State of Tennessee v. Steve Leslie Smith

02/10/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
November 10, 2021 Session
STATE OF TENNESSEE v. STEVE LESLIE SMITH
Appeal from the Circuit Court for Williamson County
No. B-CR190079 Michael W. Binkley, Judge
___________________________________
No. M2020-01263-CCA-R3-CD
___________________________________
A Williamson County jury convicted the Defendant, Steve Leslie Smith, of public
intoxication. The trial court imposed a thirty-day sentence in the county workhouse to be
suspended to supervised probation after five days of service. On appeal, the Defendant
argues that the evidence is insufficient to support his conviction, that the trial court erred
when it admitted evidence about a substance abuse and psychiatric facility near where the
Defendant was arrested, and that the trial court committed plain error when it rejected his
challenge for cause of three prospective jurors. After a thorough review of the record and
applicable law, we affirm the trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR. and J. ROSS DYER, JJ., joined.
Williams L. Pomeroy, Brentwood, Tennessee and Michael Durakiewicz, Franklin,
Tennessee (at trial); Greg Burlison, District Public Defender; and Brennan M. Wingerter,
Assistant Public Defender – Appellate Director, Franklin, Tennessee (on appeal), for the
appellant, Steve Leslie Smith.
Herbert H. Slatery III, Attorney General and Reporter; T. Austin Watkins, Assistant
Attorney General; Kim R. Helper, District Attorney General; and Marabeth G. Kennedy
and M. James Pulido, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
I. Facts
This case arises from the Defendant’s being intoxicated in a wooded area adjacent
to Murfreesboro Road in Franklin, Tennessee. The Defendant was shirtless and smelled
strongly of alcohol. He exhibited slurred speech and bloodshot eyes and was uncooperative
with law enforcement who responded to the scene. For this event, a Williamson County
grand jury indicted the Defendant for public intoxication.
A. Voir Dire
As relevant to the Defendant’s issue on appeal, we summarize a portion of the voir
dire phase of his trial. We note that the trial court asked the jury venire whether they could
be fair to both sides and use good judgment; none of the potential jurors responded
negatively. The trial court questioned the jury venire about any reason that they could not
be fair to both sides, given the nature of the public intoxication charge. Venireman Koonce
(hereinafter “Juror #1”) asked for an aside and told the trial court that he had a number of
family members who were alcoholics, giving him “strong” and “conflicted” feelings on the
subject of alcoholism. The parties questioned Juror #1 about his feelings, and the State
asked whether his views would prevent him from convicting someone of public
intoxication if the State had proven the elements of the crime. Juror #1 responded that his
views would not prevent him from doing so. The Defendant asked whether Juror #1’s
experiences with alcoholics would cause him to have a negative opinion about alcoholics,
and Juror #1 said that those experiences would not engender a negative opinion.
The trial court again posed the question to the venire about their ability to serve in
a manner fair to both sides and whether anyone had a bias that would prevent them from
serving impartially. None of the jurors responded. Later during voir dire, the Defendant
asked the venire if anyone believed alcohol consumption to be a sin. Venireman Patterson
(hereinafter “Juror #2) identified herself, as did Venireman Outland (“Juror #3). Juror #3
identified herself as a “teetotaler” who did not drink, prior to her husband’s death, because
of religious reasons. She stated that, since his death, she would consume minimal alcohol
but had been “against alcohol” the majority of her life. Juror #2 identified herself as a
“teetotaler” as well. When asked if anyone identified as having a strict religious
upbringing, Juror #3 raised her hand.
Following voir dire, the Defendant challenged Jurors #1, #2, and #3 for cause,
arguing that Jurors #2 and #3 identifying themselves as “teetotalers” would “impair their
judgment” against the Defendant’s case. The Defendant conceded that he had not asked
any follow-up questions of those two jurors about whether they would hold against the
Defendant their views on alcoholism. The Defendant requested that all three jurors be
excused for cause. The trial court denied the request, stating that there were insufficient
reasons to excuse them based on their responses to questions during voir dire. The trial
court noted that the parties had a full opportunity to engage the jurors on their views, and
that none of the jurors had affirmatively stated that they could not serve as impartial jurors.
