Metropolitan Government of Nashville and Davidson County, Tennessee v. Abdiqani Gelle

02/25/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December 2, 2021 Session
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON
COUNTY, TENNESSEE v. ABDIQANI GELLE
Appeal from the Circuit Court for Davidson County
No. 20C445 Kelvin D. Jones, Judge
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No. M2020-01360-COA-R3-CV
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The defendant appeals the trial court’s judgment finding that he violated a reckless driving
city ordinance, Metropolitan Code of Law § 12.68.180, when he drove 65 miles per hour
in a 45-mile-per-hour zone. During trial, Metropolitan Government of Nashville &
Davidson County, Tennessee (“Metro”) presented evidence regarding the defendant’s
speed to support its allegation that the defendant was driving recklessly. Following proof
of the defendant’s excessive speed, the trial court found that the defendant had failed to
rebut the presumption created by ordinance that he was driving in such a way as to
demonstrate “a wilful and wanton disregard for the safety of persons or property.” The
defendant challenges the constitutionality of such ordinance, which provides a rebuttable
presumption that the defendant was driving recklessly when driving at least fifteen miles
per hour over the speed limit. However, the defendant’s issues concerning constitutionality
of the ordinance were not properly raised or decided by the trial court, and upon our
determination that the ordinance is not facially unconstitutional, we hold that the defendant
has waived his issues regarding the constitutionality of the ordinance. Upon our review of
the record, we affirm the trial court’s judgment that the defendant violated Metropolitan
Code of Law § 12.68.180.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which THOMAS R.
FRIERSON, II, J., joined, and JOHN W. MCCLARTY, J., filed a separate dissenting opinion.
Stanley F. LaDuke, Knoxville, Tennessee, for the appellant, Abdiqani Gelle.
Wallace Dietz, Director of Law, and Joshua Thomas, Assistant Metropolitan Attorney,
Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville & Davidson
County, Tennessee.
OPINION
Background
On December 28, 2019, at approximately 10:17 P.M., a police officer for the Metro
Nashville Police Department issued a traffic citation to Abdiqani Gelle (“Defendant”) for
Reckless Driving for violating Metropolitan Code of Law § 12.68.180. The citation
provides that Defendant was cited for driving 65 miles per hour in a 45-mile-per-hour zone.
The face of the citation indicates that Defendant refused to sign the citation.
This matter was heard initially by and appealed from the Metropolitan General
Sessions Court of Davidson County, Tennessee. The Davidson County Circuit Court (“the
Trial Court”) conducted a bench trial regarding the de novo appeal in August 2020. During
opening arguments, the following transpired:
DEFENDANT’S ATTORNEY: And the legal argument would be that the --
this type of a rebuttable presumption of shifting of the duty of proof in this
case would constitute conflict or assault of contradiction with the due
process. And the first argument that comes to mind in this case would be
well, this should be allowed because this is all a civil matter. I haven’t dealt
with rebuttal presumption much in my practice. Something like that exists
in summary judgment or presentation of proof attached to a complaint can be
rebutted -- can provide proof that those documents are accurate unless they’re
challenged.
So the main reason that this is not -- this crosses over the procedural line is a
substantive problem due process is because of the consequences. And even
though this is a civil matter, the -- it’s a traffic -- [Defendant has] been
charged by a government for driving reckless. And before the government
he now has to prove that he -- that he’s innocent or that he wasn’t driving
reckless. That’s the shifting of the burden in this case. If he loses, if there’s
a conviction, as a commercial driver the facts would show that he would
receive at least seven points on his driving license for this type of an act and
it will show up on his driving record as reckless driving. It doesn’t
distinguish between oh, this is just a city case. It’s reckless driving. It could
be construed as a violation of the TCA even by looking at the MVR [Motor
Vehicle Record]. So the consequences are severe enough I think, Your
Honor, to create a due process problem here. Even though it’s not criminal,
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it’s -- even a traffic case is considered -- the best definition is quasi-criminal.
