State v. Paul E. Mathis

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MAY SESSION, 1997 November 16, 1998

Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9605-CC-00223 ) Appellee, ) ) ) FRANKLIN COUNTY VS. ) ) HON . THOM AS W. G RAHAM PAUL E. MATHIS, ) JUDGE ) Appe llant. ) (Direct Appeal - Sentencing)

FOR THE APPELLANT: FOR THE APPELLEE:

PHILIP A. CONDRA JOHN KNOX WALKUP District Public Defender Attorney General and Reporter 12th Judicial District 204 Betsy P ack Drive KAREN M. YACUZZO Jasper, TN 37347 Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

J. MICHAEL TAYLOR District Attorney General

STEVEN M. BLOUNT Assistant District Attorney 1 South Jefferson Win cheste r, TN 37 398

OPINION FILED ________________________

CONVICTION FOR RESISTING ARREST AFFIRMED; CONVICTION FOR PUBLIC INTOXICATION REVERSED AND REMANDED

JERRY L. SMITH, JUDGE

OPINION

Appellant Paul E. Mathis was convicted on July 20, 1995 by a jury in the Fran klin County Circuit Court of one count of public intoxication and one count of resisting arrest. On September 12, 1995, the trial court conducted a sentencing hearing. Respecting the public intoxication conviction, Appellant received a suspended sentence of thirty d ays incar ceration in the Fran klin Cou nty jail, thirty days probation to begin immediately, and a $25.00 fine and costs. For the resistin g arres t convic tion, the trial court imposed a concurrent sentence of six months incarceration in the cou nty jail, all of which was suspe nded save fortyeight hours incarc eration . On th is direct appeal, Appellant presents three issues for our consideration: (1) whether the trial court erred by failing to impanel the jury in compliance with Rule 24, T ENN. R. C RIM. P.; (2) whether the trial court impro perly responded to questions submitted by the jury during its deliberations; and (3) whether the evidence was insufficient to sustain Appellant's conviction for resisting a rrest.

After a review of the record , we affirm the judgm ent of the trial court as to the conviction for resisting arrest. However, we must reverse the conviction for public intoxica tion an d rem and th at cas e for a n ew trial.

I. FACTUAL BACKGROUND

The proof shows that on August 19, 1994, Appellant consumed alcohol throughout the day and, the refore, did not wan t to drive. Appe llant telephoned Mr. David Smith, his brother-in-law, and asked Smith to drive Appellant to a

-2-friend's house . Appellant rode in the front passenger seat while his brother-in-law drove the au tomo bile. Mr . Jaso n Stee le 1 sat in the b ack sea t.

Shortly before 11:00 P.M. on Augus t 19, a dispatcher for the Winchester Police Department issued a bulletin alerting officers to watch for a vehicle whose description and licen se plate number matched those of the automobile in which Appellant was a passenger. The dispatcher informed officers th at the ve hicle was being o perated erratically.

Officer Michael Doty of the Winchester Police Department testified that he received the dispatch while patrolling Highway 130 and North High Street. Officer Doty first encountered the white Mustang on North High Street. He followed and observed the car for approximately six to eight blocks. During this time, the autom obile moved from its lane five times--three times to the inside lane and twice to the outside lane. After stopping the vehicle, Officer Doty approached the driver's side of the car and, upon smelling alcohol, asked the driver to step from the automobile and to produce his driving license. Officer Doty then called for backup, and Officers Greg Branch and John Stewart soon arrived at the scene. Officer Doty was invo lved pr imarily w ith the d river of th e auto mob ile and dealt only briefly with Ap pellant. Officer Doty testified, how ever, that Appellant smelled strong ly of alcohol. Appellant sat quietly in the c ar and w atched as Office r Doty tested Mr. Smith to determine whether or not Smith was intoxicated.

Appellant was still sitting in the front passenger seat of the vehicle when Officers Branch and Stewart arrived. Officer Branch approached the passenger side of the vehicle and asked Appellant to produce his license. Though Appellant reached into his pocket, he did not remove anything. Because the darkness

1 Mr. David Smith, the driver of the vehicle, and Mr. Jason Steele, the back seat passenger, both we re Appellant's co-defendants, and all three cases were joined for trial. However, the jury acquitted both Mr. Smith and Mr. Steele of the charged offenses.