The trial court also declined to reopen the voir dire to allow for more questions. The
Defendant used all his remaining preemptory strikes on Jurors #1 and #2, and Juror #3 was
empaneled.
-2-
B. Trial
At the Defendant’s trial, the parties presented the following evidence: Officer Marc
Swain testified that he was employed by the Franklin Police Department. He testified that
on September 19, 2018, he responded to a call about an individual who was near Rolling
Hills Hospital. The Defendant objected to this reference to the hospital, stating that it was
hearsay. The trial court overruled the objection on the grounds that it was not hearsay
because it was not being offered for the truth of the matter asserted. A side bar was held
during which the Defendant argued that Officer Swain did not have firsthand knowledge
of the Defendant’s proximity to Rolling Hills Hospital, and the State responded that the
Defendant’s location was not being offered for the truth of the matter asserted but to
establish why the officer responded to the scene. The trial court responded that the
evidence was relevant to the officer’s investigation and was not hearsay. The Defendant
then objected to use of the name of the hospital because of its association with psychiatric
patients and addiction treatment, which he argued would in turn cause the jury to think the
Defendant had been near the hospital and, therefore, under the influence of an intoxicant.
The trial court agreed that the mention of the hospital’s name raised an issue of prejudice
but stated that the probative value of the evidence outweighed any risk that the jury would
imply something detrimental to the Defendant from that information. The trial court noted
that the preliminary line of questioning was important and that any detrimental effect could
be cured on cross-examination.
In the presence of the jury, Officer Swain described the area around the hospital as
wooded, and he said he found the Defendant walking away from a residence on Clovercroft
Road and entering the “patch” of woods. Officer Swain followed the Defendant through
the woods to the other side of the wooded area and requested that the Defendant stop. The
Defendant did not comply at which point Officer Swain began jogging to catch up to the
Defendant. Another responding officer issued a command for the Defendant to stop, and
he did not comply. Officer Swain said that the Defendant was shirtless and that his pants
were wet. Officer Swain noticed that the Defendant’s eyes were bloodshot and glossy and
that his speech was slurred. Officer Swain took the Defendant into custody at which time
he smelled a strong odor of alcohol coming from the Defendant. He recalled that the
Defendant was next to a busy road where this occurred.
Officer Swain testified that the Defendant was eventually charged with public
intoxication on account of care for the Defendant’s safety and his behavior being a public
annoyance. Officer Swain testified that officers had to stop the Defendant from wandering
into the busy road and that, had he not been detained, the Defendant could have harmed
himself or someone else. Footage from Officer Swain’s body camera was played for the
jury, and it showed Officer Swain following the Defendant and asking to speak with him.
The video showed two other officers and the adjacent roadway with vehicle traffic. The
video depicts the officers stopping the Defendant from walking into the road and
-3-
handcuffing him. Body camera footage from an assisting officer shows the Defendant
being placed in an ambulance. The Defendant generally is compliant, but he curses
repeatedly at the medical technicians and complains of being thirsty. He tells the medical
personnel that he is thirsty enough to “drink [his] piss” and licks the sweat on this body to
quench his thirst.
On cross-examination, Officer Swain testified that the occupants of a private
residence, located near where the Defendant was found, called the police to report him,
allegedly because the Defendant was “knocking on people’s doors.”
Officer Robert Gibson testified that he was employed by the Franklin Police
Department and that he responded to a call “at Rolling Hills Hospital.” The Defendant
renewed his earlier objection to the mention of the hospital as being hearsay; the trial court
overruled the objection on the grounds that it was not being offered for the truth of the
mattered asserted. Officer Gibson described the area around the hospital as “fields
generally” with an area behind the hospital that was surrounded by a wooden fence
adjoining a gated residential community. Officer Gibson recalled responding to the scene
and being met by hospital staff who indicated a hole in the wooden fence. Officer Gibson
and his colleagues left the hospital to circulate the area and look for the Defendant, whom
Officer Gibson identified in the courtroom. Officer Gibson did not personally apprehend
the Defendant but came into contact with him as he was being placed into an ambulance.
He described the Defendant as disheveled and shirtless, with wet pants, bloodshot eyes,
slurred speech, and said he was acting “irritable.” He testified that the Defendant was
argumentative and uncooperative and used foul language towards the officers. Officer
Gibson testified that officers found the Defendant near the intersection of Murfreesboro
Road and Clovercroft Road, near a church; he described the intersection as busy with heavy
traffic on the roads.
