# FILED
October 24, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE JUNE 1997 SESSION
STATE OF TENNESSEE, ) ) No. 01-C-01-9607-CC-0 0300 APPELLEE, ) ) Sequatchie County v. ) ) Thomas W . Graham, Judge GEORGE WESLEY HARVILLE, JR. ) ) (Aggravated Assault) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: Edward L. Boring John Knox Walkup Attorney at Law Attorney General & Repor ter P. O. Box 381 500 Charlotte Avenue Pikeville, TN 37367 Nashville, TN 37243-0497 Daryl J. Brand Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 J. Michael Taylor District Attorney General 265 Third Avenue, Suite 300 Dayton, TN 37321 Will Dunn Assistant District A

ttorney General 265 Third Avenue, Suite 300 Dayton, TN 37321

OPINION FILED: ____________________________

________ AFFIRMED Joe B. Jones, Pre siding Judge2 

### O P I N I O N

The appellant, Ge orge W. Harville, Jr., (defendant) , was convicted of agg ravated assault, a Class C felony, by a jury of his peers. The trial court found the defendantwas a standard of fend er and imposed a Range I sentenc e consisting of a $5,000 fine and confinement for four (4) years in the Departmentof Correction. In this Court, the defendant contends the trial court com mitted error of prejudicial dime nsions by failing to supp ress evidence on the ground the aggrav ated assault occurred after an un lawful stopby a police officer. After a thorough review of the record, the briefs submitted by the parties, andthe law gov erni ng the issue presented for re view, it is the op inion of this Court that the judgment of the trial court s hould be affirmed. The State of Tennessee correctl y asser ts the defendant has never stated i n the motion to suppress, the hearing on the motion to suppress, and the brief filed in this Court whatevidence h e sought to suppress. The stat e is correct in its c

onclusion based upon the record presented to this Court. The motion to suppress states in substance the defendant see ks to “suppress
certain evi dence” on the ground Officer James C. Jackson did not possess sufficient information to justify the Terry stop in question. He cl aims “all evidence obtai ned pursuant to this stop . . . was tainted by this illegal seizure and should be excluded.” He seeks the entryof an order “suppressing the evidence seized . . . as the result of this il legal, unlawful and unreasonable st op.” When t his motion was heard pri or to the trial, there w as no mention of what evidence the defendant soug ht to suppress. The issue pres ented fo r review in this case refers to “certain evidence” which should have been suppressed. The argumentportion of the brief does not allude to what evidence the defendant soug ht to suppress. Before this Court can adj u dicate the issue presented for review, this Court must speculate as to the nature of the “certain evid ence” the d efendant sought to suppress. Moreover, the predi cate la id for the suppression of the ev idence rests on an erroneous premise. W hen Deputy Jackson attempted to stop the defend ant, he refused to stop in obedience to the emergency light s and siren. Instead, the defendant came to a stop when3

his truck struck a mudhole on a dirt road. The record reveals Deputy Jacksondid not se ize any evidence as a direct result of the alleged “stop.” A review of the facts is necessary to establish the factual scenario which unfolded on the date in question. Deputy Jackso n, a Hami lton Cou nty dep uty she riff, was p reparing a report in a parking area ac ross the street from the Favorite Market, which is located on U.S. 127 in Hamilton County. He subsequently heard a driver of an automobile “ laying on the horn.” He looked to seewhy thedriver was blow ing the horn. Deputy J ackson saw the defendant, who was drivi ng his pickup truck, mak e a wide right-hand

turn from the parking

lot of the FavoriteMarket into the north-bound lane on U.S. 127. When the defendant went into the south-bound lane while making the turn, aperson driving an aut omobile in the south-bound lane began honking his hor n. It occur red to Deputy Jackson that the defendant may be driving whi le under the influence. He decided to follow the defendant. He observed the defend ant weaving within his lane of traffic , “ridi ng” the center line of the hi ghway and driv ing onto the center line, and failing to maintain a constant speed when the defendant’s lane was unimpeded. Given these circumstances and the fact it was rain ing , Deputy Jackson decided t o stop the defendant to determine if his ability to operat e the truck was impair

ed. He activated the emergency lights. The defendant did not stop. He activated the siren. The defendant did not stop. When the defendant reached the Hamilton County-Sequatchie County line, Deputy Jackson alerted the dispatcher he was ente ring into Sequatchie C ounty and he would need assistance. The dispatcher notified Sequatc hie County law enforcement officers of what had occurred and asked the author ities to assist Deputy

Jackson. The defendant turned onto a dirt road in Sequatchie County, which was in a horrible state of repair. Deputy Jacks on followed the defendant. The defendant subsequently hit
a large mudhole in the road and his pickup truck was disabled. Deputy

