Court of Criminal Appeals of Tennessee, Nashville
Assigned on Brief December 16, 2014
Direct Appeal from the Circuit Court for Williamson County No. II-CR064994 Timothy L. Easter, Judge
M. James Pulido, Assistant Public Defender, Franklin, Tennessee, for the appellant, Reginald Perry Davis Lashley.
Herbert H. Slatery, III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Kim Helper, District Attorney General; and Sean B. Duddy, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J. and Robert W. Wedemeyer, J., joined.
JOHN EVERETT WILLIAMS, JUDGE
In June of 2010, the defendant was indicted by a Williamson County grand jury for two counts of Class B felony delivery of a Schedule 1 controlled substance and one count of Class E felony delivery of a counterfeit controlled substance. In December, 2011, the defendant pled nolo contendere to two counts of Class C felony attempt to deliver a controlled substance, to wit ecstasy, and the remaining charge was nolled. Pursuant to the plea agreement, the defendant was also fined $3000.00 for each conviction, with a schedule of payment to be determined by his probation officer. The terms of the probationary agreement provided that the defendant agreed to obey all laws and ordinances and to refrain from using any form of intoxicants to excess. The agreement also provided for random drug testing.
On April 9, 2013, a violation warrant was issued charging that the defendant had violated four of the terms and conditions of his probation: (1) a new arrest for DUI on March 24, 2013; (2) consumption of intoxicants to excess; (3) failure to report the new arrest to his probation officer; and (4) failure to verify payment of costs and fines. A hearing was held in March 2014 at which multiple witnesses offered testimony.
The first witness, Officer Balin Barber, with the Columbia Police Department, testified that on March 24, 2013, he was on patrol during the early morning hours and observed a gray Toyota fail to stop at a stop sign. He could not recall whether it was a "rolling stop" or a "no stop" at all violation. Officer Barber pulled out behind the car, turned on his blue lights, and initiated a traffic stop. After a short distance, the car pulled to the side of the road, nearly hitting a curb while doing so. Office Barber approached the car, which the defendant was driving, and smelled a strong odor of burnt marijuana coming from the vehicle.
As a result, Officer Barber asked the defendant to step outside the vehicle. Upon the defendant exiting, the officer noted that the defendant's eyes were bloodshot, his speech was slurred, and he was unsteady on his feet. The defendant denied possessing or smoking any marijuana. A search of the defendant's person revealed no marijuana or other contraband. However, the passenger in the car was found to be in possession of a marijuana blunt.
Officer Barber also noticed a strong smell of alcohol on the defendant's breath. Although initially denying it, the defendant admitted that he had a drink at the Muddy Beaver Bar earlier. He eventually stated to the officer that he had consumed "two shots" of tequila.
As a result, Officer Barber asked the defendant to take field sobriety tests, which the defendant agreed to do. The officer acknowledged that he failed to inquire into any physical or medical issues which might influence the defendant's performance of these tests.
Officer Barber testified that the defendant missed six of eight clues on the "nine-step walk and turn test" and performed poorly on the "HGN, " the "Romberg A, B. C's, " "finger dexterity, " and "finger-to-nose." On the "one-legged stand, " the defendant missed only one of the four clues. When questioned about the specifics of the defendant's performance, Officer Barber testified that he recalled only "bits and pieces" of the actual stop and was relying upon his notes to refresh his recollection.
The defendant was arrested for DUI, and his car was searched. A half-empty half-gallon bottle of tequila was found behind the driver's seat. As part of the arrest, Officer Barber informed the defendant of the consequences of ...