Officer Gibson testified that charging an individual with public intoxication is
typical when an individual is too intoxicated to care for their own safety. He stated that
this was a concern in the Defendant’s case based on his level of intoxication and proximity
to the busy highway. Officers did not believe they could leave the Defendant unattended,
mainly because of the risk of him being hit by a car, and because of concern for the passing
motorists’ safety. Officer Gibson stated that the Defendant had damaged the fence at the
hospital earlier that night.
Following his detention, the Defendant was transported to the hospital and, after
being cleared of medical issues, was taken to the Williamson County Jail. Officer Gibson
described the Defendant as becoming more cooperative as time passed, which he attested
to the Defendant “sobering up.” Officer Gibson explained that the Defendant ultimately
was charged with public intoxication because he was unable to care for his own safety,
“given his level of intoxication and being around a busy roadway and other residences.”
-4-
On cross-examination, Officer Gibson agreed that he did not come into contact with
the Defendant until he had been apprehended and did not see the Defendant make a hole
in the hospital’s fence.
Based upon this evidence, the jury convicted the Defendant of public intoxication.
The trial court imposed a sentence of thirty days of incarceration suspended to supervised
probation after five days of service.
II. Analysis
On appeal, the Defendant contends that the evidence was insufficient to support his
conviction for public intoxication. He further contends that the trial court erred when it
admitted testimony about the Rolling Hills Hospital, which he contends was irrelevant,
more prejudicial than probative, and inadmissible hearsay. Finally, the Defendant contends
that the trial court erred when it overruled his challenges to certain jurors and denied his
request to reopen voir dire, and that he is entitled to plain error relief on this issue. The
State responds that the evidence was sufficient to support the Defendant’s public
intoxication conviction. The State further responds that the trial court properly exercised
its discretion when it allowed testimony about the hospital which was relevant and not
hearsay. Finally, the State contends that the Defendant failed to establish plain error
regarding his voir dire issue.
A. Public Intoxication Conviction
The Defendant specifically contends that the evidence is insufficient to support this
conviction because the State did not present proof of any of the three modes of liability –
danger to himself, others, or property, or unreasonable annoyance. The Defendant
contends that there was too much speculative testimony about whether he was a danger to
himself or others to support a guilty verdict. He contends that there was insufficient
evidence of his intoxication rising to the level of putting himself or others in danger. He
also contends that there was no evidence of him being an annoyance. The State responds
that, viewing the evidence in the light most favorable to the State, a rational juror could
have concluded that the Defendant was so intoxicated that he posed a danger to himself,
others, or property. The State concedes that there was not sufficient evidence of him being
an unreasonable annoyance but states that such a showing was not required to sustain his
conviction as the State proved that he was a danger to himself and others. We agree with
the State.
When an accused challenges the sufficiency of the evidence, this court’s standard
of review is whether, after considering the evidence in the light most favorable to the State,
“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 (1979); see Tenn. R. App. P.
13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d
-5-
247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon direct
evidence, circumstantial evidence, or a combination of both direct and circumstantial
evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999) (citing
State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the absence of direct
evidence, a criminal offense may be established exclusively by circumstantial evidence.
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury decides the weight to be
given to circumstantial evidence, and ‘[t]he inferences to be drawn from such evidence,
and the extent to which the circumstances are consistent with guilt and inconsistent with
innocence, are questions primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn.
2006) (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of
review [for sufficiency of the evidence] ‘is the same whether the conviction is based upon
direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).
In determining the sufficiency of the evidence, this court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v. State, 286
S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of witnesses, the
weight and value to be given the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997). “A guilty verdict by the jury, approved by the trial judge, accredits the testimony
of the witnesses for the State and resolves all conflicts in favor of the theory of the State.”
State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The Tennessee Supreme Court stated
the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the
jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus[,] the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be
given to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523,
527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest legitimate
view of the evidence’” contained in the record, as well as “‘all reasonable and legitimate
inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (quoting
State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a
defendant removes the presumption of innocence and raises a presumption of guilt, the
convicted criminal defendant bears the burden of showing that the evidence was legally
insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn.
