State of Tennessee v. Carol Ann Tully ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
June 21, 2011 Session
STATE OF TENNESSEE v. CAROL ANN TULLY
Direct Appeal from the Criminal Court for Davidson County
No. 2009-C-2407 Mark J. Fishburn, Judge
No. M2010-02398-CCA-R3-CD - Filed March 30, 2012
Defendant, Carol Ann Tully, pled nolo contendere to DUI, first offense, and properly
reserved a certified question of law to appeal pursuant to Tennessee Rule of Criminal
Procedure 37(b)(2), after her motion to suppress evidence was denied. Defendant asserts that
there was not a valid basis for the traffic stop which directly led to her arrest and that she was
therefore subjected to an unconstitutional stop and seizure. After a review of the record, we
affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
PJ., and C AMILLE R. M CM ULLEN, J., joined.
Wendy S. Tucker, Nashville, Tennessee, for the appellant, Carol Ann Tully.
Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Rebecca Valiquette,
Assistant District Attorney General, for the appellee, the State of Tennessee.
OPINION
Defendant was indicted by the Davidson County Grand Jury for one count of driving
under the influence of an intoxicant (DUI) “by impairment,” Tennessee Code Annotated
section 55-10-401(a)(1) (2008 Repl.) and for one count of DUI per se, Tennessee Code
Annotated section 55-10-401(a)(2) (2008 Repl.). Both counts involved the same incident
which occurred in the early morning hours of February 19, 2009, on Broadway Avenue in
Nashville. After the trial court denied her motion to suppress all evidence obtained as a
result of the stop, Defendant entered a plea of nolo contendere to DUI by impairment,
reserving the following certified question of law which is dispositive of the case:
Whether law enforcement’s stop of Ms. Tully’s vehicle was unlawful in
violation of the 4th Amendment to the United States Constitution and Article
I, Section Seven of the Tennessee Constitution, as the State was unable to
establish by clear and convincing evidence that there was a valid basis for the
stop, thus requiring suppression of the evidence discovered pursuant to the
unconstitutional stop and subsequent seizure of Ms. Tully.
The charge of DUI per se was dismissed. Defendant’s motion to suppress was based
upon her assertion that the police officer who stopped Defendant, when she was driving on
Broadway Avenue in Nashville, “did not have the requisite reasonable suspicion to stop
[Defendant].” In conjunction with, and relevant to the motion to suppress, Defendant filed
a motion in limine prior to the suppression motion hearing. In the motion in limine,
Defendant sought to exclude all the testimony of the arresting officer pertaining to his stop
of Defendant’s vehicle on the night of her arrest. As a basis for this assertion, Defendant set
forth that the arresting officer had testified at Defendant’s preliminary hearing in General
Sessions Court and had
(1) conceded he had no independent recollection of the facts of the stop
of Defendant’s vehicle, and that he relied on his “report” to testify
to those facts; and
(2) testified there was not a video recording of the stop and “that the
only ‘memory’ of the report [sic] was his report”;
Defendant argued that Tennessee Rule of Evidence 602 prohibits a witness from
testifying as to a matter unless there is some evidence the witness has personal knowledge
of the matter. She asserted that since the arresting officer testified that he had no personal
knowledge of the facts involving his stop of Defendant’s vehicle, Rule 602 “prohibits his
testimony regarding any of those alleged facts.” A transcript purporting to be of the
preliminary hearing was attached to and filed with Defendant’s motion in limine, but was not
made an exhibit at the suppression hearing. However, in its order denying the suppression
motion, the trial court referred to the arresting officer’s preliminary hearing testimony. The
transcript is part of the “technical record” on appeal. Therefore, we will take into
consideration the officer’s testimony in General Sessions Court even though the transcript
was not made an exhibit. See State v. Smotherman, 201 S.W.3d 657, 661 (Tenn. 2006).
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The officer who stopped Defendant and ultimately arrested her was Officer Jessie Loy
of the Metro Nashville Police Department DUI Enforcement Unit. As pertinent to the issue
in this appeal, Officer Loy testified as follows at the preliminary hearing in General Sessions
Court. On direct examination by the State, Officer Loy testified that on February 19, 2009,
he stopped Defendant because he observed her driving on Broadway Avenue in Nashville,
at a speed over the speed limit, specifically 38 m.p.h. in a 30 m.p.h. zone. His observations
of Defendant after the stop resulted in Defendant’s arrest for DUI.
