IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON AUGUST 1999 SESSIO N

STATE OF TENN ESSEE, ) ) Appellee, )C.C.A. No. W1998-00558-CCA-R3-CD ) vs. ) Hardin County ) GREGORY SCOTT BA TTLES, ) Hon. C. Creed McGinley, Judge

) Appellant. ) (DUI, Second Offense) )

FOR THE APPELLANT: FOR THE APPEL LEE: GREGORY SCOTT BA TTLES (pro se at trial) PAUL G. SUMMERS P.O. Box 1345 Attorney General & Repor ter Savannah, TN 38372 R. STEPHEN JOBE CHARLES WA

TSON CROSS(on appeal) Asst. Attorney General Attorney at Law 425 Fifth Ave. North 221 Fourth Ave, North 2d Floor, Cordell Hull Bldg. Nashville, TN 37219 Nashville, TN 37243-0493 G. ROBERT RADFORD District Attorney General JOHN OVERTON Asst. District Attor

ney General P.O. Box 484 Savannah, TN 38372

OPINION FILED:________________
AFFIRMED JAMES CURWOOD

WITT, JR., JUDGE 

# FILED
December 30, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk1 We have framed and addressed defendant’s issues differently than they were pr esented in his b rief. OPINION
The defendant, Gre gory Scott Battles, appeals his H ardin County conviction and the resulting sentence by the trial court. A jury co nvi cted the defendant of DUI, second offense, a Class A mis demeanor. After

a sentenc ing hearing, the trial court imposed a sentence of eleven months, twenty-nine days,the first six months to be serv ed in confinement and the remainder on pr obation. Also, the trial court finedthe defendant $2000. In this appeal, the defendant ra ises the following issues: 1

1. whether the indictment w as sufficient; 2. whethe r the informatio n provi ded in l ieu of a bill of particulars should hav e li mited the proof permitted at trial; 3. whether

the state was required

to provide names of all persons who witnessed the incident; 4. whether

the def endant e ffecti vely w a ived his right to counsel; 5. whether

the evidence result ing from the defendant’s warran tless arrest should have been suppressed; 6. whether

the def e ndant’s

examin ation of a witness was improperlylimited by the trial court; 7. whether

the state improperly cr oss-examined witness Cass; 8. whether

the trial cour t properl y charged th e jury; and 9. whether

the trial court improperly sent enced the defendant. After a review of the record, the briefs of the part ies, and the appl icable la w, we affirm the trial court’s judg ment.

The d efendant was c harged with DUI aft er the Tennes see High wa y Patro l investigated an acci dent that occurred just after mi dnight on Monday morning, July 2 1, 1997. The eve ning be fore, the defe ndant wa s drinking at the Moose Lodge in Savannah, Tennessee. The b artender saw th e defend ant leave the bar. When she heard squealing tires , she looked in the closed circuit television3

monitor, which had a view of the parking lot. She saw the defendant’s truck back into another truck, striki ng it on the left side and pushing it ei ght feet to the side. She saw the defendant drive ac ross the road. She rushed outs ide an d sa w the defendant backhis truck into the parking lot, park i

t, and get out. The owner of the truckthat was hit went out side and confronted the defendant. Another patron of the bar called the police.

A Tennessee Highway Patrol officer was dispatc hed to the accident
scene. Because he could not respond i mmediately, h e requeste d that a Hardin County deputy sheriff be sent to the acci dent scene. After the THP officer arrived, he interviewed the bar tender and the owne r of th e struck vehicle. The officer administered two field sobriety t ests to the defendant and ar rested him after he failed both. The first test requir ed the defendant to recite the alphabet. After making it half-way, the defendant bec ame confused and could not complete the recitation. The second test was a heel- to-toe t est. The defendant could not maintain his balance as he walked heel-t o-toe and turned around. Both officers observed the defendant and testified that he appeared i ntoxicat ed because he slurred his speech and staggered when he walke d.

The defendant was charg ed with DUI, second offense, and a jury found him guilty. He w

as fined $2000 and sentenced to eleven months , twenty-nine days. The trial court ordered him to serve six months in jail and the remainder on probation.

1. Sufficiency of the Indictment

The defendant claims that the indictment

was not sufficient because it omitted the specific location of the off ense and, therefore, failed to info rm him of the nature ofthe charge. He also asserts that it omitted the word “generally,” which is us ed in the statute. See Tenn. Code Ann. § 55-10-401(a) (Supp. 1996). Th e defendant also asse rts that he was prejudiced by the trial court reading the indictment to the jury.4 “The indictment

need notbe specific regarding the time or place of the offense, nor need it demonstrate facts conferr ing jurisdiction

as long as such facts
are introduced at the trial.” State v. Sowder , 826 S.W.2d 924, 929 ( Tenn. Crim. App. 1991) (citing Tenn. Code Ann. § 40- 13-207, -208 and -21 0 ). An exception to this general rul e is made “when place constitutes a material element of the cr ime.” State v. Furlough , 797 S.W.2d 631, 641 (Tenn. Crim. App. 1990) (citations omitted).

In the case at bar, an essential element ofthe defendant’s offense is that the conduct occur

“on any of the public roads and highways of the stat e, or on any streets or alleys, or while on the premises of any shopping center, trailer

park
orany ap artment house complex, or any other premises which is generall y frequented by the public at larg e.” Tenn. Code Ann. § 55-10-401(a) (Supp. 1996). The indictment charges the defendant with conduct occurring “along,over and upon a public street, road, hig hway or pub lic thoroughfare on or upon pr emises frequented by the public at l arge.”

We conclude that

the indictment was sufficient regarding the locati on of the offense. Location is an essential element of the offense, but the indictment alleged a locat i on specific enough to show a violation of the statute. Al so, an indictment is suffi cient if it references the approp riate statute and also meets the requirements

of Code s ection 40-13-202. See State v. Carter , 988 S.W.2d 145, 149 (Tenn. 1999) (c iting State v. Hill , 954 S.W.2d 725, 72 6-2 7 (T enn. 1997)). Indictments mus t “state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in s uch a manner as to enable a person of
common understanding to know w hat is intended.” Tenn. Code Ann. § 40-13-202 (1997). In the case at bar, the indictment met this standard. The omission of the
wor d “generally” did not render the indictment insufficient because the indic tmen t described where the offense occur red using “ordinary and concise language” and it referenced the statute alleg edly violated.5 Finally, the defendant complains that the tria l court read the indic tment to the jury. The record does not support the defen dant’s co ntention that the trial court read the indictment to th e jury. According ly, this issue is without merit.

