State of Tennessee v. Harold Russell Gregory ( 2003 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
February 12, 2003 Session
STATE OF TENNESSEE v. HAROLD RUSSELL GREGORY
Appeal from the Criminal Court for Davidson County
No. 2001-T-253 Frank G. Clement, Jr., Judge
No. M2002-01461-CCA-R3-CD - Filed July 29, 2003
The defendant, Harold Russell Gregory, was convicted in the Davidson County Criminal Court of
driving under the influence (DUI), second offense, a Class A misdemeanor. The trial court
sentenced him to eleven months, twenty-nine days to be served as forty-five days, day for day, in the
county jail and the remainder to be served on probation. In addition, the trial court suspended the
defendant’s driving privileges for two years, ordered that he participate in an alcohol evaluation and
treatment program, and imposed a six hundred dollar fine. The defendant appeals, claiming (1) that
the evidence is insufficient to support his conviction; (2) that the trial court should have granted his
motion to suppress evidence that was obtained pursuant to an illegal stop; (3) that his request for an
attorney was not an express refusal to take a breathalyzer test; and (4) that the trial court erred by
refusing to allow a defense witness to testify. We affirm the trial court’s actions.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.
WOODALL, JJ., joined.
David L. Raybin (at motion for new trial hearing and on appeal) and V. Michael Fox (at trial),
Nashville, Tennessee, for the appellant, Harold Russell Gregory.
Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and David Gregory Vorhaus, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
This case relates to the defendant’s being stopped for DUI. During a bench trial, Corporal
Daniel Okert of the Goodlettsville Police Department testified that about 9:15 p.m. on September
20, 2000, he was on patrol and responded to a citizen’s complaint about a possible drunk driver on
Conference Drive. He said that the citizen, who was driving and using a cellular telephone, had
reported to a police dispatcher that the suspect vehicle was a red pickup truck with a dealer license
tag. He said that he saw the pickup stopped at a traffic light at Conference Drive and Long Hollow
Pike and that he pulled in behind it. He said that the truck was facing north on Conference Drive
and that northbound traffic had three lanes: a left lane for making left turns, a center lane for making
left turns or driving straight, and a right lane for making right turns onto Long Hollow Pike. He said
that the defendant’s truck was in the center lane.
Cpl. Okert testified that when the traffic light turned green, the defendant turned right onto
Long Hollow Pike. He said that the defendant crossed the double yellow line on Long Hollow and
into the lane for oncoming, westbound traffic. He said that the defendant veered back into the
eastbound lane and that he decided to stop the defendant. He said that he turned on his blue lights
and that the defendant drove for one-half to three-fourths of a mile before stopping at the intersection
of Long Hollow Pike and Ellen Drive. He said he walked to the driver’s side of the truck and
smelled alcohol. He said that the defendant wanted to know why Cpl. Okert had stopped him and
that the defendant’s speech was slurred. He said that the defendant admitted drinking and that he
asked the defendant to get out of the truck. He said that the defendant tried to unlock the door but
kept hitting the door lock button and could not get out. He said that he reached into the truck,
unlocked the door, and opened it for the defendant.
Cpl. Okert testified that the defendant got out of the truck and was unsteady on his feet. He
said that the defendant had to hold onto the truck for support and that he gave the defendant two field
sobriety tests, the walk and turn test and the one-leg stand test. He said that the defendant failed the
tests and that the defendant did not indicate he had any physical problems that would have interfered
with taking the tests. He said that the defendant told him the defendant was taking medication but
that the defendant would not tell him why he needed it. He said that after the defendant failed the
field sobriety tests, he concluded that the defendant was driving under the influence and put the
defendant into the back of his patrol car. He said that a man named Kevin Weaver arrived and that
the defendant allowed Mr. Weaver to take control of the pickup. He said that a dentist’s office
parking lot was on the corner of Long Hollow Pike and Ellen Drive and that he did not see any cars
pull into or out of the lot during the stop.
Cpl. Okert testified that he took the defendant to the police station, asked the defendant to
consent to a breathalyzer test, and read an implied consent warnings form to the defendant. He said
that although there was a place on the form to mark whether the defendant submitted to or refused
to take the breathalyzer test, he did not mark the form. He said, though, that he gave the form to
defendant in order for the defendant to mark it. He said that the defendant wanted to talk to an
attorney and refused to sign the form.
