Opinion

State of Tennessee v. Terri K. Teaster

Court
Court of Criminal Appeals of Tennessee
Filed
Sep 27, 2010
Status
Published
On the bench
Judge James Curwood Witt, Jr.
Cited by
0 cases
Authority
More cited than 29.3%

The opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 29, 2010

STATE OF TENNESSEE v. TERRI K. TEASTER

Appeal from the Criminal Court for Greene County

No. 07CR182 John F. Dugger, Jr., Judge

No. E2010-00413-CCA-R3-CD - Filed September 27, 2010

A Greene County Criminal Court jury convicted the defendant, Terri K. Teaster, of vehicular

assault, and the trial court imposed a sentence of four years’ incarceration. In this appeal,

the defendant contends that the evidence was insufficient to support her conviction, that the

State improperly remarked on the defendant’s right not to testify, and that the four-year,

fully-incarcerative sentence is excessive. Discerning no error, we affirm the judgment of the

trial court.

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

J AMES C URWOOD W ITT, J R., delivered the opinion of the Court, in which N ORMA M CG EE

O GLE and D. K ELLY T HOMAS, J R., JJ., joined.

Brent Hensley, Greeneville, Tennessee (on appeal); and Francis X. Santore, Jr., Greeneville,

Tennessee (at trial and on appeal), for the appellant, Terri K. Teaster.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney

General; C. Berkeley Bell, District Attorney General; and John Chalmers Thompson,

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

OPINION

The defendant’s vehicular assault conviction relates to a June 29, 2005 vehicle

collision between the Pontiac Firebird being driven by the defendant and a van being driven

by the 85-year-old victim on Blue Springs Parkway in Greene County.

At trial, Greene County Sheriff’s Deputy Chuck Humphries testified that he

was on patrol on June 29, 2005, when he was dispatched to a vehicle crash “on Blue Springs

Parkway, just past the Jetway Market.” Deputy Humphries described the roadway at that

location as “straight,” with “[u]nlimited visibility both directions.” He added that on the day

of the collision, the roadway was dry and the weather was clear. He determined the victim

to be the driver of a van and the defendant to be the driver of a maroon Pontiac Firebird.

Deputy Humphries recalled that after the defendant was taken from the scene

by ambulance, he conducted an inventory search of her vehicle before it was removed from

the scene and found two prescription pill bottles, “[t]wo small straws, a set of scales, and a

knife.” He also found scales that are commonly used to weigh marijuana. He then went to

the hospital to interview the defendant, who, he said, “appeared . . . to be under the influence

of alcohol or drugs.” It was Deputy Humphries’ opinion that “she was intoxicated.” Upon

a request by the deputy, the defendant agreed to take a blood test to determine whether she

was under the influence of alcohol or other drugs. Deputy Humphries testified that the

defendant’s blood was drawn approximately one hour after the crash and that he immediately

sent the sample to the Tennessee Bureau of Investigation for testing. Testing established the

presence of Nordiazepam, Diazepam, Carisoprodol, and Meprobamate, which are

prescription narcotics, and marijuana in the defendant’s blood.

Deputy Humphries testified that he interviewed the defendant in April of 2006

and that she provided a written statement about the accident. He said,

She wrote me a statement that she had gotten up that morning;

brushed her teeth; combed her hair; talked to Ray’s cousin for a

few minutes; called Ray; and was going to Jetway to get

cigarettes and two liter Pepsi; got in the car; left; pulled to a stop

sign at Don Smith’s; and can’t remember after that.

He stated that “Don Smith’s” was “west of the wreck scene, approximately three to four

hundred yards.”

During cross-examination, Deputy Humphries testified that he found no drug

residue on the straws or the knife found in the defendant’s car. He conceded that the

toxicology report indicated that there was no alcohol in the defendant’s system.

Joanne Bowman, daughter of the 85-year-old victim, testified that on June 29,

2005, she and her two youngest grandchildren spent the afternoon with the victim and

followed her to a repair shop on Asheville Highway in Greeneville. Ms. Bowman said the

victim had no problems driving and that she was in good health. After the victim’s car was

examined at the garage, they left to return to their home in Mosheim. Ms. Bowman testified

that she “intended to pull out directly behind” the victim when they left the garage, but she

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was unable to do so because of the heavy traffic. Ms. Bowman testified that as she

approached the Jetway convenience store on Blue Springs Highway, she saw that the victim’s

vehicle had been hit “head-on” by another vehicle. Ms. Bowman said that her mother “was

bleeding from the left side of her head, and there was blood all over the airbag, and she was

just unresponsive at the time.” Ms. Bowman stated that she went over to the other vehicle

and asked the driver “was she all right.” She testified that the defendant, Terri Teaster, was

the only person in the vehicle.

