Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs November 12, 2014
Direct Appeal from the Criminal Court for Wilson County No. 2011-CR-750 John D. Wootten, Jr., Judge
Adam Wilding Parrish, Lebanon, Tennessee, for the appellant, Brian Lee Johnson.
Robert E. Cooper, Jr., Attorney General & Reporter; Jeffrey D. Zentner, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Linda D. Walls, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which Camille R. McMullen and Robert H. Montgomery, Jr., JJ., joined.
NORMA MCGEE OGLE, JUDGE
I. Factual Background
In December 2011, the Wilson County Grand Jury indicted the appellant for DUI; DUI, fifth offense; violating a habitual traffic offender order; and driving on a revoked license, fourth offense. At the appellant's request, a jury trial was held only on the DUI charge. The trial court was to address, if necessary, the issue of whether the DUI conviction qualified as a repeat offense and determine the appellant's guilt on the remaining two charges.
At the jury trial, Trooper Russell Peters of the Tennessee Highway Patrol testified that on the evening of August 6, 2011, he was dispatched to a wreck on Trousdale Ferry Pike. When he arrived, he saw a black Ford Ranger pickup truck "stuck on a mailbox." He said that Deputy Michael Long, the appellant, and "people in the yard who I assumed was the homeowners" were present. The appellant was leaning against Deputy Long's patrol car and using the car as a brace, which Trooper Peters thought was "odd." Trooper Peters spoke with the appellant and noticed that his eyes were "glazed over, " that his pupils were dilated, that his tongue was "thick, " that his speech was slurred, and that he "seemed to have trouble communicating and understanding simple questions." Trooper Peters saw no reason why the truck would have left the roadway because the road was straight, and it was not raining.
Trooper Peters testified that he administered field sobriety tests to the appellant. Based on the appellant's performance on the tests, Trooper Peters arrested him and put him into the back of the trooper's patrol car. The appellant agreed to submit to a blood alcohol test, so Trooper Peters drove him to University Medical Center in Lebanon. On the way to the hospital, the appellant slept, which indicated to Trooper Peters that the extent of the appellant's impairment was high. When they arrived at the hospital, a nurse drew blood from the appellant. The blood was later delivered to the Tennessee Bureau of Investigation (TBI).
On cross-examination, Trooper Peters testified that he was dispatched to the scene at 6:09 p.m. and arrived about 6:30 p.m. He acknowledged that he did not see the appellant operating the truck, sitting behind the wheel of the truck, or in physical possession of the truck. He said that the truck's front passenger side had hit the mailbox and that the truck appeared "totaled." Trooper Peters stated that he spoke with Deputy Long and that Deputy Long told him, "[Y]ou know, [the appellant was] probably the driver." Trooper Peters also talked with the appellant and a witness who had arrived shortly after the wreck and concluded that the appellant was the driver. Trooper Peters acknowledged that no one had seen the appellant driving the truck and that the appellant never admitted to driving it. In fact, the appellant claimed that his girlfriend was driving and that she left the scene. However, Trooper Peters did not believe the appellant. He acknowledged that the truck was not registered to the appellant and that the keys were not on the appellant's person. Trooper Peters later tried to speak with the appellant's girlfriend, but she refused to talk with him.
Bradley Morris testified that on August 6, 2011, he was traveling toward Lebanon on Trousdale Ferry Pike when he saw a black Ford Ranger that had hit a rock mailbox. Morris stopped his truck and approached the wrecked truck. He said that the appellant was sitting in the driver's seat and that the keys were in the ignition. Morris asked if the appellant needed to use a telephone, and the appellant stated that he had already called someone. The appellant asked if Morris could "pull him down the road to Swindell Hollow, " which was about one hundred yards away. Morris said that the wrecked truck was "a mess, " that it was leaking radiator fluid, and that the passenger-side tire was flat. The appellant tried to start the engine, but it would not crank. The homeowner came outside, and Morris waited for a police officer to arrive. He said he remained at the scene about thirty minutes.
On cross-examination, Morris testified that he and the appellant had been traveling in the same direction before the crash. He said he arrived at the scene about 5:30 or 6:00 p.m., but he did not know when the wreck occurred. He said, though, that "[i]t hadn't been long. I mean, the cop hadn't even got there. The homeowner hadn't came out yet, to my knowledge." He acknowledged that another vehicle could have been present before he arrived and that someone other than the appellant could have been driving.
Richard Jones testified that he lived on Trousdale Ferry Pike. On August 6, 2011, he heard a "boom." Within five minutes of the sound, a neighbor knocked on his door. Jones went outside and saw that his rock mailbox had been "obliterated." He said he saw a truck and "the kid that I presumed was driving it." The appellant asked to use a ...