On cross-examination, Cpl. Okert testified that he did not contact the citizen informant and
did not know the informant’s identity. He said that when the defendant turned from Conference
Drive onto Long Hollow Pike, the defendant did not interfere with any other drivers. He said that
if cars had been in the westbound, left turn lane on Long Hollow Pike, the defendant would have hit
them. He said that the defendant pulled over in a safe and lawful manner and that Cpl. James Driver
arrived at the scene. He said that the defendant did not have any containers in the truck, that he did
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not have any trouble understanding the defendant, and that his patrol car did not have a video
camera. He acknowledged that the smell of alcohol alone does not prove someone is driving under
the influence.
Cpl. Okert testified that when he first saw the defendant at the traffic light on Conference
Drive, he had not formed an opinion as to whether the defendant was driving under the influence.
He said that he made that determination after the defendant failed the field sobriety tests. He said
that the defendant did not have trouble getting into the patrol car or walking into the police station.
He said that he did not remember testifying at the defendant’s preliminary hearing that the defendant
told him during the stop that the defendant had a medical problem. He acknowledged testifying at
the hearing that after he arrested the defendant, the defendant’s pickup truck was towed. He said that
that testimony had been incorrect and that the defendant’s truck was not towed.
Cpl. James Driver of the Goodlettsville Police Department testified that he assisted Cpl.
Okert with a traffic stop on September 20, 2000. He said that a dentist’s office parking lot was on
the corner and that he did not see any cars go in or out of the lot during the stop. He said that he
would have noticed cars in the lot because the patrol cars were parked right in front of the dentist’s
office. He said the defendant had an unusually hard time getting out of the pickup and that when the
defendant got out, he was unsteady on his feet and his speech was slurred. He said that based on the
defendant’s field sobriety tests, he believed the defendant was intoxicated. He said that after Cpl.
Okert arrested the defendant, Kevin Weaver arrived and asked to move the defendant’s truck into
the dentist’s office parking lot. He said that he did not remember anyone else arriving at the scene.
On cross-examination, Cpl. Driver testified that he did not see the defendant drive erratically.
He said that after the defendant pulled over, he walked to the truck’s passenger side. He said that
the defendant did not have any open containers or weapons in the pickup and was cooperative. He
said that he was not close enough to the defendant to smell alcohol but that he was close enough to
hear the defendant’s slurred speech.
The defendant testified that he owned Nashville Used Cars. He said that on September 20,
2000, his business closed about 7:30 p.m. and that an employee went to the store and bought a six-
pack of beer. He said that he drank two beers and one-half of a miniature bottle of bourbon with the
employee. He said that he left Nashville Used Cars about 8:50 p.m. to go home. He said that he
drove fifteen to twenty miles and stopped at the traffic light at Conference Drive and Long Hollow
Pike. He said that he had his right turn signal on and that he turned right onto Long Hollow. He said
that he immediately pulled into the center turn lane on Long Hollow Pike because he was going to
turn left into the KFC Restaurant. He said that he changed his mind about going to KFC and
continued driving east on Long Hollow. He said that he saw Cpl. Okert’s blue lights but did not
think the officer wanted him to stop. He said that he stopped at Ellen Drive.
The defendant testified that Cpl. Okert asked him to get out of the truck. He said that the
doors would not unlock because the truck was still in gear and that everytime he tried to unlock
them, they relocked immediately. He said that he put the truck in park and that Cpl. Okert reached
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in and unlocked the driver’s door. He said that he had no problem getting out of the truck or
walking. He said that Cpl. Okert called him to the back of the truck and that he had to hold onto the
truck because he had herniated and bulging disks in his back. He said that Cpl. Okert asked him to
do field sobriety tests and that he told Cpl. Okert he could not do them. He said that he told Cpl.
Okert that he had a medical problem but that he did not tell the officer what the problem was. He
said that on the night of the stop, he had not taken any pain medication but had taken medicine for
his high blood pressure and diabetes. He said that about two minutes after Cpl. Okert stopped him,
Kevin Weaver arrived. He said that Lisa Harper, who used to date his son, also arrived and was
sitting in her car in the dentist’s office parking lot. He said he did not talk to Ms. Harper but that he
asked Mr. Weaver to park his pickup truck in the lot. He said that he weighed two hundred twenty
pounds, that he was not driving under the influence, and that he had no problem walking from the
patrol car into the police station. He said that Cpl. Okert read a breathalyzer test consent form to him
and that he understood the form. He said that he asked to telephone a lawyer and that he told Cpl.