2. Whether

the information p rovided in lieu o f a bill of particulars should have limit

ed the proof permit

ted at trial.
The defendant contends that in response to his request for a bill of particulars, the tri al cour t “limited” the

offe nse to the defendant’s driving in the Moose Lodge parking lot. H e argues that it was unfair surprise for the state to offer proof that he drove on a public ro ad. He cla ims that the trial c ourt shou ld have declared a mistrial. The state responds that the defendant w aived this issue by

not making a contemporaneous objection. Regardless, the state argues that the state is not required to prov

ide the defendant with its theor y of the case, and the state is not limited to proving only matters identified in the bill of parti culars. Further, the state contends that there was no unfair surprise because the indictment charg ed the defendant with driving

upon a public road.

At the pretrial hearing i n this case, th e defendant moved for a bill of particulars. The trial court de nied the motion and found that the ind ictment, in combination with the warrant , adequately advised the d e fendant of the nature of the charge. Before making thi s ruling, the followi ng occurred:

[DEFENDANT]: As this stands, I stand open to surprise here. My indictment do e sn’t even say where this occurred at. I may hav e to – THE COURT: I said that reference – refere nce to t he word, I just now addressed that. It shows quite clearly it’s al leged to have occurred on July 21st, alleged to have occurred in Hardin Cou nty, more specifically on the parking lot of an area known as the Mo ose Lodge is what the warrant re

ferred. Do you feel that that is inadeq uate to inform you of your charges, that you’re charged of dr iving und er th e influence after

an accident that occurred on the lot of the Moose Club

? [DEFENDANT]: We are in agreement that it occurred on the parking lot of the Moose lot. (Emphasis added.)2 We would characterize what occ urred at the pretrial hear ing as the trial court facilitating a sti pulation between the parties that the accident

occurred in the Moose Lodge parking l ot. 6

The de fendant complains that the location of the offense contai ne d in the indictment was “li mited” by the trial court 2 in response to

his request for a bill of particulars. He all eges that it was improper to present evi dence that was outside of the indictment as limited.

Vicki Hunt testified at

trial. She was a bartende r at the Moose Lod ge and wi tn es se d t he

acci de nt . Wh ile watching a monitor which showed the Moose Lodge parking lot, she saw the defendant’s truck strike the other truck in the parkin g lot and then saw that he “pulle d out a cross the road.” She said that she went outside and saw the defendant’s truck stopped on the other side of the county road
on which the lodge is located. She stated that he then backed into the parkinglot and parked his truck. The defendant di d not object during this testimony.

After the state rested, the defendant moved f or a mistrial. He stated that it was surprise for the state to offer testimony show ing that the offense occurred
somew here other than the parking lot of the Moose Lodge. He reli ed o n th e statements made during the pretrial hearing describing the offense as occurring in the parking lot. The defendant complained that he was “told nothing about another road in my discovery .” The defendant stated that he needed to call other witnes ses now that the state ha s present ed eviden ce showi ng the offense occurred off the parking lot; however, the defendant did not request a recess. The tr ial court denied the motion for a mistrial.

The primary purpose of a bill of particulars is to provide the defendant with information about the detai ls of the charge, if necessary to the preparation of his defense. See State v. Speck , 944 S.W.2d 598, 600 (Tenn. 1997); State v. Byrd , 820 S.W.2d 739, 741 (Tenn. 1991). It also serves to avoid prejudicial surprise and to enable the defendant to preserve a plea against double jeopardy

. Byrd , 820 S.W.2d at 741. See also State v. Hicks , 666 S.W.2d 54, 56 (T enn. 1984). A bill of particulars is not, however, a d iscovery devi ce; it is limited to infor mati o n a7

defendant needs to prepare a defense to the charges. Tenn . R. Crim. P. 7(c) (Advisory Commission Comments).

Fir st, we can not say that the defendant failed to ma ke a timely objection to th e allegedly surpri sing testimony. Altho ugh the defendant did not object to the introdu ction of the testimony at the time it was first introduced, he raised the issue after the witness testified and the state rested its case and again in his motion for new trial

. See State v. Tony Murphy McKinney , No. 03C01-9709-CR-00392, slip op., at 4 (Tenn. Crim. App., Knox ville, Sept. 14, 1998) (finding objection was not unt imely when defendant brought the matter to the attention of the trial court w ithin a very bri ef period of time).

Our supreme court has said, “The s tate may not pres s their p rosecuti on on a theory upon which the defendant has not been informed or has been misled.” State v. Wilcoxon , 772 S.W.2d 33, 39 (Tenn. 1989). Howeve r, in the presentcase, we conclude that the defendant was neither misled nor misinformed about a theory of the prosecution. The indictment encompassed driv ing under

the influence both on private property frequented by the public and on a pu blic road. The “stipulation” fostered by the trial court indicat

ed that the collision

occurred in the Moose Lodge parkinglot but that the DUI offense occurr ed after the collision. The trial court d id not r

ecite th at the DU I off ens e was committed prior to or during the collision and did not recite that the offense occurred in the p arking lot.

Essentia lly, the s tate’s theory of the case w as that, as a continuing offense, the defendant drove while un der the influence in a place frequented by the public and on a public road. Although the substance of som e of Hu nt’s testim ony mayhave been surprising to the defendant, he was not misled or misinformed as to any theory. Surpri se resulting from unantici pat e d aspects of a witness’s testimony

is a risk born by

the litigants in an y trial, especially in cri minal proceed ings where discovery depositions or interr o gatories are not used. M oreover, the state is afforded the opportunity to prov e its case. As an aside, we note that, in the light most favorable to the state, the evidence supports a finding that, while intoxicated,8

the defendant drove on a public road,that he also drove on pri vate p roperty , and that mem bers of t he public frequen ted the p arking lot on private property.

We find no error in either the trial court’s proceedi ng on this issue or the failure to grant a mistrial.