And I think that exists in this case even though it’s just a civil statute with a
civil penalty. The consequences are the same as if he was charged with a
state -- if he’s found guilty of a state offense, except for the jail time and the
fine. So that’s the --
THE COURT: So the argument is it’s a due process issue here or what’s the
argument?
DEFENDANT’S ATTORNEY: Well, I don’t know if it would be due
process or unconstitutional, but it seems like the burden shifting has to do
with the process of the law. If [Defendant] has to convince this Court that
he’s innocent, that creates a problem with the procedure of law, it seems to
me, but it may be that it’s just not constitutional.
The Trial Court then heard testimony from two witnesses: (1) Officer Christopher
Augustin, a police officer with the Metro Nashville Police Department, and (2) Defendant.
Officer Augustin testified that the speed limit was 45 miles per hour where Defendant was
driving. Officer Augustin stated that in December 2019, he was at a stationary post on
Murfreesboro Pike near the airport, where he would back in at an angle that gave him a
clear and unobstructed view into a tunnel, allowing him to “do speed enforcement on
vehicles coming through that tunnel.” According to Officer Augustin, Defendant was
moving in the direction toward him from the tunnel and appeared to be driving above the
speed limit. Officer Augustin testified that he used a laser device, with which he had
received training, and pointed the device toward Defendant’s vehicle through his open
window. The laser device indicated a speed of 65 miles per hour when pointed at
Defendant’s vehicle. Officer Augustin identified the vehicle he stopped as a silver Toyota
Corolla and Defendant as the driver of the vehicle. Officer Augustin confirmed that he
was confident that the vehicle he pinpointed with the laser device was driven by Defendant.
On cross-examination, Officer Augustin testified that he did not recall the traffic pattern in
December 2019 when he issued the citation to Defendant or take any notes regarding the
traffic stop.
Defendant testified that he is a truck driver with a commercial driver’s license
(CDL), but he was not driving a commercial truck at the time of the offense. He explained
that on the night in question, he was driving with three cars in front of him and three cars
behind him, with a car between his vehicle and the police officer’s vehicle. Defendant
offered as an exhibit a drawing he made of the traffic pattern that night that reflected his
vehicle in the middle lane coming out of the tunnel with seven other vehicles nearby.
Defendant stated that when the officer pulled him over, the officer told him that he was
speeding and gave him a ticket. According to Defendant, he denied to the officer that he
was speeding. Defendant testified that he was driving only 45 miles per hour at the time,
which was the speed limit. Defendant stated that he did not travel that road often and that
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he was not in a hurry. According to Defendant, he tries to “keep the speed limit” because
he is a truck driver. Defendant stated that he was aware that a reckless driving conviction
would result in seven points on his CDL license and explained that he would be unable to
work as a truck driver with reckless driving on his record.
At the conclusion of trial, the following transpired between the Trial Court and
Defendant’s counsel:
DEFENDANT’S COUNSEL: And, Your Honor, I really don’t believe that
[Defendant] should have to prove that he’s not reckless driving. As reckless
driving is what he’s charged with then that’s what’s going to go on his record.
THE COURT: I don’t think [Defendant] has to prove a thing.
DEFENDANT’S COUNSEL: Well, according to the statute --
THE COURT: I’m not placing the burden on [Defendant].
DEFENDANT’S COUNSEL: All right. That’s all I have, Your Honor.
Following a bench trial, the Trial Court entered an order, stating as follows:
Based upon all the evidence presented, the testimony of Metropolitan
Nashville Police Department Officer Christopher Augustin, the testimony of
the Defendant, and the argument of counsel, the Court finds that on
December 28, 2019, the Defendant was driving his vehicle at a speed of
sixty-five (65) miles per hour where the posted speed limit is forty-five (45)
miles per hour along Murfreesboro Pike near the intersection of Knight
Valley Drive.