-3-prevented Officer Branch from s eeing clearly inside the vehicle, he could not see the item Appellant attempted to retrieve from his pocket. Branch stated that he asked Appellant to step from the car because he detected a strong odor of alcoh ol. Officer Branch testified that upon being asked to step out of the automobile, Appellant asked the reason for the officer's request. Officer Branch informed Appellant that he needed to check Appellant both for the safety of the officers as well as for Appellant's own safety. Appellant refused this first request and said, "I'm not getting out of the car." Officer Branch the n made two more reques ts that App ellant get o ut of the ca r, and Ap pellant ag ain declin ed to comply. Officer Stewart approached the vehicle and observed Officer Branch make the third request of Appellant. Appellant again declined to exit the autom obile after being aske d for a fourth time to do so. Officer Branch testified that Officer Stewart attempted to open the door, and Branch reached into the vehicle to grab Appellant. When he did so, Appellant pulled the door closed, causing Branch to pu ll his arm from the car to prevent his fingers from being caugh t. Officer Stewart again pulled open the door, and Branch sprayed Appe llant in the face with pepper spray. Officer Branch stated that Appellant became more combative after being sprayed. Stewa rt grab bed A ppella nt by his hair, pulled him from the vehicle, and p ulled him to the ground. While Branch held Appellant on the ground by placin g his knee between Appellant's shoulder blades, Officers Doty and Bra nch ha ndcuffe d Appe llant. 2 Appella nt continu ed to fight with the three police officers until the officers plac ed him into the patrol car.

2 Officer Stewart testified that Officer Branch's fourth and final request to Appellant consisted of infor min g Ap pellan t that if he did not vo lunta rily step out o f the v ehic le, Bra nch and S tewa rt wou ld pull h im out of the car. According to Officer Stewart, Appellant replied, "Go for it, big boy." Neither Officer Doty nor Officer Branch could rec all Appellant m aking s uch a s tatem ent.

-4-

II. SUFFICIENCY OF THE EVIDENCE

Appellant challenges the sufficiency of the evidence to s ustain his conviction for resisting arrest. Th is conten tion has n o merit.

This Court is obliged to re view challenges to the sufficiency of the convicting evidence according to certain well-settled principles. A verdict o f guilty by the jury, appro ved by the trial ju dge, a ccred its the te stimo ny of the State's witnesses and res olves all co nflicts in the tes timony in favor of the State. State v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). Although an accused is originally cloaked with a presumption of innocence, a jury verdict removes this presumption and replaces it with one of guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof re sts with Ap pellant to d emon strate the in sufficiency of the convicting evidenc e. Id. On ap peal, "the [S ]tate is entitled to the strongest legitimate view of the evidence as well as all rea sonab le and leg itimate inferences that ma y be draw n therefro m." Id. (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). W here th e suffic iency o f the evid ence is contested on appea l, the relevant question for the reviewing cou rt is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt. Harris, 839 S.W .2d 54, 75 ; Jackson v. Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In conducting our evaluation of the convicting evidence, this Co urt is precluded from reweighing or recons idering the evidenc e. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. A pp. 199 6); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, this Court may not substitute its own inferences "for those drawn by the trier of fact from circumstantial evidenc e." Matthews, 805 S.W.2d 776, 77 9. Finally, T ENN. R. A PP. P. 13(e) provides, "Findin gs of g uilt in criminal

-5-actions whether by the trial court or jury shall be se t aside if the evid ence is insufficient to support the findings by the trier of fact of guilt beyond a reaso nable doubt." See also Matthews, 805 S.W.2d 776, 780.

Tenn . Code Ann. § 3 9-16-60 2 provide s in part:

(a) It is an offense for a person to intentionally prevent or obstruct anyone known to the pers on to be a law enforcement officer. . . from effecting a stop, frisk, halt, arrest, or search of any person, including the defendant, by using force against the law enforce ment officer or an other. (b) . . . [I]t is no defense to prosecution under this section that the sto p, frisk, h alt, arre st or se arch w as un lawful. Tenn. C ode Ann . §§ 39-16-60 2(a) and 39 -16-602(b).

Tenn. Code Ann. § 39-11-106(a)(12) states: "`Force' means compulsion by the use of phys ical po wer or violenc e and shall be broad ly construe d to accomplish the purposes of this title." The State bears the burden of proving every element of the offen se beyo nd a rea sonab le doub t.

As this Court noted in State v. James Bradley, Tenn. Code Ann. § 39-16-602(b) reflects a policy decision by our legislature that "the illegality of an arrest alone will not justify an assault against officers attempting the arrest." C.C.A. No. 03C01-9408-CR-00298, slip op. 1, 5, Monroe Coun ty, (Tenn . Crim. A pp., Knoxville, Februa ry 13), cert denied, (Tenn. 1996). In Bradley, we held that the illegality of the police conduct is irrelevant to determining whether or not the accused was justified in refusing to c omp ly with a la w enfo rcem ent offic er's comm ands o r reques ts. Id.

