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State v. McCormick

Court of Criminal Appeals of Tennessee, Nashville

April 2, 2015


Session October 29, 2014.

Appeal from the Criminal Court for White County No. CR5719 David A. Patterson, Judge.

William A. Cameron, Cookeville, Tennessee, for the appellant, Kenneth McCormick.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young, Assistant Attorney General; Bryant C. Dunaway, District Attorney General; and Phillip Hatch, Assistant District Attorney General, for the appellee, State of Tennessee.

John Everett Williams, J., delivered the opinion of the Court, in which Roger A. Page, and Robert H. Montgomery, Jr., JJ., joined.




The defendant was afforded two hearings on the subject of his motion to suppress: one pre-trial and another that took place during the trial, in a jury-out hearing. The trial court originally denied the motion on April 19, 2013, and the defendant filed a motion to reconsider during trial on May 10, 2013. The trial court also denied this motion.

Sergeant Daniel Trivette testified in both hearings. Sergeant Trivette testified that he was driving on patrol down Highway 111 at 2:45 a.m. on April 8, 2012, when he saw a tan SUV near a grocery store. From his vantage point, the car "appeared to be sitting in the roadway, " and Sergeant Trivette decided to conduct a welfare check. As he approached the car, Sergeant Trivette observed that the car's back, left wheel was partially in the roadway and that the remainder of the car was "at an angle" in a short drive that leads to a public parking lot, blocking about three quarters of the entrance to the parking area. Sergeant Trivette stopped in the roadway behind the vehicle because he felt that there was nowhere else he could park. He turned on his "back blue lights" "for [his] safety." At the hearing conducted during trial, Sergeant Trivette elaborated that "the majority of [the lights] are actually amber lights, only the exterior lights are blue." Sergeant Trivette testified that there was some other traffic on the road at the time. He approached the parked car, which had the headlights on and was running, and he saw the defendant slumped over the wheel. Loud music was blaring, there was food in the defendant's lap, and the defendant had "some sort of sauce all over his face." After tapping on the window, Sergeant Trivette opened the door and "tried to get [the defendant] to wake up." He testified that it took him a minute to get the defendant to respond to him at all. At this point, he detected a strong scent of alcohol on the defendant's breath and person and noticed an open beer bottle in the center console.

At the first hearing, the trial court found that the stop was supported by reasonable suspicion. During the hearing on the motion to reconsider, the parties also argued regarding whether Sergeant Trivette's actions fell under the community caretaking function. The trial court found that "[i]f there's not reasonable suspicion based upon articulable facts, [Sergeant] Trivette has shown today that there's good reason for a caretaking function." The trial court noted that Sergeant Trivette's testimony at the first hearing was consistent with the claim that he was acting as a community caretaker, since he had testified that he was conducting a welfare check and turned on his lights only for his own safety.

At trial, the State also introduced the testimony of Officer Scott O'Dell, who stated that he responded to a call from Sergeant Trivette to assist in a welfare check. Officer O'Dell generally testified consistently with Sergeant Trivette's testimony. He added that the shopping center was not open. Sergeant Trivette testified that, after smelling alcohol and seeing the open container of beer, he asked the defendant to step out, and the defendant was unsteady on his feet. The defendant admitted consuming three to four beers. When Sergeant Trivette asked him if he thought he should be driving, he responded, "Not necessarily." After failing three field sobriety tests, the defendant stated that he had consumed five or six beers, and he was arrested. Sergeant Trivette and Officer O'Dell testified in detail about the defendant's performance on the field sobriety tests, and a video recording of the events was admitted into evidence both at the hearing on the motion to suppress and at trial.

Sergeant Trivette also testified that during an inventory search of the vehicle after the defendant's arrest, he found four unopened, cold beers in the back seat and a bottle of prescription xanax in the defendant's name. The defendant was read the implied consent law and refused a blood test. The defendant was placed under arrest but not Mirandized. While the defendant was in the back seat of the police car, another vehicle attempted to pull into the parking lot accessible through the short drive the defendant was partially obstructing. Sergeant Trivette asked the defendant if he knew the person in that car, and the defendant responded, "No, I sure don't. I'm sorry. I've had too much to drink."[1] Sergeant Trivette testified that he asked the defendant if he had taken his prescription xanax but did not testify to any response made by the defendant, and this conversation is not discernible on the video.

The defendant presented the testimony of Lance Wyatt. Mr. Wyatt testified that the defendant had spent the evening preceding the arrest with Mr. Wyatt at a golf club and that the defendant, who was the designated driver, was not impaired. Mr. Wyatt testified that the defendant picked him up at 7:00 or 8:00 p.m., that the defendant had one or possibly two drinks at the golf club lounge, and that the defendant was not intoxicated when he drove Mr. Wyatt home at a little after midnight. Mr. Wyatt acknowledged that he himself had been drinking to the point that his judgment was impaired and that he did not know where the defendant went after dropping him off at 12:15 or 12:30 a.m. He stated that there was no beer in the console of the defendant's car at the time the defendant dropped him off.

The jury convicted the defendant of a violation of Tennessee Code Annotated section 55-10-401 (2010), and he was sentenced to serve ten days of an 11 month, 29 day sentence, with the remainder to be served on probation. The defendant appeals, ...

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