On cross-examination, Officer Loy testified that the stop occurred at approximately
2:31 a.m. In addition to acknowledging that he used his written report to refresh his memory
about the time of the stop, Officer Loy admitted that he had used the report to refresh his
memory “about everything” he had testified to at the hearing. He admitted that he did not
recall “a lot of details” about the stop.
Officer Loy reiterated that Defendant was stopped “for going thirty-eight in a thirty.”
He added that he did not write a speeding ticket because he normally did not do so when he
made an arrest for DUI. When asked if Defendant’s speed of 38 m.p.h. was detected by
radar, he responded, “I don’t recall if it was radar or if I paced her.” He could not recall
whether he was moving his patrol car in the same direction as Defendant’s vehicle or in the
opposite direction of Defendant’s vehicle when he first saw Defendant at Twelfth Avenue
and Broadway. Officer Loy ultimately stopped Defendant approximately nine blocks away
at Third Avenue and Broadway.
At the suppression hearing in Criminal Court, Officer Loy testified on direct
examination by the State that he made contact with Defendant on February 19, 2009, when
he was on Broadway and he “observed a vehicle traveling eastbound on Broadway.
Broadway is a 30 mile an hour posted speed zone. I observed a vehicle traveling at 38 miles
an hour, and I believe that speed was confirmed with my radar that was in the car.” Officer
Loy admitted that at Defendant’s preliminary hearing in General Sessions Court, he did not
have a clear memory of how he determined the speed Defendant was driving. He explained
his better memory at the suppression hearing by testifying that
[b]ecause after I realized what the issues were coming about, I sat down and
I thought about it, I just basically gave it a lot of serious thought and
determined that it was the moving radar in my vehicle that I would have
probably used to be able to determine the speed of the vehicle.
He testified that he stopped Defendant based solely upon the excessive speed she was
driving, that he would never just guess that a vehicle was moving 38 m.p.h., and that
whatever he used to confirm a suspicion that a vehicle was moving at an excessive speed (i.e.
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to determine the precise speed) would be a method approved by the Metro Police
Department. When Defendant submitted to a breath test, the result came back that her blood
alcohol content was 0.186.
Pertinent to the issue in this appeal, Officer Loy testified on cross-examination in
Criminal Court that he used his incident report to prepare for his testimony. He had not
reviewed his preliminary hearing testimony prior to the suppression hearing, and could not
remember testifying in the preliminary hearing that he was unable to recall whether he used
a radar or paced Defendant’s vehicle to determine the speed she was driving. The following
transpired during Officer Loy’s cross-examination by Defendant’s counsel at the suppression
hearing:
Q. Okay. And just a few minutes ago when you said that you thought
hard about it, the words you used I believe was that you probably
used radar, correct?
A. It would have been either radar or would have been paced, but I
believe it was radar.
Q. But you don’t remember?
A. I don’t remember a hundred percent, that’s correct.
Q. And our report does not reflect whether you used the radar or
whether you paced her, correct?
A. That’s correct.
Q. All right. So, there is no independent memory on your part as to
why you stopped the car - as to what means you used to determine
the probable cause to stop the car.
A. If it was either radar or pacing?
Q. Right, you don’t know which one you used?
A. I don’t think it was pacing, I believe it was radar, but I can’t say 100
percent for sure, but I believe it was radar.
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Q. Okay. And nothing in your report helps refresh your memory as to
which one it was, right?
A. That’s correct, I didn’t - I didn’t list that part in my report.
The officer’s testimony at the suppression hearing concluded with the following
exchange during cross-examination:
Q. But not to beat a dead horse, but you can’t tell this Judge with any
certainty what you based your stop on, how you determined the
speed that you believed was probable cause, correct, whether it was
pacing or radar, you can’t tell us?
A. To say 100 percent without a doubt, no, but I can say I’m almost
definite it was using the radar.