***
Accordingly, [Metro] has met its burden to prove that the Defendant was
driving at a speed of twenty (20) miles per hour more than the posted speed
limit on a metropolitan street. The Defendant presented no proof to rebut the
presumption that the Defendant was driving in a wilful and wanton disregard
for the safety of persons or property. Therefore, the Defendant is guilty of
violating Metropolitan Code of Law § 12.68.180.
As a result, Defendant was ordered to pay a $50 fine and all court costs. Defendant timely
appealed to this Court.
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Discussion
Although not stated exactly as such, Defendant raises the following issues for our
review: (1) whether the Trial Court erred by finding Defendant guilty of reckless driving,
pursuant to Metropolitan Code of Law § 12.68.180(A); (2) whether Metropolitan Code of
Law § 12.68.180(A) violates Defendant’s due process rights under the Tennessee
Constitution, Article 1, § 8; and (3) whether Metro has jurisdiction to administer a
“criminal-type punishment” due to violation of its ordinance and whether such punishment
would violate Defendant’s rights under the Tennessee Constitution, Article 1, § 16.
Additionally, Metro raises one issue for our review: whether Defendant has waived any
issues concerning whether Metropolitan Code of Law § 12.68.180(A) violates his rights
under Tennessee Constitution, Article 1, §§ 8 and 16.
This case involved a bench trial. Our review is de novo upon the record,
accompanied by a presumption of correctness of the findings of fact of the trial court, unless
the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Kelly v. Kelly,
445 S.W.3d 685, 692 (Tenn. 2014). A trial court’s conclusions of law are subject to a de
novo review with no presumption of correctness. Kelly, 445 S.W.3d at 692.
We first address the arguments raised by Defendant concerning whether
Metropolitan Code of Law § 12.68.180(A) violates Tennessee Constitution, Article 1, §§
8 and 16 and Metro’s argument that he waived those issues. Section 8 of Article 1 of the
Tennessee Constitution provides: “That no man shall be taken or imprisoned, or disseized
of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed
or deprived of his life, liberty or property, but by the judgment of his peers or the law of
the land.” Section 16 of Article 1 provides: “That excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.”
In its brief, Metro argues that Defendant waived his constitutional arguments by
failing to properly raise them during the trial court proceedings. Issues that have not been
properly raised in the trial court proceedings generally cannot be argued for the first time
on appeal. Barnes v. Barnes, 193 S.W.3d 495, 501 (Tenn. 2006). This rule also generally
applies to constitutional attacks on the validity of a statute. City of Memphis v. Shelby Cty.,
469 S.W.3d 531, 560 (Tenn. Ct. App. 2015). As our Supreme Court has stated:
It has long been the general rule that questions not raised in the trial court
will not be entertained on appeal and this rule applies to an attempt to make
a constitutional attack upon the validity of a statute for the first time on appeal
unless the statute involved is so obviously unconstitutional on its face as to
obviate the necessity for any discussion.
Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983). In his reply brief, Defendant
argues that he was not required to file an answer or other responsive pleading in response
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to the traffic citation and that his counsel had asserted a challenge to the ordinance at issue
in his opening and closing statements at trial.
Although Defendant argued that the ordinance was unconstitutional during opening
statements, making vague references to the ordinance being unconstitutional or a violation
of due process, his arguments concerning constitutionality of the ordinance were only
minimally addressed by Defendant and the Trial Court’s order is silent as to any
constitutionality issue. “This is a court of appeals and errors, and we are limited in
authority to the adjudication of issues that are presented and decided in the trial courts[.]”
Dorrier v. Dark, 537 S.W.2d 888, 890 (Tenn. 1976). Our Supreme Court has found a
constitutional issue waived when the party failed to raise the issue timely and only
“minimally addressed” the issue. See In re Adoption of E.N.R., 42 S.W.3d 26, 32 (Tenn.
