FILED

October 28, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

MAY SESSION, 1999

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9811-CR-00446

)

Appellee, )

)

) WILSON COUNTY

VS. )

) HON. J. O. BOND

WANDA E. DAVIS, ) JUDGE

)

Appellant. ) (Direct Appeal - D.U.I.)

FOR THE APPELLANT: FOR THE APPELLEE:

HUGH GREEN PAUL G. SUMMERS

100 Public Square Attorney General & Reporter

Lebanon, TN 37087

ELIZABETH B. MARNEY

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

TOM P. THOMPSON, JR.

District Attorney General

JERRY HUNT

Assistant District Attorney

119 S. College St.

Lebanon, TN 37087

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

The appellant, Wanda E. Davis, was convicted by a Wilson County jury of

one (1) count of driving under the influence, second offense. She was fined

$600, and the trial court sentenced her to eleven (11) months and twenty-nine

(29) days in jail; all but 45 days of the sentence was suspended. On appeal, the

appellant raised the following issues for this Court’s review:

(1) whether the trial court erred by failing to dismiss the case

because of alleged defects in the indictment;

(2) whether the trial court erred in admitting the testimony of a

state’s witness when the appellant was not provided with pretrial

discovery information relating to the witness;

(3) whether the trial court erred by restricting the appellant’s cross

examination of Trooper Vaughn;

(4) whether the trial court erred by refusing to admit testimony

concerning a statement made by Trooper Vaughn to the appellant;

(5) whether the trial court erred in denying a mistrial after the state

conducted improper questioning of the appellant;

(6) whether the state’s closing argument constituted prosecutorial

misconduct which warranted a mistrial; and

(7) whether the evidence is sufficient to support the appellant’s

conviction.

After a thorough review of the record, we conclude that there is no reversible

error and, therefore, affirm the judgment of the trial court.

FACTS

In the early morning of January 23, 1997, Henry Kerr was traveling on Mt.

Juliet Road when he noticed a vehicle in a ditch. When Kerr stopped to assist
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the motorist, the appellant got out of the vehicle and asked Kerr if he would push

her vehicle from the ditch. Kerr refused the appellant’s request but offered to call

a wrecker once he arrived at his home. Immediately upon arriving hom e, Kerr

contacted Oco Hamblen, who owned a wrecker service. 

Once Hamblen arrived at the scene, he hooked his wrecker to the

appellant’s vehicle and pulled it from the ditch. Hamblen then asked the

appellant to get in the vehicle and either push down on the brakes or shift into

park. Instead, the appellant shifted the vehicle into gear, allowing it to roll back

into the ditch. After Hamblen pulled the vehicle from the ditch a second time, the

appellant got out of her vehicle and began to complain that Hamblen had

damaged her vehicle. Hamblen responded by calling the police. 

State Trooper Jack Vaughn arrived on the scene about 12:25 a.m. The

appellant informed him that she was driving on Interstate 40 when she took the

wrong exit and, while trying to make a U-turn, drove her vehicle into the ditch.

Vaughn noticed an open beer can in the vehicle and asked the appellant if she

had been drinking. The appellant acknowledged that she had consumed a

couple of beers that evening. Vaughn administered three field sobriety tests, all

of which the appellant performed unsatisfactorily. Based on his observations,

Vaughn concluded that the appellant was under the influence of an intoxicant and

placed her under arrest. He then asked her to submit to a blood alcohol test, and

the appellant consented. The blood alcohol test results revealed that the

appellant’s blood alcohol level was 0.21%. 

The appellant was indicted in a three-count indictment charging alternative

counts of driving under the influence of an intoxicant, driving under the influence

of an intoxicant, second offense, and driving with a blood alcohol content above

.10. At trial, the appellant testified that she had not been driving her car that
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night, but had met a man named “Allen” at a local bar whom she had allowed to

drive her automobile. They were driving on Mt. Juliet Road when they attempted

to turn around in a residential driveway, and the car became stuck. “Allen” left

to seek assistance, but never returned to the scene. 