Q. You’re almost definite, is that – that’s your testimony?
A. Correct, I’m almost definite it’s radar, but I can’t remember 100
percent for sure.
In its order denying Defendant’s motion to suppress, the trial court stated the
following,
Officer [Loy] has acknowledged that he lacks independent
knowledge of many of the events because his memory has failed him. He
stated that in preparation of the preliminary hearing and the present
evidentiary hearing, he reviewed his report to refresh his memory. Officer
[Loy] has stated that he is not absolutely certain that on the night in
question, he used the radar detector to objectively confirm that [Defendant]
was speeding. However, he is not merely speculating to the events. Officer
[Loy] stated that when he suspects a vehicle of speeding, he confirms his
suspicions by the use of radar, pacing or some other objective manner.
Officer [Loy] is confident that he used the radar detector to confirm his
suspicion that [Defendant] was speeding. Therefore, the Court is satisfied
that probable cause was established before Officer [Loy] effectuated the
traffic stop. [Defendant’s] motion to suppress all evidence, in particular
Officer [Loy]’s testimony, is respectfully denied.
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Analysis
We first note two matters pertaining to Defendant’s statement(s) of the issue on
appeal. First, in her brief, she presents the issue somewhat differently than how the issue is
described in the order incorporated by the judgment pursuant to Tennessee Rule of Criminal
Procedure 37(b). In her brief, the issue is stated as being:
Did the trial court err in failing to grant the Appellant’s motion to suppress
evidence seized as a result of the stop of Appellant’s vehicle, when the
record is devoid of competent evidence to establish the requisite reasonable
suspicion for the stop?
As noted above, the certified question of law reserved for appeal in this case is as
follows:
Whether law enforcement’s stop of [Defendant’s] vehicle was unlawful in
violation of the 4th Amendment to the United States Constitution and Article
I, Section Seven of the Tennessee Constitution, as the State was unable to
establish by clear and convincing evidence that there was a valid basis for
the stop, thus requiring suppression of the evidence discovered pursuant to
the unconstitutional stop and subsequent seizure of [Defendant].
We have no option other than to strictly limit our review to the precise issue certified
as the question of law reserved for the appeal. State v. Day, 263 S.W.3d 891, 900 (Tenn.
2008) (“As we have stated repeatedly, no issue beyond the scope of the certified question will
be considered.”); State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988); Tenn. R. Crim. P.
37(b)(2)(A)(ii)(“the question of law as stated in the judgment or order reserving the certified
question identified clearly the scope and limits of the legal issue reserved”).
We deem it appropriate to quote from a portion of a footnote in our Supreme Court’s
opinion in Day:
When crafting a certified question, both the defendant and the State would
be prudent to review [Tennessee Rule of Criminal Procedure 37(b)(2)(A)],
craft the certified question to [ensure] that it meets each of the requirements
delineated in subsection (b)(2)(A)(i)-(iv) of the Rule, and analyze whether
the issue as stated in the judgment order is broad enough to meet the intent
of both parties. Although the burden is on the defendant/appellant to see
that these prerequisites are in the final order, Pendergrass, 937 S.W.2d at
837, the State/appellee would be prudent to review the certified question as
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well because, as it did in this case, a certified question too narrow in scope
may work to the State’s detriment.
Day, 263 S.W.3d at 900, n. 8.
With consideration of the limitations imposed by the above case law and Rule, we
now turn our review to the precise issue reserved by the parties in this appeal. Initially, we
observe that the certified question incorrectly presents the burden of proof placed upon the
State to justify the warrantless stop of a vehicle. The State is not required “to establish by
clear and convincing evidence that there was a valid basis for the stop.”