Following the accident, the victim was taken to Laughlin Hospital by

ambulance, and Ms. Bowman followed in a car driven by Tammy Morgan. Because the

physicians at Laughlin Hospital were not prepared to deal with injuries as extensive as those

suffered by the victim, she was transported by helicopter to Johnson City Medical Center,

where she remained for 31 days. Ms. Bowman testified that the victim spent an additional

two weeks at Northside Hospital and one month in a rehabilitation facility. The victim spent

the bulk of her time in the Johnson City Medical Center confined to the Intensive Care Unit.

Ms. Bowman described the victim’s injuries, “She had a neck fracture. She had eight broken

ribs. Hip, broken hip and pelvis. She had a severe cut on her left arm and her elbow. And

a broken right leg.” Ms. Bowman stated that her mother eventually required a total knee

replacement that caused another two-week hospital stay.

During cross-examination, Ms. Bowman testified that the victim had previously

broken her wrist and ankle, but she had had no major surgeries or other health problems. She

said the victim took Coumadin, blood pressure medicine, and thyroid medicine and that the

victim had been taking these medications for “years and years.” She stated that the victim

took her car to the garage because it “was like making a little noise or something.” Ms.

Bowman denied that the victim had trouble with her eyesight or driving ability. She stated

that she did not make a habit of following the victim every time she drove but was doing so

on the day of the collision because they happened to be together.

Doug Brown testified that on the day of the wreck, he was following a maroon,

two-door Pontiac for several hundred yards and noticed that the car “wasn’t in the lane.” He

testified that the car swerved off the shoulder of the road and across the center line. At the

time the maroon car made impact with a van, the maroon car was across the center line. Mr.

Brown stated that just before the crash he was worried the car would cause an accident.

Following the collision, he “pulled over and just sat there.”

The victim testified that she lived on Blue Springs Parkway in Mosheim and

that on the day of the crash she “had been up to the car garage and was going back home”

so that she could “go to church.” She said she had no problems driving to the garage or back

home until the collision occurred. She did not remember the collision itself. The victim

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testified that as a result of the wreck, she “spent thirty-one days in Memorial Hospital in

Johnson City, and then . . . three other places” before she was sent home. She stated that she

“had to learn to walk and everything all over again.” She recalled that “about every bone in

[her] body was broken” and stated that she “can’t do anything hardly” since the wreck.

Doctor Julie Dunn, a general surgeon and trauma surgeon who treated the

victim during her stay at Johnson City Medical Center, described the victim’s injuries:

She had a closed head injury, which was

consistent with blood in the brain.

She had a C spine fracture, specifically it was

odontoid fracture; it is sort of a pedicle that your head turns on

to turn – it sits on to turn, and that was cracked.

She had multiple rib fractures.

She had bleeding into the chest that did require

further surgery.

She had a laceration to her spleen.

She had acute blood loss anemia from all of her

injuries.

She had an acetabular fracture; that is the joint that

the femur bone sits in. It’s sort of a ball and socket. And she

also had a tibial plateau fracture and that is the top of the tubular

where the knee – the femur sits on top of that where the knee

moves back and forth.

Doctor Dunn testified that most of the victim’s fractures would have required eight to 12

weeks’ healing time. She also stated that the victim’s injuries would have been very painful

and would have prevented her from resuming her daily activities for that period of time. The

head injury, she said, could have lead to headaches and short- and long-term memory loss.

She added, “At a woman at her age, with her medical condition, these are potentially lethal

injuries.”

Doctor Kenneth Ferslew, a pharmacologist and forensic toxicologist employed

at East Tennessee State University’s James H. Quillen College of Medicine, testified that he

had reviewed the defendant’s toxicology report along with her medical records from the day

of the collision in order to determine whether the defendant was impaired by drugs or alcohol

on the day of the crash. He stated that his analysis began with an examination of the

defendant’s negative blood alcohol level, which indicated that the defendant was either not

drinking at or near the time of the accident or had been able to eliminate any alcohol in her

system before the test was taken. In any event, Doctor Ferslew stated that he did not believe

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that alcohol was an issue in this case because of the negative result, lack of the smell of

alcohol on the defendant’s person, and the fact that there was no alcohol in the defendant’s

car.