The jury returned a verdict of guilty for driving under the influence of an

intoxicant, second offense. The trial court sentenced the appellant to eleven (11)

months and twenty-nine (29) days, with all but 45 days suspended. From her

conviction, the appellant now brings this appeal.

ALLEGED INDICTMENT DEFECTS

The appellant claims that the indictment contained deficiencies which were

unduly prejudicial. First, she asserts that the indictment was defective because

Count Two of the indictment, charging her with DUI “second offense” could not

be taken into the jury room during deliberations. She further contends that the

indictment was defective because she could not be convicted of driving under the

influence of an intoxicant in Count One and driving with a blood alcohol content

above the legal limit in Count Three because such counts are duplicitous.

Appellant has failed to provide this court with authority in support of her

argument. When an appellant fails to cite appropriate authority in support of his

or her issue on appeal, that issue is waived. Tenn. Ct. Crim. App. 10(b); State

v. Alvarado, 961 S.W.2d 136, 148 (Tenn. Crim. App. 1996).

Furthermore, defects in the indictment must be raised prior to trial, or will

be deemed waived. Tenn. R. Crim. P. 12(b)(2); State v. Kennedy, 649 S.W.2d

275, 279 (Tenn. Crim. App. 1982). Appellant failed to raise the issue of the

indictment’s sufficiency prior to trial. Although this Court “may notice at any time
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during the pendency of the proceedings the defense that the indictment fails to

show jurisdiction or fails to charge an offense,” see Ruff v. State, 978 S.W.2d 95,

96 (Tenn. 1998), the appellant does not challenge the trial court’s jurisdiction or

complain that the indictment fails to charge an offense. As a result, the appellant

has waived the issue on this basis as well.

This issue is without merit.

PRETRIAL DISCOVERY

In her next issue, the appellant contends that the trial court erred by

admitting the testimony of Norman Kerr when the state failed, during pretrial

discovery, to provide the defense with Kerr’s address and Kerr’s hand-written

notes regarding the incident. The appellant claims that as a result of being

denied access to the requested information, she was unfairly prejudiced by Kerr’s

testimony and was denied a full and fair cross-examination of the witness.

With regard to the state’s failure to provide the defense with Kerr’s

address, the state provided the defense with the names and addresses of its

witnesses during pretrial discovery. The state listed Kerr as a witness, but did not

provide his address because the state did not have that information at that time.

The state was, however, able to obtain his address approximately one month

prior to trial when a subpoena requiring Kerr’s presence at trial was issued.

The state is not required to furnish the appellant with inform ation easily

obtainable by exercising reasonable diligence. See State v. Dickerson, 885

S.W.2d 90, 92 (Tenn. Crim. App. 1993). The defense was provided with Kerr’s

name during pretrial discovery. Once a name has been acquired, the address

of the individual is usually obtainable with reasonable diligence. The appellant
1

 A statement is defined as:

(1) A written statement made by the witness that is signed or otherwise adopted or

approved by the witness; or

(2) A subs tantia lly verbatim recita l of an oral s tatem ent m ade by the witne ss th at is

recorded contemporaneously with the making of the oral statement and that is contained

in a stenographic, mecha nical, electrical, or other recording or a transcription thereof.

Tenn . R. Crim . P. 26.2(g ); see also State v. Payton, 782 S.W .2d 490, 494 (Tenn. Crim . App. 1989).

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has failed to show that she made any effort in addition to the pretrial discovery

motion to obtain the address of Mr. Kerr.

In any event, the appellant has not established how she was prejudiced by

the state’s failure to provide the witness’ address. Defense counsel conducted

a vigorous cross-examination of Kerr and implied that Kerr would have reasons

to be biased in favor of other state witnesses and against the appellant. After

being placed upon notice that Kerr might testify, the defense was clearly able to

prepare for the witness’ testimony. Therefore, there is not prejudice to the

defense shown in this record.

