State of Tennessee v. Claude Thomas Davis - Concurring ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
April 18, 2006 Session
STATE OF TENNESSEE v. CLAUDE THOMAS DAVIS
Appeal from the Criminal Court for Putnam County
No. 04-0354 Lillie Ann Sells, Judge
No. M2005-02007-CCA-R3-CD - Filed March 7, 2007
JOSEPH M. TIPTON , P.J., concurring.
I concur in the majority’s affirmance of the defendant’s convictions. I write separately to
express my disagreement with the majority’s conclusion that the defendant’s arrest was lawful.
Under the evidence at the suppression hearing, I believe that the defendant was not subject to a
warrantless arrest because he was no longer at the “scene of a traffic accident” as contemplated by
Tennessee Code Annotated section 40-7-103(a)(6) and that he was not otherwise subject to arrest
for a misdemeanor committed in the officer’s presence or for a felony. See T.C.A. § 40-7-103(a)(1)-
(3). I believe the defendant was at his home, where he was not subject to a warrantless arrest for
misdemeanor driving under the influence. In this regard, I note that after the offense in this case, the
law was changed to permit the warrantless arrest of an individual involved in an accident who has
left the scene, provided the arrest takes place within four hours of the accident and the officer has
probable cause to arrest the defendant for driving under the influence. See T.C.A. § 40-7-103(a)(10).
I do not believe this provision can apply in this case.
Regardless of the apparent illegality of the arrest, though, I believe the record on appeal is
inadequate for us to determine the extent to which the evidence, if any, at the trial was a product of
the illegal arrest. The remedy for an illegal arrest is suppression of the evidence obtained as a result
of the arrest. In the present case, we do not know to what extent, if at all, the prosecution obtained
the defendant’s conviction by reliance on post-arrest evidence because the defendant has failed to
include a transcript of the trial in the record. The defendant, as the appellant, has a duty to place
before this court a record that contains a complete account of the proceedings below which are
relevant to the issues raised on appeal. Tenn. R. App. P. 24(b); State v. Ballard, 855 S.W.2d 557,
560 (Tenn. 1993). Without such a record, the defendant has failed to preserve the issue properly for
review. Ballard, 855 S.W.2d at 561. Because we cannot tell from the record before us whether any
evidence obtained pursuant to the defendant’s illegal arrest was used against him at trial, that issue
is beyond our review.
Moreover, in reviewing a record relative to search and seizure, we are entitled to consider
the evidence submitted at trial as well as that submitted in the suppression hearing. See State v.
Henning, 975 S.W.2d 290, 298-99 (Tenn. 1998). The failure to provide a transcript of the trial
leaves us with an inadequate record to resolve the matter. Therefore, we should affirm the
defendant’s convictions.
____________________________________
JOSEPH M. TIPTON, PRESIDING JUDGE
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