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State v. Salmon10/14/2004
Following a jury trial, Defendant, Ronnie W. Salmon, was convicted of driving under the influence of an intoxicant, second offense, a Class A misdemeanor. The trial court sentenced Defendant to eleven months, twenty-nine days, all suspended but sixty days. Defendant does not appeal his sentence. Defendant argues on appeal that the evidence was insufficient to support his conviction, that certain remarks made by the prosecutor during closing argument were improper, and that the trial court erred in not granting Defendant a mistrial on the basis of the prosecutor's comments during closing argument. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
Direct Appeal from the Circuit Court for Hardin County No. 8201. C. Creed McGinley, Judge.
Curtis F. Hopper, Savannah, Tennessee, for the appellant, Ronnie W. Salmon.
Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; G. Robert "Gus" Radford, District Attorney General; and John W. Overton, Assistant District Attorney General, for the appellee, the State of Tennessee.
The opinion of the court was delivered by: Thomas T. Woodall, Judge
Thomas T. Woodall, J., delivered the opinion of the court, in which Gary R. Wade, P.J., and Norma McGee Ogle, J., joined.
OPINION
I. Background
Officer Joey Pinson testified that he and Officer Johnny Murphy were driving on Highway 128 when they observed Defendant's vehicle approaching them. Officer Pinson stated that Defendant's vehicle crossed the highway's center line three or four times as he drove towards the police officers. Officer Pinson turned around and pulled Defendant over at the stop sign at the intersection of Highway 128 and Highway 57. Officer Pinson said that he smelled beer on Defendant and asked for his driver's license. After he checked Defendant's license through NCIC, Officer Pinson asked Defendant to get out of his car. Office Pinson said that Defendant walked unsteadily toward the back of his car.
Officer Pinson said that he attempted to administer three field sobriety tests to Defendant. The first test required Defendant to recite the alphabet, but Defendant recited certain letters out of order. Defendant's performance improved on his second attempt, but he still missed the proper order for certain letters. Defendant failed to properly follow instructions when he was asked to count the fingers on his hand. Officer Pinson said that Defendant started counting with the wrong finger, and did not do any better on his second attempt. Officer Pinson said that he asked Defendant to walk heel-to-toe, but Defendant refused.
Defendant agreed to take a breathalyzer test after Officers Pinson and Murphy escorted him to the Hardin County Sheriff's Department. Defendant blew into the machine twice, and each time the machine was unable to producing a reading because the sample was "insufficient."
Officer Pinson said that he did not smell beer on Defendant's girlfriend, Debbie Whitaker, but admitted that he never stood close to her. He stated that Ms. Whitaker passed a field sobriety test, and she was allowed to drive Defendant's vehicle away from the scene.
On cross-examination, Officer Pinson estimated that Defendant was driving the speed limit immediately prior to the stop. He admitted that he did not make any written notes concerning Defendant's performance on the field sobriety tests and did not tell Defendant that he could request a blood test. Officer Pinson said that he did not ask Defendant if he had any health problems that would impede his performance on the tests.
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