2000) (citations omitted).
-6-
(a) A person commits the offense of public intoxication who appears in a
public place under the influence of a controlled substance, controlled
substance analogue or any other intoxicating substance to the degree that:
(1) The offender may be endangered;
(2) There is endangerment to other persons or property; or
(3) The offender unreasonably annoys people in the vicinity.
T.C.A. § 39-17-310 (2018).
The evidence presented, viewed in the light most favorable to the State, was that the
Defendant was found near residences and a busy intersection with impaired speech and
balance. His whereabouts were reported by a nearby resident with whom he had tried to
make contact at their home. In addition to being impaired, the Defendant smelled of
alcohol and had bloodshot eyes. He failed to respond to officers’ requests to stop and
became belligerent when they attempted to detain him. Body camera footage showed the
Defendant cursing at medical and law enforcement personnel and generally acting in a
belligerent and combative manner. The Defendant was detained next to a busy intersection
and body camera footage showed him attempting to step into the roadway as cars sped by.
This is sufficient evidence from which a jury could conclude that the Defendant was
intoxicated in a public place to the point of being a danger to himself or others. The
Defendant is not entitled to relief on this issue.
B. Rolling Hills Hospital Testimony
The Defendant contends that the trial court erred when it allowed several witnesses
to testify, over his objection, to the Defendant’s whereabouts near Rolling Hills Hospital.
He contends that mention of the hospital, a substance abuse and psychiatric facility, was
hearsay. The State responds that the trial court did not abuse its discretion when it
overruled the Defendant’s objections because the testimony was relevant and not hearsay.
We agree with the State.
The admissibility of evidence rests within the sound discretion of the trial court, and
this court does not interfere with the exercise of that discretion unless a clear abuse appears
on the face of the record. State v. Franklin, 308 S.W.3d 799, 809 (Tenn. 2010). The
Tennessee Rules of Evidence provide that all “relevant evidence is admissible,” unless
excluded by other evidentiary rules or applicable authority. Tenn. R. Evid. 402. Of course,
“[e]vidence which is not relevant is not admissible.” Id. Relevant evidence is defined as
evidence “having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the
evidence.” Tenn. R. Evid. 401. Even relevant evidence, however, “may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of
-7-
the issues, or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” Tenn. R. Evid. 403. Hearsay is a
statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted. Tenn. R. Evid. 801(c).
Hearsay is not admissible unless admission is authorized by the evidence rules or by other
controlling provisions of law. Id. at 802.
Officers Swain and Gibson both testified that they received calls or information that
the Defendant was wandering around a wooded area near Rolling Hills Hospital. The trial
court determined that this evidence was relevant, after properly considering whether it was
inadmissible hearsay and then considering the probative value of this description and
weighing it against any risk of prejudice to the Defendant. These narrative statements were
relevant to show how and under what circumstances the officers came into contact with the
Defendant, as well as the public place where they found him. Their testimony was not
being offered for the truth of the matter asserted and was not hearsay. There was no abuse
of discretion in admitting this evidence, and the Defendant is not entitled to relief.
C. Voir Dire
The Defendant lastly contends that the trial court erred when it denied the
Defendant’s motion to strike three jurors for cause, and when it declined to reopen voir
dire. The Defendant concedes that the issue was not raised at trial but asserts that he is
entitled to plain error relief. He argues that a clear and unequivocal rule of law was
breached because the jury was not impartial. The State responds that the Defendant is not
entitled to plain error relief. The State contends that because two of the jurors, #1 and #2,
did not serve, any error that the trial court committed does not entitle the Defendant to
relief. The State further contends that the one juror who served, Juror #3, did not make
any statements about her inability to be impartial and voiced no concern about whether she
could serve as a fair and impartial juror. The State further responds that the trial court
properly declined, within the broad discretion afforded to it, to reopen voir dire. The State
thusly argues that the Defendant has failed to carry his burden of showing that his right to
an impartial jury was adversely affected or violated and therefore is not entitled to plain
error relief. We agree with the State.
