### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE October 15, 2002 Se ssion STATE OF TENN ESSEE v. LEROY N EVILS Direct Appeal from the Circuit Court for Williamson County

No. I-141-901 Donald P. Harris, Judge

No. M2002-00411-CCA-R3-CD - F iled April 4, 2003

The defendant was convicted of driving wh ile u nder the

influenc e of an in

toxicant, a

Class A misdemea

nor. He a ppeals th at conviction, rais ing the f ollowing issues: (1) Sufficiency of

the evidence and the proper standard of review when a

recording of the tri al is ava

ilable fo r the reviewing

court; (2) I mproper return o f the pre sentment; (3) Dupli citous pr

esentme nt; (4) Imprope r limitation on voir dire questions concerning potential length of incarceration; (5) Improper

limitation on voir dire questions whether jurors would trust a machine; (6) I mproper elicitat ion of an a

lcohol te sting fla shlight; (7) Impr oper jur y charge as to the c ertainty

needed to find bey

ond a rea sonable doubt; and (8) Impr oper jur y charge allowing infere nce of g uilt for refusing a blood al cohol tes t. After c areful

review o f the re cord, we

affirm t he judg ment from

the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OHN E VERE TT W IL LI AMS , J., delivered the op inion of t he court, in which D AVID G. H AYES and J ERRY L. S MITH , JJ., joined. Joseph D. B augh, F

ranklin, Tenness ee, for

the appe llant, L eroy Nevils.
Pau l G. Summe rs, Attor

ney Genera l and Repo

rter; Kim R. Helper , Assistan

t Attorne y General ; Ronald L. Davis, District

AttorneyGeneral; and Sharon T. Guffee, Assistant District Attorney General, for the appellee, State of Te nnessee.-2- OPINION Background
In the early mor

ning hours of March 31, 2001, Tennessee State Tro oper Richard Cash noticed an orange Corvette crossing the dividing lines on southbound Interstate 65 in WilliamsonCo un ty. He subsequently pulled the c ar over and, a s he was approaching the car , he noticed the odor of alcohol. Leroy

Nevils, the driver of the car and the defe ndan t, w as put thr

ough a s eries of

field sobriety tasks whic

h, acco rding to Trooper Cash, the defenda nt failed . Troope

r Cash then arrested the de fendant and asked the defendant to submit to a chemical alcohol test. Cash informed the defendant that ref usal t o t ake the chemical test could result in the suspension of the defenda nt’s license. The defendant refused to submit to the test. Trooper Cash searched the car and found two bottles of “LTD,” a bra nd of whiskey. One of the bottles was empty. The other was 3/4 full.
The defend ant wa s ind icted on one count of unl awful ly drivi ng or ph ysically con troll ing a motor vehicle upon the public roa

ds of the s tate of T ennesse e, at a ti m e when the defendant was under the influence of an intoxicant, under Tennessee Code Annotated section 55-10-401, a Class A misdemeanor. After a jury trial, the defendant was convicted and sentenc ed to 11 mo nt hs , 2 9 d ays suspendedon supervised probation; 48 hours to be serve d in a cor rection al facil

ity; a $450 fine; a requirement

to attend alcoho l safety schoo l; and a suspended driver’s license for one y ear. The defenda nt’s motion

for a new trial wa s dismissed , leading to this app eal.
We will address the defendant’s issues in order. Standard of Review
Where sufficiency

of the evidence is challenged, the r elevant question for an appellate court is whether, after viewing the evidence in the lig ht most favorable to the prosecution, any r ational trier of fact could have found the essential elements of the crime or crimes be

yond a reas onable do

ubt. Tenn. R. App. P. 13 (e); Jackson v. V irginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. A

brams , 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the witnesse s’ testimony

are matt ers entr ust ed exclusi vely

to the jury as the trier s of fact. State v. Sheffield , 676 S.W.2d 54 2, 547 (Te nn. 1984) ; State v. Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).
The record in this case was submitted via a compact disc (“CD” ) record in g of the trial procee dings. The def

endant a rgues t hat the r eviewing court is in

the same position as the trier of fact in reviewing the evidence and, ther efore, the proper standard of re view in t his case

