State of Tennessee v. William F. Hegger

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JULY SESSION, 1997 March 4, 1998

Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9607-CR-00283 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. THOMAS H. WARE WILLIAM F. HEGGER, ) JUDGE ) Appe llant. ) (Direct Ap peal - D .U.I.)

FOR THE APPELLANT: FOR THE APPELLEE:

ROGER K. SMITH JOHN KNOX WALKUP Suite 115 Attorney General and Reporter 104 W oodmo nt Boulevard Nashville, TN 37205 PETER M. COUGHLAN (On A ppea l) Assistant Attorney General 450 James Robertson Parkway KARL DEAN Nashville, TN 37243 Public Defender VICTOR S. JOHNSON MICHAEL FRIEDLAND District Attorney General Assistant Public Defender 12th Floor, Stahlman Building PATTY S. RAMSEY Nashville, TN 37201 Assistant District Attorney (At Tr ial) Washington Square, Ste. 500 Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE

OPINION

On May 17, 1994, a Davidson County jury found Appellant, William F. Hegger, guilty of driving under the influence of an intoxicant, first offense. The trial court sentenced Appellant as a Range I standard offender to eleven months a nd twenty-nine d ays incarceration (all but ten days sus pended ), imposed a two-hundred and fifty dollar fine, ordered Appellant to attend alcohol treatm ent school, an d suspen ded App ellant’s driver’s license for a period of one year. Appellant was further ordered to perform two hundred hours of public service work. On February 22, 1996, following a hearing upon Appellant’s motion, the trial court modified Appellant’s sentence, waiving the fine and public service work. The trial court found that Appellant had completed his jail time, and the one year suspension of his license. Appellant filed a timely notice of app eal, raising several issue s, namely:

1) whether the trial court erred in allowing evidence regarding the horizon tal gaze n ystagm us (HG N) test; 2) whether the trial court erred in admitting the testimony of Lt. Louise Kelton; 3) wheth er the evid ence w as sufficien t to suppo rt the jury verd ict; 4) whether the defense counsel provided effective assistance of coun sel.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

FACTS

On M ay 20, 19 93, Office r Dann y Hale of th e Metro -Davids on Co unty Police Department observed Appellant’s automobile on the edge of a median and a turn lan e on M urfree sboro Road in Nas hville. A ppella nt was in his

-2-vehicle, apparently trying to move it. Officer Hale stopped to see if he could be of assistance and, in talking with Appellant, noticed the order of alcohol on Appellant’s person. When Appellant got out of his car, he staggered; Appellant’s spe ech was s lurred, and the officer d etected that his eye s were glassy an d blood shot.

Officer H ale requ ested tha t Appella nt perform a series o f field sobriety tests; Appellant complied, preforming the horizontal gaze nystagmus test, the one leg stand test, and the heel to toe walk and turn test. Office Hale reported that Appellant performed poorly on these tests. The officer then requested that Appellant submit to a breath alcohol test, which Appellant refused. Officer Hale the n placed Appella nt unde r arrest.

HORIZONTAL GAZE NYSTAGMUS

In his first assignme nt of error, Appellant co ntends that the trial court erred in allow ing the State to prese nt evide nce re gardin g App ellant’s perform ance o n the ho rizontal ga ze nysta gmus test. App ellant argu es that to admit such evidence without first requiring the State to establish the general acceptance of the test by the scientific community is reversible error. In State v. Murphy, the Tennessee Supreme Court resolved this issue, holding that the HGN test is a scientific test and that to be admissible at trial, evidence regarding the test must satisfy the requirements of Tennessee Rules of Evidenc e 702 a nd 703 . State v. Murphy, ___ S.W .2d ___ (Tenn . 1997), S .Ct. No. 01-S-01-9602-CC-00035, Davidson County (Tenn., Nashville, Oct. 13, 1997). In Murphy, as in the case sub judice, the appellant was arrested for

-3-driving under the influence of an intoxicant. The arresting officer performed field sobriety tests including the HGN test. The Supreme Court held that because the average juror would not know about the correlation between alcohol consumption and nystagmus, testimony concerning the test constituted “scien tific, technical, or other specialized knowledge ” State v. Murphy at 8. The Supreme Court held that as scientific evidence, testimony regardin g the HG N test m ust be offe red throu gh an e xpert witne ss. Id.. Because the evidence regarding the HGN test in Appellant’s trial was presented b y a witness not qu alified as an expert, we find that the trial court should not have allowed the admission of this testimony. However, in light of the overwhelming evidence of Appellant’s guilt we find that this error was harmless.

SUFFICIENCY OF THE EVIDENCE

Appellant also challenges the sufficiency of the evidence to support the jury verdict of guilt, arguing that his failure of two field sobriety tests (one leg stand a nd walk and turn heel to toe ) does n ot constitu te sufficient e vidence to sustain the jury verdict. We do not agree. When an appellant challenges the sufficiency of the evidence, this Court is obliged to review that challenge according to c ertain well-settled principles. A verdict of guilty by the jury, approved by the trial judge, accredits the testimony 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 in originally cloaked with a presumption of innocence, a jury verdict removes this presumption and replaces it with one of

