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State v. Zachary10/19/1999
The appellant, Blainy D. Zachary, was indicted by a Davidson County Grand Jury for the offenses of driving under the influence , third offense, and driving on a revoked license. The appellant proceeded to trial, and, after the jury was impaneled and the indictment read, pled guilty to driving on a revoked license. The trial continued and the jury found the appellant guilty of driving under the influence, third offense. The trial court sentenced the appellant to 11 months, 29 days, suspended except for 180 days for the DUI conviction, and 11 months, 29 days, suspended except for 45 days for the driving on revoked conviction. These sentences were ordered to be served concurrently. In his sole issue on appeal, he contends that the prosecutor's comments during closing argument constitute prosecutorial misconduct requiring reversal of his DUI conviction.
After review of the record, we affirm the judgment of the trial court.
Background
On November 23, 1996, Metro Police Officer William Turbeville was on patrol, "assigned to the west sector of Nashville." At approximately 2:20 a.m., Officer Turbeville was traveling eastbound on Charlotte Pike when he "observed a car come out of Old Hickory Boulevard . . . . The vehicle made a wide left turn onto Charlotte going eastbound . . . and seemed to be traveling at a high rate of speed. . . ." He estimated that the vehicle was "doing approximately 60 miles per hour." As Officer Turbeville was following the speeding vehicle, " he vehicle swerved off the - - roadway . . . almost hit [within two to three feet]. . . a light or telephone pole, and then swerved back to the roadway." Upon witnessing this incident, Officer Turbeville initiated a traffic stop.
Officer Turbeville approached the vehicle and observed the appellant in the driver's seat accompanied by a female in the passenger's seat. He proceeded to inform the appellant of the nature of the stop, during which time, he "detected an extreme odor of alcohol emitting from his person." When questioned by the officer, the appellant admitted that "he had a couple of beers" that evening. During this initial confrontation, Officer Turbeville noticed that the appellant's "speech was slurred, his eyes were watery, bloodshot, his clothing was disarranged." Officer Turbeville also observed "two empty 12 ounce Budweiser bottles, . . . four empty Budweiser cans, and . . . four full 12 ounce bottles of beer" in the appellant's vehicle. He asked the appellant to step out of his vehicle and proceeded to administer a series of field sobriety tests, including "the walk and turn test" and "the one legged stand test." The appellant failed to perform satisfactorily on these tests and was placed under arrest for DUI.
A standard check of the appellant's status revealed that his driver's license had been revoked. After transporting the appellant to the police department, Officer Turbeville informed the appellant of the State's implied consent law and requested that he submit to a blood alcohol test. The appellant refused to take the breath test.
At trial, in his own defense, the appellant testified that, on the date of his arrest, he had worked an eleven hour day repairing automobile transmissions. When he got off work, he went to his apartment where he took a shower and watched television. While watching television, the appellant consumed two beers. He later fell asleep at approximately 11:00 pm. The appellant was awakened by a telephone call from his friend, Heather Henson. She was upset from an argument that she had with her date and asked the appellant if he would pick her up at the Crows Nest. The appellant agreed, despite the fact that his driver's license had
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