City of Adamsville v. Brian K. Cass

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
CITY OF ADAMSVILLE, )
)
Appellee, ) McNairy County Circuit No. 618
)
vs. )
)
BRIAN K. CASS, ) Appeal No. 02A01-9606-CV-00141
)
Appellant. ) FILED
Dec. 20, 1996
Cecil Crowson, Jr.
Appellate Court Clerk
APPEAL FROM THE McNAIRY COUNTY CIRCUIT COURT
AT SELMER, TENNESSEE
THE HONORABLE JOE H. WALKER, JUDGE
For the Appellant: For the Appellee:
Brian K. Cass, Pro Se Charles W. Burson
Savannah, Tennessee Christina S. Shevalier
Nashville, Tennessee
AFFIRMED
PER CURIAM
OPINION
Appellant Brian K. Cass (“Cass”) appeals his conviction for violation of several city
ordinances. We affirm.
In the early morning hours of January 30, 1994, Officer Johnnie Williams, an officer of the
City of Adamsville Police Department, observed a vehicle traveling at 52 miles per hour (“mph”)
in a 30 mph zone. It is undisputed that Cass was the driver of the speeding car. The officer engaged
the blue lights on the patrol car and pursued Cass’s vehicle. In response, Cass drove out of town at
a fast rate of speed. After traveling approximately one and one-half miles, Cass stopped the car.
Upon approaching Cass’s vehicle, Officer Williams smelled alcohol on Cass and asked him
to step out of the vehicle. In the vehicle, the officer found an open can of beer. Officer Williams
issued Cass citations for failing to yield to blue lights and for having an open container of an
alcoholic beverage in his vehicle, in violation of the ordinances of the City of Adamsville.1 The
matter was tried in the municipal court for the City of Adamsville, and Cass was found to have
violated the ordinances. Cass sought a de novo appeal to the circuit court of McNairy County,
Tennessee.
After a bench trial, the circuit court sustained Cass’s conviction for failure to yield to blue
lights and fined him $60 plus court costs. The circuit court also sustained Cass’s conviction for
having an open container of an alcoholic beverage in his vehicle and fined him $10 plus court costs.
Cass appealed this matter to the Tennessee Court of Criminal Appeals.
Under Rule 17 of theTennessee Rules of Appellate Procedure, the Court of Criminal Appeals
transferred the appeal to this Court by Order entered June 17, 1996. Section 16-5-108(a)(1) of the
Tennessee Code Annotated limits the jurisdiction of the Court of Criminal Appeals to review of the
final judgments of trial courts in felony and misdemeanor criminal cases. Tenn. Code Ann. § 16-5-
108(a)(1) (1994 & Supp. 1996). A municipal ordinance violation is civil in nature and not criminal.
O’Dell v. City of Knoxville, 379 S.W.2d 756, 757-58 (Tenn. 1964). Therefore, the Court of Criminal
Appeals lacked jurisdiction to hear this appeal. See id. at 758; see also Clark v. Metropolitan Govt.
of Nashville and Davidson County, 827 S.W.2d 312, 315 (Tenn. App. 1991). Cass filed an
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Cass was also arrested for driving under the influence of alcohol. He was indicted by
the grand jury and was tried and convicted in circuit court. This conviction was the subject of a
separate appeal before the Tennessee Court of Criminal Appeals, Case No. 02C01-9411-CC-
00248. Several of the issues raised by Cass in this appeal are also raised in his appeal of the DUI
conviction.
Application for Extraordinary Appeal with the Tennessee Supreme Court in order to obtain judicial
review of the order of the Court of Criminal Appeals transferring the appeal to this Court. The
Supreme Court denied the Application by Order entered November 25, 1996. Consequently, this
Court assumed jurisdiction of the appeal.
Our review of this case is governed by Rule 13(d) of the Tennessee Rules of Appellate
Procedure, which provides that review of the decision of the trial court shall be de novo upon the
record, accompanied by a presumption of the correctness of the findings of fact. Tenn. R. App. P.
13(d). Unless the preponderance of the evidence is otherwise, we must affirm the trial court absent
an error of law. Id.; Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).
On appeal, Cass raises a variety of issues. He first asserts that the police officer did not have
probable cause to stop him; therefore, the fruits of the subsequent search should not have been
admitted into evidence. However, there is no indication in the record that Cass made any motion to
suppress this evidence; consequently, the issue is waived. Tenn R. Crim. P. 12(b)(3); State v.
