IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

January 26, 2010 Session

STATE OF TENNESSEE v. WENDELL WAYNE SWEETON

Direct Appeal from the Criminal Court for Hamilton County

No. 261342 Don W. Poole, Judge

No. E2009-00012-CCA-R3-CD - Filed January 21, 2011

The appellant, Wendell Wayne Sweeton, was convicted by a jury of driving under the

influence (DUI), third offense. The trial court imposed a sentence of eleven months and

twenty-nine days, with 150 days to be served in confinement and the remainder to be served

on probation. On appeal, the appellant challenges the trial court’s rulings regarding

purported discovery and Brady violations, the denial of appellant’s suppression motion, and

the admissibility of the appellant’s prior DUI convictions. Upon review, we affirm the

judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOSEPH M. TIPTON,

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

C. Parke Masterson,Jr., Chattanooga, Tennessee, for the appellant, Wendell Wayne Sweeton.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant

Attorney General; William H. Cox, District Attorney General; and Cameron Williams and

Brian Chapuran, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

The proof adduced at trial revealed that Red Bank Police Officer Sean Shelton was

working patrol on the night shift of May 27, 2006. At approximately 3:00 a.m, Officer

Shelton was watching traffic from his police cruiser, which was parked in the parking lot of

the Bridge Center located approximately half a block from the Cherokee Boulevard tunnel.
He saw the appellant, who was driving a silver 2001 Lincoln Continental, drive through the

tunnel from Chattanooga in both the northbound and southbound lanes of traffic. Because

the appellant crossed into the opposing lane without correcting, Officer Shelton activated his

police cruiser’s emergency lights and siren and began pursuit.

Officer Shelton, traveling north on Dayton Boulevard, saw the appellant “straddle[]

both lanes.” The appellant drove around a “blind curve,” and Officer Shelton briefly lost

sight of him. When he regained visual contact, he saw the appellant driving almost

completely in the opposing lane. While the appellant was on Dayton Boulevard, “[m]ost of

the time, he was occupying both lanes. Periodically, he would come back in his lane and

coast back into [the] opposing lane of traffic.” Officer Shelton observed no other traffic at

that time.

At the intersection of Dayton Boulevard and Signal Mountain Road, the appellant

pulled into the left turn lane and stopped. Officer Shelton parked his cruiser behind the

appellant. He left his lights on but deactivated the siren, got out of his vehicle, and

approached the appellant’s car. When he was between the driver’s side rear door and the

front door of the appellant’s vehicle, the appellant drove off, turning left onto Signal

Mountain Road. Officer Shelton ran back to his car, activated his siren, and again pursued

the appellant. At some point during the pursuit, Officer Shelton was joined by Officers

Nicholas Dewey and David Spandau as well as three Chattanooga police officers who were

each in separate vehicles.

Despite many opportunities to do so, the appellant did not pull off the road until he

reached the parking lot of Austin Feed and Seed. Once the appellant stopped, Officer

Shelton got out of his car and approached the appellant’s vehicle with his gun drawn. Officer

Shelton thought the appellant was fleeing from police and drew his gun for safety reasons.

As he approached the appellant’s vehicle, Officer Shelton repeatedly ordered the appellant

to turn off his car and place his hands on the steering wheel. The appellant did not comply.

When Officer Shelton reached the appellant’s vehicle, he saw the appellant slumped

over the steering wheel. Officer Shelton could not see the appellant’s hands because they

were “down low.” The appellant “kept falling back in his seat, falling back over the wheel,

and didn’t seem to know that [Officer Shelton] was standing at his door.” Officer Shelton

opened the driver’s door and “escort[ed]” the appellant out of the vehicle. When the

appellant was out of the vehicle, Officer Shelton reached into the vehicle and turned off the

ignition. The Chattanooga officers left the scene once the appellant was out of the vehicle.

