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State v. Kearney12/7/1999
On July 20, 1998, the Bedford County Grand Jury indicted the Defendant, David Keith Kearney, for public intoxication. In August 1998, he was tried by jury and found guilty of public intoxication. In addition to fining the Defendant $50.00, the trial court sentenced him to twenty days incarceration, with all but ten days suspended, and thirty-two hours of public service. Pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure, the Defendant now appeals his conviction and sentence. The Defendant presents three issues for our review, two of which we have consolidated: (1) whether the Defendant was entitled to a dismissal of the charges against him or an acquittal due to the State's failure to follow the procedural requirements set forth at Tennessee Code Annotated § 68-24-202 and in Rule 5(a) of the Tennessee Rules of Criminal Procedure; and (2) whether the sentence imposed was excessive.
We affirm the judgment of the trial court.
No transcript of evidence was filed in this case. However, pursuant to Rule 24(c) of the Rules of Appellate Procedure, the Defendant filed a statement of the evidence, in which he summarized the facts of this case as follows: At trial on August 14, 1998, the arresting officer, Officer
Leeman testified that he was in his patrol car when he was radioed by Chris Baltimore, Bedford County Jailor, from the Texaco Station on the corner of Highway 231 N, approximately one block from the Bedford County Jail. Officer Baltimore testified that he was on his way to pick up some food for himself and other officers at the County Jail at a nearby restaurant and had stopped at the Texaco Station to purchase drinks. Officer Leeman testified, and Officer Baltimore verified this testimony, that Mr. Baltimore told Officer Leeman that he had just seen an individual cross Highway 231 N. headed east who appeared to be staggering and that this individual tripped on the curb and fell down upon crossing said 4 lane to the corner of the lot upon which the Texaco Station is located. Officer Leeman testified that upon approaching Mr. Kearney, Mr. Kearney appeared drunk in that Officer Leeman testified that Mr. Kearney was "staggering all over the place". Further the officer testified that vehicles in the lanes of traffic on this 4 lane were having to move to avoid Mr. Kearney. This occurred at approximately 11:00 p.m. on March 6th, 1998. Officer Leeman testified that he "blue lighted" Mr. Kearney and pulled over to talk to him. The Officer indicated at trial that Mr. Kearney appeared to be attempting to thumb a ride and upon approaching him Mr. Kearney commented that "I'm proud to see you. I've been trying to get a ride and you're the first to stop to help me." Upon exiting his vehicle, Officer Leeman testified that he approached Mr. Kearney and in doing so smelled a strong odor of alcohol about his person. Additionally, Officer Leeman testified that upon questioning Mr. Kearney, Mr. Kearney became evasive in that he would not identify himself nor produce identification. Officer Leeman testified that he arrested Mr. Kearney and transported him to the Bedford County Jail where he required the assistance of Mr. Chris Baltimore, who had at that time returned to the jail from the Texaco Station, in that officer Leeman testified that Mr. Kearney could not walk without assistance. Mr. Leeman admitted that no blood-alcohol test, breathalyzer test, or any other tests of any sort whatsoever were administered or conducted. When questioned by defense counsel regarding specific training received in identifying the smell of alcoholic beverages about the person of an individual, both officers admitted of no such training. Further, neither officer would or could admit to being able t
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