State v. Paul E. Mathis

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MAY SESSION, 1997 November 16, 1998
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9605-CC-00223
)
Appellee, )
)
) FRANKLIN COUNTY
VS. )
) HON . THOM AS W. G RAHAM
PAUL E. MATHIS, ) JUDGE
)
Appe llant. ) (Direct Appeal - Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
PHILIP A. CONDRA JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
12th Judicial District
204 Betsy P ack Drive KAREN M. YACUZZO
Jasper, TN 37347 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
J. MICHAEL TAYLOR
District Attorney General
STEVEN M. BLOUNT
Assistant District Attorney
1 South Jefferson
Win cheste r, TN 37 398
OPINION FILED ________________________
CONVICTION FOR RESISTING ARREST AFFIRMED;
CONVICTION FOR PUBLIC INTOXICATION REVERSED AND REMANDED
JERRY L. SMITH, JUDGE
OPINION
Appellant Paul E. Mathis was convicted on July 20, 1995 by a jury in the
Fran klin County Circuit Court of one count of public intoxication and one count
of resisting arrest. On September 12, 1995, the trial court conducted a
sentencing hearing. Respecting the public intoxication conviction, Appellant
received a suspended sentence of thirty d ays incar ceration in the Fran klin Cou nty
jail, thirty days probation to begin immediately, and a $25.00 fine and costs. For
the resistin g arres t convic tion, the trial court imposed a concurrent sentence of
six months incarceration in the cou nty jail, all of which was suspe nded save forty-
eight hours incarc eration . On th is direct appeal, Appellant presents three issues
for our consideration: (1) whether the trial court erred by failing to impanel the
jury in compliance with Rule 24, T ENN. R. C RIM. P.; (2) whether the trial court
impro perly responded to questions submitted by the jury during its deliberations;
and (3) whether the evidence was insufficient to sustain Appellant's conviction for
resisting a rrest.
After a review of the record , we affirm the judgm ent of the trial court as to
the conviction for resisting arrest. However, we must reverse the conviction for
public intoxica tion an d rem and th at cas e for a n ew trial.
I. FACTUAL BACKGROUND
The proof shows that on August 19, 1994, Appellant consumed alcohol
throughout the day and, the refore, did not wan t to drive. Appe llant telephoned
Mr. David Smith, his brother-in-law, and asked Smith to drive Appellant to a
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friend's house . Appellant rode in the front passenger seat while his brother-in-law
drove the au tomo bile. Mr . Jaso n Stee le 1 sat in the b ack sea t.
Shortly before 11:00 P.M. on Augus t 19, a dispatcher for the Winchester
Police Department issued a bulletin alerting officers to watch for a vehicle whose
description and licen se plate number matched those of the automobile in which
Appellant was a passenger. The dispatcher informed officers th at the ve hicle
was being o perated erratically.
Officer Michael Doty of the Winchester Police Department testified that he
received the dispatch while patrolling Highway 130 and North High Street. Officer
Doty first encountered the white Mustang on North High Street. He followed and
observed the car for approximately six to eight blocks. During this time, the
autom obile moved from its lane five times--three times to the inside lane and
twice to the outside lane. After stopping the vehicle, Officer Doty approached the
driver's side of the car and, upon smelling alcohol, asked the driver to step from
the automobile and to produce his driving license. Officer Doty then called for
backup, and Officers Greg Branch and John Stewart soon arrived at the scene.
Officer Doty was invo lved pr imarily w ith the d river of th e auto mob ile and dealt
only briefly with Ap pellant. Officer Doty testified, how ever, that Appellant smelled
strong ly of alcohol. Appellant sat quietly in the c ar and w atched as Office r Doty
tested Mr. Smith to determine whether or not Smith was intoxicated.
Appellant was still sitting in the front passenger seat of the vehicle when
Officers Branch and Stewart arrived. Officer Branch approached the passenger
side of the vehicle and asked Appellant to produce his license. Though Appellant
reached into his pocket, he did not remove anything. Because the darkness
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Mr. David Smith, the driver of the vehicle, and Mr. Jason Steele, the back seat passenger, both we re
Appellant's co-defendants, and all three cases were joined for trial. However, the jury acquitted both Mr.
Smith and Mr. Steele of the charged offenses.
