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State v. Rodriguez

Court of Criminal Appeals of Tennessee, Knoxville

June 5, 2018


          Session March 27, 2018

          Appeal from the Criminal Court for Knox County No. 105765 Bobby R. McGee, Judge

         A Knox County jury convicted the Defendant, Ernesto Delgadilo Rodriguez, of resisting arrest and assault. The trial court sentenced the Defendant to six months for the resisting arrest conviction and to eleven months and twenty-nine days for the assault conviction. On appeal, the Defendant challenges (1) a jury instruction of the definition of "arrest"; (2) the sufficiency of the evidence; and (3) the admissibility of evidence regarding alcohol and drug use. After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

          Mike Whalen, Knoxville, Tennessee, for the appellant, Ernesto Delgadilo Rodriguez.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Charme Allen, District Attorney General; and Kyle Hixson, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and J. Ross Dyer, JJ., joined.




         At approximately 7:20 a.m. on July 9, 2014, Officers Frederick Kimber and Thomas Thurman of the Knoxville Police Department ("KPD") responded to a 9-1-1 call of a domestic incident involving an intoxicated individual. The officers were advised that the Defendant had a knife and had slashed the tires of a van. As they drove toward the location, the officers were advised that the Defendant had been drinking and using cocaine, that he had left the residence where the domestic incident occurred, that the person who called 9-1-1 did not see the knife in the Defendant's possession when he left, and that the Defendant was wearing a white shirt, a gray hat, and jean shorts.

         Officer Kimber saw the back of a man, later identified as the Defendant, wearing the clothes that were described and walking down a road near the residence. As Officer Kimber approached the Defendant in his patrol car, the Defendant looked back at him "a couple of times" but continued to walk down the road. Officer Kimber believed, based on his nineteen years of experience with the KPD, that the Defendant may have been preparing to run. Officer Kimber pulled his patrol vehicle "as close as possible" to the Defendant and exited the vehicle. He asked the Defendant what was going on, and the Defendant did not respond. He then asked if the Defendant lived down the road, and the Defendant replied, "yes." He again asked what was going on, but the Defendant did not respond. Officer Kimber could smell "a very strong odor" of alcohol on the Defendant and noticed "something on his face." The Defendant's "pupils were huge, " which Officer Kimber found strange for that time of day. The Defendant's shirt appeared as though "somebody had pulled on him, " and the shirt collar was not lying flat.

         Because Officer Kimber did not know if the Defendant still had a knife or any other weapons, he asked the Defendant to put his hands on the patrol car and frisked him. Officer Kimber asked the Defendant if he understood, and the Defendant replied affirmatively and complied. Officer Kimber did not find any contraband or weapons during the frisk. Officer Kimber then stated, "[H]ere's what's going to happen. I'm going to place you in handcuffs. You're not under arrest right now. We're just going to go back here and find out exactly what all is going on." Officer Kimber testified that the Defendant was not free to leave at that point because he did not know whether anybody had been injured or what was going on with the domestic dispute.

         Officer Kimber grabbed a set of handcuffs from his belt and placed a cuff on the Defendant's left wrist. He explained that he normally keeps the handcuffs "pretty loose" until he has the handcuffs secured over both wrists. The Defendant complied as Officer Kimber cuffed his left hand, but when Officer Kimber reached for the Defendant's right hand, the Defendant removed the hand from the car and "reached straight down and grabbed his pants." Officer Kimber kept his hold on the Defendant's left arm and repeatedly told the Defendant to give Officer Kimber his right arm. The Defendant responded multiple times that he would give him his hand but then would not do so. The Defendant was "sweating profusely, " and every time Officer Kimber was able to reach the Defendant's right hand, the hand would slide out of his grip.

         The Defendant, with his left hand secured in a cuff and his right hand free, leaned away from the patrol car and swung his elbow at Officer Kimber. Officer Kimber knocked the Defendant's arm forward, and the Defendant turned toward Officer Kimber with his fist drawn. Officer Kimber feared that the Defendant would try to hit him, so he did a "leg sweep, " where he pressed his left leg and right hand on the Defendant and pulled him to the ground. Officer Kimber testified that if he could get the Defendant to the ground, then he could hold him there until backup arrived. He stated that a "leg sweep" was the easiest way to do so. The Defendant "hit the ground pretty hard, " the left side of his face hit the concrete, and his arm "went flying out." Officer Kimber tried to grab the Defendant's right arm, but he put it underneath his body where Officer Kimber could not reach it.

         Officer Kimber noticed that he had blood on his arm, and both of his knuckles were bleeding from scraping the concrete. Blood was "pouring" from the Defendant's nose. Officer Kimber informed the Defendant that he was bleeding and that the blood was getting on Officer Kimber. Officer Kimber had one of his knees on the Defendant's lower back and his other knee on the Defendants' shoulder area. He considered the Defendant to be "controlled" and explained that the Defendant "wasn't moving as much." He asked for police backup through his radio. He again demanded that the Defendant give him his right hand, and the Defendant responded that he would and to "let [him] up." The Defendant still would not give his right hand to Officer Kimber, and then the Defendant did a "one-arm push-up" with Officer Kimber still on top of him. At this point, Officer Kimber jumped to his feet, grabbed the Defendant, and moved the Defendant from the front driver's side of the patrol car to the back of the car.

         Officer Kimber then tried to get the Defendant to bend over the car and pulled the Defendant's left arm to his right side to try to "lock him up." Officer Kimber got his taser out and warned the Defendant that he would tase him. He testified that he did not tase the Defendant because the police are trained not to tase someone who appears to be in a state of "excited delirium" since there is "a good chance you could kill [him]." He described "excited delirium" as when a person has been drinking or using drugs, is sweating profusely, gets "crazy energy or strength, " and "kind of go[es] out of control." Because he feared that the Defendant was in this state and because he could see Officer Thurman's vehicle coming toward them, he decided not to tase the Defendant.

         Officer Thurman, who began working with the KPD in 2007, was on his way to respond to the domestic incident call but joined Officer Kimber after Officer Kimber asked for backup with the Defendant. Officer Kimber had told Officer Thurman over the radio to "step it up" in a "frantic" manner. This sent off "red flags" in Officer Thurman's mind because he had worked with Officer Kimber for a number of years, and Officer Kimber had never asked him to "step it up" before. Officer Thurman was also concerned because when he attempted to check on Officer Kimber, there was a long pause on the radio before he responded. Officer Thurman arrived on the scene and noticed that

         Officer Kimber and the Defendant were "in a struggle." Officer Kimber appeared to be "in distress" and "distraught." His eyes were wide, and his breathing was heavy. Officer Thurman was concerned because he could not see the Defendant's right hand and believed his hand was close to Officer ...

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