Officer Shelton had to support the appellant by the arm “because he couldn’t remain

balanced outside of the vehicle.” Officer Shelton noticed “a strong odor of an alcoholic

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beverage” coming from the appellant. Officer Shelton asked the appellant where he was

going, and the appellant responded that he was going home. When Officer Shelton asked

where he was coming from, the appellant said he had just left a bar called “the Big Chill.”

Officer Shelton asked the appellant why he had crossed into the opposing lane of traffic and

had not stopped for police. Officer Shelton said the appellant did not seem to understand the

question. At that point, Officer Shelton asked the appellant if he had been drinking, and the

appellant replied that he had consumed four beers at the Big Chill. Officer Shelton noticed

that the appellant’s eyes were bloodshot and that his speech was very slurred.

Believing the appellant to be under the influence of alcohol, Officer Shelton asked the

appellant to perform two field sobriety tests, the “walk-and-turn” and “the one-legged stand.”

The appellant agreed to perform the tests. Officer Shelton demonstrated the walk-and-turn

test for the appellant and explained that

the person submitting to the test is to take nine heel-to-toe steps

in a straight line, with their arms down to their side, and

counting each step out loud. On their ninth step, they’re to stop,

turn slowly, in baby steps, and then return where they came from

on the line nine more steps, back where they started, with their

heels touching their toes.

The appellant said he understood the test. However, when performing the test the

appellant walked in the wrong direction, he did not count aloud, and he did not touch heel

to toe. Officer Shelton had to instruct the appellant to return to the yellow line. In Officer

Shelton’s opinion, the appellant failed the walk-and-turn test.

Next, Officer Shelton had the appellant perform the one-legged stand. He

demonstrated the test for the appellant and explained that

you stand with your arms down to your side, you raise one leg,

toe pointed outward approximately . . . six inches from the

ground, and you count from one one thousand and one to one

one thousand and thirty until an officer asks you to stop for your

safety purposes.

The appellant said he understood the test. He fell backwards on his first two attempts. On

the third try, the appellant raised his leg and “counted one one thousand and one, two

thousand, three, four thousand, five, five, five thousand, four, and then stopped the test on

his own.” In Officer Shelton’s opinion, the appellant failed the one-legged stand test.

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Officer Shelton arrested the appellant for driving under the influence and transported

him to the police station. Officer Shelton asked the appellant to take a breath alcohol test,

and the appellant consented. Because Officer Shelton was not certified in conducting a

breath alcohol test on the Intoximeter EC/IR II (“Intoximeter”), Officer Nicholas Dewey

conducted the test. Officer Dewey observed the appellant for twenty minutes before

conducting the test. The test revealed that the appellant’s breath alcohol content was .16,

twice the legal limit.

The appellant was convicted of DUI and DUI per se based upon the appellant’s blood

alcohol content. The trial court merged the convictions then proceeded to the second portion

of the bifurcated proceedings, for the jury to determine the number of prior DUI convictions

the appellant had. The State produced copies of convictions, demonstrating that the appellant

had previously been convicted of DUI in Hamilton County, Tennessee, and in Fulton County,

Georgia. Based upon this proof, the jury found the appellant guilty of DUI, third offense.

Thereafter, the trial court imposed a sentence of eleven months and twenty-nine days and

ordered the appellant to serve 150 days of his sentence in confinement and the remainder on

probation.

II. Analysis

A. Discovery/Brady Violations

As his first issue, the appellant argues that the trial court erred by “not excluding

evidence witheld (sic) from the defense in violation of Rule 16 and Brady v. Maryland[, 373

U.S. 83 (1963)].” Specifically, the appellant contends that the State violated discovery rules

by failing to disclose information concerning the stop that Officer Shelton

contemporaneously wrote in his notebook. Additionally, the appellant complains that at trial

Officer Shelton’s testimony revealed that the appellant had signed a medical form prior to

booking, which was not disclosed during discovery.

