# FILED Dec. 20, 1996 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTI ON AT JACK SON

CITY OF ADAMSVILLE, ) ) Appellee, ) McNairy County Circuit No. 618 ) vs. ) ) BRIAN K. CASS, ) Appeal No. 02A01-9606-CV-00141 ) Appellant. )

APPEAL FROM THE McNAI RY COUNTY CIRCUI

T COURT AT SELMER, TENNESSEE

THE HONORABLE JOE H. WAL KER, JUDGE

For the Appellant : For the Appellee : Brian K . Cass, Pro

Se Charles W. Burson Savannah, Tennessee Christina S. Shevalier Nashville, Tennessee

AFFI RMED

PER CURIAM1 Cass was also arrested for driving under the influence of alcohol. He was indicted by the grand jury

and was tried and convicted in circuit court. This conviction was the subject of a separa te appea l before the Tennessee Court of Cri minal Appe als, Case No. 02C01- 9411-CC00248. Several of the issues raised by Cass in this appeal are also raised in his appeal of the DUI conviction. OPINION Appell ant Brian K . Cass (“C ass”) a ppeals hi s convict

ion for vi olation of

severa l city ordinanc es. We af

firm. In the early mor

ning hours of January

30, 1994, Officer Johnnie Williams, an officer of the City of Adamsville Police Department, observed a vehicle tra veling at 52 miles per

hour (“mph”) in a 30 mph zone. It is undisputed that Cass was the driver of the spee ding car. The officer engag ed the blue lights on the patrol car and pursued Cass’s vehicle. In response, Cass drove out of town at a fast rate of speed. After tra veling approximately one a nd one-half miles, Cass stopped the car. Upon approaching Cass’s vehicle, Officer Williams smelled alcohol o n Cass and

asked him to step out of the vehicle. In the vehic le, the officer found an open can of beer. Officer Williams issued Cas s c itations for failing to yie ld to blue lights and for having an open container of an alcoholi c beverage in his vehicle, in violation of the ordinance s of the Cit y of Adamsville. 1 The matterwas tried in the municipal court for the City of Adamsville, and Cass was found t o hav e violated the ordinances. Cass sought a de novo ap pe al to th e c ir cu it co ur t o f M cN ai ry C ou nt y, Tennessee. After a benchtrial, the circuit court sustained Cass’s conviction for failure to y ield to blue lights and fined him $60 plus court costs. The circuit court also sustained Cass’s convict ion for having an open c ontainer

of an alc oholic beverage in his vehicle and fined him $10 pluscourt co sts. Cass appealed this matter to the Tennessee Court of Criminal Appeals. Under Rule 17 of

theTennessee Rules of App ellate Procedure, the Court

of Crimina

l Appeals transferred

the appeal to this Court by Order enter ed June 17, 1996. Section 16-5-108(a)(1) of the Tennessee Code Annotated limits the jurisdiction of the Court of Criminal Appeals to review of the final judgmen

ts of trial c ourts in fe

lony and misde

meanor c riminal c ases. Tenn. Code Ann. § 16-5- 108(a)(1) (1994 & S upp. 1996) . A municip al ordina nce viola tion is civil in nature andnot crimin al. O’Dell v. City of Knoxvill

e , 379 S.W.2d 756, 757-58 (Tenn. 1964). Therefore, the Court of Criminal Appeals lacked jurisdiction to hear this appeal. See id. at 758 ; see also Clark v. Me tropolitan G

ovt. of Nashville and Davids on County , 827 S .W.2d 312, 3 15 (Tenn. App. 1991). Cass filed an2

Application for Extra

ordinar y A ppeal wit h the Ten nessee Su preme Court in order to obtain judicial review of the order of the Court of Criminal Appeals transferring the appeal to this Court . Th e Supreme Court deni ed the Ap plication by O rder en tered No vember 2 5, 1996. Co nsequen tly, this Court assumed jurisdiction of the appeal. Our review o f this cas e is g overned by R ule 13(d) of the Te

nnessee Rules of A

ppellate Procedure, which provide s that rev ie w of the decision of the trial court shall be de novo upon the record, ac co mp an ie d b y a presumpt ion of the correctness of the findings of fact. Te nn. R. App. P. 13(d). Unless the preponderance of the evidenc e is otherwise, we must affirm the trial court absent an error of law. Id. ; Union Carbide Corp. v. Huddleston , 854 S.W.2d 87, 91 (Tenn. 1993). On appeal, Cass raises a variety of issues. He first asserts that the police office r did not have probable cause to stop him; therefore, the fruits of the subsequent searc h should not have been admitted into evidence. However, there is no indication in the record that Cass madeany motion to suppressthis evidence; consequently , the issue is waived. Tenn R. Cr im. P. 12(b) (3); State v. Eldridge , 749 S.W.2d 75 6, 757 (Te nn. Crim. A