3. Whether

the state was required to provide names of all persons who witnessed the incident
The d efenda nt claims that the state withheld the names of persons who had knowledge of the offense or wer e witnesses to it. H e contends that the state sho uld have disclosed the name of the person w ho reported the accident to the police and the names of all those who were at the scene.The defendant argues that the state was requir ed to provide the names after he filed his Rule 16 discovery motion. He admits that the state did not call asa witness the person w ho reported the accident. The state responds that it was not required to investigate and inform the defendant of all potential witnes ses to the offense. The state contends that it complied with Rule 16 of the Tennessee Rules of Criminal Pr ocedure.

At the pretrial hearing

the defendant requested d isclosure of the name of the person whom the state ide ntified only as the record keeper of the Moose Lodge. The tri al court rul ed that the state was not req uired to investigate and provide the name of the custodian of the Moose Lodge records.

At trial, the defendant

introduced the highway patrol’s accident report, which showed th a t the portion for listing witnesses to the acci dent had not been comp leted. Sergeant Tony Scott of the Tenness ee Highway Patrol

testified tha t completion of the witness por tion of the accident report w as not required.

There is no general constitutional right to discovery in a criminal case. See Pennsylva nia v. Richie , 480 U.S. 39, 107 S. Ct. 989 (1987) ; Wea therfor d v. Bursey , 429 U.S

. 545, 97 S. Ct. 837 (1977). The stat e is not obliged to make an investigationor to gather evidence for the defendant. See State v. Reynolds , 6713 In Brady v. Maryl and , 373 U.S. 83, 83 S. Ct. 1194 (1963), the United States

Supreme Court held that the pros ecution has a constitutional duty to furnish the accused with exculpa

tory evidence pertai ning to either the accused's guilt or innocence and the punishment that may be imposed. Failure to rev eal exculpatory evi dence violates due process where the evidence i s material either to guilt or punishment, ir respective of good faith or bad faith of the prosecution. Id. at 87, 83 S. Ct. at 1196-97. 9 S.W.2d 854, 856 (Tenn. Crim. App. 1984). The d iscovery ru les do not require disclosure of information not known by the state. Tenn. R. Crim. P. 16(a). Rule 16 permits the defendant to discover any statement s made by him, his prior r ecord, documents and tangible objects, and reports of tests and examinations, but only to the extent that the information is in the “possession, custody o r control of the state.” Id. ; see also State v. Martin , 634 S.W.2d 639 (Te nn. Cr im. A pp. 1982) (Rule 16 does not provide for the discovery of prosecution witnesses).

Also, Code section 40-17-106 directsthe district attorney general to identify on the indictment witnesses intended to be called at trial. Tenn. Code Ann. § 4 0-17-106 (1997); see also State v. Harris , 839 S.W.2d 54, 69 (Tenn. 1992 ) ( provis ions of § 40-1 7-106 are directory o nly and do not nece ssarily dis qualify a witness whose name does not appear in the indictment from testifying ). However, the defendant is not complaining that the undis closed persons testified at the trial.

The defen dant ’s reliance upon discov ery to provide him w

ith the
names of witnesses to the offense is mis placed. The defendant does not claim that the witnesses had exculpatory information which would implicate a Brady violation. 3 Rather, the def endant desired that the state perfor m his investigativ

e work and report its findings to him. He has demonstrated neither his entitlemen t to this information nor how

he was prejudiced by

not receiving it. Accordingly, this issue is without merit.

4. Whether the defendant effectively

waived his right to co unsel
The defendant clai ms that he did not validly waive his rig ht to counsel because the trial court did not pr operly investig ate whether his wai ver was i ntelligentlygiven. He argues that the trial court shoul d have informed him of th e4 Latin for “in one's own per son or right.”

10 p otential fines and sentences that could hav e been imposed. Also, he contend s th at the trial court never inquired into his education, background, or ex perien ce
. The state responds that the defendant’s wa iver was timely asserted and w

as clear and unequivocal. The state contends that although the trial court did not explicitly follow a litany of questioning , the trial court did thor oughly question and

admonish the defendant in making its determin ation that the waiver was made knowingly and intellige ntly.

At the defendant’s arraignment after the defendant indicated that he ha d secured counsel that was not a licensed attorney, the trial court gav e th e defendant three options:

( 1) You can secure legal counsel , which the definition foris an attorney licens ed to practice i n this state of Tennessee or one that is licensed in another state that complies with our s upremecourt rules that allows them to practice on a particular case in this state. That’s number 1. (2) You are permittedby our UnitedStates Constitution to represent yourself – a r ight ofself-representation. If you desire, the Court will certainly allow you to do that. I do not encourage it because there are many pitfalls for people that are not trained in th e law. They can read certain things and get erroneous ideas; okay? But you, if you wish to, w ill be a llowed to repr esent y ourself

. That’s self-representation. (3) The third possibility is –I’ve got the Public Defender. He’s actually in the courtroom at this time. Ifyou wish to confer with him, if you qualify – that means if you’re unable to afford an a ttorney – then I wil l appoint the Public Defender t o r epresent you throughout every stage of this action.

The defe ndant r esponde d that he was “appea ring toda y in propria persona .” 4 When asked what the Latin words mean t, the de fendan t did not k now. The following colloquy

ensued: DEFENDANT:I’m here to r epresent my

se lf with the assistance of cou nsel of choice. I’m not asking for anybody to represent me. THE COURT: Are you in sis ting that you be allow ed to represen t yourself in a legal ca pacity? DEFENDANT: With the assistance of counsel.11 THE COURT: All right . Is this counsel of choice someone that is license d to practice in the state of Tennessee? DEFENDANT: No. THE COURT: Th en they will not be allowed to legally represent

you. As a matt e r of fact, they would be subject to criminal prosecution if they did so. Do you understand this? DEFENDANT:Would you repeat the question so I can make sure I understand -- THE COURT: If it is not a lic ensed attorney – If they are givingyou legal advice,then they are, in all l ikelihood, violatingour criminal law. Do you expect me to en gage in a process that would allow someone to violate – or would encourage someone to viol ate the criminal laws? DEFENDANT: I’m not asking for anybody to

represent me. THE COURT : Okay. DEFENDANT:I’m asking for help to hand me papers to keep my papers in order – not to speak for me. THE COURT: All right. DEFENDANT: To assist to hel p me. THE COURT: I wouldn’t hav e any objection to that. But they will not be seated at