First, Officer Branch asked Appellant to exit his vehicle. Officer Branch deemed this necessary in order to check Appellant both for his ow n safe ty as we ll as that of the officers. Moreover, Officer Branch noted Appellant's slurred speech and a strong odor of alcohol about him. Officer Branch also testified that Appellant was combative. Second, Appellant used force against Officers Branch,

-6-Stewa rt, and Doty. Specifically, Appellant refused to step out of th e auto mob ile and pulled the door closed when Officer Stewart opened it. After Officer Branch sprayed Appella nt with the s tun solutio n, Appe llant continued to struggle, kick, and fight. The fo regoing amply d emon strates tha t Appella nt used force to obstruct the officers from effe ctuating h is arrest. See State v . Ron ald David Lee, No. 03-C-0 1-9410 -CR-0 0393, s lip op. 1, 7, Cocke C ounty, (T enn. C rim. App ., Knoxville, July 6, 1995) (holding that the evidence was sufficient to sustain the Appe llant's conviction for resisting arrest where the Appellant wrestled with the arresting officer to preven t that officer from hand cuffing him).

The jury was entitled to accredit the testimony of the prosecution witnesses, and it apparently did so. We decline to disturb th at verd ict on th is appe al.

III. IMPANELING THE JURY

Appellant next complains that the trial court erre d in failing to co mply with T ENN. R. C RIM. P. 24(c) when im paneling the jury. Ap pellant's failu re to conte mpo raneo usly object to the court's procedure for impaneling the jury has waived this issue on appeal. T ENN. R. A PP. P. 36(a). See als o State v. S mith, 857 S.W.2d 1, 20 (Tenn. 1993) (holding that by not contesting the trial cou rt's jury selection procedure until after the case was submitted to the jury, rather than contemp oraneous ly objecting, the accu sed waived th at issue on ap peal). 3

3 It does appear that the trial court deviated from the procedure outlined in then existing TE N N . R. C RIM . P. 24(c) for impaneling jurors. In 1997 Rule 24(e) wa s amend ed and would now allow the proced ure employed by the trial judge.

-7-

IV. TRIAL COURT'S RESPONSES TO QUESTIONS POSED BY JURY

DURING DELIBERATIONS

Appellant next asserts that the trial court erroneously responded to questions posed by the jury during its deliberations. We disagree.

During its deliberations, the jury posed both written and oral que stions to the court. One of the written questions aske d for a d efinition of the te rm "pu blic place."

A. DEFINITION OF "PUBLIC PLACE"

Appellant argues that the trial court erred in defining the term "public place" because the court opted to inform the jury about this Court's opinion in State v. Lawson, 776 S.W.2d 139 (Tenn. Crim. App. 1989) rather than to read the definition contained in Tenn. Code Ann. 106(a)(29)4 as requested by defense coun sel. Spec ifically, Appellant asserts that the court erred by not reading the final sentence o f Tenn. Co de Ann. § 3 9-11-106(a )(29).

Outside the jury's presen ce, the court in forme d cou nsel th at it wou ld respond to the jury's question by discussing our holding in Lawson. The court refused defense counsel's request to read to the jury Tenn. Code Ann. § 39-11-106(a)(29). Because of its opinion that "The only issue for this jury is whether or not people in the autom obile w ere in a public place," the court believed that the statutory definition would only confuse the jury. Thus, the court informed the

4 Tenn. Code Ann. 39-11-106(a)(29) provides:

"Public place" means a place to which the public or a group of persons has access and includes, but is not limited to, highways, transportation facilities, schools, places of amusement, parks, places of business, playgrounds and hallways, lobbies and other portions of apartment houses and hotels not con stitutin g roo ms or ap artm ents desig ned for ac tual re side nce . An a ct is deemed to occur in a public place if it produces its offensive or proscribed consequences in a public place. Id.