At trial, Officer Shelton testified on cross-examination that he usually made notes in

a small notebook regarding a suspect’s performance of field sobriety tests then transferred

the pertinent information from those notes to the affidavit of complaint accompanying the

arrest report. Following Officer Shelton’s response, defense counsel moved for a mistrial

or, in the alternative, to have that information brought to court. Defense counsel argued that

he had filed a pretrial motion for discovery, requesting “any notes made by the police officer

in the investigation of this case.” He maintained that a discovery violation occurred because

the State failed to disclose the information contained in the notebook where Officer Shelton

made notes about the appellant’s performance on the field sobriety tests. During a voir dire

examination, Officer Shelton stated that his notes included only cursory details, such as the

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appellant’s name and date of birth. The notes included the appellant’s performance on the

field sobriety tests, which was later documented in the affidavit of complaint. Officer

Shelton said that his notes may have included the appellant’s statement that he was coming

from the Big Chill where he had four beers, but he also included that information in the

affidavit of complaint.

Additionally, during direct examination Officer Shelton testified that he asked the

appellant if he had any physical ailments which could impair his performance on the field

sobriety tests, and the appellant said he did not. On cross-examination, the defense

questioned Officer Shelton regarding whether the appellant could have been suffering from

some malady, such as diabetes, which could have mimicked the signs of being under the

influence of alcohol. Officer Shelton stated that while a diabetic attack could “show signs

or symptoms of [an] impaired driver,” the appellant did not appear to suffer such an ailment.

On redirect, Officer Shelton testified that “anytime we book somebody in, we have a medical

form they have to fill out, whether they’re suicidal or they need emergency medical attention,

and [the appellant] was asked those two questions after his arrest and he said no.” Officer

Shelton said that prior to booking, the appellant signed a form attesting that he did not

require medical attention.

Regarding the officer’s notebook, the trial court stated, “[Officer Shelton] says he

doesn’t have them or doesn’t know where they are, I’m not going to require him to do

something [when] he doesn’t know where they are.” The trial court found “that no Rule 16

violation was committed that would result in anything that the Court would do concerning

this.” The court further found that “the State has complied with the discovery request after

multiple hearings concerning what was asked for.” The court observed that defense counsel

had thoroughly cross-examined witnesses about the information in the undisclosed

documents.

First, we will address the appellant’s assertion that the failure to disclose the materials

violated discovery rules. Tennessee Rule of Criminal Procedure 16 governs the discovery

rights of parties in a criminal proceedings. In pertinent part, Rule 16(a)(1)(F) provides that

[u]pon a defendant’srequest, the state shall permit the defendant

to inspect and copy or photograph . . . documents . . . or copies

thereof, if the item is within the state’s possession or control

and:

(i) the item is material to preparing the defense;

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(ii) the government intends to use the item in its case-inchief at trial; or

(iii) the item was obtained from or belongs to the

defendant.

On appeal, the appellant acknowledges that he had the appellant’s arrest report and

the accompanying affidavit of complaint. In the affidavit, Officer Shelton stated that the

appellant was unable to hold up his head in his vehicle and continuously slumped forward

and backward in his seat. The affidavit reflected that when the appellant exited his vehicle,

he “stated that he had 4 beers at the Big Chill and was on his way home.” Officer Shelton

testified that the information contained in his notes was cursory and included the appellant’s

name, date of birth, performance on the field sobriety tests, and, possibly, his statement about

drinking beer at the Big Chill. The appellant argues that the medical form and the notebook

“could be” helpful or material to his case. We conclude the appellant’s argument is, at best,

speculative. The appellant bears the burden of demonstrating “the degree to which the

impediments to discovery hindered trial preparation and defense at trial.” State v. Brown,

836 S.W.2d 530, 548 (Tenn. 1992). As we have stated, the appellant was aware of the

substance of the contested information through the arrest report and affidavit. Accordingly,

the appellant has not demonstrated how he was prejudiced by the alleged discovery violation.

Thus, he is not entitled to relief on this basis.

We also conclude that the appellant is not entitled to relief under Brady. In Brady v.

