State of Tennessee v. John Ayres Hewitt

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

January 27, 2010 Session

STATE OF TENNESSEE v. JOHN AYRES HEWITT

Direct Appeal from the Criminal Court for Knox County

No. 86629 Bobby Ray McGee, Judge

No. E2009-01314-CCA-R3-CD - Filed November 29, 2010

Appellant John Ayres Hewitt was convicted of driving under the influence (DUI), third

offense and several other offenses stemming from a traffic stop and ensuing blood alcohol

test. He was given an effective sentence of 11 months and 29 days, which was to be

suspended after 150 days in custody. On appeal, Appellant contends that the arresting officer

lacked probable cause to initiate the traffic stop. Appellant cites the videotape from the

officer’s dashboard camera as evidence that he did not engage in any suspicious driving and

as a basis for discrediting the officer’s testimony. Based upon our review, we see no error

in the trial court’s denial of Appellant’s motion to suppress. However, we have determined

that there are errors in the sentences noted on the judgments in counts ten and eleven. We

therefore must remand the case to the trial court to address those judgments. The judgments

are affirmed in all other respects.

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

Affirmed in Part; Case Remanded.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,

P.J., and D. K ELLY T HOMAS, J R., J., joined.

John E. Eldridge (on appeal) and Donald R. Coffey (at trial), Knoxville, Tennessee, for the

appellant, John Ayers Hewitt.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant

Attorney General; Randall E. Nichols, District Attorney General; and Sarah Winningham,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

Knoxville Police Officer Clayton Madison was on patrol near the intersection of

Middlebrook Pike and Vanosdale on March 21, 2006, when he received a “be on the

lookout” (BOLO) notice regarding a possible drunk driver. Officer Madison then saw a car

matching the description given in the BOLO. He pursued the car, which Appellant was

driving, and said he saw it veering in and out of its lane. Officer Madison pulled Appellant

over and approached the car, where he found two open containers of beer. Appellant refused

to perform any field sobriety tests, so Officer Madison transported him to the University of

Tennessee Medical Center for a blood test. The test revealed Appellant’s blood alcohol level

was above the legal limit. Appellant was charged with DUI and several other traffic

offenses.

Appellant moved to suppress the evidence gathered from Officer Madison’s stop.

Appellant asserted that Officer Madison did not have reasonable suspicion for the stop and

that the video from Officer Madison’s dashboard camera revealed that Appellant was not

driving in a suspicious manner.

Officer Madison was the only witness to testify at the suppression hearing. He

testified that he had been with the Knoxville Police Department for five years and had been

trained in DUI detection and investigation.

Officer Madison recalled that he received a BOLO regarding a possible drunk driver

and then saw Appellant’s car, which matched the description. He turned onto Middlebrook

Pike and “observe[d] [Appellant] for a while.” Officer Madison testified that he witnessed

Appellant “[drive] outside his lane lines a couple of times over a considerable distance.” He

said that when Appellant drove over the lane line, “[i]t wasn’t like he bounced over and then

bounced back. He drove across for a considerable distance in relation to the way we were

driving.” He further testified that Appellant “almost struck one car.”

On cross-examination, the defense played a portion of the video recorded by Officer

Madison’s dashboard camera.1 Officer Madison said that the video showed Appellant

driving on the lane line “for quite a while.” However, he acknowledged that the video did

1

It appears that the video was first played on cross-examination. The transcript does not reflect that

the State played the video during direct examination, and the defense introduced the video into evidence at

the conclusion of Officer Madison’s testimony. The record is not clear, however, because page 9 of the

motion to suppress hearing transcript, which likely contains the hearing’s first reference to the video, is not

contained in the record. Instead, the ninth page of the suppression hearing transcript in the record before us

appears to be a duplicate of page 9 of the trial transcript.

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not show Appellant nearly hit another car; Officer Madison testified that the near-collision

took place off camera. Officer Madison also testified on cross-examination that he had to

sound his horn “a couple of times” before he could get Appellant’s attention to pull him over.

The court heard argument from both sides at the conclusion of Officer Madison’s

testimony. Appellant asserted that the video did not show any erratic driving and instead

showed him immediately and properly react to Officer Madison’s signals. The State

countered that Officer Madison testified about more than what is depicted in the video and

that Officer Madison’s testimony provided a sufficient basis for the stop.