counsel table unless they are a relative. So metimes I do that if it’s a relative or a paral egal or a licensed lawy er. But this person is not al lowed to give you leg al advice; do you under stand that? DEFENDANT: Yes. THE COURT : Okay. DEFENDANT:They are not allowed to give me legal advice. THE COU RT : Are you asking for a c ourt appointed attorne y? DEFENDANT: No. THE COURT: Are you waiving your ri ght to an a ttorney? DEFENDANT: I’m not waiving my right to counsel. THE COURT: Are you waivin g your right to a li censed attorney representing

you? DEFENDANT: (No response .) THE COURT: I’m not playing games with you. In other words, I’m not trying to tr ick you. But for the purpos e of the integrity of the legal process, I’m not goingto allow someone to c ome in here and masquerade as an12 attorney when they’re not licensed to do so. If you w ant an attorney to represent you and you’re unable to afford an attorney, I will appoint one to represent you. It’s pretty simple. DEFENDANT:I do not wish to have anybod y represent me, but -- THE COURT: Are you insis ting on your constitutional right of self-representati on? DEFENDANT: With the assistance of counsel. THE COURT: All right. Let the re cord ref lect – Do we have a form for a waiver of counsel? [PROSECUTOR]: I don’t hav e one in here. THE COURT: All right. If you’ll prepare one. Just show that in open court h e has w aived his right to the appointmentof a licensed attorney to r epresenthim and is insisting upon his

right of self-representati on. DEF ENDA NT: I object to that. I wai ve no right at no time including my right to -- THE COURT: [PUBLIC D EFENDER], you wi ll be appointed to assist as elbow-counsel. Do you see this gentle man back there? DEFENDANT: I object to that

. THE COURT: He’s just goi ng to be in the courtroom. I f you wish to consult w

ith him at any time, you may do so. Do you object to that? DEFENDANT:Well, I object to h im even being in the courtroom. THE COURT: All right then. [PUBLI C DEFENDER], you won’t be re pres enting hi m. You won’ t even be e lbowcounsel. He’s waiv

ed his right here in open court. DEFENDANT: I object. I’ve not waived -- THE COURT: You have by your s tatemen ts; okay? All right. Are you ready to proceed with this matter? DEFENDANT: Let’s proceed. The defendant was then arraigned for the off ense of driving under the influ e nce. At the pretrial hearing , the following colloq uy ensued:

THE COUR T: T his case, Mr. Battles, you’re representing yourself. Earlier I off ered to appoint the public defender’s o f fice. You specifically rejected the offerof that appointment; however, I’m going to ask that [PUBLIC DEFENDER] remain pr es ent during any of your proceedings so that if any time you wish to confer with couns el, you ma y confer wit h him, oka y?13 I mean, you’ve g ot a constitutional rig ht to represent y ourself , which you have i ndicated you inte nd t o exerc ise, which is fine, but I do w ant you to know that should you feel the need, [PUBLIC DEFENDER] will be present. He is the public defender in t his dist rict, and you may con sult with h im if you wis h or desire , okay? DEFENDANT:Well, I’m ap pe aring here in propria persona , and I do have counsel of choic e here.

. . . DEFENDANT: I’m not asking for anybody to represent me. THE COURT : Okay. DEFENDANT:I’m just a sking for my 6th amendment right to counsel of choice to assist me. THE COURT: I’ve dealt w ith this before. I don’ t know whatelse to say on that

. I’m not going to allow someone who is nota lawyer to sit up there and advise you on legal matters. DEFENDANT:So are you denying me m y6th amendment right to counsel of choic e? THE COURT: I’m not denyin g y our 6th amendment right. I’m denying you what you referred to as counsel of choice who is an unlicensed person to sit at the table with you and assist you. You can confer during these proceedings, anyone that’s in the public courtroom. Yo u can talkwith anybody y ou wa nt t o, but if they give you legal advice, they’re breaking the law. DEFENDANT:They wouldn’t be giv ing me legal advice, just to help me take notes and keep my papers in order. This pe rson is my godmother. She has been every since my m other pa ssed away. THE COURT: And you are aski ng that they do what ? I don’t understand. DEFENDANT:Just assist me, be my counsel of choice, take notes and help keep my papers in order.

After this exchange, the t rial court permitted the defendant’s godmother

to assist him with hi s papers and notes, and the defendant pres ented several motions and examined several witnesses.

The right to assistance of cou nsel in the preparation andpresentation of a defense to a criminal charge is grounded in both the Tennessee and the United States Constitutions. Tenn. Const. art. 1, § 9; U.S. Cons t. amend . VI. Conve rsely,14

there also exists an alternative right -- the right to self-representation -- which is founded on the Sixth Amendment. See Faretta v. California , 422 U.S. 806, 819, 95 S. Ct. 2525, 2533 (1975); State v. Small , 988 S.W.2d 671, 673 (Tenn. 1999) (citing State v. Melson , 638 S.W.2d 342, 35 9 (T enn.198 2)); State v. Northington , 667 S.W.2d 57 (Tenn. 1 984).5 Rule 44(a) of the Tennessee Rules of Criminal Procedure req uires a written

waiver of the defendant’s ri ght to counsel. Although the trial court reques ted the state to prepare a waiv er, the record before us does not contain a written w aiver of the defendant’s right to counsel signed by the defendant. However, we note that the defendant has stated in each of his written motions that h e was appearing in propria persona . We find that this assertion of self-representation is sufficient to satisfy the written waiver requirement because these motions were initi ated by the defendant and the asserti on was made repeatedly. A

ddition ally, after he was qu estioned about t he definition of in propria persona

by the tri al court, th e defendant beg an using the term “pro se” in his motions and court filings.

6 We also note that the defendant called as a witnes s Ronald Bret Cass, w

ho testified that he was a good friend of the def endant and had previously 15 There are three pre-cond itions wh ich m ust be satisfied before a defendant's right to self-represent ation becomes absolute. "First, the accused must assert the right toself-representation timely. Second, the accused's request must be clear and unequivocal. Third, the accused must knowingly an d intellig ently waive the right to the assistanc e of counsel." State v. Herrod , 754 S.W.2d 627, 629-30 (Tenn. Crim. App. 1988) (citations omitted). 5

With respect to the first pre-c ondition, we conclude that the defendant t imelymoved to assert his ri ght to self-representation.The issue was first r aise d during his arraignment and agai n at his pretrial heari ng. See State v. Mark Bodine , No. 03C01-9111-CR-368 (Tenn. Cr im. App., Knoxville, March 25, 1994) (a va lid waiver must be made p rior to trial or not at all). The second pre-condition is also satisfied. The defendant, although confu sing in his use of the term “counsel,”was very clear and unequivocal in stating that he wished to represent hi mself and did not want a lic

ensed attorn ey to repr

esent him.