2001). See also In re M.L.P., 281 S.W.3d 387, 394 (Tenn. 2009) (stating that “[a]
conclusory contention that a statute is unconstitutional, raised for the first time in closing
argument . . . does not present an attractive issue for appellate review.” (quoting In re
Adoption of E.N.R., 42 S.W.3d at 31)); City of Memphis, 469 S.W.3d at 561 (determining
a constitutional challenge to be “late-raised [and] minimally addressed” when it was raised
in a footnote of a pre-trial brief filed the day before trial (quoting In re M.L.P., 281 S.W.3d
at 394)). Regardless of whether raising an issue during opening arguments could be
considered timely, it is clear that Defendant failed to include sufficient specificity as to the
reasoning behind his argument that the ordinance was unconstitutional or a violation of due
process.
We acknowledge that Defendant’s counsel stated that the ordinance at issue is
unconstitutional and referred vaguely to a violation of due process. However, Defendant’s
argument was not supported by any citation to any relevant constitutional provisions to
which Defendant claimed it had violated. Defendant also provided the Trial Court with no
case law or other guidance supporting his argument. Furthermore, when the Trial Court
attempted to clarify the basis of Defendant’s argument, Defendant’s counsel stated: “Well,
I don’t know if it would be due process or unconstitutional, but it seems like the burden
shifting has to do with the process of the law.” Defendant clearly had not developed a
rational and supported argument for the Trial Court to consider so it is unsurprising that
the Trial Court did not address Defendant’s constitutional issue in its order.
We agree with Defendant that in this appeal from General Sessions Court to Circuit
Court, he was not required to file an answer in this matter to respond to the allegations
against him. This, however, does not mean that Defendant is relieved of his obligation to
properly raise an issue before the Trial Court. Defendant was not prohibited from filing an
answer or a pre-trial motion challenging the constitutionality of the ordinance. Such an
answer or motion, although not required, may well have been beneficial in providing
sufficient basis for his constitutional challenges to the ordinance. During trial, Defendant
failed to specify even minimal legal authority, including a lack of citations to the
constitutional articles or sections the ordinance allegedly violated. Defendant merely made
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vague references to the ordinance’s unconstitutionality and its violation of due process but
made no reference in the Trial Court proceedings to either section 8 or 16 of Article 1 of
the Tennessee Constitution, the constitutional provisions which Defendant now argues
apply.
Additionally, after the Trial Court made no mention in its order of any constitutional
challenge to the ordinance at issue, Defendant did not file any motion or otherwise respond
to bring the constitutional challenge to the Trial Court’s attention. Defendant had
opportunities to present a developed argument supported by legal authority to the Trial
Court regarding the constitutionality of the city ordinance; however, he did not do so.
Simply put, Defendant did not properly challenge the constitutionality of the ordinance at
issue during the proceedings before the Trial Court. It was only on appeal that Defendant
articulated an argument that included citations to the constitutional provisions that he
alleges the ordinance violates and included specific reasoning behind his arguments. The
ordinance in question, however, is not so obviously unconstitutional on its face as to
obviate the necessity for any discussion. Because we hold that Metropolitan Code of Law
§ 12.68.180(A) is not unconstitutional on its face and Defendant failed to properly raise
issues concerning its constitutionality before the Trial Court, we find that Defendant has
waived these issues on appeal.
We next address Defendant’s argument concerning whether the Trial Court erred in
finding by a preponderance of the evidence that Defendant violated Metropolitan Code of
Law § 12.68.180(A). Metropolitan Code of Law § 12.68.180(A) provides as follows:
It is unlawful for any person to drive any vehicle upon the streets of the
metropolitan government or upon any private road or driveway or parking
area in a wilful and wanton disregard for the safety of persons or property.
Any person who drives any vehicle at a speed of fifteen or more miles per
hour than the posted speed limit upon any streets of metropolitan government
or upon any private road or driveway or parking area in any residence district
shall be presumed to be driving in a wilful and wanton disregard for the safety
of persons or property and the burden of proof shall be upon the driver to
establish that they were not driving with such disregard.