The court agreed with the State. It noted that it was “required to consider [Officer

Madison’s] testimony.” The court then discounted the evidentiary value of the video,

explaining that because the camera was stationary, it could not “necessarily see[] everything

that the officer could have seen.” The court accepted Officer Madison’s testimony that he

saw Appellant cross the lane line “on multiple occasions” and nearly hit another car. It

specifically found that “this officer . . . was credible that he saw things [that] may not have

been on the videotape.” It thus found that Officer Madison had “at least a reasonable

suspicion” justifying the stop and denied Appellant’s motion.

Officer Madison’s trial testimony repeated much of his testimony at the suppression

hearing. It diverged slightly when he said that Appellant “almost struck a couple of

vehicles,” rather than just one. However, he again stated that he witnessed Appellant cross

the lane line and nearly hit another car. He said that those events occurred before Appellant’s

car was clearly visible on the video.

On cross-examination at trial, Officer Madison testified that Appellant “was a

considerable distance in front of [him] when [Appellant] was across the line.” He also

explained that there were “rather large curves” on the particular stretch of road and therefore

there were periods where, because his “camera point[ed] straight ahead,” it did not “catch

[Appellant].” He conceded that the video did not show Appellant swerving or weaving, but

Officer Madison said he was able to move his head to have a clear view of Appellant.

The court reaffirmed the suppression decision. It explained that “in order to sustain

[Appellant’s] position, [the court] would have to reject the officer’s testimony.” It found “no

basis for doing that.” It further noted that it “observed the officer’s demeanor and listened

to his voice, and [it] cannot just reject [his testimony] out of hand.”

Appellant later filed a motion for a new trial, arguing that the trial court erred in

denying the motion to suppress. At the hearing on the motion, Appellant contended that the

video not only failed to confirm Officer Madison’s testimony, it actually counseled against

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finding that testimony credible. Appellant argued that “it stretches all sense of reason” to

believe that Officer Madison could have seen what he testified he saw because the video

shows that he had to drive quickly for a significant period just to catch up to Appellant.

The trial court again rejected Appellant’s position, reiterating that it “could not find

a basis to find that . . . [Officer Madison] was being deceptive or could not find a basis to

reject his testimony.” Instead of having an “actual basis” to discredit Officer Madison’s

testimony “other than just to speculate that the officer was lying,” the court would not

reconsider its decision. It denied Appellant’s motion, and this appeal followed. The only

issue on appeal is whether the trial court erred in denying the motion to suppress.

II. Analysis

We begin by addressing the appropriate standard of review. Citing our supreme

court’s decision in State v. Binette, 33 S.W.3d 215 (Tenn. 2000), Appellant contends that,

because “the events in the instant case leading to [Appellant’s] arrest were captured on a

police dashboard video . . . a court reviewing [Appellant’s] appeal is in the same position as

the trial court to examine the evidence,” and therefore should apply a de novo standard of

review “without a presumption of correctness.” We disagree.

Binette applies only “when a trial court’s findings of fact at a suppression hearing are

based on evidence that does not involve issues of credibility.” 33 S.W.3d at 217. Because

“[trial] courts are uniquely positioned to observe the demeanor and conduct of witnesses,”

the deferential standard of review described in State v. Odom, 928 S.W.2d 18 (Tenn. 1996),

is appropriate when the credibility of a witness is at issue. Binette, 33 S.W.3d at 217. “But

when a court’s findings of fact at a suppression hearing are based solely on evidence that

does not involve issues of credibility . . . the rationale underlying a more deferential standard

of review is not implicated.” Id. (emphasis added). In Binette, the State presented only a

police videotape of the defendant’s driving; it did not present any live witnesses. See id. at

216. Thus, the de novo standard was appropriate. Id. at 217.

Appellant’s case differs from Binette in that the trial court relied upon more than just

the video evidence in making its factual findings and denying Appellant’s motion. Here, the

arresting officer did testify. Indeed, he testified about events that are not depicted in the

video. That live, in-court testimony created issues of credibility for the trial court. Moreover,

Officer Madison’s testimony, which the trial court specifically accredited, was a critical

component in its decision. The credibility issues take this case outside the purview of

Binette. Therefore, we review the trial court’s suppression decision under the deferential

Odom standard. See State v. Brown, 294 S.W.3d 553, 561 (Tenn. 2009) (where the video

evidence did not depict all of the pertinent events and where “the trial court’s findings of fact

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were also based on live testimony,” the “de novo review does not apply”); see also State v.