The appellant also claims that she was unfairly prejudiced because the

state failed to provide Kerr’s hand-written notes. Kerr drafted a summary of the

events he witnessed the night of the arrest to aid him during his testimony. The

appellant claims that she has a right to pretrial discovery of these notes because

she requested “written . . . summaries of statements made by the defendant to

any individual concerning any relevant aspect of this case” and Kerr’s notes

allegedly contained statements made by the appellant on relevant aspects of the

case. The trial court found that Kerr’s handwritten notes did not constitute a

“statement,” and the appellant was entitled to review these notes only if the

defense requested them at the conclusion of Kerr’s direct testimony. 

It is arguable whether Kerr’s handwritten notes to aid in his testimony

constitute a “statement.”1 However, even if these notes could be considered a
2

 The appellant claims that the state was obligated to provide the notes prior to trial because she

requested “written . . . summaries of statements made by the defendant to any individual concerning any

relevant aspect of this case” in her pretrial discovery motion which was granted by the trial court. She

argues that the no tes con tain statem ents m ade by the appellant o n relevan t aspec ts of the ca se. 

However, the record does not support this contention, as there is no indication as to what information the

notes contain.

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“statement,” the state was not required to produce such statement until after Kerr

had testified on direct examination. According to Tenn. R. Crim. P. 16(a)(2),

statements made by state witnesses are not subject to rules of disclosure. Under

Tenn. R. Crim. P. 26.2, trial counsel may examine a witness’ statement after

direct examination. See State v. Caughron, 855 S.W.2d 526, 535 (Tenn. 1993).

No obligation exists for the state to produce a witness’ statement until after direct

examination of the witness.2

Id.

This issue has no merit.

RESTRICTION ON CROSS EXAMINATION

The appellant contends that the trial court erred by refusing her the

opportunity to fully and fairly cross examine State Trooper Jack Vaughn. The

appellant claims that the witness was biased due to pressures from an internal

affairs investigation. Consequently, the appellant argues that she should have

been afforded the opportunity to question this witness regarding his bias.

The appellant and Vaughn spoke on the day that her preliminary hearing

was scheduled, and the appellant informed him that she had not been driving her

vehicle on the night of the incident. She explained that a man she picked up

from a bar (“Allen”) was the driver, but she did not tell the officer this information

on the night of the incident because she was embarrassed. Vaughn told the

appellant that her explanation was sincere and reasonable. Shortly after her
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conversation with Vaughn, the appellant informed her former boyfriend that she

believed the charges against her would be dropped by the state.

Sometime later, the appellant’s former boyfriend contacted the Tennessee

Highway Patrol in an effort to generate an internal affairs investigation,

suggesting that the appellant and Vaughn were “going to conspire to fix the

case.” Subsequently, Vaughn testified for the grand jury, and the grand jury

returned the present indictment. 

At trial, Vaughn testified on cross-examination that he believed the

appellant’s explanation of the incident was sincere and seemed reasonable.

When defense counsel attempted to question Vaughn about the internal affairs

investigation which may have affected the officer’s testimony before the grand

jury, the state objected to the appellant’s questioning. After a jury out hearing,

the trial court sustained the objection finding that the information was irrelevant.

“Because an assessment of whether a piece of evidence is relevant

requires an understanding of the case’s theory and other evidence as well as a

familiarity with the evidence in question, appellate courts give great deference to

a trial judge’s decision on relevance issues.” State v. Forbes, 918 S.W.2d 431,

449 (Tenn. Crim. App. 1995) (quoting N. Cohen, D. Paine & Sheppeard,

Tennessee Law of Evidence § 401.5 (2d ed. 1990)). For this reason the control

of cross examination of witnesses is completely within the trial court’s discretion

and will not be interfered with absent a clear showing of abuse of discretion.