In his brief, Defendant argues that Metropolitan Code of Law § 12.68.180(A)
applies only to streets in a “residence district” and that the evidence presented shows that
the area where Defendant was driving was not a “residence district” as intended in the
ordinance. However, Metro argues that Defendant had not raised this issue with the Trial
Court and that it “was not afforded the opportunity to present any evidence, or arguments,
regarding the correct statutory interpretation of the ordinance.” We agree with Metro that
Defendant made no argument to the Trial Court concerning this interpretation of the
ordinance, and we decline to address it for the first time on appeal. Therefore, we find that
Defendant has waived this argument on appeal.
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Defendant argues that his speeding alone is not sufficient to prove reckless driving.
Our Supreme Court has held that “under certain facts and circumstances excessive speed
can be sufficient to sustain a conviction of reckless driving.” State v. Wilkins, 654 S.W.2d
678, 680 (Tenn. 1983) (affirming a conviction for reckless driving for a defendant driving
120 miles per hour on a highway with hills and curves). As the Wilkins Court held, “we
think it is within the discretion of the finder of fact to consider that a motor vehicle’s speed
can be so fast as to constitute willful and wanton disregard for persons or property, be it
the person and property of the driver or others on the road or in the area.” Id. The Court
in Wilkins analyzed Burgess v. State, 369 S.W.2d 731 (Tenn. 1963), and acknowledged
that “[d]riving at 20 miles an hour in and of itself is not willful and wanton disregard for
another’s safety” but that this excessive speed “coupled with a statute which prohibits
speeds in excess of 15 miles per hour in school zones” was sufficient that a jury could
determine a defendant was guilty of reckless driving. Wilkins, 654 S.W.2d at 679.
Although Defendant argued at trial that he was not speeding, the Trial Court credited
Officer Augustin’s testimony and found that Defendant had been speeding, driving his
vehicle at a speed of 65 miles per hour in a 45-mile-per-hour zone, which was twenty miles
per hour over the posted speed limit. The Trial Court further found that Defendant had not
rebutted the presumption that he had been driving with “a willful and wanton disregard for
the safety of persons or property.” Other than testifying that he was not driving over the
speed limit, Defendant presented no evidence to demonstrate that his driving was not “a
willful and wanton disregard for the safety of persons or property.” Defendant testified
during trial that on the night in question, he was driving in an area with other vehicles
present, with three vehicles driving ahead of him, three vehicles driving behind him, and
one to his side. This fact establishing that Defendant was driving at an excessive speed in
the midst of other vehicles supports the Trial Court’s finding that Defendant was driving
with “a willful and wanton disregard for the safety of persons or property.” We hold that
the evidence presented at trial supports the Trial Court’s finding that Defendant violated
Metropolitan Code of Law § 12.68.180(A).
We acknowledge that Defendant possesses a Commercial Driver’s License (CDL)
and that Tennessee Code Annotated § 55-10-306(b)(1) states that a magistrate or judge
must immediately forward a copy of convictions for a traffic offense to the Tennessee
Department of Safety. Defendant has argued that a conviction of reckless driving pursuant
to Tennessee Code Annotated § 55-10-205(a) will result in a certain number of points on
his individual’s driver’s license. See Tenn. Comp. R. and Regs. 1340-01-04-.03.
Tennessee Code Annotated § 55-10-205(a) does not include the rebuttable presumption
that is included in Metropolitan Code of Law § 12.68.180(A), and as Metro points out, the
burden of proof is different in civil proceedings. Defendant’s argument that a violation of
Metropolitan Code of Law § 12.68.180(A) should not affect his ability to drive a vehicle
or result in points added to his driver’s license for reckless driving may be an issue for him
to address with the Tennessee Department of Safety, the entity who maintains the driver
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point system and actually applies the points to his license. It is not an issue to be raised in
this appeal against this defendant.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for collection of the costs below. The costs on appeal are assessed against the
appellant, Abdiqani Gelle, and his surety, if any.
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D. MICHAEL SWINEY, CHIEF JUDGE
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