Eldridge, 749 S.W.2d 756, 757 (Tenn. Crim. App. 1988); State v. Burton, 751 S.W.2d 440, 445
(Tenn. Crim. App. 1988).
He also asserts that the testimony of the police officer should not have been introduced into
evidence because the officer did not take the oath of office prescribed by the 1987 Tennessee Private
Acts. See 1987 Tenn. Priv. Acts Ch. 42 § 3.08. The City Charter does not require a police officer
to take this oath of office. Nonetheless, the record contains the oath of office taken by Officer
Williams. This issue is without merit.
Appellant further contends that the city judge was without authority to hear and adjudicate
the charges because he was appointed, not elected, and because the judge allegedly did not take an
oath of office. The amended Charter for the City of Adamsville, 1987 Tenn. Priv. Acts. Ch. 42, §
3.02, provides for the appointment of the following officers: “city recorder, city attorney, city judge
and the heads of all departments and divisions created by this charter....” This issue is without merit.
The record contains no evidence that the city court judge was improperly selected or that he failed
to take any required oath of office. Appellant’s assertion is without merit.
Cass further maintains that District Attorney General Elizabeth Rice, Assistant District
Attorney General Ed McDaniel and Circuit Judge Joseph H. Walker did not take a valid oath of
office. Section 8-18-111 of the Tennessee Code Annotated sets out the official oath of office for
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these officers. Tenn. Code Ann. § 8-18-111 (1993 & Supp. 1996). The record clearly reflects that
Elizabeth Rice and Ed McDaniel took that oath of office. Appellant cites no competent evidence
in the record that Judge Walker acted without legal authority, and our review of the record reveals
no such evidence.
Cass also asserts that the trial court erred in denying his requests for assistance of counsel.
The record reflects that the trial court denied Appellant’s request to be represented by someone who
was not an attorney. Thereafter, Appellant requested leave of court to represent himself. The trial
court properly denied Appellant’s request to be represented by someone who was not an attorney.
The unauthorized practice of law is prohibited by statute. Tenn. Code Ann. § 23-3-103 (1996), see
also, Tenn. S. Ct. R. 8, Canon 3.
Cass claims that he was denied his right to indictment by a grand jury under Article I, § 14,
of the Tennessee Constitution, which states “... no person shall be put to answer any criminal charge
but by presentment, indictment or impeachment.” Art. 1, § 14, Tenn. Const. As noted by the
Supreme Court in Lebanon & Big Spring Turnpike Co. v. State, 141 Tenn. 675, 214 S.W. 819(1919), “the words ‘criminal charge’... refer only to prosecutions of the grade of felony.” Id. at 677,
214 S.W. at 821. Prosecutions for small offenses such as those involved in the instant appeal have
not been held to be criminal charges within the meaning of Article I, § 14, of the Tennessee
Constitution. Howard v. State, 143 Tenn. 539, 549, 227 S.W. 36, 48 (1920). In Capital News Co.
v. Metropolitan Government of Nashville and Davidson County, 562 S.W.2d 430 (Tenn. 1978),
the Supreme Court held that petty offenses are not embraced within the referenced constitutional
section and that indictment is not required. Id. at 432. Therefore, this issue is without merit as well.
Cass argues on appeal that he was denied a right to a jury trial. The constitutional
requirements of jury trial refer only to prosecutions of the grade of felony. Lebanon & Big Spring
Turnpike Co., 143 Tenn. at 549, 214 S.W. at 821. Similarly, petty offenses are not embraced within
the constitutional section requiring trial by jury. Capital News Co., 562 S.W.2d at 432; Art. VI, §
14, Tenn. Const. Moreover, Cass did not make a timely request for a jury. Therefore, this issue is
waived and is without merit.
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Additional issues raised on appeal by Cass include issues relating to the sufficiency of the
citation, prosecution by the city attorney, denial of the right of compulsory process, double jeopardy,
denial of a “judiciary trial,” and adoption of state laws by the City of Adamsville. This Court has
considered each of these issues, the entire record in this cause, and the briefs of the parties. After
careful consideration, we find that these issues are without merit as well. The Court concurs in the
facts as found by the trial court and finds that no reversible error of law appears.
The decision of the trial court is affirmed. The costs on appeal are taxed to Appellant, for
which execution may issue if necessary.
PER CURIAM
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