It is the third pre-condition which proves th e mos t diff icult to determine, whether the waiver was

made knowingly and i ntelligently. Although the defendant persisted in using his own, i ncorrect, definition of “counsel ,” he was adamant that he wanted to represent himself. The trial court admonished the defendant that he
wa s getting some bad advic e, based upon the defendant’s misuse of lega l termino logy. The trial court noted on the r ecord that the person the defendant wanted as “counsel of choice” had pr eviously aided and

participated in cases o f a similar nature where defendants had represented the mselves. 6represented himself under similar circumstances. 16 The trial court attempted to dis suade the defendant from representing himself and offered to provide a public d efender for th e defendant, to which the defendant objected. The defendant objected to the public def ender’s mere presence in the court room. The trial court told the defendant,“you’re on your ow n.” When the trial court expl ored whether the defendant understo od the nature of

the chargesagainst him, the defendant said that he did not understan d, but then he began arguing to the co urt that the charge did not apply to him. His arg ument belied his contention that he di d not understand the charge against him.

Addition ally, we note that the defendant cited numerous au thorities in his arguments before the trial c ourt, although his lega l reasoning left muc h t o be desired. The defendant’s effort at self -representatio n , as admirable as it was ineffective, serves to validate the tri al court’s decision that the defendant made a knowing decisi on to rep resent h imself. See State v. Franklin , 714 S.W.2d 252, 261 (Tenn. 1986) (“Although a defendant's actual pro se trial performan ce itse lf i s no t relevant to determining the

competency of a waiver of counsel, his personal conduct during trial is r

elevant to thejudge's determination that a defendant . . . ‘is making
a knowing decision on his part’ to participate in his defense.”) (c iting State v. Northington , 667 S.W.2d 57, 61 (T enn.1984)).

After a full review of the record we can only conc lude that the defendant employed the tactics described in a deliberate effort to induce and cause reversible error. See State v. Chadwick , 224 Tenn. 75, 78, 450 S.W.2d 568, 570 (1970) (“A defendant should not be permitted to subvert and nullify the whol e judicial process by any

such ruse or stratagem.”). Our supreme court has said that
a “judge must investi gate as long and as thoroug hly as the circum stance s of the
case before him demand.” State v. Northington , 667 S.W.2d 57, 60 (T enn. 1984).

This court has promulgated a litany of questions to be asked to ensure that a defendant’s waiver of the right to counsel was m a de knowingly and intellige ntly. Smith v. State , 987 S. W.2d 871, 877-78 (Tenn. Crim. App. 1998).17

Although in the case at bar the trial court asked some of the questio n s listed in Smith , it was thwar

ted in its effort to make a complete investigation by the defendant’s obstinate assertion that he wanted to represent himself. We conclude that under the circumstances the t rial court adequately investigated whether the defendant knowingly and intelligently waived his right to counsel.

5. Whether

the evidence result ing from the defen dant’s warrantless arrest should have been suppressed.
The defendant clai ms that his arrest for DUI was illegal and, therefore, any evidence obtained by hi s arrest is inadmissi ble. H e argues tha t because the
o ffense was not committed in the pr esence of the arresting officer and the office r did not have a warrant for h is arrest, the arrest was illegal. The defendant contends that the offense occurred on private property and the arresti ng officer did not have probable cause to arrest him. The state responds that Code section 40-7-103(a)(6) permits an officer to arrest the driv er in an accident if the officer has probable cause to believe the d river was driving under the i nfluence. The state argues that testimony

at the pretrial hearing established that the arresting officer had probable cause to believe the defendant w as driving under the influence.
The relevant portion of secti on 40-7-103 states: (a) An officer may, without a warrant, arrest a person:

. . . (6) At the scene of

a traffic accident who is the dr iver of a vehicle involv

ed in suc h acci dent when, based on personal investigation, the officer has probabl e c ause to believe that such person has committed an offe nse under the provisions of title 55, chapters 8 and 10. The provisio ns of this subdivision shall not apply to traffic accidents in which no personal injury oc curs or property damage is less than one thousan d do llars ($1,000) unless the officer has probable cause to believe that the driver of such vehicle has committed an offense under § 55-10-401. . . . Title 55, chapter 8 deals with the rules of the road, and chapter 10 d eals with accidents, arrests, crimes, and penalties involv ing motor vehicles. Secti on 55-10- 401 describes the of fense of drivin g underthe influence. The statute creates an exception to the rul e that an office r may n ot mak e a warrantless misdemeanor18

arrest unless t he offense was committed in the officer’s presence. See State v. Smith , 787 S.W.2d 34, 35 (T enn. Crim. App. 1989).

This issue turns on whether the arresting officer had probable cause to believe that

the defendant was driving under the influence. Tenn. Code Ann. § 5 5-10-401(a) (Supp. 1996). Tennessee Highway Patrolman Tony Barnham testifie d during the pretrial hearing that he investigated the de fenda nt’s accident. He said that he arrested the defendant based on the defendant’s condition. H e testified that the defendant appeared to be intoxicated . Officer Barnham admitted that the Moose Lodge was a privat e club. However, during the trial, he testified that h e had probable cause because “just seeing peop le out there would be reason enou gh for [him] to believe [the park ing lot was] frequent

ed by the public.”

The officer determined that the defe ndant was driv ing a vehicle involved in an accident. He also had probable cause to believe that the defendant
was driving under the influence in a place generally frequented by th e p ub li c. We conclude that the defendant’s arrest w as lawful an d i n accordance with Code section 40-7-103(a)(6). Accordingly, this issue is without meri

t.

6. Whether

the trial court imp roperly limited the defendant's examination of witness Hunt
The defendant claims that he h ad a righ t t o question witness Vicki Hunt, who was a bartender a t the Moose Lodge. He contends that he was n ot permitted to cross-examine the w itness regarding her

training for her serv

er permit. Also, he contends that on direct examination of Hunt as a defense witness, he w as not permitted to show wi tness bias by question ing her on events that transpired at the Moose Lodge. Thestate responds that the defendant was permitted to q uestion Hunt abouther training. The state ar gues that Hunt never g ave an opinion based
on her experience as

a bartender; therefore, questions concer ning the foundation of her opinion were not relevant. Also, the st

ate contends that the defendant was attempting to show that both Hunt and Moose Lodge members were biased against him. The state argues that the defendant was permitted to question Hunt r egarding19

bias and that t h e trial court only r estricted the questioning when the defendant strayed too far afield.