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prevented Officer Branch from s eeing clearly inside the vehicle, he could not see
the item Appellant attempted to retrieve from his pocket. Branch stated that he
asked Appellant to step from the car because he detected a strong odor of
alcoh ol. Officer Branch testified that upon being asked to step out of the
automobile, Appellant asked the reason for the officer's request. Officer Branch
informed Appellant that he needed to check Appellant both for the safety of the
officers as well as for Appellant's own safety. Appellant refused this first request
and said, "I'm not getting out of the car." Officer Branch the n made two more
reques ts that App ellant get o ut of the ca r, and Ap pellant ag ain declin ed to
comply. Officer Stewart approached the vehicle and observed Officer Branch
make the third request of Appellant. Appellant again declined to exit the
autom obile after being aske d for a fourth time to do so. Officer Branch testified
that Officer Stewart attempted to open the door, and Branch reached into the
vehicle to grab Appellant. When he did so, Appellant pulled the door closed,
causing Branch to pu ll his arm from the car to prevent his fingers from being
caugh t. Officer Stewart again pulled open the door, and Branch sprayed
Appe llant in the face with pepper spray. Officer Branch stated that Appellant
became more combative after being sprayed. Stewa rt grab bed A ppella nt by his
hair, pulled him from the vehicle, and p ulled him to the ground. While Branch
held Appellant on the ground by placin g his knee between Appellant's shoulder
blades, Officers Doty and Bra nch ha ndcuffe d Appe llant. 2 Appella nt continu ed to
fight with the three police officers until the officers plac ed him into the patrol car.
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Officer Stewart testified that Officer Branch's fourth and final request to Appellant consisted of
infor min g Ap pellan t that if he did not vo lunta rily step out o f the v ehic le, Bra nch and S tewa rt wou ld pull h im
out of the car. According to Officer Stewart, Appellant replied, "Go for it, big boy." Neither Officer Doty nor
Officer Branch could rec all Appellant m aking s uch a s tatem ent.
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II. SUFFICIENCY OF THE EVIDENCE
Appellant challenges the sufficiency of the evidence to s ustain his
conviction for resisting arrest. Th is conten tion has n o merit.
This Court is obliged to re view challenges to the sufficiency of the
convicting evidence according to certain well-settled principles. A verdict o f guilty
by the jury, appro ved by the trial ju dge, a ccred its the te stimo ny of the State's
witnesses and res olves all co nflicts in the tes timony in favor of the State. State
v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris , 839 S.W.2d 54, 75
(Tenn. 1992). Although an accused is originally cloaked with a presumption of
innocence, a jury verdict removes this presumption and replaces it with one of
guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the
burden of proof re sts with Ap pellant to d emon strate the in sufficiency of the
convicting evidenc e. Id. On ap peal, "the [S ]tate is entitled to the strongest
legitimate view of the evidence as well as all rea sonab le and leg itimate
inferences that ma y be draw n therefro m." Id. (citing State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978)). W here th e suffic iency o f the evid ence is
contested on appea l, the relevant question for the reviewing cou rt is whether any
rational trier of fact could have found the accused guilty of every element of the
offense beyond a reasonable doubt. Harris, 839 S.W .2d 54, 75 ; Jackson v.
Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L. Ed. 2d 560 (19 79). In
conducting our evaluation of the convicting evidence, this Co urt is precluded from
reweighing or recons idering the evidenc e. State v. Morgan, 929 S.W.2d 380, 383
(Tenn. Crim. A pp. 199 6); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, this Court may not substitute its own inferences "for those
drawn by the trier of fact from circumstantial evidenc e." Matthews, 805 S.W.2d
776, 77 9. Finally, T ENN. R. A PP. P. 13(e) provides, "Findin gs of g uilt in criminal
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actions whether by the trial court or jury shall be se t aside if the evid ence is
insufficient to support the findings by the trier of fact of guilt beyond a reaso nable
doubt." See also Matthews, 805 S.W.2d 776, 780.
Tenn . Code Ann. § 3 9-16-60 2 provide s in part:
(a) It is an offense for a person to intentionally prevent or
obstruct anyone known to the pers on to be a law enforcement
officer. . . from effecting a stop, frisk, halt, arrest, or search of
any person, including the defendant, by using force against
the law enforce ment officer or an other.
(b) . . . [I]t is no defense to prosecution under this section that
the sto p, frisk, h alt, arre st or se arch w as un lawful.
Tenn. C ode Ann . §§ 39-16-60 2(a) and 39 -16-602(b).
Tenn. Code Ann. § 39-11-106(a)(12) states: "`Force' means compulsion by the
use of phys ical po wer or violenc e and shall be broad ly construe d to accomplish
the purposes of this title." The State bears the burden of proving every element
of the offen se beyo nd a rea sonab le doub t.
As this Court noted in State v. James Bradley, Tenn. Code Ann. § 39-16-
602(b) reflects a policy decision by our legislature that "the illegality of an arrest
alone will not justify an assault against officers attempting the arrest." C.C.A. No.