Doctor Ferslew then examined the other substances that were present in the

defendant’s system, and he described them for the jury in turn. He explained,

Meprobamate is a skeletal muscle relaxant. It is a carbamate.

It is sold under two trade names, Miltown or Equanil. It is an

active metabolite of Carisoprodol. And Carisoprodol is a drug

commonly known as Soma. It is a skeletal muscle relaxant. It

is an analgesic. It is a central nervous system depressant. Some

physicians, we use it as a sedative hypnotic. It is under the class

carbamates. And it is used for headaches. It is used for muscle

tension, muscle pain, and to calm people because it is a

depressant.

He stated that “[w]hen the body metabolizes Carisoprodol, it produces Meprobamate.” In

this case, the defendant had both Carisoprodol and Meprobamate in her system, which, he

said, “based on the prescribing patterns that occur,” indicated that the defendant was “most

likely . . . taking Soma and metabolizing it to Meprobamate.” Doctor Ferslew testified that

both drugs come with a warning that they will “impair your psychomotor performance or

your ability to operate a motor vehicle or your ability to operate machinery. And that is

because it is a central nervous system depressant.”

Doctor Ferslew said that the level of Meprobamate in the defendant’s blood

was “in a therapeutic window” and that it would have been producing the desired effect of

“C.N.S. depression and the muscle relaxation of a carbamate.” He noted that even at a

therapeutic level, the effects of Meprobamate “can be deleterious to your operating a

vehicle.” The level of Carisoprodol was “sub-therapeutic.” Doctor Ferslew testified that the

ratio of Meprobamate to Carisoprodol indicated that the defendant was “taking this drug

chronically. In other words, repeated prior to this point in time.” He added that chronically

taking the drug does not necessarily mean that it was prescribed, it “goes back to just how

often you are taking it.” He stated that her total carbamate level was 19.7 and “[a]nytime the

total carbamate is greater than 10, we know forensically, toxicologically, that this has been

correlated with psychomotor impairment, misoperation of a vehicle, crashes.” He said,

“[T]herapeutic is what is desired. That does not mean that that concentration cannot have

adverse effects. Because you were warned when you take many drugs that produce central

nervous system depression, that even at therapeutic concentration, these drugs can impair

you.”

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Doctor Ferslew testified that the defendant also tested positive for the use of

“Diazepam, which is a generic name for Valium. It’s a benzodiazepine. It is also a muscle

relaxant. . . . They can be anti-epileptics, they can be minor tranquilizers, they can be

axiolytics or drugs that calm people who have anxiety attacks.” He stated that Diazepam is

“metabolized to Nordiazepam.” Again, he explained that the ratio of the drug and its

metabolite indicated that the defendant “had been taking this stuff for a longer period of time

prior.” The benzodiazepines, like the carbamates, were within therapeutic levels. He stated

that the defendant was “combining the drugs for an additive dissynergistic effect.”

Doctor Ferslew testified that the defendant’s medical records indicated that she

suffered “no obvious head trauma” during the crash. Given the fact that the defendant

crossed the center line, that she showed outward signs of intoxication, and that she had two

different central nervous system depressants in her system, Doctor Ferslew concluded that

the defendant “did show signs of impairment or intoxication in the misoperation of that

vehicle.” He added that the toxicology report also indicated that the defendant had used

marijuana prior to the wreck, but he could not tell when she had done so. As a result, he

could not say that the defendant was under the influence of marijuana at the time of the crash.

Based upon this evidence, the jury convicted the defendant of vehicular assault.

The trial court imposed a sentence of four years’s incarceration. The defendant filed a timely

motion for new trial and a timely notice of appeal.

In this appeal, the defendant contends that the evidence is insufficient to

support her conviction, that the State improperly commented on her failure to testify during

closing argument, and that the sentence is excessive.

I. Sufficiency of the Evidence

The defendant asserts that the evidence was insufficient to support her

conviction of vehicular assault because the State failed to establish that she was intoxicated

at the time of the collision. The State asserts that the evidence adduced at trial fully supports

the defendant’s conviction. We agree with the State.

We review the defendant’s claim mindful that our standard of review is

whether, after considering the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v.

Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard applies to findings

of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and

circumstantial evidence. Winters, 137 S.W.3d at 654.

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When examining the sufficiency of the evidence, this court should neither

re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.

Winters, 137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the

weight and value of the evidence, as well as all factual issues raised by the evidence are

resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Significantly, this court must afford the State the strongest legitimate view of the evidence

contained in the record as well as all reasonable and legitimate inferences which may be

drawn from the evidence. Id.

Tennessee Code Annotated section 39-13-106 defines vehicular assault as

follows:

A person commits vehicular assault who, as the proximate result

of the person’s intoxication as set forth in § 55-10-401,

recklessly causes serious bodily injury to another person by the

operation of a motor vehicle. For the purposes of this section,

“intoxication” includes alcohol intoxication as defined by §

55-10-408, drug intoxication, or both.

T.C.A. § 39-13-106(a) (2006). “‘Serious bodily injury’ means bodily injury that involves .

. . [a] substantial risk of death; . . . [p]rotracted unconsciousness; . . . [e]treme physical pain;

. . . [p]rotracted or obvious disfigurement; . . . [p]rotracted loss or substantial impairment of

a function of a bodily member, organ or mental faculty; or . . . [a] broken bone of a child who

is eight (8) years of age or less.” Id. § 39-11-106(34).

The evidence adduced at trial established that on the day the defendant caused

a head-on collision with the victim’s vehicle, the defendant was under the influence of at

least two central nervous system depressants. Doctor Ferslew testified that the effects of

these medications, even at therapeutic levels, would have impaired the defendant’s operation

of her vehicle. He also stated that the overall level of each medication in the defendant’s

system established that the impairment caused by the medications contributed to her

“misoperation” of her vehicle that day. Mr. Brown testified that the defendant was operating

her vehicle in an erratic manner just before the collision. This evidence clearly supports the

defendant’s conviction of vehicular assault.

II. Improper Closing Argument

The defendant next contends that during his closing argument, the prosecutor

made an improper reference to the defendant’s failure to testify or offer other evidence at

trial and that the error cannot be classified as harmless given the “absence of proof” of the

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defendant’s guilt. The State argues that the prosecutor’s remark was not improper and asserts

in the alternative that any error was unintentional and that it was rendered harmless by the

trial court’s immediate curative instruction, and we agree.

During his closing argument, the prosecutor made the following remarks:

“You have not heard one piece of evidence that says she wasn’t intoxicated or under the

influence. You’ve heard not one thing that says that she was being conscientious or careful.”

Defense counsel objected, and the trial court sustained the objection, stating, “Don’t make

any implications about her not testifying. She does not have to testify. The defendant is

presumed innocent and does not have to present any proof.” Later, during its general charge

to the jury, the trial court provided the following instruction:

A person accused of a crime is presumed to be

innocent. This means that you must start with the presumption

that the defendant is innocent. This presumption continues

throughout the trial and entitles the defendant to a verdict of not

guilty unless you are satisfied beyond a reasonable doubt that

she is guilty.

The defendant is not required to prove her

innocence or to do anything. . . . The State must prove each

element of the crime beyond a reasonable doubt. If you find the

State has not proven every element beyond a reasonable doubt,

then you must find the defendant not guilty.

....

The defendant has not taken the stand to testify as

a witness but you shall place no significance on this fact. The

defendant is presumed innocent and the burden is on the State

to prove her guilt beyond a reasonable doubt. She is not

required to take the stand in her own behalf, and her election not

to do so cannot be considered for any purpose against her, nor

can any inference be drawn from such fact.

Trial courts have substantial discretionary authority in determining the

propriety of final argument, but the trial court must restrict any improper argument. Sparks

v. State, 563 S.W.2d 564, 569-70 (Tenn. Crim. App. 1978). Most restrictions during final

argument are placed upon the State, based in great measure upon the role of the prosecutor

in the criminal justice system:

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[The prosecutor] is the representative not of an

ordinary party to a controversy, but of a sovereignty whose

obligation to govern impartially is as compelling as its

obligation to govern at all; and whose interest, therefore, in a

criminal prosecution is not that it shall win a case, but that

justice shall be done. As such, he is in a peculiar and very

definite sense the servant of the law, the twofold aim of which

is that guilt shall not escape or innocence suffer. He may

prosecute with earnestness and vigor – indeed, he should do so.

