FILED

November 20, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JULY SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9707-CR-00309

)

Appellee, )

)

) DAVIDSON COUNTY

VS. )

) HON. FRANK G. CLEMENT

TURNER P. WILLIAMS, ) JUDGE

)

Appellant. ) (Direct Appeal - D.U.I.)

FOR THE APPELLANT: FOR THE APPELLEE:

CHARLES R. RAY JOHN KNOX WALKUP

211 Third Avenue North Attorney General and Reporter

P. O. Box 198288

Nashville, TN 37219-8288 LISA A. NAYLOR

Assistant Attorney General

JAMES BRYAN LEWIS 425 Fifth Avenue North

217 Second Avenue North Nashville, TN 37201-1649

Nashville, TN 37201-1649

VICTOR S. JOHNSON

District Attorney General

GEORGE BONDS

Assistant District Attorney

Washington Square, Suite 500

Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
-2-

OPINION

On May 19, 1997, a Davidson County jury found Appellant, Turner

Williams, guilty of Driving Under the Influence of an Intoxicant, first offense. The

trial court sentenced Appellant to eleven months and twenty-nine days

incarceration, all suspended except for two days, the remainder to be served on

probation. Appellant filed a timely notice of appeal, raising two issues on appeal:

(1) Whether the trial court erred in admitting into evidence highly prejudicial

statements made by Appellant which were not probative of guilt and were

allegedly introduced for the purpose of inflaming and prejudicing the jury in

violation of Rule 403 of the Tennessee Rules of Evidence; and

(2) Whether the trial court erred in refusing to suppress the results of a field

sobriety test where the officer gave the test under such adverse conditions that

the results were invalid and should not have been presented to the jury.

After a review of the record, we affirm the judgment of the trial court.

FACTS

On May 1,1996 Sergeant Robert Norton, Officer William Turbeville, and

Officer Shane Stokes were at the Kwik Sak Convenience Market on West End

Avenue, when Appellant approached them. According to Sergeant Norton,

Appellant asked whether the three knew Lieutenant Glen Yates. When one of the

officers replied that he knew the name, Appellant responded, “well, next time you

see him, tell him to kiss my ass.” Sergeant Norton testified that Appellant’s eyes

were glassy and blood-shot and Appellant’s speech was slurred. He further

indicated Appellant smelled of an alcoholic beverage. Sergeant Norton advised

Appellant not to drive, and Appellant assured him that he would not. One of the

officers looked outside and observed that another individual was pumping gas
-3-

into the car which seemed to be the one in which Appellant had arrived. When

Appellant left the store and got into the driver’s side of the car, the three officers

pursued.

Officer Turbeville stopped Appellant’s car at the corner of 18th Ave. and

West End. According to Officer Turbeville, Appellant stated that the officer

“needed to get Lieutenant Yates or Chief Turner on the phone.” Appellant also

made a “vulgar comment” towards Officer Turbeville, indicating that the officer

was in trouble because Appellant knew Emmitt Turner and helped him get

elected.

Sergeant Norton testified that the heel-to-toe field sobriety test preferably

should be performed on a flat surface. He further related that were the test

performed on a steep grade, the incline could invalidate the results of the test.

Sergeant Norton described the point at which Appellant was stopped as a valley

“midway between two hills.” Officer Turbeville testified and that there was a white

fog line alongside the road at the point where Appellant was stopped and that the

line was used in administering the heel-to-toe test. Once shown photographs of

the site, Officer Turbeville stated that perhaps he was mistaken in testifying that

there had been a fog line. He testified that according to the photograph of the

location, there was no fog line at the site. 

According to Officer Turbeville, Appellant did not pass the heel-to-toe field

sobriety test, and the officers did not perform the one-leg-stand test for fear

Appellant would injure himself. During the heel-to-toe test, Appellant began the

test before instructed to do so, m issed some of the steps from heel to toe, and
-4-

stepped off the line. Additionally, Appellant made 12 steps before turning around,

although the instructions were that he was to make 9 steps before turning. An

officer advised Appellant of the implied consent law, and Appellant refused to

consent to a breath test. Officer Turbeville testified that he did not observe

Appellant driving in an erratic or otherwise unsafe manner, and that he did not

see Appellant break any traffic laws. Officer Turbeville also testified that Appellant

continued to make threatening remarks to him about the towing of Appellant’s

vehicle. Once in the booking room, Officer Turbeville reported that Appellant

asked, “ you don’t plan on making captain, do you?” 