Okert he did not want to take the breathalyzer test. On cross-examination, the defendant testified
that in 1996, he pled guilty to DUI. He said that he made a lawful turn from Conference Drive onto
Long Hollow Pike and that he had seen people make a right turn from the center lane “all the time.”
Kevin Weaver testified that at the time of trial, he had known the defendant for ten years.
He said that on the night of September 20, he attended a car auction and drove toward his home on
Long Hollow Pike. He said that he saw the defendant standing by a patrol car with a police officer
and that he pulled over. He said that he told the officer he was the defendant’s friend and that he
offered to take the defendant home. He said that the officer told him someone had reported the
defendant’s truck was swerving and that the officer put the defendant into a patrol car. He said that
he did not have a conversation with the defendant but that the defendant asked him to drive his truck
home. He said that he did not have any trouble understanding the defendant and that the defendant
did not seem to be under the influence.
On cross-examination, Mr. Weaver testified that the defendant telephoned him one week
before trial and asked him about his testimony. He said that he clearly remembered September 20,
2000, was a Thursday because he attended car auctions on Thursday nights. He said he would be
shocked to learn that September 20, 2000, was a Wednesday. He said he did not socialize with the
defendant and that he did not know how alcohol affected the defendant.
Lisa Marie Brown testified that she used to date the defendant’s son. She said that on the
night of September 20, she was driving to K-Mart on Long Hollow Pike and saw the defendant
stopped on the side of the road with the police. She said she pulled into a dentist’s office parking
lot and watched the defendant for a few minutes. She said that she was about fifteen feet away from
the defendant, that the defendant was standing near the back of his truck, that he did not have any
trouble standing, and that he did not stumble. She said that she did not see the defendant perform
field sobriety tests and that she left the scene in order to telephone the defendant’s wife. She said
she called the defendant’s wife, returned to the parking lot, and saw the police leave with the
defendant a few minutes later. She said that another man moved the defendant’s truck into the
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parking lot and that she did not talk to the defendant. She said that she had seen people under the
influence before and that the defendant did not appear to be intoxicated.
On cross-examination, Ms. Brown testified that she got into the parking lot by turning onto
a side street beside the dentist’s office. She said that at first, she had her headlights on but then
turned them off and left her parking lights on. She said that she had not talked to the defendant about
the case but that she had talked to his attorney. She said that she did not know whether the defendant
drank alcohol that night.
James F. Neal and Robert Widenhofer, friends of the defendant for fifteen and seven years
respectively, testified about the defendant’s reputation in the community. Mr. Neal said that the
defendant had a great reputation and that he had never heard bad rumors about him. Mr. Widenhofer
testified that he had never known the defendant to lie. Both men said they were surprised to learn
that the defendant had a 1996 DUI conviction.
Cpl. Okert testified on rebuttal that no cars pulled into the dentist’s office parking lot during
the stop. He said that he would have noticed a car in the parking lot and that in order for Lisa Marie
Brown to have gotten into the parking lot, she would have had to squeeze her car in behind the patrol
cars, which were blocking the parking lot entrance. He said that he was at the scene with the
defendant for about fifteen to twenty-five minutes and that according to his police report, September
20 was a Wednesday.
I. SUFFICIENCY OF THE EVIDENCE
The defendant claims that the evidence is insufficient to support his conviction because two
defense witnesses testified that he was not intoxicated whereas Cpls. Okert’s and Driver’s
descriptions about his behavior were “all over the map.” The state claims that the evidence is
sufficient. We agree with the state.
Our standard of review when the defendant questions the sufficiency of the evidence on
appeal is “whether, after viewing 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.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh
the evidence but presume that the jury has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about
witness credibility were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
It is unlawful for any person to drive a motor vehicle on the public roads and highways of
the state while under the influence of an intoxicant or narcotic drug. Tenn. Code Ann. §
55-10-401(a)(1). In this case, Cpl. Okert testified that the defendant made an illegal right turn and
crossed the double yellow line on Long Hollow Pike. Cpl. Okert turned on his blue lights, but the
defendant continued driving for at least one-half mile before stopping his truck. Cpl. Okert testified
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that he smelled alcohol as he approached the defendant’s pickup and that the defendant had trouble
getting out of the truck. Both Cpls. Okert and Driver testified that the defendant was unsteady on
his feet and that they concluded from the defendant’s poor performance on the field sobriety tests
that he was intoxicated. Moreover, the defendant admitted to Cpl. Okert that he had been drinking
alcohol and testified at trial that he drank two beers and one-half of a miniature bottle of bourbon
before driving home. Although Kevin Weaver testified that the defendant did not sound intoxicated,
Mr. Weaver spoke only briefly with him. In addition, although Lisa Marie Brown testified that the
defendant did not have trouble standing, she admitted that she did not speak with the defendant and
did not see him perform the field sobriety tests. Finally, we note that Cpl. Okert read a breathalyzer
consent form to the defendant and that the defendant refused to take the test. See State v. Frasier,
914 S.W.2d 467, 471 (Tenn. 1996) (stating that a defendant’s refusing to submit to a breathalyzer
test is relevant and admissible to show that the defendant was intoxicated). We conclude that the
evidence is sufficient to support the conviction.
