# FILED November 20, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JULY SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9707-CR-00309 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. FRA NK G. CLEMENT TURNER P. WILLI AMS, ) JUDGE ) Appe llant. ) (Direct Ap peal - D .U.I.)

FOR THE APPELLANT : FOR THE APPELLEE : CHARLES R. RAY JOHN KNOX WALKUP 211 T hird Aven ue No rth Attorney Generaland Reporter P. O. Box 198288 Nashvill e, TN 37219-8288 LISA A. NAY LOR Assistant Attorney General JAME S BR YAN L EW IS 425 Fifth Avenu e North 217 Se cond A venue N orth Nashvill e, TN 37201-1649 Nashvill e, TN 37201-1649 VICTOR S . JOHN SON Distri ct Attorney General GEORGE BONDS Assistant Distri ct Attorney Washington Square, Suite 500 Nashvill e, TN 37201-1649

OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION On May 19, 1997, a Davi dson County jur y foun d Appellant, Turner Williams, guilty

of Drivi ng Under the Inf luence of an Intoxi cant, fi rst offense. The trialcourt senten ced Appellant to eleve n months and twenty-nine days incarcerat ion, all suspended except for two days, the remainder t o be served on probation. Appe llant filed a time ly notice of app eal, raising two issues on appe al: (1) Wh ether th e trial co urt erre d in ad mitting into evid ence highly p rejudi c ial statem ents made by Appellant wh ich were not pro bative of guilt and we re allege dly introduced for the purpo se of i nflam ing an d preju dicing the jury in violat ion of Rule 403 of the Tennessee Rules of Evidence; and (2) Whether the trial court err ed in refusing to suppressthe results of a field sobriety test where the offi cer gave the testunder such advers e conditi ons that the results were inva lid and should n ot have bee n presented to the jury. After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
FACTS
On May 1 ,1996 Serg eant R obert N orton, O fficer W il li am Turbevill e, and Officer Shane Stokes were at the Kwik S a k Convenience Market on West End Avenue, when A ppellant a pproac hed the m. Acc ording to Serge ant Norton , Appellant

asked whether t he three knew Li eutenant Glen Yates. When one of the officers replied that he kne w th e nam e, A ppel lan t respo nded , “wel l, nex t t ime you see him, tel l him to ki ss my ass.” Sergeant Norton test ified that Appellant’s eyes were glassy and bl ood-sho t and Appellant’ s speech was slurr ed. He furt her indicated Appellant s melled of an alcoholi c beverage. Sergeant Norton advised Appellant

not to drive, and Appellant assured him that he would not. One of the officer s looked outside and obser ved that anot her individual was pumping gas-3-

into the car which seem ed to be the one in which A ppellant h ad arrived . W he n Appellant

left t he store and got into the driver’s side of the ca r, the three officers pursued.
Officer Turbeville stopp ed Appe llant’s car at the corn er of 18t h Ave. and West End. According t o Officer

Turbevill e, Appellant stated that the of

ficer “needed to get Lieutenant Yates or Chief Turner on the phone.” Appellant al so made a “vulgar

comment” towards Off icer Turbevi lle, i ndicati ng tha t the officer was in troubl e because Appellant knew Emmitt Turner and he lped him get elected. Sergeant Norto n testifie d that th e hee l-to-toe field sobriety test pre ferably shou ld be performed on a flat surface. He further related t hat were the test performed on a steep grade, the incl ine could i nvalidate the resul ts of the tes t . Sergeant Norton descri bed the point at which Appel lant was stopped as a valley “midwaybetween two hil ls.” Officer Turbevi lle testifi ed and that there w as a wh ite fog linealongside t he road at the point where Appel lantwas stopped and that the line was used in admini steringthe heel-t o-toe test . Once shown photographsof the site, Officer Turbevill e stated t hat perhaps he was mistak en in test ifyi ng that there had been a fog li ne. He testi fied th at accordi ng to the photograph of the location, th ere was no fog line at the site. According to Officer Turbevil le, Appellant di d not pass the heel-t o-toe field sobri e ty test, andthe offi cers did not perform the one- leg-stand test for fear Appe llant would injure him self. During the heel -to-to e test, Appel lantbegan the test before instructed to d o so, m is sed some of the steps from heel to toe, and-4-

stepped off the line. Additionally, Appellant made 12 steps before turning around, although the inst ructions were that he was t o make 9 steps bef ore turni ng. An officer advised Appell ant of the i mplied cons ent law, and Ap pellant refu sed to consent to a brea th te st. Officer Turbe ville testified that he did not obse rve Appellant

driving in an er ratic o r otherwi se unsafe manner, and t hat he did not s ee Appellan t break any t raffi c laws. Off icer Turbevi lle al so testi fied that Appellant continued to ma ke thre atenin g rem arks to him a bout th e towin g of Ap pellan t’s vehicle. O n ce in the booki ng room, Offi cer Turbevil le reported that Appell ant asked, “ you d on’t plan on m aking captain, d o you?”
The defense presented Wally Kemp, t he ownerof Valenti no’s Ristor ante, a friend and business partner of Appellant’s, who testi fied that Appella nt was w ith him p rior to his arrest. The witness in dicated t hat Appe llant ha d a co cktail ea rly in the night and sh ared a bottle of wine with three other pe ople during dine r. Mr. Kemp testified that Appel lant didnot appear to be intoxi cated w hen he left the restaura nt shortly be fore his arre st. I. Prejudicial Sta temen ts Appellant

contends that the tri al court erred i n admitting into evi dence statem ents made by Appellant to the police of

ficers i mmediately pri or to and at the time of hi s arrest. Appellant filed a moti on in limine to exclude the statem ents he deemed prejudici al. The tr ial court’s ruli ng excluded some of the comments, but allowed t he State to pr esent some of the offensi ve statements. In evaluat ing a trial cou rt’s rulin g on a Te nness ee Ru les of Evide nce Ru le 403 m otion to-5-

exclude evidence, t he initi al inqui ry is whet her the evi dence offered was relevant to the case under