The defense presented Wally Kemp, the owner of Valentino’s Ristorante,

a friend and business partner of Appellant’s, who testified that Appellant was with

him prior to his arrest. The witness indicated that Appellant had a cocktail early

in the night and shared a bottle of wine with three other people during diner. Mr.

Kemp testified that Appellant did not appear to be intoxicated when he left the

restaurant shortly before his arrest.

I. Prejudicial Statements

Appellant contends that the trial court erred in admitting into evidence

statements made by Appellant to the police officers immediately prior to and at

the time of his arrest. Appellant filed a motion in limine to exclude the statem ents

he deemed prejudicial. The trial court’s ruling excluded some of the comments,

but allowed the State to present some of the offensive statements. In evaluating

a trial court’s ruling on a Tennessee Rules of Evidence Rule 403 motion to
-5-

exclude evidence, the initial inquiry is whether the evidence offered was relevant

to the case under Tennessee Rule of Evidence Rule 401.

The determination of whether evidence is relevant,

or, if relevant, should be excluded for one of the reasons

set forth in Rule 403, addresses itself to the sound

discretion of the trial court. State v. Hill, 885 S.W.2d 357,

361 (Tenn. Crim. App.), per. app. denied (Tenn.1994). In

deciding these issues, the trial court must consider,

among other things, the questions of fact that the jury will

have to consider in determining the accused's guilt as well

as other evidence that has been introduced during the

course of the trial. 

State v. Dulsworth, 781 S.W .2d 277, 287 (Tenn. Crim. App. 1989). 

If a trial court in the exercise of its discretion finds

that evidence is relevant within the meaning of Rule 401,

and the accused is not entitled to have the evidence

excluded for one of the grounds set forth in Rule 403, this

Court will not interfere with the exercise of this discretion

unless it appears on the face of the record that the trial

court clearly abused its discretion. State v. Hayes, 899

S.W.2d 175, 183 (Tenn. Crim. App.), per. app. denied

(Tenn.1995).

State v. Williamson, 919 S.W.2d 69, 79 (Tenn. Crim. App. 1995)

Tennessee Rule of Evidence Rule 403 perm its a court to exclude relevant

evidence "if its probative value is substantially outweighed by the danger of unfair

prejudice." The Supreme Court has stated that unfair prejudice is "[a]n undue

tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one." State v. DuBose, 953 S.W .2d 649, 654 (Tenn.

1997) (citing State v. Banks, 564 S.W .2d 947, 951 (Tenn.1978); see also State

v. McCary, 922 S.W .2d at 515). 
-6-

In State v. Banks, the Supreme Court recognized the "policy of liberality in

the admission of evidence in both civil and criminal cases." Banks, 564 S.W.2d

at 949. The trial court must weigh the probative value against prejudicial effect.

This Court cannot substitute its judgment for that of the trial court or declare error

absent a finding that the trial court abused its discretion. State v. Robinson, 930

S.W.2d 78, 85 (Tenn. Crim. App. 1995 (citing State v. Melson, 638 S.W.2d 342

(Tenn.1982)). 

Appellant’s belligerence and obnoxious behavior toward police officers, at

a time when clear thinking would certainly call for a more subdued approach, is

highly probative on the question of Appellant’s intoxication. Moreover, although

these statements were less than wisely made under the circumstances, they do

not strike a chord that could be said to unduly suggest a decision by the jury on

some basis other that the facts of the case. Finally, there is overwhelming

evidence of Appellant’s guilt of D.U.I. and even without the statem ents it is

virtually certain he would have been convicted. Under these circumstances, we

find that the trial court did not abuse its discretion in determining that the

statements were relevant and that the prejudicial effect did not substantially

outweigh the probative value. This issue is without merit.

II. Field Sobriety Test

Appellant further complains that the trial court erred in admitting evidence

of the field sobriety test, because the officer who administered the test failed to

comply with the guidelines set out by the National Highway Traffic Safety

Administration. We disagree. The admission of evidence is a matter within the
-7-

discretion of the trial court. State v. Banks, supra, at 949. The trial court permitted

defense counsel wide latitude in cross-examining the officers regarding the

results of the field-sobriety tests and the circum stances under which the tests

were administered. The defense was able to put before the jury testimony by a

participating officer that a failure to strictly adhere to the safety guidelines might

affect the reliability of the sobriety test. The conditions under which the tests were

preformed relate to the weight to be afforded the test results, not the admissibility

of the results. The weight to give such evidence is a question for the jury. This

Court will not second-guess such jury determinations. This issue is without merit.

Accordingly, the judgment of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

PAUL G. SUMMERS, JUDGE

___________________________________

DAVID G. HAYES, JUDGE