03C01-9408-CR-00298, slip op. 1, 5, Monroe Coun ty, (Tenn . Crim. A pp.,
Knoxville, Februa ry 13), cert denied, (Tenn. 1996). In Bradley, we held that the
illegality of the police conduct is irrelevant to determining whether or not the
accused was justified in refusing to c omp ly with a la w enfo rcem ent offic er's
comm ands o r reques ts. Id.
First, Officer Branch asked Appellant to exit his vehicle. Officer Branch
deemed this necessary in order to check Appellant both for his ow n safe ty as we ll
as that of the officers. Moreover, Officer Branch noted Appellant's slurred speech
and a strong odor of alcohol about him. Officer Branch also testified that
Appellant was combative. Second, Appellant used force against Officers Branch,
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Stewa rt, and Doty. Specifically, Appellant refused to step out of th e auto mob ile
and pulled the door closed when Officer Stewart opened it. After Officer Branch
sprayed Appella nt with the s tun solutio n, Appe llant continued to struggle, kick,
and fight. The fo regoing amply d emon strates tha t Appella nt used force to
obstruct the officers from effe ctuating h is arrest. See State v . Ron ald David Lee,
No. 03-C-0 1-9410 -CR-0 0393, s lip op. 1, 7, Cocke C ounty, (T enn. C rim. App .,
Knoxville, July 6, 1995) (holding that the evidence was sufficient to sustain the
Appe llant's conviction for resisting arrest where the Appellant wrestled with the
arresting officer to preven t that officer from hand cuffing him).
The jury was entitled to accredit the testimony of the prosecution
witnesses, and it apparently did so. We decline to disturb th at verd ict on th is
appe al.
III. IMPANELING THE JURY
Appellant next complains that the trial court erre d in failing to co mply with
T ENN. R. C RIM. P. 24(c) when im paneling the jury. Ap pellant's failu re to
conte mpo raneo usly object to the court's procedure for impaneling the jury has
waived this issue on appeal. T ENN. R. A PP. P. 36(a). See als o State v. S mith,
857 S.W.2d 1, 20 (Tenn. 1993) (holding that by not contesting the trial cou rt's jury
selection procedure until after the case was submitted to the jury, rather than
contemp oraneous ly objecting, the accu sed waived th at issue on ap peal). 3
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It does appear that the trial court deviated from the procedure outlined in then existing TE N N . R. C RIM .
P. 24(c) for impaneling jurors. In 1997 Rule 24(e) wa s amend ed and would now allow the proced ure
employed by the trial judge.
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IV. TRIAL COURT'S RESPONSES TO QUESTIONS POSED BY JURY
DURING DELIBERATIONS
Appellant next asserts that the trial court erroneously responded to
questions posed by the jury during its deliberations. We disagree.
During its deliberations, the jury posed both written and oral que stions to
the court. One of the written questions aske d for a d efinition of the te rm "pu blic
place."
A. DEFINITION OF "PUBLIC PLACE"
Appellant argues that the trial court erred in defining the term "public place"
because the court opted to inform the jury about this Court's opinion in State v.
Lawson, 776 S.W.2d 139 (Tenn. Crim. App. 1989) rather than to read the
definition contained in Tenn. Code Ann. 106(a)(29)4 as requested by defense
coun sel. Spec ifically, Appellant asserts that the court erred by not reading the
final sentence o f Tenn. Co de Ann. § 3 9-11-106(a )(29).
Outside the jury's presen ce, the court in forme d cou nsel th at it wou ld
respond to the jury's question by discussing our holding in Lawson. The court
refused defense counsel's request to read to the jury Tenn. Code Ann. § 39-11-
106(a)(29). Because of its opinion that "The only issue for this jury is whether
or not people in the autom obile w ere in a public place," the court believed that
the statutory definition would only confuse the jury. Thus, the court informed the
4
Tenn. Code Ann. 39-11-106(a)(29) provides:
"Public place" means a place to which the public or a group of persons has
access and includes, but is not limited to, highways, transportation facilities,
schools, places of amusement, parks, places of business, playgrounds and
hallways, lobbies and other portions of apartment houses and hotels not
con stitutin g roo ms or ap artm ents desig ned for ac tual re side nce . An a ct is
deemed to occur in a public place if it produces its offensive or proscribed
consequences in a public place.
Id.
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jury that "persons in a priva te vehic le are in a pub lic place if they're on a p ublic
road. . . ." 5
The law governing jury charges is equally applicable to respo nses to
questions subm itted by the ju ry during d eliberation s. The tria l court is oblig ed to
give jury instr uction s that fa irly and a ccura tely set fo rth the a pplica ble law as it
applies to the facts of a particular case. State v. Stodda rd, 909 S.W.2d 454, 460
(Tenn. Crim. A pp. 1994). Moreover, the court may decline a special request
where the court's jury instruction provides a complete statement of the law. Id.