should be de novo witho ut a presumption of correctness. I n State v. B inette , our supr eme cour t stated th a t “[w]hen a trial court’s findings of fact on a motion to suppress are based solely on evide nce that does notinvolve is sues of c

redibilit y, a ppellate courts are just a s capabl e to review the evidence and draw-3-

their own con clusions. Accord ingly , we hold t

hat when a trial c ourt’s findings o f fact a t a suppression hearing are based on evide nc e that does not involve issues of credibility, a re viewing court must examine the record de novo without a presumption of correctness.” 33 S.W.3d 215, 217 (Tenn. 2000). The defendant strongly argues that, because we ha ve the opportunity to view the CD, we a re ju st as c apab le as the tr ier o f fact in re

view ing t he eviden ce a

nd wit ness cred ibili ty . We respectfully disa

gree. The Supreme Court in Binette specifically limited its h oldi ng to the facts of the case and expressly reserved decision on

the issue of the proper standard of appellate re view of a videotaped trial record until that issue is squarely presented. Id. at 217, n. 1. That iss ue appe ars to be squarel y before this Court. We agree that whe n credib ilit y is not an issu e and we have the opportuni

ty to review the evidence in the same manner as the fa ct finder, the need for defere nce to the trial court’s findi ngs is not implicated. Binette dealt with the standard of review w hen cre dibility was not in question. In direct

contrast to Binette , credib ility in the in stant case is paramo unt, even co ntrol ling. We refuse to con clude that a CD vi deota pe of t he tri al pro ceedin g elim inates the trier of fact’s credibi lity

determinations . A C D recording of a trial does not offe r the same view to a reviewing court as the trier of

fact wa s able to s ee. The

jury ’s collective ey

e is close r, sharp er, and l ess filtered than ours in reviewing witness testimony and credibi lity . We agr

ee with th e State th at to use a de novo, or 13 th juror, standard of review in cases involving videotape d records would effectively usurp the role of th

e trier o f fact. We are not willing to usurp that role by offering no deferenc e to the trier of fact when credi bility

is at issue, as it was in the instant case. Accordingly , we will apply the longstanding standard of review in our a nalysis on this case. (1) Sufficiency of the evidence
The defendant was convicted of driving under the influence. Tenn. Code Ann. § 55-10- 401. The statute reads, in pertinent part ; “(a) [I]t is unlawful for any person to drive or be in phy sical control of any automobile . . . on a ny of the public roads and highway s of the state . . . while: (1) Under the influence of any intoxicant . . .”
At trial, the State presented

witnesse s Troope

r Richar d Cash and

Deputy David Savage and a videota pe of the arrest. The def

ense off ered Da lton Nevil s, Cara L

ane, an d the def

endant. Officer Richard Cash, a trooper with the Tennessee Depa rtment of Safety for

over 17 yea

rs who had extensive DUI training, testified tha t he stopped the d efendant after witnessing the defendant weaving on Inte

rstate 65. Approaching the defenda nt’s car after the stop, Offi c er Cash stated he smelle d alcohol . He said that he c ould tell

by the defe

ndant’s demeanor that the defendant was intoxicate d. He sai d the defendant fumbled a

round g etting h

is driver ’s licens e, strug gled with saying the alpha bet durin g a sobr

iety test, had trouble f ollowing Cash’s dir

ections, looked sl opp y withcrumbs on his shirt, and stumbled a rou nd. He said the defendant refused to take a chemical blood test. After placing the defendant in the police car, Trooper

Cash searched thedefendant’s car and found an empty

bottle of whiske

y a nd a 3/4-f ull bottle o f whiskey . Additiona lly, Trooper

Cash showed the jury

a videota pe of the arrest. The vide otape sho wed the d efenda nt driftin g out of h

is-4-

driving lane t hree ti mes. It s howed the de fendan t tal king in a hesita nt manner. It showed the defendant say the alphabe

t in a somewhat

slurred manner but, contrary to Trooper

Ca sh ’s te st im on y, showed th e de fen dan t d id com pl ete sayi ng t he a lp hab et. It showed the defendant failing to follow Trooper Cash’s instructions for the sobriety task of walking down a line, as wel l as the defendant raising his arms to balance himself. I t showed the defendant telling Trooper Cash that he had one drin k earlier that day

but that he had not been drinking that night. The tape a lso showed the defendant refusing to submit to any c hemical tests, despite Tr oop er Cash’s clear warning that the defendant’s refusal could result in the loss of his driver’s license