II. ILLEGAL STOP
The defendant contends that the trial court erred by refusing to suppress all evidence obtained
pursuant to his traffic stop. He claims that the stop was illegal because Cpl. Okert relied on
information that had been provided by an anonymous citizen informant, which is insufficient to
create reasonable suspicion that a defendant has committed or is about to commit a crime. He
contends that beyond the citizen’s complaint, the facts did not justify Cpl. Okert’s stopping him. The
state claims that the trial court properly denied the defendant’s motion to suppress. We agree with
the state.
At the suppression hearing, Cpl. Okert testified that a citizen complained about a possible
drunk driver on Conference Drive and gave a description of the defendant’s truck. He said that he
saw the defendant stopped at a traffic light at Conference Drive and Long Hollow Pike and that
although the defendant was properly stopped at the traffic light, the informant’s tip caused him to
suspect something might be wrong with the defendant. He said, though, that the tip alone was not
enough for him to stop the defendant. He said that when the light turned green, the defendant made
an illegal right turn and that “I don’t know that I would stop somebody initially for doing something
like that.” He said that he decided to stop the defendant when the defendant’s truck crossed the
double yellow line on Long Hollow Pike and “ended up in that opposing lane of traffic.” He said
that based upon the tip, the defendant’s illegal turn, and the defendant’s crossing the double yellow
line, he believed that the defendant posed a threat to other drivers and decided to stop him.
At the close of the hearing, the trial court ruled that Cpl. Okert’s seeing the defendant make
an illegal right turn and cross the double yellow line justified the stop. Accordingly, it denied the
defendant’s motion to suppress.
A trial court’s factual findings on a motion to suppress are conclusive on appeal unless the
evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v.
Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Furthermore, questions about the “credibility
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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.” Odom, 928 S.W.2d at 23. The application
of the law to the facts as determined by the trial court is a question of law which is reviewed de novo
on appeal. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).
The Fourth Amendment to the United States Constitution protects against unreasonable
searches and seizures, and “‘article 1, section 7 [of the Tennessee Constitution] is identical in intent
and purpose with the Fourth Amendment.’” State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997)
(quoting Sneed v. State, 221 Tenn. 6, 13, 423 S.W.2d 857, 860 (1968)). An automobile stop
constitutes a seizure within the meaning of both the Fourth Amendment of the United States
Constitution and article I, section 7 of the Tennessee Constitution. Michigan Dep’t of State Police
v. Sitz, 496 U.S. 444, 450, 110 S. Ct. 2481, 2485 (1990); State v. Pulley, 863 S.W.2d 29, 30 (Tenn.
1993); State v. Binion, 900 S.W.2d 702, 705 (Tenn. Crim. App. 1994). The police may stop a
vehicle if they have reasonable suspicion based upon specific and articulable facts that an occupant
is violating or is about to violate the law. See United States v. Brignoni-Ponce, 422 U.S. 873, 881,
95 S. Ct. 2574, 2580 (1975); State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992); Hughes v. State,
588 S.W.2d 296, 305 (Tenn. 1979). In determining whether an officer’s reasonable suspicion is
supported by specific and articulable facts, “a court must consider the totality of the
circumstances--the entire picture.” State v. Moore, 775 S.W.2d 372, 377 (Tenn. Crim. App. 1989).
In this case, Cpl. Okert’s suppression hearing testimony established that he did not stop the
defendant based upon the informant’s tip alone. Instead, Cpl. Okert stopped the defendant only after
seeing him cross the double yellow line on Long Hollow Pike. Regardless of the information that
the citizen informant had provided, once the defendant crossed the double yellow line on Long
Hollow Pike, Cpl. Okert had the right to stop him. See State v. Levitt, 73 S.W.3d 159, 172-73
(Tenn. Crim. App. 2001) (providing that an officer’s seeing a traffic violation provides not only
reasonable suspicion but probable cause to stop a defendant); see also Tenn. Code. Ann. § 55-8-121
(prohibiting a driver from entering a no passing zone); Tenn. Code Ann. § 54-16-109 (providing that
driving any vehicle “except in the proper lane provided for that purpose and in the proper direction
and to the right of the central dividing curb, separation section, or line” is a Class C misdemeanor).
