Opinion

State of Tennessee v. Donald Lockhart - Concurring

Court
Court of Criminal Appeals of Tennessee
Filed
Mar 24, 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 May 20, 2009

STATE OF TENNESSEE v. DONALD LOCKHART

Direct Appeal from the Criminal Court for Loudon County

No. 11318 E. Eugene Elben, Judge

No. E2008-02046-CCA-R3-CD - Filed March 24, 2010

J AMES C URWOOD W ITT, J R., J., concurring.

Although concurring in the majority opinion, I express concern about whether

the certified question is dispositive of the case. Specifically, I question whether the stop of

the defendant’s vehicle yielded any evidence that was necessary to the State’s proving the

defendant guilty of DUI.

This court is not bound by the determination and agreement of the trial court,

a defendant, and the State that a certified question of law is dispositive of the case. State v.

Thompson, 131 S.W.3d 923, 925 (Tenn. Crim. App. 2003). “An issue is dispositive when

this court must either affirm the judgment or reverse and dismiss. An issue is never

dispositive when we might reverse and remand.” State v. Wilkes, 684 S.W.2d 663, 667

(Tenn. Crim. App. 1984). The availability of evidence that would establish the charged

offense without the evidence challenged by a defendant in a certified question of law renders

the certified question non-dispositive. State v. Jared C. Brown, No. M2004-02101-CCA-

R3-CD (Tenn. Crim. App., Nashville, Aug. 30, 2005) (“In other words, the State had proof

of the marijuana offense prior to the search of the appellant’s home. Thus, the appellant’s

question is not dispositive of his case.), perm. app. denied (Tenn. 2006).

The defendant’s intoxication could have been effectively established by Lt.

Tennell’s testimony about observing the defendant in an impaired condition just minutes

before the second officer stopped the defendant’s vehicle. The second officer testified that

he saw “Mr. Lockhart operating his vehicle.” The statement was not explained. If the officer

meant that he could identify the defendant as the man he saw driving the vehicle before he

stopped it, thereby establishing the defendant’s driving on a public, the elements of DUI

would be established without any evidence that may have emanated from the stop. In that

event, any evidence gained from the stop would not have been dispositive. The problem here

is that the officer may have meant that he could identify the defendant as the driver based

upon observing him after the stop.

I cannot tell what the officer meant, and for that reason, I concur in the majority

opinion.

JAMES CURWOOD WITT, JR., JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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