pp. 1988) ; State v. Burton , 751 S.W.2d 44 0, 44 5 (Tenn. Crim. App. 1988). He also asserts that the testimony of the police offic er should not h ave bee

n introduc ed into evidence because the officer did not take the oath of office prescribed by the 1987 Tenness ee Priva te Acts. See 1987 Tenn . Priv. Ac ts Ch. 42 § 3. 08. The Cit y Charter does not require a police officer to take this oath of office. Nonetheless, the recor d contain s the oath of office taken by Officer Williams. This issue is without merit. Appellant further contends that the city judge was without

authority to hear a nd adjudic ate the charges because he was appointed, not elected, a nd because thejudge allegedly did not take an oath of office. Theamended Charter for the City of Adamsville, 1987 Tenn. Priv. Acts. Ch. 42, § 3.02, provides for

the appointment

of the follo wing of ficers : “cit y recorder, city atto rney, cit y judge and the head s of all de

partmen ts and divisi ons crea

ted by this char ter....” This issue

is without me

rit. The record contains no evidence that the city court judg e was improperly selected or that he failed to take any re

quired oath of office. Appellant’s assertion is without merit. Cass furth e r maintains that District Attorney Ge neral Elizabeth Rice, Assistant District Attorney General Ed McDaniel and Circuit Judge Joseph H. Walker did not take a valid oath of offi ce. Se ction 8-18-111 of the Tennessee Code Annotated sets out the officia l oath of office for3

these officers. Tenn. Code Ann. § 8-18-111 (1993 & Supp. 1996). The recor d clearly r eflects that Elizabeth Rice and Ed McDaniel took that oath of office. Appellant cites no competent e vidence in the record

that Judge Walker acted

without le gal aut

hority , and our

review o f the re cord reveals no such evidence. Cass also asserts that

the trial cou

rt erre d in deny

ing his r equests f or assista nce of c ounsel. The record reflects that the trial court denied A ppellant’s request to be represented by someone who

was not an attorney. The

reafter, Appellant

requested leave of court to repre sent himself. The trial court properl y denied Appellant’s request to be re pr es en te d b y so me on e w ho wa s n ot an at to rn ey. The unauthorized practice of law is prohibited by statute. Tenn. Code Ann. § 23-3-103 (1996), see also , Tenn. S. Ct. R. 8, Canon 3. Cass claims that he was denied his right to indictment by a grand jury

under Article I, § 14, of the TennesseeConstitution, which states “... no perso n shal l be pu t to an swer an y crimina l charge butby presentment, indictment or i mpeachment.” Art. 1, § 14, Tenn. Const. As noted by the Supreme Court in Lebanon & Big Spring Turnpike Co. v. Stat e , 141 Tenn. 675, 214 S.W. 819 (1919), “the words ‘criminal charge’ ... refer only to prosecutions of the grade of felony .” Id. at 677, 214 S.W. at 821. Prosecutions for small off enses suc h as those involved in the instant appeal have notbeen h eld to be criminal charges within the meaning of Article I, § 14, of the Tenne ssee Constitution. Howard v. St ate , 143 Tenn. 539, 549, 227 S.W. 36, 48 (1920). In Capital News Co.

v. Met rop olit an G ove rnme nt of Nashvi

lle and Davidson County , 562 S.W.2d 430 (Tenn. 1978), the Supreme C ourt he ld that petty offenses a re not embraced within the referenc ed constitutional section and that indictment is not required. Id. at 432. Theref ore, this issue is without me rit as well. Cass argues on appeal that he was de nied a ri ght to a jury trial. The constitutional require ments of jury

trial refer only

to prosecutions of the gr ad e o f f el on y. Lebanon & Big

Spring Turnpike Co. , 143 Tenn. at 549, 214 S. W. at 821. Simi larly , petty offense s are not

embrac ed within the constitutional section requiring trial by jury. Capital News Co. , 562 S.W.2d at 432; Art. VI, § 14, Tenn. Const. Moreover, Cass did not make a timely request for a

jury . Therefore, th

is issue is waived and is without merit.4

Additi ona l issues raised on appeal by Cass include issues relating to the sufficiency of the citation, pr os ec ut io n b y th e c it y at to rn ey, de ni al of th e r ig ht of

co mp ul so ry p ro ce ss , d ou bl e j eo pa rd y, denial of a

“judiciary tria

l,” and adoption of state laws by the City of Adamsville. This Court has consider ed each of these issues, the entire record in this cause, and the briefs of the parties. After careful consideration, we find that these issues are without merit as well. The Court concurs in the facts as found by

the trial court and finds that no reversible error of la w appears. The decision of the trial court is affirmed. The costs on appeal are taxed to Appellant, for which execution may issue if nec essary.

PER CURIAM