### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE May 22, 2001 SESSION STATE OF TENNESSEE v. JERRY R AY SIMPSON Appeal from the Circuit Court for Blount County Nos. C-11421 and C-11422 D. Kelly Thomas, Jr., Judge

No. E2000-02277-CCA-R3-CD August 10, 2001 A Blount County jury convicted the Defendant, Jerry Ray Simpson of driving under the influence anddriving on a revoked license. In this appeal as o f right, the Defendant raises the single issue of whether the trial court erred

by failing to strike

an alternate jur

or for cause due

to his employment as a police officer in an adjacent jurisdiction. Finding no error, we affirm the trial court’s judgment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed T HOMAS T. W OODALL , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J. and R OBERT W. W EDEMEYER , J., joined. Danny C. Garland, II, K

noxville, Tenness

ee (on appeal) ; Ro be rt Cohen, Maryville, Tennessee (at trial), for the appellant, Jerry Ray Simpson. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; Michael L. Flynn, District Attorney General; and John Bobo, Assistant D

istrict Attorney G

eneral, for the appellee, State of Tennessee. OPINION
On September 7, 1996, Officer Chad Simpson of the Maryville Police Department arrested the Defendant for

driving under the influence and driving on a rev

oked license. At D

efendant’s tria

l, the single witness for the State was Officer Simpson, and the defense only presented the testimony of the Defendant. Officer Simpson testified that he had received several calls about a disturbance on Keebler Street in Maryville, Tennessee. When he respo nde d, he encountered the Defendant skidding his tires and revving his engine in the middle of

the street. Simpson had the Defendant turn off his engine and get out of his truck. He asked to see the Defendant’s license, but the Defendant could not produce a license. Simpson testified that he knewthe Defendant was intoxicated, based upon the Defendant’s speech, conduct and smell. He asked the Defendant to take a sobriety test and a blood alcohol test, but the Defendant refused. Simpson got the Defendant’s name and birthday and-2-

checked his record. He discovered that the Defendant was driving on a revoked license. Simpson arrested the Defendant and took him in for booking, where he was photographed

and fingerprinted. In his testimony, the Defendant denied the entire incident and stated that he was not intoxicated on that night. During voir

dire, counsel for the State and the Defendant questioned Jason Best, a potential alternate juror, regarding his employment as a transportation office r with the Knoxville Police Department. The

colloquy wa

s as follows: Mr. Bobo [P

rosecuto r]: And what do you do for the Knoxville Police Departmen t, sir? Juror Best: I’m a transportation officer. Mr. Bobo: The fact that you work for a law enforcement age ncy, are you going to give moreweight to this gentleman’s testimony here, because he’s a law enforcement officer? JurorBest: I don’t believe so. Ever

ybody is innocent until

proven guil ty. Mr. Bobo: Think you can be fair to both sides and listen to the proof? Juror Best: Yes, sir. * * * Mr. Cohen [Def

ense]: Do you

think you per

sonally have

got a pretty

good handle on whether or not they’re intoxicated jus t by being able to observe them? Juror Best: Pretty good, yes, sir. Mr. Cohen: Well, th en, if we’ve got -- I know he’s not with the same police department as you, but we’ve got an officer with the Maryville Police Department who is probably going to testify that he’s got a pretty good idea, a pretty good -- he’s pr etty wellable to tell, to form a good opinion as to who’s intoxicated and who’s not. A re you likel y to give his testimonymore weigh t just because of your personal experience that you feel you can judge that and if he says so, then it must be so? JurorBest: Like I said, it’s just be based

on what he said, I

guess. As far as I know, I mean, it’s what he say s and -- I mea n, i f he s ays-3- he does have

that, [sic] it’s just . . . what I do, I’m the transport. I don’t make a

rrests. Yes,

I do see a lot of persons that are intoxi cated. And yes, I mean, by looking at som ebo dy, yeah, I can tell, I mean, i f the y’re intoxicated or not. But I guess

it would just be based on what the officer says, I’d have to take my

judgment from that. Mr. Cohen: Thank you. At this point, the parties presented their peremptory challenges to the trial court for juror Best and another potential alternate juror. The trial court excused the other juror and announced that juror Best wou ld be the alternate juror. The defense did not object to juror Best being chosen as the alternate, and did not ask the trial court to strike juror Best for cause. ANALYSIS The Defendant arg

ues that the trial c

ourt erred in per

mitting Best to se

rve as an altern

ate juror. A defendant

has the righ t to a fai r tr ial wit h an imp art ial jur y, but such a right does not include the right to any particular jurors. See State v. Smith , 857 S.W.2d 1, 20 (Tenn. 1993). Add iti ona lly, Tenn. R. Crim. P . 24(b) gives the trial j udge the right to excuse a juror for cause without examination of counsel. Furthermore, our supreme court has held that “[j]urors need not be totally ignorant of the facts of the case on which they sit [and even] the formation of an opinion on the merits will not disqualify a jur or if [he] can lay aside [his] opinion and render a verdict based on the evidence presented in court.” State v. Howell , 868 S.W.2d 238, 249 (Tenn. 1993). Here, the juror testified that he could serve as a fair and impartial juror. The Defendant asked the j uror if he would be biased and the juror replied that he would not. The Defendant did no t exercise his peremptory challenges to strike the juror. Neither did the Defendant challenge the selection of

the juror and req

uest that he be str

icken for cause

by the trial c

ourt. “[A] defenda

nt must notonly exhaust his peremptory challenges, but he must also chal lenge or offer to challenge an additional prospective juror in order to complain on appeal that the tr ial judge’s err

or in refusing to excuse for c ause re ndered his jury not impartial.” State v. Doelman , 620 S.W.2d 96, 100 (Tenn. Crim. App. 1981). It is clear the Defendant did not challenge the selection of juror Best. Moreover, there is nothing i

n the record to indicate that juror Best actually served on the jury . Therefore, any error in refusing to excuse him for cause does not, in

itself, entitle the Defendant to a new trial. See State v. Thompson , 768 S.W.2d 239, 246 (Tenn. 1989). For the foreg

oing reasons, w

e affirm the judg

ment of the trial c

ourt.

___________________________________ THOMAS T. WOODALL, JUDGE