State of Tennessee v. Steven David Catalano ( 2017 )


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  •                                                                                            12/18/2017
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    May 9, 2017 Session
    STATE OF TENNESSEE v. STEVEN DAVID CATALANO
    Appeal from the Circuit Court for Williamson County
    No. I-CR160221 Joseph Woodruff, Judge
    ___________________________________
    No. M2016-02272-CCA-R3-CD
    ___________________________________
    The Appellant, Steven David Catalano, entered a plea of nolo contendere to driving under
    the influence (DUI), reserving a certified question of law challenging whether a be-on-
    the-lookout report (BOLO) issued by a Brentwood police officer provided sufficient
    probable cause or reasonable suspicion to justify a Franklin police officer’s traffic stop of
    the Appellant’s vehicle. The State contends that the question presented is not dispositive;
    therefore, this court is without jurisdiction to consider the appeal. Upon review of the
    record and the parties’ briefs, we agree with the State and conclude that the appeal must
    be dismissed.
    Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
    NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN
    and ROBERT H. MONTGOMERY, JR., JJ., joined.
    Grover Christopher Collins, Nashville, Tennessee, for the Appellant, Steven David
    Catalano.
    Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
    Attorney General; Kim R. Helper, District Attorney General; and Carlin Hess, Assistant
    District Attorney General, for the Appellee, State of Tennessee.
    OPINION
    I. Factual Background
    On April 11, 2016, the Williamson County Grand Jury returned an indictment
    charging the Appellant with DUI and DUI per se, which is driving under the influence
    with a blood alcohol content of .08% or greater. See Tenn. Code Ann. § 55-10-401(1),
    (2). Thereafter, on July 13, 2016, the Appellant filed a motion to suppress evidence
    regarding his seizure and the resulting blood alcohol test, arguing that the officer did not
    have reasonable suspicion or probable cause to justify the traffic stop.
    At the suppression hearing, Officer Stan Boyd, Jr., with the Brentwood Police
    Department testified that at 2:42 a.m. on June 14, 2015, he was traveling southbound on
    Interstate 65 north of Concord Road when he saw a dark-colored sport utility vehicle
    (SUV) cross the right and left sides of its lane of travel multiple times. Officer Boyd saw
    no other vehicles nearby and noticed nothing on the road to justify the SUV’s failure to
    maintain its lane of traffic. Officer Boyd said that he was unable to stop the vehicle
    because he was transporting someone to the Williamson County Jail. When he was
    unable to find other Brentwood officers in the area, he provided the Franklin Police
    Department’s dispatcher with “a description of the vehicle[,] . . . the tag information of
    the vehicle and the last direction of traffic once it exited.” Officer Boyd followed the
    SUV until it took the eastbound Cool Springs Boulevard exit. Officer Boyd said that he
    spoke with the Franklin Police Department’s dispatcher no later than 2:46 a.m.
    Officer Boyd said that he video recorded the SUV’s erratic driving. As the video
    was played for the court, Officer Boyd explained what was transpiring on the video.
    Officer Boyd said that the section of the interstate on which the SUV was traveling had
    four lanes in each direction. The first lane was identified as the far right lane, the second
    lane was located to the left of the first lane, the third lane was to the left of the second
    lane, and the high occupancy vehicle lane was to the left of the third lane. The SUV was
    traveling in the second lane. The video showed that the SUV crossed the left “dashed
    line,” returned to the second lane, drifted to the right twice, then drifted left and
    “hover[ed]” in both the second and third lanes. The SUV slowed then gradually
    increased its speed and drifted far enough to the right that both passenger side tires were
    completely over the line into the first lane. Officer Boyd said that “half of the car [was]
    over both lanes.” The SUV continued to drift from side to side and did not signal its lane
    changes. Officer Boyd said that the SUV “put[] its right signal on at this point, drift[ed]
    over, or ma[de] a lane change and then suddenly drift[ed] back over a solid white line
    right in front of me with no direction,” which forced the officer to decrease his speed.
    The vehicle then took the eastbound exit onto Cool Springs Boulevard. The video did not
    show the vehicle after it left the exit ramp.
    On cross-examination, Officer Boyd said that as he was following the Appellant’s
