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State v. Burton

Court of Criminal Appeals of Tennessee, Nashville

April 20, 2017


          Assigned on Briefs December 14, 2016

         Appeal from the Circuit Court for Williamson County No. II-CR078114 Deanna B. Johnson, Judge

         The Defendant-Appellant, Darryl Wilkins Burton, entered a guilty plea to driving under the influence (DUI) in exchange for a sentence of eleven months and twenty-nine days to be served on probation after the service of forty-eight hours in the Williamson County jail. The Defendant reserved a certified question of law challenging the denial of his motion to suppress, which was based upon an unconstitutional seizure. Because the Defendant failed to properly reserve the certified question, we dismiss the appeal.

         Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

          Stephen W. Grace, Nashville, Tennessee, (at suppression hearing), and Randall W. Burton, Nashville, Tennessee, (on appeal), for the Defendant-Appellant, Darryl Wilkins Burton.

          Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior Counsel; Kim R. Helper, District Attorney General; and Tristan Poorman, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which D. Kelly Thomas, Jr. and J. Ross Dyer, JJ., joined.



         On July 14, 2014, the Defendant was indicted by a Williamson County Grand Jury for one count of DUI and one count of DUI .08% or greater. On October 2, 2014, the Defendant filed a motion to suppress claiming that the police lacked reasonable suspicion or probable cause to stop the Defendant's vehicle, which violated the Fourth Amendment to the United States Constitution and Article I, Section 7, of the Tennessee Constitution. The State opposed the Defendant's motion and a hearing was held on March 6, 2015.

         Motion to Suppress Hearing. At the hearing, Deputy Paul Lusk of the Williamson County Sheriff's Office testified that he was on duty on September 23, 2013, at 1:45 a.m. when he first observed the Defendant. Deputy Lusk was directly behind the Defendant's vehicle on Hillsboro Road, which has a "sharp left curve, and then . . . widens out into a four lane straight away before Berry's Chapel Road." Deputy Lusk testified that he observed the Defendant's vehicle cross over the center line three times and cross over the "fog line onto the shoulder quite drastically . . . [a]nd then as we approached the intersection at Berry's Chapel [Road] the vehicle made a sudden stop, without utilizing the turn lane, [and] turned from the actual driving lane . . . onto Berry's Chapel Road." He clarified that the Defendant entered the right turn lane for "maybe [ten] feet or so" at the very end of the turn lane. After observing the Defendant turn right on Berry's Chapel Road, Deputy Lusk initiated his blue lights and performed a traffic stop. He testified that it was "approximately [fifteen] seconds between the first traffic violation and when he initiated the traffic stop." Deputy Lusk testified that the Defendant was not speeding.

         Deputy Lusk recorded the incident, and the video was played during the suppression hearing. Deputy Lusk clarified that before he activated his camera he observed the Defendant cross the center line once. The beginning of the video showed Deputy Lusk driving behind the Defendant's vehicle on a two lane road. Deputy Lusk testified that at approximately 1:46 a.m. the video showed the Defendant's vehicle cross the center line and, a few seconds later, the video showed the Defendant driving on the fog line. Eighteen seconds later, the Defendant's vehicle touched the fog line and then the vehicle drifts "about halfway on the shoulder." Finally, at 1:47 a.m., the video showed the Defendant in the bike lane, and once the bike lane became a turn lane, "the [Defendant's] vehicle [did not] go to the turn lane until after the solid line starts." Deputy Lusk agreed that the failure to enter the turn lane when it is not "the dotted line and the fog line" constitutes an improper turn. Deputy Lusk identified the Defendant and affirmed that the actions depicted in the video and the traffic stop occurred in Williamson County.

         On cross-examination, Deputy Lusk testified that the reason he activated his camera was because he saw "the vehicle cross over the center line, once maybe twice." He could not recall how many times the vehicle crossed the center line, but it was "at least once." Deputy Lusk read portions of the affidavit of complaint and explained that he had probable cause to stop the Defendant because he failed to maintain his lane of travel by "crossing the middle line and the fog line." Deputy Lusk believed that he also took out a warrant for failure to maintain lane of travel but he was not "positive if [he] did or not." He explained that he did not include any information about the Defendant's "improper turn" because the "improper turn" was included in the charge of failing to maintain a lane of travel. Deputy Lusk did not know if the charge for failure to maintain a lane of travel was presented to the Grand Jury, and he did not remember testifying in front of the Grand Jury regarding the Defendant.

         Deputy Lusk reiterated that the Defendant "barely utilized the turn lane" when he made a right turn onto Berry's Chapel Road from Hillsboro Road. He could not recall how far he followed the Defendant before he activated his camera, but once the camera was activated he estimates that he followed the Defendant about "a quarter mile." Deputy Lusk explained that the video showed that the Defendant "jerked into the bike lane, [and then] he jerked back on to the roadway." Finally, the trial court asked Deputy Lusk whether the Defendant was weaving within his own lane of travel, and Deputy Lusk said "Yes, ma'am . . . [The Defendant went] from the yellow line to the white line at least more than once on the video."

         After considering the arguments of counsel, the trial court denied the motion to suppress. After watching the video and listening to Deputy Lusk's testimony, the trial court found that the video showed the Defendant crossed the fog line at least three times and crossed the center line at least once. The trial court also found that the Defendant entered the turn lane when the line was solid, which is "a violation of the driving law." The trial court also agreed with Deputy Lusk that the Defendant was "weaving within his own lane" and that the Defendant "crossed the center line at least once if not twice" before Deputy Lusk activated his camera. Therefore, the trial court concluded that "based on the Court's ...

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