Garcia, 123 S.W.3d 335, 342-43 (Tenn. 2003).

Under Odom, “[q]uestions of credibility of the witnesses, the weight and value of the

evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge

as the trier of fact.” 928 S.W.2d at 23. Thus, “a trial court’s findings of fact in a suppression

hearing will be upheld unless the evidence preponderates otherwise.” Id.; see also State v.

Mike Brotherton, No. W2007-02016-SC-R11-CD, __ S.W.3d __, 2010 WL 3733914, at *3

(Tenn. Sept. 27, 2010). Nevertheless, appellate courts will review both questions of law and

the trial court’s application of law to the facts purely de novo. See State v. Hanning, 296

S.W.3d 44, 48 (Tenn. 2009); State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Furthermore,

the State, as the prevailing party, is “entitled to the strongest legitimate view of the evidence

adduced at the suppression hearing as well as all reasonable and legitimate inferences that

may be drawn from that evidence.” Odom, 928 S.W.2d at 23; see also Brotherton, No.

W2007-02016-SC-R11-CD, __ S.W.3d __, 2010 WL 3733914, at *3.

Both the Fourth Amendment to the United States Constitution and article I, section

7 of the Tennessee Constitution provide protection for citizens against “unreasonable

searches and seizures.”2 Generally, a warrantless search is presumptively unreasonable and

thus violates constitutional protections. See State v. Walker, 12 S.W.3d 460, 467 (Tenn.

2000). Evidence derived from such a search is subject to suppression unless the State

“demonstrates by a preponderance of the evidence that the search or seizure was conducted

pursuant to an exception to the warrant requirement.” State v. Keith, 978 S.W.2d 861, 865

(Tenn. 1998). One of the permissible exceptions is met when an officer temporarily seizes

a citizen if the officer “has a reasonable suspicion, based upon specific and articulable facts,

that a criminal offense has been, is being, or is about to be committed.” Id. Thus, the

question here is whether Officer Madison had a reasonable suspicion that Appellant was

committing or had committed a crime. See Hanning, 296 S.W.3d at 49.

While it is not possible to precisely articulate what “reasonable suspicion” means, it

is a “common sense, nontechnical conception” dealing “with the factual and practical

considerations of everyday life on which reasonable and prudent men, not legal technicians,

act.” Keith, 978 S.W.2d at 867 (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)).

At a minimum, however, there must be more than an officer’s mere “inchoate and

unparticularized suspicion or hunch.” Hanning, 296 S.W.3d at 49 (quotation marks omitted).

2

In State v. Downey, our supreme court noted that “article I, section 7 is identical in intent and

purpose with the Fourth Amendment.” 945 S.W.2d 102, 106 (Tenn. 1997) (quotation marks omitted).

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The analysis of whether an officer had reasonable suspicion is “a fact-intensive and

objective analysis,” which requires “reviewing the record for specific and articulable facts.”

Id. (quotation marks omitted); see also Brotherton, No. W2007-02016-SC-R11-CD, __

S.W.3d __, 2010 WL 3733914, at *3. In determining whether an officer had reasonable

suspicion, “a court must consider the totality of the circumstances.” Garcia, 123 S.W.3d at

344 (quoting Alabama v. White, 469 U.S. 325, 330 (1990)). “[R]easonable suspicion can be

established with information that is different in quality or content than that required to

establish probable cause and can arise from information that is less reliable than that required

to show probable cause.” Hanning, 296 S.W.3d at 49 (quotation marks omitted). It “does

not require an actual violation of the law.” Brotherton, No. W2007-02016-SC-R11-CD, __

S.W.3d __, 2010 WL 3733914, at *4. However, there must be “some minimal level of

objective justification for making the stop.” Keith, 978 S.W.2d at 867 (quoting United States

v. Sokolow, 490 U.S. 1, 7-8, (1989)).

The record does not preponderate against the trial court’s factual findings that

underpinned Officer Madison’s reasonable suspicion. Officer Madison testified that he saw

Appellant “weaving over the lane lines” and that “each time” Appellant crossed the line, “it

was [over] a considerable distance.” As Office Madison explained, “[i]t wasn’t like

[Appellant] bounced over and then bounced back.” Moreover, he testified that Appellant

almost hit another car. Furthermore, Officer Madison specifically testified that much of what

he saw, and much of what he testified about, was not depicted on the video because the view

from the camera was obscured by other cars, the date stamp, and the winding nature of the

road.