. On cross-examina t ion, Officer Cash testified that he did not inform the defendant that the arre st was b eing videotaped nor did he inform the defenda nt that such behavior as the defendant raising his arms to balance himself could be used as evidence against the defe ndant. Cash admitted that he thought the defendant was intoxicated, even before administering any tests. He said he di d notmira ndize the defendant before administering any tests because he did not want to make the defendant nervous a

nd that, despite already

concluding that the defendant was intoxicated, he went throu gh the sobri ety

tasks anyway

since that was police protocol. On redirect, Offic er Cash stated he was un der no ob ligation to tell the

defenda nt how he w as doing

during t he arre st. Deputy David Sav age, a

patrolma n with the Wi lliamson Co unty Sheriff’s Department who was working as a booking officer when the defendant was ar reste d, testified that the defendant smelled like alco

hol when t

he defe ndant wa s brought in for b ooking. With this, the State rested its case and the defense continued. Dalton Nevils, the defendant’s cousin, testified that he was drinking in the defendant’s car prior to the defendant’s arrest. He said he was with the defenda ntas they sea

rched for a spoiler for the defendant’s car. Dalton said he got in the car with L TD whiskey and tha

t, after they left a body sho p where th

ey looked fo

r the spoi ler, the

y bo ught an other bot

tle of L TD. Dalto n sa id th e defendant did not drink any of the LTD.
On cross-examination, Dalton said the defendant does drink beer and may drink whiskey on ho li da ys . He said he was not with the defendant the night of the a rrest, so he was un aware ho w much alcohol the defendant drank that night. He sa

idhe left the LTD bottles in the defenda nt’s car because he forgot about them when he left to take care of his father.
Cara Lane, a friend of

the defendant, testified

she was with the defendant the day in question, as the defendant

was taking her to Nashville. She said the defendant boug ht her a twelve-pack of Buschbeer at a convenience store a nd that the defendant drank one Heine ken beer. She said that after the defendant drove and dropped her of f in Nashville, he was supposed to go home aroun d 11:15 p.m. She sa

id ,to her recolle ction, she

did not see

the defe ndant hav e mo r e than the one Heineken.
The defen dant testified on his own behalf. He said the day before his arrest he w as wit h Dalto n Nevils, who was drinking LTD, but that the de fendant was unaware that Dalton left LT D-5-

bottles in the car. He said he did not drink LTD.
He said he picked up Cara La ne around 7:30 p.m. on the nigh t in question t

o take he r to Nashville. He s aid they stopped at a store , where he bought some Busch bee r for Lane a

nd a Heinekenfor himself. He said they stopped a

t “Binky ’s” place around 11:30 p.m., where he drank the one Hein eken . Acc ording to t he defend ant, afte

r he l eft B inky ’s, h e stop ped a t Ed’ s Pizza restaurant where hehad a sandwich and got some chips, the chips which he ate in the car as he drove homefrom Nashville. He said he left Ed’s Pizza a round 1: 00 a.m. and drove a ll the way

to Willia mson C ounty before being pulled over. He said the only reason he was drifting lanes was be ca us e h e w as ab ou t t o e xi t t he hi gh wa y. The defendant said he was not under the influence of an intoxicant and t hat he felt he was in good shape to drive. He said the fact he drove all the way

from Nas hville to Will

iamson Coun

ty was evidence that he was in control of his car.
The defendant stated he did not take the breathaly zer test because he was not drunk, and he was worried about how many other pe ople may

have blown into the mach ine. He s aid he ha s trouble standing on one leg

and the tr

ooper did not explain

the tests t

o him.
On cross-examination, the defendant stated he did not see the L TD bottles in his car. He again said he r efused t o take the breatha lyze r test bec ause

he did not know how many other mouths had blown on the breath stick.
Becau se we wereprovided with a CD ta