-4-guilt. State v. Tug gle, 639 S .W .2d 91 3, 914 (Ten n. 198 2). He nce, o n app eal, the burden of proof rests with Appellant to demonstrate the insufficiency of the convicting evidenc e. Id. On appeal, “the [S]tate is entitled to the strongest legitimate view of the e vidence as well as all reason able an d legitima te inferences tha t may be dra wn therefrom .” Id. (Citing State v. Cabbage, 571 S.W .2d 83 2, 835 (Ten n. 197 8)). W here th e suffic iency o f the evid ence is contested on appeal, the relevant question for the reviewing court is whether any rational trier of fact could have found the accused guilty of every element of the offen se beyo nd a rea sonab le doub t. Harris , 839 S.W.2d 54, 75; Jack son v. V irginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979 ). In con ductin g our e valuatio n of the convic ting evid ence , this Co urt is preclud ed from reweigh ing or reco nsidering the evide nce. State v. Morgan, 929 S.W .2d 380 , 383 (T enn. C rim. App . 1996); State v. Mathews, 805 S.W.2d 776, 77 9 (Ten n. Crim. A pp. 199 0). More over, this C ourt ma y not sub stitute its own inferences “for those drawn by the trier of fact from circumstantial evidence.” State v. Mathews, 805 S.W.2d at 779. Finally, the Tennessee Rules of Appellate Procedure, Rule 13(e) provides, “findings of guilt in criminal action s whe ther by the trial c ourt or jury sha ll be set aside if the evid ence is insuffic ient to s uppo rt the find ings b y the trie r of fact b eyond a reas onab le doubt.” See also State v. Mathews, 805 S.W .2d at 780 .

In add ition to th e prop erly ad mitted testim ony co ncern ing two of the fie ld sobrie ty tests, th ere wa s testim ony ab out ho w App ellant s melle d of alc ohol, staggered and had bloodshot eyes. Further, the jury heard testimony that Appellant refus ed an alcoh ol breath test, from w hich the pane l could have inferred A ppellant h ad bee n drinking . See, State v. Wright, 691 S.W.2d 564

-5-(Tenn . Crim. A pp. 198 5); State v. S mith, 681 S.W.2d 569 (Tenn. Crim. App. 1984); (a dmiss ion of evide nce of re fusal to tak e blood alcohol te st not a violation of privilege against self-incrimination.) We find that a rational trier of fact could conclude beyond a reasonable doubt that Appellant was in control of the a utom obile a nd tha t he wa s und er the in fluenc e of an intoxica nt. Th is issue is w ithout me rit.

TESTIMONY CONCERNING COMPLAINT AGAINST ARRESTING OFFICER

In his next assignm ent of error, Appe llant argues that the trial cou rt erred in allowing the State to present evidence of a complaint he filed against Officer Hale. He alleges that the testimony was irrelevant, prejudicial and violated his right to due process under the Fifth and Sixth Amendments to the United States Constitution and Article 1, §§ 8 and 9 of the Tennessee Con stitution . The record show s that A ppella nt failed to obje ct to the State’s line of questioning until the State had elicited testimony that Appellant had filed a claim, the nature of the claim, and that the witness had investigated Appellant’s claim. Failure to make a contemporaneous objection waives conside ration by this court of the issue on appea l. See T.R.A.P. 36 (a); Teag ue v. State , 772 S.W .2d 915 , 926 (T enn. C rim. App . 1988), perm. to appeal denied, id. (Tenn . 1989); State v. Killebrew, 760 S.W.2d 228, 235 (Tenn . Crim. A pp.), perm to appeal denied, id. (Ten n. 198 8). Ap pellan t did eventually object to the State pursuing a line of questioning regarding the investigation of Appellant’s claim against Officer Hale. The trial court sustained Appellant’s objection. Appellant failed, however, to make a motion to strike the

-6-prece ding te stimo ny. Ap pellan t is not e ntitled to relief for a n error that a tim ely objection could ha ve preve nted. Th is issue is w ithout me rit.

EFFECTIVE ASSISTANCE OF COUNSEL

Appellant also argues that he did not receive effective assistance of coun sel. Th is claim arises from th e fact th at his a ttorney attem pted to call a Mr. O pilack i and w hen in forme d that th e witne ss wa s not w aiting in the ha ll proceeded on with trial without making any attempt to secure the witness and without mak ing an offer of proo f as to what the witne ss’ testimony wo uld have been . W hen a n app ellant c laims he rec eived in effective assista nce o f coun sel, the burden is upon him to show that 1) his counsel’s performance fell below the objective standard of reasonableness and 2) that the deficiency prejudiced the app ellant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674 (1984). In order to establish prejudice, the appellant mus t show that the re is a re ason able p robab ility that, bu t for cou nsel's deficient p erforma nce, the re sult of the p roceed ing wou ld have b een differe nt. Strickland, 466 U .S. at 69 4, 104 S.Ct. a t 2068 . A reas onab le prob ability is one su fficient to und ermine confiden ce in the o utcom e. Id. (See also State v. Seay, 945 S.W .2d 755 (Te nn. Crim. Ap p. 1996) perm. to appeal denied (Tenn. 1996). Appellant has presented nothing to this Court (or to the trial court at the hearing on the motion for a ne w trial where App ellant was repres ented by a lawyer other than the one whose competence he attacks) to indicate what the testimony of this witness would have been. Appellant has not met his burden

-7-of establishing that he was prejudiced by trial counsel’s decision to continue without the appea rance o f Mr. Opilac ki. This issu e is withou t merit.

For the reaso ns disc usse d abo ve, the ju dgm ent of th e trial co urt is affirmed.

____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ WILLIAM M. BARKER, JUDGE

-8-