-8-jury that "persons in a priva te vehic le are in a pub lic place if they're on a p ublic road. . . ." 5

The law governing jury charges is equally applicable to respo nses to questions subm itted by the ju ry during d eliberation s. The tria l court is oblig ed to give jury instr uction s that fa irly and a ccura tely set fo rth the a pplica ble law as it applies to the facts of a particular case. State v. Stodda rd, 909 S.W.2d 454, 460 (Tenn. Crim. A pp. 1994). Moreover, the court may decline a special request where the court's jury instruction provides a complete statement of the law. Id. (citing State v. Middlebrooks, 840 S.W.2d 317, 335 (Tenn. 1992). In State v. Cassan dra Mathis, Mattie Lue Drake and Amanda Drake , this Co urt held that it is perm issible for trial courts to employ appellate opinion s when form ulating jury charges. C.C.A . No. 87-11-III, slip. op. 1, 7, Williamson County (Tenn. Crim. App., Nashville, March 18, 1988). The statutory definition of "public place" is not mark edly different from this Court's explication of that term in the Lawson decision. W e find that the trial c ourt did not err in explain ing to th e jury this Court's holding in the Lawson decision.

B. IMPROPER COMMENT ON THE EVIDENCE

In addition to the written submission, the following co lloquy took place between the court and a co ncerned juro r:

JUROR: My other question concerns having a designated driver. If one is under the influence and he ask [sic] someone

5 This is an accurate paraphrase of our holding in Lawson, 776 S.W.2d 139:

A "public p lace" is a pla ce to wh ich the ge neral pub lic has a righ t of acce ss. A location to which such a right of access exists does not lose its character as a "public place " sim ply beca use o thers a re not p resen t to obs erve th e defe ndan t's drunken condition. Moreover, we conclude, as have courts in other jurisdictions that the Appellant's presence inside a vehicle on a public road does not alter the "public" character of that road or convert the Appellant's condition into one of private rather than public intoxication. Id. at 140-41.

-9-

to drive, because they feel they're not able to. And we hear so much about this in the media and so if you have a desig nated driver and let's just say I'm sitting somewhere in the car an d you k now, h alf out o f this world, so I've got someone driving for me. THE COU RT: A nd the y mes s up a nd you end u p in a pub lic place in an intoxicated stage [sic], you may run the risk there. JUROR: So am I harming other people and properties? How am I going to get hom e from the bar? If I get in the car and drive down the road I really am in trouble.

The court responded:

This is something for you to dec ide as to whe ther or not this individual was truly in danger of harming himself or others. The Tennessee Supreme Court says if the explanation has been raised tha t a person might walk down the road and get hit by a car if the y were left in this situation. They've said that that does comply with a requirement, at least, a minimum requirement that wo uld support a jury's finding that the person was poss ibly in danger of harming hims elf or oth ers, bu t this is one of. . . those com mon se nse things tha t you all are going to h ave to ap ply to the fac ts in this cas e. . . .

Defense counsel lodged an objection to the court's discussion of the Tennessee Supre me C ourt case .

Tenn . Code Ann. § 3 9-17-31 0 provide s in part:

(a) A person commits the offense of public intoxication who appears in a public place under the influence of a controlled substance or any other intoxicating substance to the degree that: (1) The offender may be endangered; (2) There is endangerment to other persons or property; or (3) The offender unreason ably annoys p eople in the vicinity. Tenn. C ode Ann . § 39-17-310 (a).

Appellant complains that the court's final response constituted improper comment on the evidence. We agree.

Article 6, § 9 of the Tennessee Constitution prohibits trial judges from commenting on the evidence of the case. That section provides, "The Judges shall not charge juries with respect to matters of fact, but state the testimony and

-10-declare the law." T enn. C onst. art. 6, § 9. In State v. Suttles, the Tennessee Supreme Court cautioned, "In all cases the trial judge must be very careful not to give the jury any impression as to his feelings or to make any statement which might reflect upon the weight or credibility of evidence or which might sway the jury." 767 S.W .2d 403 , 406-07 (Tenn. 1989). Our supreme court has also admonished, "The trial judge should always be extremely careful not to express or intimate any opinion on any fa ct to be pa ssed u pon by th e jury." Graham v. McReynolds, 18 S.W . 272, 275 (T enn. 1891 ).

In this case the efficacy of the public intoxication charge turned on whether Appellant pose d a da nger to hims elf or oth ers. W hile the trial court c orrect ly told the jury during the colloquy that they must decide whether the defendant was a danger to himself or others, the judge went further and offered an example of such a situation , a fact hypo thetical very s imilar to the instant case as permitting a finding tha t the defen dant wa s a dan ger to him self. this is in im perm issible comment on the evidence that we cannot say is harmless under the circumstances of this case.

The judgment of the trial court finding Appellant guilty of public intoxication is rever sed a nd rem ande d for a n ew trial.

____________________________________ JERRY L. SMITH, JUDGE

-11-CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ DAVID G. HAYES, JUDGE

-12-