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State v. Campbell

Court of Criminal Appeals of Tennessee, Knoxville

May 2, 2017


          Session Date: February 22, 2017

         Appeal from the Criminal Court for Sullivan County No. S64036 James F. Goodwin, Judge

         The defendant, Bobby Joe Campbell, appeals his Sullivan County Criminal Court jury conviction of second offense driving under the influence ("DUI"), arguing that the trial court committed plain error by failing to declare a mistrial following certain comments from a member of the jury, that the evidence was insufficient to support his conviction, and that the sentence is excessive. We affirm the judgment of the trial court but remand the case for the entry of a corrected judgment that reflects the 180-day period of confinement ordered by the trial court.

         Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed; Remanded

          Cameron L. Hyder, Elizabethton, Tennessee (on appeal), and Dan Smith, Jonesborough, Tennessee (at trial), for the appellant, Bobby Joe Campbell.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Barry P. Staubus, District Attorney General; and Benjamin Rowe, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ., joined.



         The defendant's conviction relates to events that occurred during the early morning hours of May 22, 2014. On that date, Sullivan County Sheriff's Office ("SCSO") Officer Michelle Gilliam "was dispatched to the Scotchman Fuel Station at [the] Highway 126 and Highway 75 intersection." When she arrived, she observed a maroon Dodge Challenger "parked to the side of the building" with the engine running. Officer Gilliam observed the defendant "slumped over the driver's side wheel of the vehicle." Officer Gilliam knocked on the window, shined her flashlight into the defendant's face, and spoke loudly in an attempt to rouse the defendant.

         When the defendant eventually awoke, "he just sat there with a blank stare." He then had difficulty complying with Officer Gilliam's request that he roll down the window so that she "could talk to him to make sure he was okay, to check his welfare." When she asked the defendant to turn the vehicle off, the defendant first turned the radio up, then "he put his foot on the gas pedal and revved the engine and then he turned the engine off." Officer Gilliam "noticed the strong smell of alcohol . . . coming from his person, " so she asked the defendant to step out of the vehicle. "When he stepped out of the vehicle[, ] he actually had to lean upon his car to catch himself so he wouldn't fall." Upon questioning, the defendant told Officer Gilliam that he had consumed "a couple of mixed drinks and some beers at a friend's house."

         Before the defendant began the testing, Officer Gilliam asked whether "he had any disabilities that would hinder him from completing" the field sobriety tests, and the defendant replied that he did not. She then demonstrated and asked the defendant to perform the one-legged stand. The defendant "actually tried this test two times and both times he put his foot down on the first count and used his arms for balance." Officer Gilliam next demonstrated and asked the defendant to perform the walk and turn test, using one of the parking lot lines for guidance. The defendant performed poorly and "never managed to step on the line of the parking space that we used for the straight line, " then stumbled and nearly fell after taking only four steps.

         At that point, Officer Gilliam placed the defendant under arrest for DUI. The defendant refused to provide blood for blood alcohol testing.

         During cross-examination, Officer Gilliam acknowledged that she did not observe the defendant's driving because his vehicle was parked in a parking space at the gas station with the engine running. Officer Gilliam agreed that the defendant was wearing cowboy boots at the time, but she could not recall his telling her that he could not perform the field sobriety tests because of the boots. Officer Gilliam said that she did not return to her vehicle to activate the video camera inside the cruiser because she "didn't want to turn [her] back" to the defendant. She conceded that she could have asked the other officer who was with her to activate the camera but did not.

         SCSO Officer Cody Cookenhour worked as a backup to Officer Gilliam when she responded to the call at the gas station. Officer Cookenhour observed the defendant "asleep at the steering wheel with the vehicle running at the gas station." The defendant finally awoke after "four or five" attempts to wake him by knocking on the window. It took the defendant "several minutes to actually roll down the window, " and when he was asked to turn the car off, the defendant first "turned the radio up instead of cutting the car off and then he revved his motor up instead of cutting the car off." When the defendant finally succeeded in turning the car off, the officers asked him to step out of the vehicle. "Upon stepping out[, ] he was very unsteady on his feet leaning against his car for balance." The defendant had "a strong odor of alcohol" and "admitted to having mixed drinks and beers probably an hour or so beforehand." The defendant then performed poorly on both the one-legged stand and the walk and turn test, with Officer Gilliam being forced to stop the latter test for the defendant's "safety to keep him from falling." It was Officer Cookenhour's opinion that the defendant was too impaired to drive.

         During cross-examination, Officer Cookenhour conceded that he did not activate the video camera inside his cruiser, explaining, "They just cut on with the lights automatically and once we made contact with him we never really had the chance or opportunity to go back and turn it on." Officer Cookenhour recalled that the defendant was wearing cowboy boots, but he did not hear the defendant tell Officer Gilliam that he was having difficulty walking because of the boots.

         The defendant testified that at the time of the offense, he had just been promoted to meat manager at Food City and that he was "working a lot of hours" "trying to get it into shape." He estimated that he had worked "[r]ight around 100 hours for a couple of weeks" prior to the offense. He said that just before his encounter with Officer Gilliam, he had driven his girlfriend home after a date when he began to feel "sleepy." The defendant recalled that "[i]t was pouring . . . sheets of rain" and that the weather "was cool." The defendant pulled into the gas station, "secured the car and turned the heat on and raised the seat back and went to sleep." To "secure the car, " the defendant "[p]ut it in neutral and pushed the emergency brake in the floor." The defendant testified that his vehicle, a Dodge Challenger, was equipped with "a six speed manual shift and push button start, " which meant that the car did not have a key-activated ignition switch and "[n]o park."

         At some point, the defendant "awakened and turned and saw somebody at" the car window and heard "a girl's voice." The defendant observed Officer Gilliam and Officer Cookenhour standing at the window, and the officers told him to roll down the window. When he rolled the window down, Officer Gilliam asked him if he'd "been drinking, " and he told her that he had not. She then "looked in the car and said 'Well, what's that, '" indicating the "open beer container sitting in the console." Officer Gilliam then asked the defendant to step out of the car.

         The defendant said that he told the officer that he could not perform the field sobriety tests because he did not have proper footwear, explaining, "I said, 'I've got these boots on and I can't do a field sobriety test in them sober, you know, so there's no way I can walk in them.' They had high heels." He claimed that Officer Gilliam "kept insisting" that he "take a field sobriety test" despite his statement. The defendant said that he did not actually attempt any field sobriety test but instead "showed her that [he] could not walk in them boots." The defendant said ...

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