Maryland, 373 U.S. 83, 87 (1963), the United States Supreme Court held that “suppression

by the prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution.” See also Giglio v. United States, 405 U.S. 150, 154 (1972);

Hartman v. State, 896 S.W.2d 94, 101 (Tenn. 1995). However, a criminal defendant carries

the burden of proving a Brady violation by a preponderance of the evidence. State v. Edgin,

902 S.W.2d 387, 389 (Tenn.1995); State v. Spurlock, 874 S.W.2d 602, 610 (Tenn. Crim.

App. 1993). In order to carry his burden, a defendant must establish the following

prerequisites:

1. The defendant must have requested the information (unless

the evidence is obviously exculpatory, in which case the State is

bound to release the information whether requested or not);

2. The State must have suppressed the information;

3. The information must have been favorable to the accused; and

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4. The information must have been material.

Edgin, 902 S.W.2d at 389; see also Johnson v. State, 38 S.W.3d 52, 56 (Tenn. 2001); Irick

v. State, 973 S.W.2d 643, 657 (Tenn. Crim. App. 1998). This court has previously observed:

The “prosecution is not required to disclose information that the

accused already possesses or is able to obtain.” State v.

Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992).

Although the State is not obligated to disclose the entirety of the

investigatory police work in a case, the State is required to

disclose all favorable evidence obtained by any person acting on

the government's behalf. See Moore v. Illinois, 408 U.S. 786,

795 (1972)).

State v. Baldomero Galindo, No. E2009-00549-CCA-R3-CD, 2010 WL 4684469, at *17

(Tenn. Crim. App. at Knoxville, Nov. 19, 2010). The appellant has failed to establish that

the contested information was favorable to him or that the information was material.

Additionally, regarding the so-called “medical report,” we note that “[t]he prosecution

is not required to disclose information that the accused already possesses or is able to

obtain.” State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992). A brief

conversation between defense counsel and the appellant would have revealed that the

appellant did not have any medical conditions that would impair his performance on the field

sobriety tests and that the appellant had filled out a form attesting that he did not require

medical attention at the time of booking. “[T]he State is not obliged to make an investigation

or to gather evidence for the defendant.” State v. Michael Brown, No. 01C01-9711-CC00518, 1999 WL 743610, at *3 (Tenn. Crim. App. at Nashville, Sept. 24, 1999) (citing State

v. Reynolds, 671 S.W.2d 854, 856 (Tenn. Crim. App. 1984)).

We also note that the appellant has included a “laundry list” of alleged

discovery/Brady violations, without supporting his additional complaints with argument.

However, as with the foregoing contested information, the appellant failed to adduce proof

that the information was material or favorable. The appellant’s complaints as to the

favorability of the evidence are speculative at best. Most of the contested information could

have been discovered by the appellant with a little investigation. As the trial court noted, the

State was not required to perform the appellant’s investigation for him. The appellant is not

entitled to relief on this basis.

B. Miranda Violation

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The appellant arguesthat the State violated his Fifth Amendment rights by asking him

questions during the DUI stop. Specifically, the appellant contends that because Officer

Shelton had his gun drawn when approaching the appellant’s vehicle, the stop was turned

into a custodial detention requiring Miranda warnings. On the first day of trial, the appellant

filed a motion to suppress statements he made during the DUI stop because he was not

apprised of his Miranda rights. Defense counsel stated that he filed the motion following a

conversation with the appellant the week before trial. During the conversation, he learned

that the “stop itself . . . may, perhaps, have been full-blown custody from the start” and would

thus require Miranda warnings. The court noted that the case was almost two years old and

that the motion was untimely. However, the court advised the appellant that he could “take

the matter up at the time that the officer testifies.” The appellant did not raise the issue

during the officer’s testimony.