pe of the trial, aswell as the vid

eotape o f the ar

rest, this reviewing court was in position to be able to c om pare the dialect t he defe ndant use d both in court and during his arrest. We note that the defendant had a hesitating manner of speak ing in bot h situat ions. Nonethe less, we are not in position to substitute our opinion without deference to the finding s of the f

act find er, so thi s one piec e of evid ence wi ll only

be give n proper weight

. We conclude the evidence was sufficient to support the jury ’s finding that the defendant was driving under the influence of a lcohol. Rev iewing the evidence in the light most favorable to the State, as we ar

e requir ed to do, presents us with the following: We have an experienced state trooper who smelled alcohol and noticed the defendant weaving his car as he dro ve. On the

field sobriety tasks that he did undertake, we have the defe ndant’s less then stellar performance. The defendant admitted to drinking the night of his arrest and to buy ing alcohol for a friend. Whiskey bottles were found in the defendant’s car. Additionally , we have a videotape of the defe ndant’s arrest that does show his car weaving, as wel l as the defendant’s poor performance on the field sobriety tasks. A rati onal trier of fact could conclude bey ond a reasonable doubt that the defendant was unde r th e influence wh i le opera

ting his c ar on I

nterstat e 65. We co nclude th

is issue is without mer

it. (2) Imprope r retur

n of the pres entme

nt The defenda

nt argu es that the

present ment in this case was improperly

returned. The parties-6-

stipulated that the presentment was returned to the circuit court clerk’s office , as opposed to being returned to the clerk in open court. Indeed, Tennessee Code Annotated sect ion 40-13- 108 state s,
“ [A]n indictmen

t, when f ound by the gra nd jury and endo rsed as p rescrib ed by

this part, sh all b e presented by the fore

man, in the grand jury ’s pres ence, to the court, and filed by the clerk.” However, as our

supreme court stated in referring to presentments, “[T]here is no constitutional or statutory provision

as to how a

present ment shall

be found or what sh all be done under it.” State v. Stoots , 325 S.W.2d 532, 538 (Tenn. 1959). Additionally, Tennessee Code Annotated section 40-13- 101(b) states, “Wherever

in this code “indictment” is used, it shall be taken to include presentment whenever the context so requires or will permit.” So, while we agree that tec hnical compliance with Tennessee Code Annotated section 40-13-108 was not me t, the contents of the indictment and the required signatures were all complied with. Failure to return the indic tment in ope n court is not fata

l, as long as t

hat fail ure is corrected. State v. Will is , 40 Tenn. 157, 158 (1859). That failure was corrected in the instant case by the inc lusion of the signatures of the grand jurors. According ly, we find this is sue withou

t merit. (3) Duplicitous

presentm

ent The defendant claims the presentment was duplicitous in that it allowed for a convicti on if the defendant drove or

phy sically

controlled his vehic le. The p resentme nt reads , in pertin

ent part , “[D]efendant

. . . unlaw fully

did driv e o r phy sically

control a motor veh

icle . . .”He arg

ues this disjunctive presentment allows a conviction by less than a unanimous verdict. The d efenda nt’s argument is misplaced. Tennessee Code Annotated section 55-10-401(a)(1) states in pertine nt part, “[I ]t is unlawful for

any person to drive

or be in physical c ontrol of any automobile . . .” We a gree withthe State that this plain language provides that the statute ca n be violated by

one of two types of action. Furthermore, Tenness ee Code A nnotated section 4 0-13-206 (a) stat

es, “[W]hen t

he offe nse may be committed by differ

ent forms, by diffe

r e nt means or with different intents, such forms, means or intents may be

alleged in the same

count in the altern ative.” That is exa ctly what wasdone in thi s present ment. The differen t forms and means of driving under the influence were included in the same cou nt. We conc lude this is sue is with out merit. (4) Voir