State v. Harris, 839 S.W .2d 54, 72 (Tenn. 1992).

The trial court determined that testimony regarding the investigation into

Vaughn’s actions which preceded his grand jury testimony was irrelevant to the

jury’s determination at trial. We agree. Clearly, Officer Vaughn had probable

cause to arrest the appellant for driving under the influence of an intoxicant,
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notwithstanding the appellant’s subsequent self-serving statement that she was

not driving on the night of her arrest. Further, the district attorney, not Officer

Vaughn, made the determination to submit the case to the grand jury. The

decision whether to prosecute rests entirely within the discretion of the district

attorney. See State v. Superior Oil, Inc., 875 S.W.2d 658, 660 (Tenn. 1994);

Quillen v. Crockett, 928 S.W .2d 47, 51 (Tenn. Crim. App. 1995). 

In addition, although the appellant insists that Vaughn was improperly

influenced by the internal affairs investigation, the record does not support this

contention. Vaughn testified in a pretrial hearing that he learned of the

investigation after he testified before the grand jury. Furthermore, Vaughn denied

giving the appellant any indication that he would recommend that the grand jury

not return an indictment in this case. 

The facts surrounding the internal affairs investigation into Vaughn’s

actions was irrelevant to the jury’s determination of whether the appellant was

driving under the influence of an intoxicant in the early morning hours of January

23. Moreover, the record does not support the appellant’s assertions that Officer

Vaughn’s testimony before the grand jury was improperly influenced and that the

prosecution against her would have been dismissed had the investigation not

occurred. Therefore, the trial court did not abuse its discretion in refusing to allow

the appellant to cross-examine Vaughn regarding the investigation.

This issue is without merit.

APPELLANT’S TESTIMONY REFUSED

The appellant asserts that the trial court erred by not allowing the appellant

to testify as to whether Vaughn expressed that he believed that the appellant was
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not driving on the night of the incident. When the appellant attempted to testify

that Vaughn stated that he personally believed her, the state objected to the

question, and the trial court sustained the objection. However, ignoring the trial

court’s ruling, the appellant stated, “he said he believed me.” The trial judge then

gave curative instructions asking the jury to disregard the appellant’s statement.

Initially, this Court notes that this issue was not presented in the appellant’s

motion for new trial. If an alleged error is not properly raised in a motion for new

trial, the issue is waived. Tenn. R. App. P. 3(e); State v. Caughron, 855 S.W.2d

at 538. In any event, the arresting officer’s personal belief concerning the

truthfulness of a statement made by the accused is irrelevant. The standard of

review for a trial court’s determination of relevancy is an abuse of discretion

standard. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). The trial court

did not abuse its discretion in refusing to allow the testimony into evidence.

Moreover, the appellant certainly was not prejudiced by the trial court’s

ruling. On cross-examination, Vaughn repeatedly testified that the appellant

appeared sincere when she explained that she was not driving her autom obile

on the night of her arrest and that her story seemed reasonable. Thus, the jury

was allowed to hear that the officer believed that the appellant’s version of the

events was sincere.

This issue has no merit.

IMPROPER QUESTIONING BY STATE

In appellant’s next issue, she asserts that the trial court should have

granted a mistrial when the prosecutor questioned the appellant as to why she

did not inform Vaughn at the time of her arrest that she was not driving the
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vehicle. She claims that such questioning was unduly prejudicial, and the

curative instruction provided by the trial court was insufficient to cure the

prejudicial effect.

During cross examination, the assistant district attorney asked the

appellant why she failed to inform Vaughn that she was not driving the vehicle at

the time of her arrest. Trial counsel requested a bench conference and moved

for a mistrial based upon the inappropriate questioning. The trial court denied the

appellant’s motion for a mistrial but instructed the jury as follows: “The

defendant, upon being advised of constitutional rights has a right to rely upon

those rights without any further questioning from the officer.” 