In State v. Paul Dotterweich, No. E2004-02839-CCA-R3-CD, 2005 WL 1919780(Tenn. Crim. App. Aug. 10, 2005), no perm. app. filed, the defendant was stopped while
driving a vehicle that was leaving an apartment complex parking lot. In that case, which was
also appealed as a certified question of law, the defendant asserted that his motion to
suppress evidence should have been granted because of an unlawful investigatory stop by the
police. In discussing the burden placed upon the State to justify such warrantless stops, this
Court stated,
Determining whether or not reasonable suspicion existed in a
particular stop “is a fact-intensive and objective analysis.” Garcia, 123
S.W.3d at 344. The likelihood of criminal activity required for reasonable
suspicion is clearly not as great as that required for probable cause, and is
“considerably less” than would be needed to satisfy a preponderance of the
evidence standard. United States v. Solow, 490 U.S. 1, 7 (1989); see also
State v. Keith, 978 S.W.2d 861, 866 (Tenn. 1998).
When evaluating whether a police officer’s reasonable suspicion is
supported by specific and articulable facts, a court “must consider the
totality of the circumstances.” State v. Hord, 106 S.W.3d 68, 71 (Tenn.
Crim. App. 2002). This inquiry looks to such factors as the public interest
served by the seizure, the nature and scope of the intrusion, and the
objective facts on which the law enforcement officer relied in light of
experience. See State v. Pulley, 863 S.W.2d 29, 30-31 (Tenn. 1993). The
objective facts on which an officer relies can include, but are not limited to,
his or her own observations, information obtained from other officers or
agencies, offenders’ patterns of operation, and-most crucial in this case-
information from informants. See State v. Lawson, 929 S.W.2d 406, 408
(Tenn. Crim. App. 1996).
Id., at *5.
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Under the tests set forth in Paul Dotterweich, the State in the case sub judice
established by a totality of the circumstances a reasonable suspicion of criminal activity by
Defendant -- Officer Loy steadfastly maintained throughout his testimony in both the
preliminary hearing and the suppression hearing that Defendant was speeding in violation
of the law, driving 38 m.p.h. in a 30 m.p.h. zone. Thus the issue actually reserved for appeal
results in our conclusion that Defendant is not entitled to relief.
This brings us to the precise issue Defendant desires to present on appeal. Defendant
has asserted in her motion in limine filed in the trial court, and in her brief on appeal, that
Officer Loy should not have been permitted to testify as to any observations he had of
Defendant’s vehicle prior to his stop of the vehicle, pursuant to the provisions of Tennessee
Rule of Evidence 602.
This precise issue is simply not included in any shape or form within the stated
certified question of law reserved for appeal. One cannot read the stated certified question
and even get a hint that an issue involving a specific rule of evidence even might be involved.
The issue Defendant wants to present is not included within the certified question of law, as
per our Supreme Court’s opinion in Day, and pursuant to Tennessee Rule of Criminal
Procedure 37(b)(2)(A)(ii).
In the event of further review in this case, we will address the issue Defendant
primarily argues on appeal. Basically, Defendant asserts that because Officer Loy did not
positively state by what method he determined the 38 m.p.h. speed of Defendant’s car, and
whether he was driving in the same direction or the opposite direction of Defendant when
he first observed her, then his testimony of all events leading up to the stop of Defendant’s
vehicle was inadmissible pursuant to Tennessee Rule of Evidence 602.
That rule provides as follows:
Rule 602. Lack of personal knowledge. – A witness may not testify to a
matter unless evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter. Evidence to prove personal
knowledge may, but need not, consist of the witness’s own testimony. This
rule is subject to the provisions of Rule 703 relating to opinion testimony
by expert witnesses.
Tenn. R. Evid. 602. (Emphasis added).
Officer Loy testified at the suppression hearing that he saw Defendant driving her
vehicle on Broadway Avenue at a speed of 38 m.p.h. He testified that he believed he
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obtained the precise speed by use of the radar in his patrol vehicle, but he was not “100
percent for sure.” He also testified that if it was not by radar, he determined the speed by
pacing Defendant’s vehicle with his patrol car. Officer Loy’s testimony clearly proved his
personal knowledge of the events leading up to the stop. Defendant equates a slight amount
of uncertainty in a witness’s memory with a lack of personal knowledge of a matter to which
the witness testifies. This is simply not the test, and Defendant’s reliance upon Tennessee
Rule of Evidence 602 is misplaced. Defendant is not entitled to relief in this appeal.
CONCLUSION
The judgment of the trial court is affirmed.
_________________________________
THOMAS T. WOODALL, JUDGE
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