The trial court specifically accredited Officer Madison’s testimony. In particular, the

court credited Officer Madison’s testimony “that he saw things . . . [that] may not have been

on the videotape.” The court explained that it did not “think that [the video] necessarily

[showed] everything that the officer could have seen.” As the court later noted at trial, “in

order to sustain [Appellant’s] position, [the court] would have to reject the officer’s

testimony,” which the court found “no basis” for doing given its assessment of “the officer’s

demeanor and . . . voice.” It simply could not “just reject out of hand what he has told the

Court.”

There is no dispute that if Officer Madison’s testimony is accurate, he had a

reasonable suspicion to believe that Appellant was violating Tennessee Code Annotated

section 55-10-401 (driving under the influence) or had violated section 55-8-123 (failure to

drive in a single lane). The question at this point is whether the video evidence so strongly

contradicts Officer Madison’s testimony as to make the record as a whole preponderate

against the trial court’s findings. We conclude that it does not.

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Based on our close examination, the video neither confirms Officer Madison’s

testimony nor refutes it. The most obvious aspects of the video are that the camera’s angle

is fixed and the image it captures is obscured by a date stamp. In fact, the lane directly in

front of Officer Madison’s cruiser is covered by an “S” and a “2.” The image is also slightly

obscured by raindrops. As a result, the video does not clearly reflect Appellant’s car’s

movements during the early moments of Officer Madison’s pursuit. The video does reveal

the road’s topography, which Appellant contends disproves Officer Madison’s testimony. In

our view, the topography depicted in this video is not so extreme that we must discount

Officer Madison’s testimony that he saw things that were not on the screen. Quite simply,

the video does not contradict Officer Madison’s testimony that he repeatedly had a line of

sight that the camera did not. We therefore reject Appellant’s position that “the video shows

that it would have been impossible for Officer Madison to have had a sight line good enough

for him to observe specific and articulable facts” and that it “reveals Officer Madison was

simply too far behind [Appellant’s] car for him to even identify the car, much less observe

specific and articulable facts about its movement.” The video does not overcome Officer

Madison’s testimony and is not enough to demonstrate that the record preponderates against

the trial court’s findings of fact.

We observe from the record that the judgments of conviction reflect that the court

sentenced Appellant to 6 months, to be served on probation, on count ten (failure to drive

within a single lane of traffic in violation of Tennessee Code Annotated section 55-8-123)

and count eleven (failure to provide evidence of financial responsibility in violation of

Tennessee Code Annotated section 55-12-139). However, the transcript of the sentencing

hearing reflects that the court ordered both sentences to be 30 days, to be served on

probation. “This court has previously noted that when there is a discrepancy between what

is reflected in the sentencing hearing transcript and what is on the judgment form, the

transcript controls.” State v. Adrian Porterfield, No. W2006-00169-CCA-R3-CD, 2007 WL

3005349, at *13 (Tenn. Crim. App. at Jackson, Oct. 15, 2007). In addition, the six-month

sentence in the judgment for the violation of section 123 exceeds the statutory maximum.

That violation is a class C misdemeanor, Tenn. Code Ann. § 55-8-103, and class C

misdemeanors are punishable by a maximum sentence of thirty days “unless otherwise

provided by statute,” id. § 40-35-111(e)(3). Moreover, the sentence imposed for failure to

provide proof of financial responsibility also exceeds the statutory maximum. Tennessee

Code Annotated section 55-12-139(c) limits the punishment to a maximum find of $100.

Both the judgment and the transcript order incarceration for the violation of section 139, but

impose no fine. Therefore, the case must be remanded to the trial court for correction of the

judgment in count ten (violation of Tennessee Code Annotated section 55-8-123) and for a

hearing to determine the appropriate fine for count eleven (violation of Tennessee Code

Annotated section 55-12-139). See State v. Charles Edward Graham, No. E2005-02937-

CCA-R3-CD, 2008 WL 199851, at *16 (Tenn. Crim. App. at Knoxville, Jan. 24, 2008)

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(remanding for correction of judgment after the trial court sentenced the defendant to thirty

days in custody for violating section 139).

III. Conclusion

Based upon our review, we conclude that this case should be remanded to the trial

court for correction of the judgment on count ten and for correction of the judgment and a

hearing to determine the appropriate fine on count eleven. The judgments are affirmed in all

other respects.

_________________________________

NORMA McGEE OGLE, JUDGE

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