Jackson ordered the defendant, and apassenger, Robert W. King, to exit the pickup truck. The defendant exited the truck. Jackson then approache d the truck with his weapon drawn. The defendant got back into the truck. Jackson retr eated behind his cruiser. The defendant4

exited the truck a second time and subsequently enter ed the truck again. Deputy Jackson saw a firearm in King’s hands. Jackson advised Officer Culpepper,
a City of Walden police off ic erwho had arrived to as sist him, to take cover

because the passenger

had a firea rm. King fired the weapon while ins ide the truck. A second shot
was fired which struck the rear of the cruiser. Deputy Jackson fired two shots. He struck
one of the tires on the truck as the defendant was attempting to dri ve away. The shooti ng ceased. King exited the truck The defendant slid to the middle of the truck and reached f or something. He then exited the truck and fled to a wooded a rea. Jackson pursued the defendant. He eventually
saw a pistol in the right back pocket of the defendant’s pants. W hile in the woods, Deputy Jackson confronted the defendant. The defendant drew the pistol fromhis back pocket. Deputy Jackson fired his weapon at the defendant. He struck the de fendant. However, the defendant began walking tow ard Deputy Jackson w

ith the pistol in his hand. Another officer who had arrived t o assist Jackson tackled the defendant. As previous ly stated, D eputy Jackson did not seiz e any evidence after the defendant’s truck struck the large mudhole. The only ev idence seized was i ncident to the arrest for what transpired after the truck was immobilized, namel y, the aggravated assault. This evidence did not pertain to the defendant ’s operation of the truck. This Court is of the opinion Deputy Jackson had reaso nable an d articulable facts to stop the defendant pursuant to Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Deputy Jackson saw the defendant make a wide right turn which resulted in the defendant’s motor vehicle crossi ng the center line into the oppos ing laneof traffic. He also viewed the defendant’s ve hicle weaving w ithin its lane of traffic. The defendant w as “riding” the center line and driv ing on theline at times. It was raining and the highway was wet. In short, these facts, coupled with all reasonable i nferences and d educti ons which maybe drawn f rom thes e facts, we re sufficien t to justify Deputy Ja ckson stopping the defendant to determine whether his ability to operate a motor vehicle was impair

ed. The defendant did not have the right to resist the stop even if the defendant thought Deputy Jackson did not have the authority to stop him. Tenn. Code Ann. § 39-16-602(b) and § 39- 11-611(e).5 T his Court is further of the opinion Deputy Jackson did not “ stop” the de fendan t within the meaning of the law. The defendant i gnored the e merg ency lights and sir en activated by Deputy Jackson.The only reason the defendant came to a stop was because his truck became stuck in a mudhole in the road. Assuming, arguendo , Deputy Jackson did not

possess reasonable and articulable facts to justify the stop, this fact, standing alone, does not afford the defendantrelief from his conviction. It is a well-established rule of law in this jurisdict ion that there is no constitutional immunity from an unlawful sto p or arrest. See State v. Manning , 490 S.W.2d 512, 514 (Tenn. 1973); State v. Miller , 608 S.W.2d 158, 160 (Tenn. Crim. App.), per . app . denied ( Tenn. 198 0); Robinson v. State , 517 S.W.2d 768, 772 (Tenn. Crim. App.), cert
. denied (Tenn. 1974). In addition, the fact there was an ill egal stop or arrest does not warrant the total exclusion of w hat takes place after the illegal stop or arrest. This is particularlytrue of crimes committed subseq uent to the illegal stop or arrest. Such conduct is not obtained as a result of the exploitatio n of the illegal stop or ar rest. Brown v. Anchorage , 680 P.2d 100 (Alaska 1984) (as sault on apolice officer); Cooper v. State , No. 12-93-00318-CR, 1997 WL 287619 (Tex. Ct. App., at Tyle r, May 29, 1997). See State v. Mayorga , 876 S.W.2d 176 (Tex. Ct. App. 1994) ; Rob erts v. State , 711 P.2d 1131 (Wyo. 1985); Ellison v. State , 410 A.2d 519 (Del. Super. Ct . 1979), cert
. denied , 455 U.S. 1026, 102 S.Ct. 1730, 72 L.Ed.2d 147 (1982). Thus, the evidence pertaining to the agg ravated
as sault committ ed agains t Deputy Ja ckson, whi ch occurre d after t he allege d stop, wa s admissible as evidence i n this prosecution for this offense.

__ _____________________ ____________________ _ JOE B. JONES, PRESIDIN G JUDGE

CONCUR:

______________________________________6 WILLIAM M. BARKER, JUDGE

______________________________________ THOMAS T. WOODALL, JUDGE