Tennessee Rule of Evi dence Rule 401.
The determinati on of whether eviden ce is relevant, or, if rel evant, shoul d be excluded for one of the reasons set forth in Rule 403, addresse s itsel f to the s ound discreti on of the trial cou rt. State v. Hill , 885 S.W.2d 357, 361 (Tenn . Crim. A pp.), per. app. deni ed (Tenn .1994). In deciding these issues , the trial court must con sider, among other

things, the ques tions of fact that the jury will have to cons ider in d eterm ining th e acc used 's guilt as well as other evi dence that has been i ntroduced duri ng t he course of the trial. State v. D ulsworth , 781 S.W .2d 277 , 287 (T enn. C rim. App . 1989).

If a trialcourt in t he exercise of its di scretion finds thatevidence is rel evant wit hin the meaning of Rule 401, and the accused i s not entitl ed to have the evidence excluded for one of the grounds set fort h in Rule 403, this Court will not inter

fere wit h the exerci se of thi s discret ion unless it appears on the fac e of the rec ord that th e trial court clearly abu sed its disc retion. S tate v. Hayes , 899 S.W.2d 175, 1 83 (Te nn. Crim . App.), per. app. deni ed (Tenn.19 95). State v. Williamson , 919 S.W.2d 69, 79 (Tenn. Cr im. App. 1995)
Tennessee Rule ofEvidenc e Rule 4 03 perm its a court to exclude rel evant evidence "if its prob ative va lue is substanti ally out weighed by the d ange r of unfa ir prejudice ." The S uprem e Cou rt has state d that u nfair p rejudice is "[a] n undue tendency to suggest deci sion on an improper basis, commonly, though not necessa rily, an em otional on e." State v. DuBose , 953 S.W .2d 649, 654 (Tenn. 1997) ( citing State v. Banks , 564 S.W .2d 947 , 951 (T enn.19 78); see also State v. McCary , 922 S.W .2d at 515 ).-6- In State v. Banks , t he Su pre me Court recogni zed the "pol icy of liberality in the admission of eviden ce in both civil and crim inal case s." Banks , 564 S.W.2d at 949. The trialcourt must wei gh the probative valueagainst p rejudicial effe ct. This Court cannot subst itute its judgmentfor that of the tri al court or

declare err

or absent a finding th at the trial cou rt abuse d its discretion
. State v. Robinson , 930 S.W.2d 78, 85 (Tenn. Cri m. App. 1995 ( citing State v. Melson , 638 S.W.2d 342 (Tenn .1982)). Appe llant’s belligerenceand obnoxious behavi or toward pol ice offi cers, at a time when clear th inking would certain ly call for a more subd ued a pproa ch, is highly probative on the qu estion of A ppellant’s intoxication
. Moreover, although these statem ents were less t han wisely madeunder the ci rcumstances, t hey do not strike a chord that co uld be said to undu ly suggest a decis ion by thejury on somebasis other

that the f

ac ts ofthe case. Fi nally, there is overwhelming evidence of App ellant’s guilt of D .U.I. an d even wit hout the statem ents it is virtually certain he wo uld have been co nvicted. Under these cir cumstances, we find th at the trialcourt did not abuse its discret ion in determining that the statem ents were relevant and t hat the prejud icial effe ct did n ot sub stantia lly outweig h the pro bative valu e. This iss ue is witho ut merit.
II. Fi eld Sobriety

Test Appellant

further complains that the t rial court erred in admitt ing evidence of the fi eld sobri ety test , because the of ficer who admi nisteredthe testfailed to com ply with the gu idelin es set out by the NationalHighwayTraff ic Safety Administrat ion. W e disagree. The admission of evi dence is a matter within the-7-

discreti on of the trial court. State v. Banks , supra , at949. The tri al court pe rmitted defense counsel wide l atitude i n cross-examini ng th e office rs regardi ng the results of the fiel d-sobrie ty tests and the circum stance s unde r which the tests were administered. The defense wasable to put before the jury testim ony by a partici pating officer

that a failure to strict ly adhere to the safet y guideli nes might affectthe reli abilit

y of the sobriety test. The condit ions underwhich the tests w ere preformed relate to the weight to be afforded the test r esults, not the ad missibility of the result

s. The weight to give such evi dence is a que stion fo r the jury . This Court will not second-gu ess such jury determinations. This issu e is withou t merit. Accordingly , the judg ment of the t rial cour t is af firmed.

____________________________________ JERRY L . SMI TH, J UDGE
CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ DAVID G. HAY ES, J UDGE