The decision of whether to grant a mistrial rests within the sound discretion

of the trial court. State v. Smith, 871 S.W .2d 667, 672 (Tenn. 1994); State v.

McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). This Court will not

disturb that decision absent a finding of abuse of discretion. State v. Adkins, 786

S.W.2d 642, 644 (Tenn. 1990); State v. Hall, 947 S.W.2d 181, 184 (Tenn. Crim.

App. 1997). The burden of establishing the necessity for mistrial lies with the

party seeking it. State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App.

1996). In making this determination, “no abstract formula should be mechanically

applied, and all circumstances should be taken into account.” State v. Mounce,

859 S.W.2d 319, 322 (Tenn. 1993) (quoting Jones v. State, 403 S.W.2d 750, 753

(Tenn. 1966)).

It is well established that a prosecutor’s comment on an accused’s exercise

of his privilege against self-incrimination violates both federal and state

constitutions. State v. Hale, 672 S.W .2d 201, 202 (Tenn. 1984); State v.

Thomas, 818 S.W.2d 350, 364 (Tenn. Crim. App. 1991). However, the appellant

explained on direct examination that she did not tell the officer that she was not
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driving because she did not believe she should talk to the officer after he had

read her Miranda rights and placed her under arrest. She testified, “I mean, he

read me my rights, and it said that I didn’t have to say anything else, so I was just

-- I just didn’t say anything else.” Further, the questioning was limited, and the

trial court instructed the jury that the appellant was not required to speak to the

officer. In light of the limited nature of the offending questioning and the trial

court’s prompt curative instruction, the trial court did not abuse its discretion in

refusing to grant a mistrial. See State v. Dick, 872 S.W.2d 938, 944 (Tenn. Crim.

App. 1993).

The appellant also challenges the sufficiency of the curative instruction

given by the trial court. However, we conclude that the appellant has waived her

right to appeal the issue of whether the trial judge’s instruction was sufficient to

prevent undue prejudice. “If a party fails to request a curative instruction, or, if

dissatisfied with the instruction given and does not request a more complete

instruction, the party effectively waives the issue for appellate purposes.” State

v. Griffis, 964 S.W.2d 577, 599 (Tenn. Crim App. 1997); see also State v. Leach,

684 S.W .2d 655, 658 (Tenn. Crim. App. 1984). During trial the appellant failed

to request a more complete instruction by the trial court. Therefore, because the

appellant did not contest the sufficiency of the instructions during trial, the

appellant has waived any complaints with regard to the trial court’s curative

instruction.

This issue is without merit.
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STATE’S CLOSING ARGUMENT

The appellant next alleges that the trial court erred by failing to grant a

mistrial upon the prosecutor making an improper remark during closing argument.

During its rebuttal closing argument, the assistant district attorney made the

following statement:

I do know that the officer wrote down here from her testimony, her

statement to him that night that she was driving the car. He believes

that she was reasonable and he believes she was telling the truth

that night.

The appellant objected, on the grounds that there was no proof of this fact. The

trial court overruled the objection stating, “[t]his is argument . . . . What you all say

is not evidence.” The appellant claims that this remark was improper and

constitutes prosecutorial misconduct.

“Trial judges are accorded wide discretion in control of the argument.”

State v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995). Furthermore, both

the state and the defense are afforded wide latitude in arguing their cases to the

jury. State v. Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994); State v. Zirkle, 910

S.W.2d at 888. However, when the prosecution’s argument goes beyond that

wide latitude afforded, the test to determine whether reversal is required is

“whether the impropriety ‘affected the verdict to the prejudice of the defendant.’”

State v. Bigbee, 885 S.W.2d at 809 (quoting Harrington v. State, 215 Tenn. 338,

385 S.W .2d 758, 759 (1965)).

In reviewing a claim of prosecutorial misconduct during closing argument,

we are guided by such factors as:

1. The conduct complained of viewed in context and in light of the

facts and circumstances of the case.