    vehicle, he told the Franklin Police Department’s dispatcher “what I was observing, a
    vehicle failing to maintain its lane multiple times, exiting eastbound onto Cool Springs
    Boulevard, and the tag number.” Officer Boyd did not recall whether he told the
    dispatcher if the SUV was a “dark color or black” and thought he may have told the
    dispatcher that the SUV was a Ford Explorer.
    -2-
    Officer Adam Cohen with the Franklin Police Department testified that around
    2:46 a.m., he was in the middle of a traffic stop at the intersection of Interstate 65 and
    Cool Springs Boulevard when he heard a BOLO from a Brentwood police officer
    regarding a “possible intoxicated driver” traveling southbound on Interstate 65 just south
    of Moores Lane. Officer Cohen gave the person he had stopped a “verbal warning” and
    let him go. He then drove “westbound on Cool Springs Boulevard to get on to
    southbound on Interstate 65” to look for the subject of the BOLO. However, he made a
    “U-turn” when he heard the Brentwood officer relay that the vehicle, a black Ford
    Explorer, had taken the eastbound Cool Springs Boulevard exit. Officer Cohen did not
    recall knowing the tag number of the SUV.
    Officer Cohen said that he saw a dark-colored SUV traveling eastbound on Cool
    Springs Boulevard. Officer Cohen followed the SUV as it turned southbound onto
    Carothers Parkway and saw it turn right on Crescent Center Drive. Officer Cohen
    explained that Crescent Center Drive had “one dedicated lane each way, and then there is
    also a center turning lane that is dedicated for turning both ways.” The tires on the left
    side of the SUV crossed over the left yellow line on Crescent Center Drive before making
    a right turn into the Embassy Suites parking lot. Officer Cohen said that at that point,
    “[b]ased off the BOLO I had received from the Brentwood Officer and also the failure to
    maintain [the] lane I had just observed, I initiated a traffic stop.”
    A video recording of Officer Cohen’s pursuit of the SUV was played for the court.
    The video began while Officer Cohen was performing the traffic stop that he abandoned
    in order to look for the Appellant’s vehicle and continued through the stop of the
    Appellant’s vehicle. The time stamp on the recording reflected that the officer stopped
    the SUV at 1:48:54 a.m. Officer Cohen explained that the time stamp was one hour
    behind the actual time of the stop because the recording device had not adjusted for
    daylight savings time.
    On cross-examination, Officer Cohen acknowledged that in order to catch the
    SUV, he had to drive “[p]retty fast,” sometimes as much as 73 miles-per-hour in a 40
    miles-per-hour zone. Officer Cohen surmised that his driving at that speed was safe
    because of the road conditions and because no other vehicles were on the road. Officer
    Cohen acknowledged, however, that he “went a little wide to make” the right turn into
    the Embassy Suites parking lot, explaining that “[a]t the speed I was travelling, which
    was a bit fast, it kind of was necessary to make a little bit of a wider turn.”
    On redirect examination, Officer Cohen said that he saw nothing on Crescent
    Center Drive which would prevent the SUV from safely maintaining its lane of travel.
    At the conclusion of the proof, defense counsel acknowledged that Officer Boyd
    had probable cause “to initiate a traffic stop of the vehicle he saw.” Nevertheless,
    -3-
    defense counsel argued that the State had not presented sufficient proof that the
    Appellant’s SUV was the same SUV that Officer Boyd had seen, noting that Officer
    Cohen failed to verify that the tag number of the Appellant’s vehicle was the same as the
    tag number on the suspect vehicle. Defense counsel argued that numerous black SUVs
    were in Williamson County. Defense counsel contended the Appellant “had to negotiate
    that turn in the way that he did,” noting that Officer Cohen also made a wide turn into the
    Embassy Suites parking lot.
    The State responded that Officer Cohen’s observations alone or his observations in
    conjunction with Officer Boyd’s observations provided reasonable suspicion for the stop.
    The trial court stated that after considering the officers’ testimony and the two
    videos, it agreed with the State’s argument. The court found that Officer Cohen “had
    reasonable suspicion to initiate a traffic stop of the dark SUV that he observed. Under
    those circumstances of Officer Boyd’s report, the general traffic conditions which there
    were no other vehicles around.” The court further found that a “very brief” time had
    elapsed between Officer Boyd’s issuance of the BOLO and Officer Cohen’s observation
    of the Appellant’s SUV. The court noted that the officers saw no other vehicles on the