Thus, the stop in this case was justified, and the trial court properly denied the defendant’s motion
to suppress.
III. EXPRESS REFUSAL
Next, the defendant contends that his request for an attorney was not an express refusal to
take a breathalyzer test, and therefore, the trial court improperly considered the refusal as evidence
that he was intoxicated on September 20. The state claims that this issue is without merit because
the defendant admitted during his trial testimony that he refused to take the test. We agree with the
state.
During the defendant’s direct testimony, the following exchange occurred:
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Q. Do you remember the officer asking you or reading you that
form he talked about?
A. Yes, sir, I do.
Q. You understood -- did you understand what he was telling
you?
A. Yes, sir.
Q. Did you ask to call a lawyer?
A. Yes, I did.
Q. Did you?
A. Yes, sir, I did.
....
Q. Did [Cpl. Okert] say anything to you at the police station
about taking the breath test --
A. Yes, he did.
Q. -- other than reading that thing to you?
A. No, sir.
He asked me if I wanted to -- if I wanted to take it.
I said, No sir, I don’t.
Q. Okay, the reason was what?
A. I just -- after going through what I’d gone through, I just
didn’t do it.
This exchange demonstrates that the defendant expressly refused to submit to a breathalyzer test and
that the trial court properly considered the defendant’s refusal as evidence that he was intoxicated.
Regarding whether a defendant’s request for an attorney can be considered a refusal, we decline to
render an advisory opinion. See State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 192
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(Tenn. 2000) (noting that it is well-settled that courts should not give advisory opinions). The
defendant is not entitled to relief.
IV. EXCLUSION OF DEFENSE WITNESS’S TESTIMONY
Finally, the defendant contends that the trial court committed reversible error by refusing to
let a defense witness testify. The state contends that the trial court properly excluded the witness’s
testimony and that any error was harmless. We conclude that the defendant has waived this issue.
Before the state called its first witness, it stated to the trial court that the defense intended to
call Bill Bruce, the attorney the defendant telephoned on the night of his arrest, to testify. The state
did not specifically ask the trial court to exclude Mr. Bruce’s testimony but stated that it wanted to
make the trial court aware that Mr. Bruce was “affiliated” with the defense attorney’s law firm. The
defendant’s trial attorney acknowledged that the defense intended to call Mr. Bruce to testify on the
defendant’s behalf and explained that Mr. Bruce was going to testify that he knew the defendant, that
the defendant telephoned him from the Goodlettsville Police Station on the night of September 20,
that Mr. Bruce had a brief conversation with the defendant, and that the defendant did not sound
intoxicated. The attorney also explained that while he and Mr. Bruce had an “association,” they only
“split expenses and that sort of thing.” The trial court asked the attorney, “Do we have a problem
that he and you are in the same law firm?” and he replied, “Mr. Bruce brought that up to me.”
Although the trial court determined that no rule of evidence required the exclusion of Mr.
Bruce’s testimony, it held that Mr. Bruce could not testify pursuant to Disciplinary Rule (DR) 5-
101(B), Tenn. Sup. Ct. R. 8, Code of Prof. Resp., which states,
A lawyer shall not accept employment in contemplated or
pending litigation if the lawyer knows or it is obvious that the lawyer
or a lawyer in the lawyer’s firm ought to be called as a witness,
except that the lawyer may undertake the employment and the lawyer
or a lawyer in the lawyer’s firm may testify:
(1) If the testimony will relate solely to an uncontested matter.
(2) If the testimony will relate solely to a matter of formality
and there is no reason to believe that substantial evidence will be
offered in opposition to the testimony.
(3) If the testimony will relate solely to the nature and value
of legal services rendered in the case by the lawyer or the lawyer’s
firm to the client.
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(4) As to any matter, if refusal would work a substantial
hardship on the client because of the distinctive value of the lawyer
or the lawyer’s firm as counsel in the particular case.
The trial court ruled that because the defendant’s slurred speech was a contested matter, it was
required to exclude Mr. Bruce’s testimony.
We note that upon being advised that the disciplinary rule also applied to members of the
firm, the trial attorney acknowledged he had nothing further to add because “that’s the rule.” He did
not request either to withdraw or to continue the case. Rather, the defense proceeded to trial.
