### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs F eb ru ar y 4, 200 4 STA TE OF TEN NES SEE v. WI LLI AM PARKER, JR.
Direc t Appeal from the Circ uit Court for Warre n Coun ty No. M- 7661 Larry B. Stanley, Jr., Judge

No. M2003- 01423-CCA -R3-C D - F iled Augu st 19, 2004

T H O M A S T. W O O D A LL , J

. , d i s s en t i n g. I respe ctfully

dissent from that portion of the majority opinion which finds reve rsible er ror in this case due to the errone ous admission into evidenc e of Mr. Birdwell’s affidavit. W hile I ag ree that admission of t he affidavit was err or, under the particularly unique facts of this case , I conclude that it is harmless error

. I t was not nec essary

for the State to pr ove b ey ond a re asonable doubt that Defe ndant kno wing ly dr ov e on a

re vo ke d li c e ns e . The fo llo wi ng e xce rp ts f ro m th e e xami natio n o f D e fe nd a nt, both direct a nd cross, pe rsuades me that sufficie nt evidence was a dmitted through D efe ndant’s testimonythat his license wa s revoke d at the time of his arre st, although he testified that he thought that he wa s only

on a “no driver’s lice nse” status. [Defense counsel]: [O ff i ce r J enkins ] say s that y ou cooper ated. Did y ou do that? [Defenda nt] : Yes, sir. I did cooper ate. [Defense counsel]: Did y ou produce a drive r’s lice nse at that time? [Defenda nt] : I

did and he say s it showed “for identification only .” The d r i v er ’s l i ce n s e I h ad wa s a re s tri ct ed d ri v er ’s l i ce n s e . It should have, like I

said, the only

thing I was g uilty[ of] was not g oing and getting them back, the time had alre ady el apsed. I

could have g otten them back pr obably a g ood month, two months p ri o r t o that. I did not realize I

was driving . I thought that it just went to no driver’ s license.-2- * * * * [D e f e n s e c o u n s e l] : Had yo u known th at yo u had be e n on a r e vo ke d st at us

or had not ha d that temporary driver’ s license, would y ou ha ve drive n th a t ni g ht? [Defenda nt] : No, sir. I would not have. * * * * [Defense counsel]: Do y ou think if that tape was available , that it would show

wh a t y ou didthat ni g ht? [De fe nd a nt]: I thi nk if the tape wa s a va ila

ble it w ou ld s olv e thi s w ho le case , I mean, a s far

as the DU I

. I t would definitely show that I was not under

the influenc e. [De fe ns e c ou ns e l]: Yo u c ou ld s til l ma ke a g oo d a rg ume nt a

bo ut the li cen se tho ug h, y ou re a lizethat? [D e f e n d a n t] : Yes, sir. That one is my fault. Th e license one, I adm it.

I j ust did no t k now t hat

it st ay e d t hat

st at us. I t houg ht it wa s j us t a no dr iv e r ’ s license. Honest to g oodness, I could have went and got them back. I mean, I could have g ot them back months, I know I ’ve said this re peate dly , but it’ s so imp orta nt. I

c ou ld h a ve g ot the lic e ns e ba c k, bu t I just procra stinated and did not g o g et them. * * * * [D e f e n s e c o u n s e l] : Did you know that you were still on revoked status, or

suppo se dly wer e on r e vo ke d? [D e f e n d a n t] : No. At that t im e I thought it w as no d river ’s license.

That’s w hat I though t, I was on no driver’s license. [D e f e n s e c o u n s e l] : Did y ou have any inte n ti o n s o f d r iv in g o n a r e v oked license? [Defenda nt] : Neve r had inte n t i ons. I ’ve ne ver driven on a r evoked

license. When I

had re strictions I

did what I

was supposed to. I never had intentions to drive on a r evoked lice nse.-3-

On c ro ss- e xami na tio n, De fe nd a nt t e sti fi e d a s f oll ow s: [P r o s e c u to r ]: Bu t I t ho ug ht y o u t o ld M r . Sm ith t ha t y o u knew you

were driving on n o driver’ s license, but di dn’t realize it was r e vo ke d? [D e f e n d a n t] : That ’s e xa c tl y what I’ msa yin g. That ’s what I’ ve sa id nume rous tim es here . I thought I was driving on no dr ive r’ s lic e ns e . At the tim e I g ot pu lle d ov e r, I tho ug ht I was on no drive r’s lice nse. [P rosec utor]: When was y our license revoke d? [Defenda nt] : I ’m not sure, sir. [Pro se c uto r]: Yo u d on ’t re c a ll? [De fe nd a nt]: No , s ir . I do no t. [E mp h a s is a d d e d ]. As n o t e d ab o v e , D e f

e n d a n t a d m i t t e d “ t h e l i c e n s e o n e , ” a n d h e j u s t d i d n o t k n o w t ha t it “stay ed that status.” He thought it was “just a no drive r’s lice nse.”
I would aff

irm the conviction.

___________________________________ THOMAS T. WOODAL

L , J UDGE