    road at that time. The court further accredited Officer Cohen’s testimony that the
    Appellant crossed the yellow line in an area with no visible obstructions or defects in the
    road. The court said that Officer Cohen’s video also showed “that the [Appellant’s] car
    came back into the right hand lane of travel heading straight for a distance . . . [before
    turning] into the Embassy Suites,” belying the defense’s argument that “a reasonable
    driver had to leave the lane of travel and then make a wide sweeping turn into the
    Embassy Suites, because [in] fact he didn’t do that.” The court found that Officer Cohen
    had reasonable suspicion and probable cause to initiate the traffic stop.
    Afterward, on November 3, 2016, the Appellant agreed to plead guilty to DUI in
    exchange for the dismissal of the DUI per se charge. As a condition of his plea
    agreement, the Appellant reserved the following certified question of law:
    Whether the information provided to Officer Adam Cohen,
    FPD[,] by [O]fficer Stan Boyd, BPD[,] through a BOLO
    established a sufficient nexus among[] the location and
    description of the vehicle observed by Officer Boyd, and the
    vehicle seized by Officer Cohen where the only alleged
    reasonable suspicion leading to stop the [Appellant’s] vehicle
    was based upon the information provided by Officer Boyd of
    a “Ford Explorer, Black,” weaving, exiting Interstate 65
    around the Cool Springs Boulevard exit, Officer Cohen
    testified that he was only investigating a DUI, and whether
    the evidence seized pursuant to the stop violated [the
    -4-
    Appellant’s] protections against unreasonable searche[s] and
    seizures as guaranteed by the Fourth Amendment to the
    United States Constitution and [a]rticle I, section 7 of the
    Tennessee Constitution.
    II. Analysis
    Tennessee Rule of Criminal Procedure 37(b)(2)(A) provides that a certified
    question may be reserved when:
    (A) the defendant entered into a plea agreement under Rule
    11(c) but explicitly reserved—with the consent of the state
    and of the court—the right to appeal a certified question of
    law that is dispositive of the case, and the following
    requirements are met:
    (i) the judgment of conviction or order reserving the certified
    question that is filed before the notice of appeal is filed
    contains a statement of the certified question of law that the
    defendant reserved for appellate review;
    (ii) the question of law as stated in the judgment or order
    reserving the certified question identifies clearly the scope
    and limits of the legal issue reserved;
    (iii) the judgment or order reserving the certified question
    reflects that the certified question was expressly reserved with
    the consent of the state and the trial court; and
    (iv) the judgment or order reserving the certified question
    reflects that the defendant, the state, and the trial court are of
    the opinion that the certified question is dispositive of the
    case . . . .
    See also Tenn. R. Crim. P. 37(b)(2)(D); State v. Preston, 
    759 S.W.2d 647
    , 650 (Tenn.
    1988).
    The trial court, the Appellant, and the State agreed that the certified question was
    dispositive of the case. However, on appeal, the State contends that the question is not
    dispositive. We agree with the State.
    Generally, a “question is dispositive when the appellate court must either affirm
    the judgment [of conviction] or reverse and dismiss [the charges].” State v. Dailey, 
    235 S.W.3d 131
    , 134 (Tenn. 2007) (internal quotations and citations omitted). “If the
    appellate court does not agree that the certified question is dispositive, appellate review
    should be denied.” 
    Preston, 759 S.W.2d at 651
    .
    -5-
    The Appellant’s certified question is limited to whether the information provided
    by Officer Boyd justified Officer Cohen’s traffic stop of the Appellant’s SUV. However,
    the certified question does not challenge Officer Cohen’s independent observations. We
    conclude that Officer Cohen’s observations alone, namely that the Appellant failed to
    maintain his lane, gave Officer Cohen reasonable suspicion to justify the traffic stop. See
    Tenn. Code Ann. § 55-8-123(1). Therefore, we conclude that the Appellant’s certified
    question is not dispositive of the case. See State v. Prince Dumas, No. W2015-01026-
    CCA-R3-CD, 
    2016 WL 4083256
    , at *2 (Tenn. Crim. App. at Jackson, Aug. 1, 2016).
    III. Conclusion
    Accordingly, we conclude that the Appellant’s appeal must be dismissed.
    ____________________________________
    NORMA MCGEE OGLE, JUDGE
    -6-
    

Document Info

Docket Number: M2016-02272-CCA-R3-CD

Judges: Judge Norma McGee Ogle

Filed Date: 12/18/2017

Precedential Status: Precedential

Modified Date: 12/18/2017