At the close of the proof at trial, the trial court stated that the evidence “is barely over the
threshold of beyond a reasonable doubt,” but found the defendant guilty of DUI, second offense. The
trial court then stated that even if Mr. Bruce had testified, it would not have affected the outcome
of the case. At the defendant’s motion for new trial hearing, his new attorney argued that the trial
court’s exclusion of Mr. Bruce’s testimony denied the defendant his constitutional right to present
a defense. However, the trial court held that it’s exclusion of Mr. Bruce’s testimony had been correct
in light of the supreme court’s Rule 8, Code of Prof. Resp., and denied the defendant’s motion.
DR 5-102(A), Tenn. Sup. Ct. R. 8, Code of Prof. Resp., provides as follows:
If, after undertaking employment in contemplated or pending
litigation, a lawyer learns or it is obvious that the lawyer or a lawyer
in the lawyer’s firm ought to be called as a witness on behalf of the
client, the lawyer shall withdraw from the conduct of the trial and the
firm, if any, shall not continue representation in the trial, except that
the lawyer may continue the representation and the lawyer or a lawyer
in the lawyer’s firm may testify in the circumstances enumerated in
DR 5-101(b)(1) through (4)1.
Ethical Consideration (EC) 5-10 states,
In the exceptional situation where it will be manifestly unfair to the
client of the lawyer to refuse employment or to withdraw when the
lawyer will likely be a witness on a contested issue, the lawyer may
serve as advocate even though the lawyer may be a witness. In
making such decision, the lawyer should determine the personal or
financial sacrifice of the client that may result from his refusal of
employment or withdrawal therefrom, the materiality of the
testimony, and the effectiveness of the representation in view of the
1
Pursuant to Rule 3.7 of the newly adopted Tennessee Rules of Professional Conduct, effective March 1, 2003,
a lawyer generally may act as an advo cate even though another lawyer in the lawyer’s firm will be a witness.
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lawyer’s personal involvement. . . . Where the question arises, doubts
should be resolved in favor of the lawyer testifying and against
becoming or continuing as an advocate.
Initially, we question the validity of the trial court’s excluding Mr. Bruce as a witness
because of the trial attorney’s potential–or actual–ethics concern. This court has previously indicated
that the disciplinary rules do not equate with rules dealing with the admission of evidence. See State
v. Baker, 931 S.W.2d 232, 237 (Tenn. Crim. App. 1996) (stating that a “violation of the disciplinary
rules . . . is not necessarily a valid basis for suppression of evidence”); see also TBC Corp. v. Wall,
955 S.W.2d 838, 842-43 (Tenn. Ct. App. 1997) (providing that even though the code of professional
responsibility has been violated, evidence should not have been excluded). Moreover, a criminal
defendant has a constitutional right to call witnesses in establishing a defense. See State v. Morgan,
825 S.W.2d 113, 117 (Tenn. Crim. App. 1991). As EC 5-10 indicates, the focus should be on trial
counsel’s continuing role, not on excluding the witness.
In this respect, though, we believe that the trial attorney ignored an option that would have
averted the trial court’s concerns. His statements to the trial court demonstrate that he was aware
before trial of an ethics concern about Mr. Bruce’s testifying and the disciplinary rule regarding a
lawyer in the trial attorney’s firm becoming a witness. In addition, the attorney’s statements reveal
that he knew before trial that he was going to call Mr. Bruce to testify. Therefore, pursuant to DR
5-102(A), Tenn. Sup. Ct. R. 8, Code of Prof. Resp., the attorney was obligated to withdraw from the
case. By doing so, no violation of the rule would have been implicated if Mr. Bruce testified on the
defendant’s behalf. Although we recognize that the state did not raise this issue until minutes before
the trial was to start, the attorney should have moved to withdraw from the case and to continue the
trial in order to allow the defendant time to seek new counsel. By not pursuing these options once
the trial court excluded Mr. Bruce as a witness, the attorney consciously chose to remain on the case
and forego having Mr. Bruce testify. In other words, the attorney did not take steps that were
available to him to comply with the disciplinary rule and to counteract the trial court’s error, if any.
See T.R.A.P. 36(a) (providing that a defendant “who failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of an error” is not entitled to relief). Given the
circumstances in this case, we do not believe that the defendant is entitled to relief on this issue.
Based upon the foregoing and the record as a whole, we affirm the trial court’s actions.
___________________________________
JOSEPH M. TIPTON, JUDGE
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