 

2. The curative measures undertaken by the court and the prosecution. 
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3. The intent of the prosecution in making the improper statement. 

4. The cumulative effect of the improper conduct and any other errors in

the record. 

5. The relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

We do not believe that the prosecutor’s remark was improper. Certainly,

it is a logical inference that the officer believed that the appellant was driving

when he arrested her for driving under the influence. Additionally, this remark

was made in response to defense counsel’s argument that the officer instead

believed the appellant’s other version of the events that “Allen” was driving the

car.

In any event, after defense counsel objected to the remark, the trial court

stated in the jury’s presence that closing arguments are not evidence. In

addition, in its jury charge the trial court further instructed the jury that “what the

attorneys say to you is not evidence and you cannot rely on their statements to

you as evidence.” The jury is presumed to have followed the trial court's

instructions. State v. Butler, 880 S.W.2d 395, 399 (Tenn. Crim. App. 1994).

This issue has no merit.

SUFFICIENCY OF THE EVIDENCE

Finally, the appellant challenges the sufficiency of the convicting evidence.

When an accused challenges the sufficiency of the evidence, this Court must

review the record to determine if the evidence adduced during the trial was

sufficient “to support the findings by the trier of fact of guilt beyond a reasonable

doubt.” Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt
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predicated upon direct evidence, circumstantial evidence or a combination of

direct and circumstantial evidence. State v. Brewer, 932 S.W .2d 1, 19 (Tenn.

Crim. App. 1996).

In determining the sufficiency of the evidence, this Court does not reweigh

or reevaluate the evidence. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn.

1978). Nor may this Court substitute its inferences for those drawn by the trier

of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286

S.W.2d 856, 859 (1956). To the contrary, this Court is required to afford the state

the strongest legitimate view of the evidence contained in the record as well as

all reasonable and legitimate inferences which may be drawn from the evidence.

State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). “A guilty verdict

by the jury, approved by the trial judge, accredits the testimony of the witnesses

for the State and resolves all conflicts in favor of the theory of the State.” State

v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Questions concerning the

credibility of the witnesses, the weight and value to be given the evidence as well

as all factual issues raised by the evidence are resolved by the jury as the trier

of fact. State v. Tuttle, 914 S.W.2d at 932.

Because a verdict of guilt removes the presumption of innocence and

replaces it with a presumption of guilt, the accused has the burden in this Court

of illustrating why the evidence is insufficient to support the verdict returned by

the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); State v.

Grace, 493 S.W.2d at 476.

In the present case, two individual witnesses testified that the appellant

seemed to be under the influence of an intoxicant the night of the arrest. Vaughn

observed that the appellant was unsteady exiting her vehicle, had bloodshot eyes

and smelled of alcohol. After questioning the appellant and finding an empty
3

 The appellant does not contest the finding that she is a second offender of driving under the

influence of an intox icant.

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beer can in the vehicle, Vaughn administered sobriety tests, and the appellant

performed poorly on each test. Vaughn asked her if she would submit to a blood

test, and the appellant consented. Testing revealed that the appellant had a

blood alcohol content of 0.21%, over twice the legal limit. 

On the night of her arrest, the appellant informed Vaughn that she had

been driving the vehicle, even though she subsequently denied driving the

vehicle almost three months later while criminal charges were pending against

her. Additionally, the state presented testimony that the appellant backed her

car onto Mt. Juliet Road after Hamblen extricated the automobile from the ditch.

After viewing the evidence in light most favorable to the state, we conclude

that there is sufficient evidence for a rational trier of fact to determine that the

appellant was driving under the influence of an intoxicant.3 This issue is without

merit.

CONCLUSION

After a thorough review of the record before this Court, we conclude that

there is no reversible error in this case. Accordingly, the judgment of the trial

court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE
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CONCUR:

___________________________________

DAVID G. HAYES, JUDGE

___________________________________

NORMA MCGEE OGLE, JUDGE