Dire was im

properly lim ite d by disallowing t he defendant

s form as king prospect ive juror s their opi nion conce rning potential incar cerati on. The defenda

nt argu es the tri al court

w rongfu lly pr evented him from asking prospective jurors whether the potential for inca

rcera tion for th is offen se would

have an y effect o n their de

liberati ons. While the defendant is correct in pointing out that Tennessee Code Annotated sec tio n 22-3-101 gives parties in a crimin al case

an “abso lute rig

ht” to examine prospective jurors, he also points out that section limi ts it s appl icati on wit h the l anguage “[n]ot withstanding any rule of proc edure or practice of court to the contrary .” Id.
Tennessee Code Annotated section 4 0-35-201 (b) state s in relev ant part , “[I]n all contested crim inal cases . . . the judg e shall no t instruct the jury , nor shall the attor ney s be perm

itte d t o comment at

any time to the jury , on possible penalties for the offense charg ed . . .” The defendant-7-

even point s us to this statute but then asks us to conclude the trial court erred in disallowi ng th e questions to the pro specti v e jurors about incarceration, due to the wide latitude they are allowed. The trial court, in disallowing jury questions about potential incarceration, did exactly as Tennessee Code Anno tated se ction 40- 35-101(b ) requir ed. We con

clude thi s issue is w ithout mer it. (5) The defendant

was impro perly disallowed in inquiring prospective jurors about their opinion as to refusal to submit to a breathalyzer.
The defendant attempted to ask prospec tive jurors if they would trust their freedom to a machine. The trial court disallowed this question as being too close to the facts of the case. The trial court did allow general questions about bre athaly zers. The defendant argues this disallowance was in error sinceTenness ee Code A nnotated section 2 2-3-101 a

llows a br oad leew ay

in the questioning of prospec tive juror s. Nonetheless, as discussedabove, that leeway is still subject to other rules and limitations found in the Tennessee Code.
Tennessee Rule of Criminal Pro cedure 24( a) provi des that th e court “ [s]hall per

mit questioning by the

parties for the purpose of discovering bases for challeng e for cause and enabling an intelligent exercise of

perempt ory challen ges.” Howeve

r, this que stioning

is still subject to the sound discretion of the trial court. See State v. Michael Wayne Howell , 868 S.W.2d 238, 247 (Tenn. 1993). Absent

abuse of that discretion, we will not disturb the action of the trial court. Indeed, as our supreme court stated in State v. Irick , “It is the duty of the trial judge to participate in the examination of prospective jurors. The conduct of voir dire examination in a criminal prosecution is entrusted to his discretion. Tenn

. R. Crim. P. 24. His actions in the conduct of voir dire examination will not be disturbed unless there is an abuse of that discretion.” 762 S.W.2d121, 125 (Tenn. 1988), cert. denied 489 U.S. 1072, 109 S. Ct. 135 7, 103 L . Ed. 2d 825 (1989). We agree with the Statethat the a

ction of th

e trial c ourt in disa

llowing v oir

dire questioning about whether a juror would trust his freedom to a machine was not an abuse of discretion. The trial court stated that such a question was too close to the facts of the case and even a llowed a more general question about the juror’s opinions toward a breathaly zer. We conclude that disallowing voir dire questions that approached

actually try

ing the case during jury questioning was not an abus e of discret ion. Ad di ti on al ly, even if w e felt this question should have been allowed, we conclude its disallowance was not preju dicial, since ther e was amp le evide

nce in which a jury c ould convict this defendant of DUI outside a ny e vidence concer ning bre athaly

zers.
(6) The prosecution improperly elicited evidence concer ning a passi ve alcohol testing flashlight.
During Trooper Cash’s testimony, he made refer

ence t o use of a passive alcohol sensor flashlig ht. The defendant objected to use of the flashlight as evidence and, after a n initial overrule, the trial cour t sustained t he objection. The defendant now arg ues that such scientific evidence should not have b een intr

oduced b ecause

it has not be en prove d to be relia ble. We ne ed not add

ress that question. The trial court sustained the defendant’s objection to the flashlight as evidence. I t was-8-

notallowed in. The defendant offered no evidence of prosecutorial misconduct, nor does the record reflect any. The de

fendant stresses that this was a “close case”and, therefore, even the passive mention of

the flashlight may have

“tipped the balance in the minds of the jurors.” Absent any offering of affirmative proof beyond that, we simply

cannot agree. We conclude that introduction of the passi ve alcohol sensor flashlig ht was pro

perly objecte d to, and th at objec tion was pr operly sustained.
(7) The trial court improperly charged the jury as to “reasonable doubt.”