Full appellate review of this issue is waived because the Defendant failed to raise
the issue in his motion for new trial. See Tenn. R. App. P. 3(e) (treating issues “upon which
a new trial is sought” as waived “unless the same was specifically stated in a motion for a
new trial”); see also State v. Harbison, 539 S.W.3d 149, 164 (Tenn. 2018) (citations
omitted). Therefore, we review this issue solely to determine if plain error review is
warranted.
The doctrine of plain error applies when all five of the following factors have been
established:
-8-
(a) the record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached;
(c) a substantial right of the accused must have been adversely affected;
(d) the accused must not have waived the issue for tactical reasons; and
(e) consideration of the error must be “necessary to do substantial justice.”
State v. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006) (quoting State v. Terry, 118 S.W.3d
355, 360 (Tenn. 2003)) (internal brackets omitted). “An error would have to [be] especially
egregious in nature, striking at the very heart of the fairness of the judicial proceeding, to
rise to the level of plain error.” Id. at 231.
“The manner in which voir dire is conducted rests within the sound discretion of the
trial court.” See State v. Sexton, 368 S.W.3d 371, 390 (Tenn. 2012) (citing State v. Howell,
868 S.W.2d 238, 247 (Tenn.1993)). Rule 24(c)(1) of the Tennessee Rules of Criminal
Procedure states that “[a]fter examination of any juror, the judge shall excuse that juror
from the trial of the case if the court is of the opinion that there are grounds for challenge
for cause.” A prospective juror can also be challenged for cause if:
[t]he prospective juror’s exposure to potentially prejudicial information
makes the person unacceptable as a juror. The court shall consider both the
degree of exposure and the prospective juror’s testimony as to his or her state
of mind. A prospective juror who states that he or she will be unable to
overcome preconceptions is subject to challenge for cause no matter how
slight the exposure. If the prospective juror has seen or heard and remembers
information that will be developed in the course of trial, or that may be
inadmissible but is not so prejudicial as to create a substantial risk that his or
her judgment will be affected, the prospective juror’s acceptability depends
on whether the court believes the testimony as to impartiality. A prospective
juror who admits to having formed an opinion about the case is subject to
challenge for cause unless the examination shows unequivocally that the
prospective juror can be impartial.
Tenn. R. Crim. P. 24(c)(2)(B). The trial court must assess the level of potential prejudice
arising from the extrajudicial information, as well as the believability of the juror’s promise
to remain impartial. See State v. Shepherd, 862 S.W.2d 557, 569 (Tenn. Crim. App. 1992).
The trial court’s accreditation of the juror’s testimony is entitled to the weight of a jury
verdict. State v. Swanson, 680 S.W.2d 487, 489-90 (Tenn. Crim. App. 1984). A trial
court’s determination as to the impartiality of a prospective juror can be overturned only if
there has been an abuse of discretion. State v. Kilburn, 782 S.W.2d 199, 203 (Tenn. Crim.
App. 1989). “A trial court abuses its discretion when it applies incorrect legal standards,
reaches an illogical conclusion, bases its decision on a clearly erroneous assessment of the
evidence, or employs reasoning that causes an injustice to the complaining party.” State v.
-9-
Scott, 275 S.W.3d 395, 404-05 (Tenn. 2009). In order to prevail on a challenge of this
nature, the defendant must demonstrate not only that a juror should have been removed for
cause, but that he had exhausted all of his peremptory challenges. See Howell, 868 S.W.2d
at 248.
We agree with the State that the Defendant is not entitled to plain error relief because
he has not carried his burden of showing that there was a clear and unequivocal breach of
a rule of law. None of the jurors expressed any hesitation about their ability to serve as an
impartial juror or stated that he or she would be unable to overcome preconceptions about
the facts of the case. Juror #3 expressed certain views, past or present, about alcohol use
but never said that her views would affect her impartial participation on the jury.
Accordingly, the Defendant has not shown that his right to an impartial jury was violated.
Furthermore, as we noted, the trial court is entitled to broad discretion as to how to conduct
voir dire, and the Defendant has not shown that the decision not to reopen voir dire was an
abuse of discretion. As such, we conclude that he is not entitled to plain error relief on this
issue.
III. Conclusion
After a thorough review of the record and relevant authorities, we affirm the trial
court’s judgment.
____________________________________
ROBERT W. WEDEMEYER, JUDGE
- 10 -