Vicki Hunt testified for the state that s he served the defend ant two beers and two shots of tequila.When asked if she thought that the defendant had too much to drink to be driv ing a car, she answer

ed, “If I thought he was, I . . . wouldn’t have let him leave.”

During the defendant’s cross-examin ation ofMs. Hunt, thetrial court overruled the state’s relevancy objecti on when the defenda nt began questioning Ms. Hunt about her server permit . The defendant continued to question M s. Hunt about her qua l ificatio ns and th e amoun t of alco holic beve rages tha t she shou ld serve customers. When the defendant asked her about the rate the human liver can rid itself of alcohol, the state again obj ected. The trial court sust ained the objection and told the defendant that it “makes no di fference if a person is served legally or not. The question is whether or not so mebody was drivi ng under the influence.” The defendant next asked her whether she had to take a co urse to receive her permit. The trial court again sustained the state’s objection and pointed out that it had ruled that “this line of question ing is inappropriate.”

Ms. Hunt also testifiedfor the defendant during his case-i n-chief. The defendant questioned her about a complaint he had filed against certain members of the Moose Lod ge. Th e state obj ected to its relevance. The defendant responded that he was attempting to show bias on the part of several members of the Moose Lodge. The defendant said that the question also went to ward the witness’s credibility. The trial c ou rt permitted the defendant to ask the q uestion. After the defendant asked Ms. Hunt about the details of how she found out about the complaint the defendant mad e, t he trial court stopped the defendant.It said, “I’m not here to try the

internal workings of the Moose International, all right. Let’s get on with the trial of this case.” After the witnes s expressed a desire to a nswe r the question, thetrial court stated, “I just sai d I want to get to the poi nt, and I want t o try a DUI case. I don’ t want to try w

hat’s happening as far as Moos e Lodge,20

okay.”The defendant then wrapped up his direct examination by asking Ms. Hunt whether the members of the Moose Lodge were bi ased against him because he complained about the lodge having male strippers. She said that she did not know.

The Sixth Amendment guarantees a c riminal defendant the right to cross-examine

witnesses

against hi m. See, e.g. , Davis v. Alaska , 415 U.S. 308, 94 S. Ct. 1105 (1974). The right s of confrontation and cross-ex amination are essential to a f ai r trial. See, e.g. , Pointer v. Texas , 380 U.S. 400, 85 S. Ct. 1065 (1965). Rule 616 of the Tennessee Rules of Evidence provides that "[a] party may offer evidence by cross-examinati on, extrinsic evi dence, or both, that a witnes s is biased in favor of or

prejudiced against a par ty or another witness." R ule 611(b) provides that a witness "may be c ross-examined on any matter relevant to any

issue in the case, including credibil ity." Any "feelin gs that a witness has with regard to a party
or issue are an important factor for the tri er of fact to consider in assessi ng the weight to be giv

en to the witness' testimony ." State v. Willia ms , 827 S.W.2d 804, 808 (Tenn. Crim. App. 1991).

In the case at bar, Ms. Hunt ’s qualifications

as a bartender were not relevant to any of the i ssues being tried. Evidenc e which is not relev

ant is not admissible. Tenn. R. Evid. 402. The propr iety , scope, and control of witness cross-examinationis within the t rial c ourt's discretion and w ill not be overturned absent clear and plain abuse. State v. Richardson , 875 S .W.2d 671, 675 (Tenn. Crim. App. 1993). Accordingly, we conclude that the trial court properlyexercised its discretion in li miting the defendant’s cross-examination.

With r espect to the defendant’s direct examination of Ms. Hunt, the defendant initially argued that his line of questionin g was relevant to the witness’s credibili ty. The defendant continued to question the witnes s about the complaint he had filed against the Moose Lodg e. After the trial court st opped that line of questioning, the defendant asked a direct questi on about the bias of Moo se Lodge members against the defendant which thewitness answered. We conclude that the21

trial court did not prevent the defendant from exam ining Ms. Hunt reg arding any relevant material.

7. Whether the state impr operly cross-exami ned witness Cass
The defendant claims that the state improperly attempted to impeach Ronald Cass by inquiri ng about Cass’s prior DUI charges. The state asked Cass whether he knew thedefendan t, to which the witness said that he and the defendant were “good friends.” The state asked Cass if he had been i n a similar position a year

ago, making similar arguments as the defendant, that the of ficers did not have the right to ar rest him. After the defendant objected, thetrial court ruled that the question was proper as it went to ward bias. The state then as ked, “You were taking the position that the law enfor cement o fficers in that ca se didn’t have
a right to arr est yo u for DUI?” The defendant objected again. Th e trial court overruled the objection and stated, “It can go to bias of the witness. It’s not to be considered as any evidence of guilt against this person, simply as to any bias that might or might not exi st.”

Unles s excluded by another rule, relevant evidence is generally admissible. Tenn. R. Evid. 402. R ul e 616 permits a party to "offer ev idence by cross-examination. . . tha t a witness is biased in favor of or pr ejudiced against a party or another witness." Tenn.R . Evid. 616. Bias is an important g round for impeachmentof a witness and is an aid for the trier of fact in assessing the w eight to be afforded the witness's testimony