But, while he may strike hard blows, he is not at liberty to strike

foul ones. It is as much his duty to refrain from improper

methods calculated to produce a wrongful conviction as it is to

use every legitimate means to bring about a just one.

It is fair to say that the average jury, in a greater or

less degree, has confidence that these obligations, which so

plainly rest upon the prosecuting attorney, will be faithfully

observed. Consequently, improper suggestions, insinuations

and, especially, assertions of personal knowledge are apt to

carry much weight against the accused when they should

properly carry none. . . .

Berger v. United States, 295 U.S. 78, 88 (1935). The State must refrain from argument

designed to inflame the jury and should restrict its commentary to matters in evidence or

issues at trial. More specifically, the prosecution is not permitted to reflect unfavorably upon

defense counsel or the trial tactics employed during the course of the trial. See Dupree v.

State, 410 S.W.2d 890, 891-92 (Tenn. 1967); Moore v. State, 159 Tenn. 112, 124, 17 S.W.2d

30, 35 (1929); Watkins v. State, 203 S.W. 344, 346 (Tenn. 1918); McCracken v. State, 489

S.W.2d 48, 50 (Tenn. Crim. App. 1972). Furthermore, “[a] prosecutor is strictly prohibited

from commenting on the defendant’s decision not to testify.” State v. Thacker, 164 S.W.3d

208, 244 (Tenn. 2005) (citing State v. Reid, 91 S.W.3d 247, 297 (Tenn. 2002); Coker v. State,

911 S.W.2d 357, 368 (Tenn. Crim. App. 1995)).

To be sure, closing argument for both parties “must be temperate, must be

predicated on evidence introduced during the trial of the case, and must be pertinent to the

issues being tried.” State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978). To merit a new trial,

however, the argument must be so inflammatory or improper as to affect the verdict.

Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965). When determining the propriety of

closing argument, this court considers the following factors:

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(1) The conduct complained of viewed in the context and in

light of the facts and circumstances of the case[;]

(2) [t]he curative measures undertaken by the court and the

prosecution[;]

(3) [t]he intent of the prosecutor in making the improper

statements[;]

(4) [t]he cumulative effect of the improper conduct and any

other errors in the record [; and]

(5) [t]he relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

Even if the prosecutor’s remarks can be classified as a comment on the

defendant’s failure to testify or offer other evidence of her innocence, the record establishes

that defense counsel offered a contemporaneous objection, that the trial court sustained the

objection, and that the trial court specifically and immediately instructed the jury that the

defendant was under no duty to prove her innocence. The trial court followed its curative

instruction with a general charge that repeatedly emphasized the State’s burden of proving

the defendant’s guilt beyond a reasonable doubt and that clearly directed the jury to make no

inference from the defendant’s failure to testify or offer proof. Under these circumstances,

we cannot say that the very brief remarks had any effect on the jury’s verdict. In

consequence, the defendant is not entitled to relief on this issue.

III. Sentencing

In her final claim, the defendant challenges both the length and the manner of

service of her sentence, arguing, “Because of the appellant’s physical condition, she should

have been sentenced to the minimum in her range – two years at 30% RED as a standard,

Range I, offender – and, likewise, alternative forms of sentencing, such as house arrest,

should have been implemented.” The State asserts that because the defendant failed to make

the transcript of the sentencing hearing a part of the record on appeal, this court must

presume that the sentencing decision of the trial court was correct. We agree with the State.

The appellant bears the burden of preparing an adequate record on appeal, see

State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), which includes the duty to “have

prepared a transcript of such part of the evidence or proceedings as is necessary to convey

a fair, accurate and complete account of what transpired with respect to those issues that are

the bases of appeal,” Tenn. R. App. P. 24(b). If the appellant fails to file an adequate record,

this court must presume the trial court’s ruling was correct. See State v. Richardson, 875

S.W.2d 671, 674 (Tenn. Crim. App. 1993). In the absence of the transcript of the sentencing

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hearing, a de novo review of the defendant’s sentence is impossible. See T.C.A. §

40-35-401(d) (2006) (requiring that appellate court conduct a de novo review of the

sentencing decision of the trial court with a presumption that the determinations made by the

trial court are correct). In consequence, we must presume that the sentencing decision of the

trial court was correct.

IV. Conclusion

Because we discern no infirmity in either the conviction or sentence imposed,

we affirm the judgment of the trial court.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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