issue re garding it is waived. However, even if we considered

this claim on its merits, the defendant would not be entitled to relief. It simply does not follow, as the defendant

argues in his brief, that because witnesses are handpicked, their testimony is perjured

and the defendant is dishonest. Rather, handpicked witnesses could be expected to give testimony favorable to the party ca lling them. E. Reference to t

he State’s “Budget

Crunch” Responding to the defe nse comment about the State’s having unlimited resources but not having presented expert testimony during the trial, the pros

ecutor responde

d that the State was

in a “budget crunch” and

suggested that taxes would be raised if the State brought in e

xpert witnesses, especially to tellthe jury

what they ha

d just seen and hea

rd. The defense

immediately

objected to the argument. However, it is unclear from the videotape record of the trial how the trial court ruled o n the obje ction. It does not appear that th

e trial court ga

ve a curative ins

truction regar

ding this clearly improper argum

ent. However, w

e note that the prosecutor immediate ly went to a different argument following the objection. Given the context, we cannot conclude that this argu ment affected the verdict. F. Argument t hat Defendant Was Co- Owner of Country Club During his final argument, in explaining why he hadnot tried to interview potential witnesses at the Richland Country

Club prior to the trial, the prosecutor arg ued that the defe

ndant was a partowner of the club and the witnesses wou ld not have ta lked with the prosecutor. In his brief, the defendant claimed, as to

this statement of

ownership, that it was irrelevant, improper, and an attack upon the defenda

nt and one of his wit

nesses. We note

that no objection was made during the trial to this argument. A

ccordingly

, any objec

tion to it is waived. However, even if we consid er it on its merits, the defendant wo

uld not be entitled to

relief. First, it

is arguable that the

defendant was, i

n fact, a part-owner of the

club, the jury having heard testimony tha t each member owned a “share.” Acco rdi ngly, this argument could be viewed as ap propriate, given the subsequent instruction on witness credibility that the jury was to consider “whether the witness [had] any bias, prejudice, or personal interest in how the case is decided.”

G. Arguments as to Effect of Not Guilty Verdict The prosecutor madeseveral relate d arguments as to

the defendant’s financial resources and the effect of a verdi ct of not guilty. He argued that a verdict of not g uilty would create a class of people who could say that a police officer was not telling the truth, give a reason for not taking the-11-

Breathalyzer

test, and drink and drive with impunity so long as they could hire lawy ers and experts. It is clear that this and related arguments were improper. However, since they were not objected to, any error is waived. Even if we consider them on their merits, they would not entitle the defe ndant to relief, given the context in which they were made, the streng th of the prosecution’s case, and the trial court’s later instructions that statements, arguments, and remarks of counsel are not evidence andare to be disregarded if not supported by the evidence. See State v. Nesbit , 978 S.W.2d 872, 895 (Tenn. 1998), cert. denied , 526 U.S. 1052, 119 S. Ct. 1359, 143 L. Ed. 2d 520 (1999). CONCLUSION Based upon our review, the judgment of the trial court is affirmed.

___________________________________ ALAN E. GLENN, JUDGE