(citing State v. Middlebrooks, 840 S.W.2d 317, 335 (Tenn. 1992). In State v.
Cassan dra Mathis, Mattie Lue Drake and Amanda Drake , this Co urt held that it
is perm issible for trial courts to employ appellate opinion s when form ulating jury
charges. C.C.A . No. 87-11-III, slip. op. 1, 7, Williamson County (Tenn. Crim.
App., Nashville, March 18, 1988). The statutory definition of "public place" is not
mark edly different from this Court's explication of that term in the Lawson
decision. W e find that the trial c ourt did not err in explain ing to th e jury this
Court's holding in the Lawson decision.
B. IMPROPER COMMENT ON THE EVIDENCE
In addition to the written submission, the following co lloquy took place
between the court and a co ncerned juro r:
JUROR: My other question concerns having a designated
driver. If one is under the influence and he ask [sic] someone
5
This is an accurate paraphrase of our holding in Lawson, 776 S.W.2d 139:
A "public p lace" is a pla ce to wh ich the ge neral pub lic has a righ t of acce ss. A
location to which such a right of access exists does not lose its character as a
"public place " sim ply beca use o thers a re not p resen t to obs erve th e defe ndan t's
drunken condition. Moreover, we conclude, as have courts in other jurisdictions
that the Appellant's presence inside a vehicle on a public road does not alter the
"public" character of that road or convert the Appellant's condition into one of
private rather than public intoxication.
Id. at 140-41.
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to drive, because they feel they're not able to. And we hear
so much about this in the media and so if you have a
desig nated driver and let's just say I'm sitting somewhere in
the car an d you k now, h alf out o f this world, so I've got
someone driving for me.
THE COU RT: A nd the y mes s up a nd you end u p in a pub lic
place in an intoxicated stage [sic], you may run the risk there.
JUROR: So am I harming other people and properties? How
am I going to get hom e from the bar? If I get in the car and
drive down the road I really am in trouble.
The court responded:
This is something for you to dec ide as to whe ther or not this
individual was truly in danger of harming himself or others.
The Tennessee Supreme Court says if the explanation has
been raised tha t a person might walk down the road and get
hit by a car if the y were left in this situation. They've said that
that does comply with a requirement, at least, a minimum
requirement that wo uld support a jury's finding that the person
was poss ibly in danger of harming hims elf or oth ers, bu t this
is one of. . . those com mon se nse things tha t you all are
going to h ave to ap ply to the fac ts in this cas e. . . .
Defense counsel lodged an objection to the court's discussion of the Tennessee
Supre me C ourt case .
Tenn . Code Ann. § 3 9-17-31 0 provide s in part:
(a) A person commits the offense of public intoxication who
appears in a public place under the influence of a controlled
substance 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 unreason ably annoys p eople in the vicinity.
Tenn. C ode Ann . § 39-17-310 (a).
Appellant complains that the court's final response constituted improper
comment on the evidence. We agree.
Article 6, § 9 of the Tennessee Constitution prohibits trial judges from
commenting on the evidence of the case. That section provides, "The Judges
shall not charge juries with respect to matters of fact, but state the testimony and
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declare the law." T enn. C onst. art. 6, § 9. In State v. Suttles, the Tennessee
Supreme Court cautioned, "In all cases the trial judge must be very careful not
to give the jury any impression as to his feelings or to make any statement which
might reflect upon the weight or credibility of evidence or which might sway the
jury." 767 S.W .2d 403 , 406-07 (Tenn. 1989). Our supreme court has also
admonished, "The trial judge should always be extremely careful not to express
or intimate any opinion on any fa ct to be pa ssed u pon by th e jury." Graham v.
McReynolds, 18 S.W . 272, 275 (T enn. 1891 ).
In this case the efficacy of the public intoxication charge turned on whether
Appellant pose d a da nger to hims elf or oth ers. W hile the trial court c orrect ly told
the jury during the colloquy that they must decide whether the defendant was a
danger to himself or others, the judge went further and offered an example of
such a situation , a fact hypo thetical very s imilar to the instant case as permitting
a finding tha t the defen dant wa s a dan ger to him self. this is in im perm issible
comment on the evidence that we cannot say is harmless under the
circumstances of this case.
The judgment of the trial court finding Appellant guilty of public intoxication
is rever sed a nd rem ande d for a n ew trial.
____________________________________
JERRY L. SMITH, JUDGE
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CONCUR:
___________________________________
PAUL G. SUMMERS, JUDGE
___________________________________
DAVID G. HAYES, JUDGE
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