. See Tenn. R. Evid. 616 (Advisory Comm’n Comments); State v. Reid , 882 S.W.2d 423, 427 (Tenn. Crim. App. 1987). In the
case at bar, the state attempted to show bias of the witness through the witness’s close r elat ionship with the defendant and the witness’s similar argument in his previous trial for DU I. Accordingly, the evidence was relev ant.
Relevancyestablished, we must deter mine whether some rule of
e vidence nevertheless prohibit s the use of the evidence. Ev idence that a p erso n mayhave driv en while under the influence is, of course,disparaging information. Tenne ss ee Rules of Evidence 404 and 608 deal with some evidence of bad22

behavior or bad character. Rule 404(b) forbids the use of “other crimes, wr ongs, or acts . . . to prove the charac ter of a person in order to show action in conformity

with the character trait.” Tenn. R. Evid. 404(b). However, rule 404 i s not brought into play because Cass’s behavior in conformity with a character trait w as not an issue. Rule 608(b) prescribes rul es for usin g “specific ins tances o f conduct

of awitness” for the purpose of

impeaching the witness. Such instances must be “prob ative of truthfulness or untruthfulness,” Tenn. R. Ev id. 608(b), but drivi ng under the influence is not suggestiv e of truthfulness or untruthfulness. See State v. Ji mmy Blanton , No. 01C01-9306-CR-00166, slip op. at6 (Tenn. Crim. App.,Nashville, Apr. 7, 1994) . However, even though the state sought to impeach witness Cass, it soughtto do so through a demonstrati on o f bias und er Rule 616 and n ot through establishing prior bad acts u nder Ru le 608. The court gave a c urative instruction immediately after the state mentioned the witness’s DUI trial, an d we conclude that any violation of Rule 608(b) was un doubted ly harmless. Tenn. R. App. P. 36(b);
see State v. Laney , 654 S.W.2d 383, 389 (Tenn . 1983) (jurors are pr esumed to follow the instructions given by the trial judge).

This analysis aside, we are left to consider Rule 403, which provides that evi dence, although relevant,may be excluded if its “probative value i s substantially outweighed by the danger

of unfair prejudice, confusion of th e issues,
or misleading the j ury, or by consider ations of undue delay, waste of time, or needless presentation of cumulative issues.” Tenn. R. Evid. 403. A witness’s DUI offense would raise a Rule 403 issue if, for example, it unfair ly prejudiced the interestso f the party sponsoring the witness; howev er, we conclude that the probative value of the ev idence is not substantiall y outweighed by the danger of unfair prej udice or by any other issue mentioned in Rule 403. Se veral factor

s support this conclusion. As poi nted out above, the memory or possible pendency of the witness’s DUI cha rges and his corresp onding i nterest in the favorable outcomeof the defendant’s DUI case prov ide a p owerful basis for bias impeachmentunder Rule 616. The witnes s impeached was not the defendant, and the trial court gav

e precautionary instr

uctions to the jury.23 The admissibility of evi dence is ent r usted to the discretion of tri al court, and the issue will not be overturned on appeal absent an abuse of discretion. State v. Harris , 839 S.W.2d 54, 66 (1 992). Th ere is n o abuse o f disc retion in the present case.

Also, the defendant claimsthat the state testifiedwhen it asked Cass about the locat ion of priv ate property signs w hich the state said it coul d not find. During the state ’s cross-e xaminati on of Ron ald Cass, the state attempt ed to prove that the parking lot was not marked as a pr ivate lot. The following colloq uy ensued: [STATE]: Mr. Cass, it’s g ot signsall over the parking lo t out there? [WITNESS]: They’ve got a couple of sign s out there.

. . . [STATE]: I drove out

there Friday afternoon just to k ind of look around to see what the l ot looked and I missed the signs. Can you tell me exactly where they are located?
The defend ant claim s that the trial cour t allowed t he state to testif y. Initiall y, we note that the defendant failed to object to the state’s ques tion; therefore, this issue is waived. See Tenn. R. App. P. 36(a); see also State v. Renner , 91 2 S.W.2d 701, 705 (Tenn. 1995). However, even considering the merits , there was
no reversible error. The s ta te in the case at bar injected his own credibility as a state officer into his cross- examination of a defense witness

. See State v. Griffis , 964 S.W.2d 577, 598-99 (T enn. Crim. App. 1997). Unlik e State v. Hicks , 618 S.W.2d 510, 518 (Tenn. Crim. App. 1981), in which this court held the prosecutor’s conduct improper

for referring to matters outs ide the record, in the case at bar, the state mentioned facts which had been pr eviously introdu ced in to evidence. The arresting officer testified at the beginning of the trial that there were no signs posted in the parking lot. The state said th at it “missed” the sig ns, and although not proper, we do not find th is was eith er egregious or prej udicial in light of the pr ior testimo ny. Accordingly, w e cannot say that the remark by the state "more probably than not affected the judgment" in this case. Tenn. R. App. P. 36(b).

8. Jury Charge24

a) Whether

the trial court properly instru

cted the jury as to the

elements of the offense.

The defendant claims that the trial court erred by charg ing the jury wi th all the elements of

the offense contained in the statute. He a rgues that because he
was told the accident occurred on the Moose Lodge parking l ot, the jury should not have been cha rged with th e full sta tute, whic h include s driving up on public highways and roadways.

Initial ly, we note that the defendant failed to make appropriate references to the record, and he has failed to cite authority to support his arg ument. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. Rule 10(b). Ho wever, we will address the merits of the defendant’s i ssue.

The defendant is entitled to a complete an d correct charge of the law. State v. Teel , 793 S.W.2d 236, 249 (Tenn. 1990), including the law governing the issues raised by

the evidence. State v. Zirkle , 910 S.W.2d 874, 892 (Tenn. Crim. App 1995). The statepresented evidence that the defendant was intoxicat ed and that he drove on a publi c r oad and on a parking lot that w as generally frequente

d bythe public at large. The j ury charge in the cas e at bar contained t he element s necessary to prove driving u nder the influence and did not charge an off ense different from the one on which the appell ant was indicted. See State v. Davis , 656 S.W.2d 406, 409 (Tenn. Cr im. App. 1983). Ac cordingly, we conclude that the jury charge was not improper.
b) Whether

t he trial court correctly refused to charge the jury on term s of common understandi ng.
The defendant r equested that the jury be charged with str

ictly following the statute and with the definitions of thr ee words used in the statut e: “generally,” “frequented,”and “public.” The defendant also req uested that the jury be charg ed with the legal meaning of probable cause. He argues that these instructions were necessary for the jury to stric tl y interp ret the statute. The state contends that the25

statute uses terms which are c ommon and can b e und erstood by persons of ordinaryintelligence. The state ar gues that the trial cour

t’s instruction defining

the of fense of DUI fully and fairly s tated the applicable law. Additionally, the state points out tha t, although not relevant, the legal definition of probable cause came out during the defendant’s cross-examination of the arresting officer.