Initially, the State contends that the appellant waived review of this issue by failing

to pursue a pretrial motion to suppress and by failing to raise the motion during the officer’s

testimony. We agree. Tennessee Rule of Criminal Procedure 12(b)(2)(C) provides that a

motion to suppress must be raised before trial. Additionally, the rule provides that a party

waives any objection by failing to comply with rules requiring the issue to be raised prior to

trial. Tenn. R. Crim. P. 12(f)(1). This court has explained that

[t]he purpose of this rule is not only to avoid the unnecessary

interruption and inefficiency in conducting jury trials caused by

needlessly removing the jury from the courtroom for protracted

suppression hearings, but also to ensure the right of the state to

an appeal of an adverse ruling by the trial judge without placing

the defendant twice in jeopardy.

State v. Randolph, 692 S.W.2d 37, 40 (Tenn. Crim. App. 1985). Moreover, “‘prior to trial’

means sometime earlier than ‘the day of the trial when the jury is waiting in the hall.’” State

v. Hamilton, 628 S.W.2d 742, 744 (Tenn. Crim. App. 1981). The trial court stated that

although the case had been pending for nearly two years, defense counsel had failed to

thoroughly interview his client until the week prior to trial when he finally learned the

circumstances of the stop. The appellant failed to demonstrate good cause for failing to raise

the issue earlier. Id. at 745. Accordingly, this issue is waived for failure to raise it prior to

trial. See Tenn. R. Crim. P. 12(b)(3) and (f).

C. Prior Conviction

As his final issue, the appellant argues that the State violated discovery by failing to

disclose a ten-page document detailing the appellant’s prior DUI conviction from Georgia.

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As proof of the appellant’s prior convictions, the State submitted a computer printout of the

appellant’s Tennessee driving record, which reflected that the appellant had prior DUI

convictions in Tennessee and Georgia. As further proof of his Georgia DUI conviction, the

State submitted a ten-page driving history from Georgia containing the appellant’s guilty

plea, the indictment, and the judgment of conviction. The appellant objected to both the

Tennessee driving record and the Georgia driving history, first noting that he had received

only an uncertified copy of the Tennessee driving record during discovery and second

arguing that he never received the ten-page document. The trial court overruled both

objections, finding that the Tennessee driving record was prima facie evidence of the

appellant’s prior convictions. At the motion for new trial hearing, the court stated that both

the Georgia document and the Tennessee driving record were properly certified and admitted

at trial.

The appellant contends that because of the “late disclosure” of the driving records,

several objections were “missed.” For example, the appellant contends that he would have

challenged the certification of the Georgia document and complained about being furnished

with an uncertified copy of the Tennessee driving record. We note that the appellant’s

Tennessee driving record was submitted as a computer printout from the Tennessee

Department of Safety. Tennessee Code Annotated section 55-10-403(g)(3)(A) expressly

provides that “[n]otwithstanding any other rule of evidence or law to the contrary, in the

prosecution of second or subsequent offenders under this chapter the official driver record

maintained by the department and produced upon a certified computer printout shall

constitute prima facie evidence of the prior conviction.” The appellant does not assert that

there were any differences or inaccuracies in the uncertified copy he admittedly obtained

prior to trial and the certified copy entered as an exhibit at trial. After our review of the

record, we conclude that the appellant was properly on notice regarding this conviction and

that the State properly disclosed this evidence prior to trial. See Tenn. R. Crim. P. 12.3(a).

Accordingly, the appellant’s Tennessee driving record was properly admitted at trial.

Next, we will address the appellant’s complaint regarding the ten-page document

which was offered as proof of the appellant’s prior DUI conviction in Georgia. We agree

with the State that regarding these Rule 16 and Brady complaints, the appellant has failed to

demonstrate the Georgia documents were in the State’s possession prior to trial, that the

documents were suppressed by the State, that the documents were beneficial to the defense,

or that his arguments regarding the authentication of the documents are material.