The trial cou

rt char ged the ju ry conce

rn ing reasonable doubt with the following pertinent language, “[W]hile abs olutecertainty of guilt is not demanded by the la w to convict of any c

riminal charge, reasonab le certainty is required,” (emphasis added). The defendant argues that use of the term“reasonable certainty ,” as opposed to “moral certainty ,” reduces the burden of proof to a degree inconsistent with due process. We disagree.

Due processrequire s a defe ndant be f ound gui lty

beyond a reasona ble doubt. Howeve

r, in a jury charg e, there

is no spec ific form required as to definingwhat reasonable doubt is. The United States Supreme Court stated, “[I]ndeed, so long as the c ourt instructs the jury on the nec essity that the defendant’s guilt be proved bey ond a rea sonable

doubt, the Constitution does not require that any particular form of w ords be us ed in advising the jury

of the government’s burden of proof. Rather, ‘taken as a whole, the instructions [must] correctly conve y the conce

pt of reason able dou bt to the jury (citations omitted).’” Victor v. Nebraska , 511 U.S. 1, 5, 114 S.Ct. 1239, 1243, 127 L. Ed. 2d 583 (1994).
Furthermore, while Te n nessee Pattern Jury I nstruction 2.03 includes the language “mora l ce rt ai nt y” in the conte xt of reasonable doubt, Tennessee Pattern Jury Instruction 2.03(a)provides alternative langua

ge that does not us e the ter

m “moral c ertainty

” and ha s continuously

with stood challenges to its constitutionality. We conclude the trial co urt’s use of the te rm “rea sonable certainty,”as oppose d to “mora l certainty ,” as a pr

erequis ite to find

ing gu ilt beyond a re a sonable doubt, doe s no injustic e to due pr ocess. Accordin gly , we hold t his issue iswithout me

rit.
(8) The trial court improperly cha rged the

jury about

inference

s to be m ade from the defendant’s refusal to take a blood alcohol test.

The tria l court c harged the jury

as follow s: [I]n this case , there w as evide nce the d efenda nt was requested t o take a t est to determine the alcohol content of his blood. When there is evidence a person has been requested to take such a test an d the cons equenc es of refusal ha ve been explained

to him or her, the jury may

consider a refusal as evidence of the defendant’s belief tha t-9-

submitting to the test would have prod uced unfavorable results. You are ne ver required to make this inference. It is for the jur y to determine, af

ter a consideration of all the ev

idence, whether

to make the infer

ence wh ich th e law permits, the correctness of the inference and weig htis to be given to such evidence. Also, the infere nce may be rebut ted by other ev idence a nd circu mstance s.

The defenda

nt argu es that su ch an inst ruc tion, allowing for

a jury to make in

ferenc es, is errone ous. In support of his argume nt, he offers United States v. Leary , where the Supreme Court stated that “[a]n i nference is ‘ i rrational’ or ‘arbitrary ’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” 395 U.S. 6, at 36 (1969).

Tennessee courts have recognized that this jury instructi on is proper, as a ref usal to sub mit to a blood al cohol tes t is p robative of the defendant ’s guilt. This Court s tated, “ [W]hen there is evidence that a defendant has refused to submit to a blood alcohol test af ter bei ng advised of the consequences of a ref

usal, th e trial c ourt shall instruct the jury it may consider the refusal as probative of guilt (citations omitted).” See Statev. Bobby J. Young , No. M1998-00402-CCA-R3- CD, 1999 Tenn. Crim. App. LEXI S 1241, at *12-13 (Tenn. Crim. App. December 15, 1999, at Nashville) (perm. to appeal denied July 17, 2000) . In the instant case, Trooper Cash explained to the defendant the ramifications of a refusa l to submit to the breathalyzer. The de fendant still refused. Ad di ti on al ly, the trial court expressly cha rged that an inference could be made, but did not hav e to be. The i nference was p

roperly charg ed. This is sue is with out merit.

Conclusion

This defendant was properly arrested for, charg ed with, and convicted of DUI . Although he argues to the contrary , there is little presented to combat the findings of the trial co ur t, which properly c onducted this trial. The defendant suffered no pre judice. Accordingly , the judgment of the trial court is affirmed.

____________________________________ JOHN EVERETT WILL IAMS, JUDGE