This court has explained that "a defendant has a constitutional ri ght to a correct and complete charge of the law." State v. Phipps , 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994 ) (quoting State v. Teel , 793 S.W.2d 236, 24 9 (Tenn. 1990)). It is not error for the trial court to refuse to give a specially request

ed jury instruction
so long asthe court's instructio ns "correctly, fully , and fairly set forth the applicable law" in the case. Id. ; see also State v. Kelley , 683 S.W.2d 1, 6 (Tenn. Crim. App. 1984). On app eal, this court must "review the entire charge and only invalidate it if, when read as a whole, it fails to fairly submit the legal issues or mi sleads the jury
as to the applicable law." The jury instructions should describe and define all of the elements of each offense unless the term s are of commo n use and unde rstanding. See State v. Summers , 692 S.W.2d 439, 445 (Tenn. Crim. App. 1985); Robinson
v. State , 513 S.W.2d 156, 158 (Tenn. Crim. App. 1974) . In the case at bar, the jury
was charged with the element s of Code section 55-10-401. The phrase used in the charge, “premises which are generally frequentl

y [sic] by the publi c at large,” used
no technical terms. Rather, it is a phrase comprised of terms of common use and understanding.

Also, the defendant complains that the jury was not charged wi th the defin ition of “probable cause” with respect to his claim that the arrest was illegal. Presuma bly, the object of the defendant ’s conc ern is the use of e

vide nce of his intoxication, such as the results of field sob riety tests, whi ch arguably wou ld be inadmissible as fruits of the poisoned tree if obtained subseq uent to an illegal arrest

. The trial court correctly ruled that the issue of the legality of the arrest was not an issue properly before the jury and no inst ructions rega rdi ng that issue would be given. Indeed, questions of admissibility of evi dence are generally ent rusted to the discretion of the trial

judge. State v. Stinnett , 958 S.W.2d 329, 33 1 (Tenn. 1997);26

see Ten n. R. Evid. 104(a) (q uestions of admissibility of evidence are to be determined by the trial court); Tenn. R. Crim. P. 12(b), (e) (questions of suppres sion of evidence to be determined by trial court pursuant to pretrial motion).

Accordin gly, we conclude that the jury charge, as g iven, "correct ly, fully, and fairly set forth the applicable law.”

9. Sentencing

The defendant claims that his period of confinement was improperly enhanced from 45 day s to six mon ths. He very cr yptically alleges that he did not receive ten days’ notice, that his previous DUI was an element of the offense and cannot be used as an enhancement factor, and that the trial court di d not articulate crite ri a in determining the enhancement of co nfinement. The state responds by asserting that the trial court is not required to make findings or specific notation of enh an cement and mitigating factors for DUI cases. The state argu es that the defendant has waived this i ssue because his brief does not cite any authorit y and does not even provide any reasoning supporting his conclusory statement s.

When a defendant fails to make appropriate references to the record
a nd f ails to cite authority to support his argument, he waives the issue. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Cr im. App. Rule 10(b). Althoug h the defendant made onlyconclusory statements i n his brief without reference to the r ecord or authorit y, we will address

the merits of the defendant’s issue.

In misdemeanor sentencing, a separ ate sen tenc ing hearing is not mandat ory, b ut th e court is required to provide the defendant with a reasonable opportunity

to be heard as to the length and manner ofthe sentence. Tenn. Code Ann. § 40-35-302(a) (1997). Misdemeanor sentences must be specif ic and in accordance with the principles, purp o se, and goals of the Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. §§ 40-35-104, 117, 302 (1997); State v.27

Palmer , 902 S.W.2d 391, 393 (Tenn. 1995). The misdemeanor of fender must be sentenced to an authorized determinant sente nce with a percentage of that
s entenc e designated for eligibi lity for rehabilitati ve programs. Generall y, a percentage of not gr eater than 75 percent of the sentence shou ld be fixed for a misdemeanor

off ender; however, a DUI offender may be required to serv

e 100 percentof his sentence. Palmer , 9 02 S.W.2d at 393-94. In determining the percentage of the sentence, thecourt must consider enhancement and mitigating factors as well as the legi slative purposes and pri nciples related to the sentencing. Id.

The trial cour t re tains the authority to pl ace the defendant on probation either immediately or after a period of periodic or continuous confinement. Tenn. Code Ann. § 40-35-302(e) (1997). The trial court has a wide latitude of flexib ility. The legislature has encouraged courts to consider publi c or priv ate agencies for probation supervision prior to directing supervi sion by the Department of Correc tion. Tenn. Code Ann. § 40-35-302(f) (1997). The misdemeanant , unlike the felon, is not entitled to the presumption or a minimum sentence. State v. Creasy , 885 S.W.2d 829 (Tenn. Crim. App. 1994).

The trial court imposed sp lit confinement and incarcerated the defendant for six months. A lthough the s ix months exceeds the mini mum confinement of forty-five days for sec ond-offense DUI, it is never theless within a range of reason ablenes s that must be entrusted to the tr ial court. Unlike felony sentencing, the trial c

ourt does not have an affirmativ e duty to state in the

record, either orally or in writing, which enhanc ement and mitigating factors it found and its findings of fact. Tenn. Code Ann. § 40-35-209(c) (1997); § 40-35-210(f) (Supp. 1998); § 40-35-302(d)(1997); State v. Troutman , 9 79 S.W.2d 271, 274 (Tenn. 1998). We find no fault with the sentence in thi s case.

Furthermore, the trial court committed no prejudicial e rror in the
manner in which it determined the s entence. After the jury retu rned its verdict and
was dismissed, the trial court indicatedit was ready "to proceed with sentencing in28

this matter.” The trial court asked the assistant distr ict attorney general

if the state had a ny pro of to offer, and the state declined. The tri al court then asked the defendant if he wished to offer any pr oof, and the defendant declined.

The court proceeded to im pose s entence in the case, without objection by the defendant. We find the defendant was given a reasonable opportunity

to be heard. Moreover, had there been no reasonable opportunity, the defendant has waived the issu e by failing to object, see Tenn. R. App. P. 36(a), and furthermore he has failed to demonstrate any preju dice from the asserted lack of opportunity to be heard. Tenn. R . App. P. 36(b).

Finding no error, w

e affirm the judgment of the trial cour t.

________________________________ JAMES CURWOOD WITT, JR., JUDGE

CONCUR:

_____________________________ DAVID H. WELLES, JUDGE

_____________________________ JERRY L. SMITH, JUD GE