Assigned on Briefs May 5, 2015
Appeal from the Circuit Court for Tipton County No. 7802 Joseph H. Walker III, Judge
Virginia M. Crutcher, Atoka, Tennessee, for the appellant, Calvin Coe.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and James Walter Freeland, Jr., and Jason Randall Poyner, Assistant District Attorneys General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.
ROGER A. PAGE, JUDGE
This case arose from the traffic stop of appellant in the early morning hours of March 16, 2013, and the subsequent detention of appellant for blood-alcohol testing related to charges of driving under the influence of an intoxicant ("DUI"). Appellant was later indicted for DUI per se; DUI; DUI, fourth offense; driving on a cancelled, suspended, or revoked license; and driving on a cancelled, suspended, or revoked license, third offense. Appellant's trial on these charges began on August 18, 2014. The trial court bifurcated the trial. First, the jury heard evidence regarding the facts of the March 16 stop. Second, appellant conceded that he had prior convictions for DUI and driving on a cancelled, suspended, or revoked license.
I. Facts from Trial
On March 16, 2013, Covington Police Department Officer Billy Norris was patrolling in an area that had "disruptions" around the time that the bars in that area closed. Officer Norris was driving south on Highway 51 North when appellant, leaving a bar in his car, entered the roadway in front of Officer Norris, causing Officer Norris to slow down and change lanes to avoid a collision. Officer Norris observed appellant turn right onto Ervin Lane and noticed that appellant crossed the center line several times. Officer Norris effectuated a stop. After encountering appellant, Officer Norris smelled the odor of alcohol on appellant's person. Appellant admitted that he had been drinking earlier in the day, but he asserted that he had not consumed alcohol that night. Officer Norris searched appellant's car during the stop, finding an unopened bottle of Crown Royal whisky. Appellant also admitted that his driver's license was suspended, which Officer Norris verified through dispatch. Appellant was unsteady while standing and performed "poorly" on the walk-and-turn test by not following instructions and by stopping during the test. Appellant also did not perform the one-leg stand test "as requested." Officer Norris arrested appellant at 3:04 a.m. After appellant signed the implied consent form, Officer Norris transported appellant to the hospital to have blood drawn; the duration of the drive was approximately twelve minutes. The blood sample was submitted to the Tennessee Bureau of Investigation ("TBI") for testing. The results of the testing showed that appellant had a blood-alcohol level of 0.26.
A jury found appellant guilty of DUI, DUI per se, and driving on a cancelled, suspended, or revoked license. Appellant then pleaded guilty to DUI, fourth offense, and driving on a cancelled, suspended, or revoked license, second offense. The trial court merged the DUI convictions and merged the driving on a cancelled, suspended, or revoked license convictions. Appellant stands convicted of DUI, fourth offense, and driving on a cancelled, suspended, or revoked license, second offense. The trial court sentenced appellant to eighteen months, suspended to supervised probation after serving 150 days in incarceration, for the DUI conviction with a concurrent eleven-month-and-twenty-nine-day sentence for the driving on a cancelled, suspended, or revoked license conviction, also to be suspended to probation after appellant serves 150 days in confinement.
Appellant argues that the trial court violated the Tennessee Rules of Evidence and appellant's Equal Protection rights by limiting appellant's cross-examination of Officer Norris regarding any racial bias or any disciplinary action the police department levied against Officer Norris due to racially-biased language. The State responds that appellant waived this issue by failing to file a motion for new trial and that the trial court did not commit plain error. In his reply brief, appellant argues that he is entitled to plain error review.
Appellant's argument rests solely on a series of questions that occurred during Officer Norris's cross-examination. The contested colloquy took place as follows:
Q: Okay. Did you ever have any disciplinary actions when you were at the ...