We note that defense counsel, who was much aggrieved by what he perceived to be

continuing discovery violations, exhaustively pursued access to information from the State,

making numerous objections and motions concerning the State’s alleged failure to comply

with Rule 16 and Brady. During one hearing regarding such a complaint, the trial court

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observed that “apparently [the State] pick[s] you out, [defense counsel], as somebody not to

help, because no one else seems to have that problem.” During trial, the court also stated

“that a limited amount of research on defense’s side would have indicated, by talking to the

witness[es], by reviewing the affidavit of complaint, would have revealed” much of the

information defense counsel complained was not included in discovery. We agree with the

trial court. The indictment charged the appellant with DUI and noted that he had previously

been convicted of DUI in Fulton County, Georgia on January 5, 2004, and in Hamilton

County, Tennessee on December 7, 2005. The State’s notice to enhance listed these two

previous convictions as well. Therefore, the appellant was on notice that the convictions

would be used against him at trial, and he suffered no discernable prejudice from the delayed

disclosure of the ten-page document. See Tenn. R. Crim. P. 12.3(a); State v. Cottrell, 868

S.W.2d 673, 676-77 (Tenn. Crim. App. 1992).

The appellant also maintains that the Georgia driving history was not properly

certified for the following reasons:

1. “The first page, which purports to be a certification

according to the Acts of Congress, is defective in that the third

and final entry which purports to certify the attestation of A.L.

Thompson . . . and his signature, was attested to on August 15,

2007, some seven days prior to A.L. Thompson signing the

document on August 22, 2007.”

2. “[I]t does not appear, at least on the copies, to bear what may

be referred to as a seal.”

3. On the document entitled “Plea and Verdict[,] . . . [n]o

count numbers are indicated and no additional charges are listed.

. . . The line for the defendant to sign however is blank.”

4. The Georgia documents “appl[y] to multiple charges. . . .

[A]reas . . . use capital A and capital B descriptions but do not

identify what they refer to.”

Despite the appellant’s numerous complaints about the document, we conclude that the

document is properly verified. See Tenn. R. Evid. 902.

Rule 902 provides that the following types of evidence do not require extrinsic

evidence of authenticity:

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(1) Domestic Public Documents Under Seal. A document

bearing a seal purporting to be that of the State of Tennessee,

the United States (or of any other state, district, commonwealth,

territory, or insular possession thereof, or the Panama Canal

Zone, or the Trust Territory of the Pacific Islands), or of a

political subdivision, department, office, or agency thereof, and

a signature purporting to be an attestation or execution.

. . . .

(4) Certified Copies of Public Records. A copy of an official

record or report or entry therein, or of a document authorized by

law to be recorded or filed and actually recorded or filed in a

public office (including data compilationsin any form), certified

as correct by the custodian or other person authorized to make

the certification, by certificate complying with paragraph (1),

(2), or (3) of this rule or complying with any Act of Congress or

the Tennessee Legislature or rule prescribed by the Tennessee

Supreme Court.

Tenn. R. Evid. 902(1) and (4). Contrary to the appellant’s claim, the ten-page document

bears, on each page, a seal. On one page, the seal is attested to by both the Deputy Clerk of

Fulton County, Georgia, and of A.L. Thompson, “Judge of the State Court of Fulton County,

Georgia.” The documents reflect that the appellant was charged with and pled guilty to

running a red light and two counts of DUI, which all merged into a single DUI count. The

attached guilty plea was signed by the appellant and his attorney. Also attached is a

judgment of conviction which reflects that counts “A, B2” were merged with count “B1.”

The documents all reflect the same case number. Accordingly, we conclude these documents

were facially valid. See State v. Danny Ralph Troutman, No. E2007-01536-CCA-R3-CD,

2008 WL 4756874, at **4-7 (Tenn. Crim. App. at Knoxville, Oct. 30, 2008). The appellant

is not entitled to relief on this basis.

III. Conclusion

In sum, we conclude that the trial court properly ruled on the appellant’s Rule

16/Brady motions, hissuppression motion, and the admissibility of his prior DUI convictions.

Accordingly, we affirm the judgment of the trial court.

___________________________________

NORMA McGEE OGLE, JUDGE

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