            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE             FILED
                          AUGUST SESSION, 1999        October 19, 1999

                                                   Cecil Crowson, Jr.
                                                  Appellate Court Clerk
STATE OF TENNESSEE,          *
                             *    No. 01C01-9810-CR-00442
      Appellee,              *
                             *    DAVIDSON COUNTY
vs.                          *
                             *    Hon. Frank G. Clement, Jr., Judge
BLAINY D. ZACHARY,           *
                             *    (DUI, third offense; Driving on Revoked
      Appellant.             *



For the Appellant:                For the Appellee:

Samuel E. Wallace, Jr.            Paul G. Summers
Wallace & Wallace                 Attorney General and Reporter
Attorneys
227 Second Avenue North
Nashville, TN 37201               Elizabeth T. Ryan
                                  Assistant Attorney General
                                  Criminal Justice Division
                                  425 Fifth Avenue North
                                  2d Floor, Cordell Hull Building
                                  Nashville, TN 37243-0493


                                  Victor S. Johnson III
                                  District Attorney General

                                  Edward S. Ryan
                                  Asst. District Attorney General
                                  Washington Square, Suite 500
                                  222-2nd Avenue North
                                  Nashville, TN 37201-1649



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                              OPINION



        The appellant, Blainy D. Zachary, 1 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, “[t]he vehicle swerved off the -

- roadway . . . [and] almost hit [within two to three feet]. . . a light or telephone pole,



        1
          It appears from the style of the briefs and all of the documents in the record with the
exception of the indictment that the appellant's name is correctly spelled Blainey D. Zachary. The
indictment, however, lists the appellant's name as Blainy D. Zachary. It is the policy of this court
to style case s acco rding to the nam e in the form al chargin g instrum ent.

                                                 2
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.” W hen 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


                                          3
Crows Nest. The appellant agreed, despite the fact that his driver’s license had

been revoked. On cross-examination, the appellant admitted that, although his

license had been revoked, he did drive to and from work and would, if necessary,

run errands for his children.



       The appellant further explained that he proceeded to the Crows Nest where

he picked up his friend.   On the way back, Heather lit a cigarette in the car and, at

some point, she dropped the cigarette. When the appellant reached to retrieve the

burning cigarette, his vehicle swerved off the road. This incident occurred

immediately prior to his being pulled over by Officer Turbeville. The appellant

asserted that he was not under the influence of alcohol at this time.   He explained

his poor performance on the field sobriety tests as the result of his “being goofy”

because he was not drunk and the officer should have known that he was not drunk.



       Based upon this evidence, the jury found the appellant guilty of driving under

the influence, third offense.




               Prosecutorial Misconduct during Closing Argument



       In his sole issue on appeal, the appellant contends that “arguments in closing

summation by the prosecutor in this case was [sic] sufficient prosecutorial

misconduct to lead to an arbitrary and unreliable sentence of guilt in violation of

Article I, Section 8 and Article I, Section 16 of the Tennessee Constitution.”

Specifically, he complains of one sentence of the prosecutor’s argument:

       As we already know he was driving -- routinely drove a car while he
       had a revoked driver’s license and total disregard for the law.




                                         4
Indeed, he supports his allegation that he was denied a fair trial by evidence that the

jury only deliberated between three and five minutes. 2



        Initially, we acknowledge the State’s position that the appellant has waived

appellate review of this issue for failure to enter an objection during closing

argument. The failure to object contemporaneously constitutes a waiver of the issue

pursuant to Tenn. R. App. P. 36(a). Notwithstanding waiver, we proceed to address

the issue on its merits.



        Our supreme court has recognized that closing argument is a valuable

privilege for both the State and the defense and that counsel is afforded wide

latitude in presenting final argument to the jury. See State v. Cribbs, 967 S.W.2d

773, 783 (Tenn.), cert. denied, -- U.S.--, 119 S.Ct. 343 (1998); State v. Cone, 665

S.W.2d 87, 94 (Tenn.), cert. denied, 467 U.S. 1210, 104 S.Ct. 2400 (1984). In order

for a defendant to be granted a new trial on the basis of improper comments during

closing argument, he must show that the argument was so inflammatory or the

conduct so improper that it affected the verdict to his detriment. See Harrington v.

State, 385 S.W.2d 758, 759 (Tenn. 1965). Factors to be considered in making this

determination include:

        1) The conduct complained of viewed in context and in light of the
        facts and circumstances of the case;

        2) the curative measures undertaken by the court and the prosecutor;

        3) the intent of the prosecutor in making the improper statement;

        4) the cumulative effect of the improper conduct and any other errors
        in the record; and

        5) the relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn.Crim.App.1976); see also State v.

Buck, 670 S.W.2d 600, 609 (Tenn.1984).



        2
         At the motion for new trial, the trial court acknowledged that the jury only deliberated for
ten minute s before returning a verdict.

                                                  5
         Regarding the challenged portion of the prosecutor’s argument, a review of

the record reveals the following:

         1) The appellant pled guilty to the charge of driving on a revoked
         license after the jury had been sworn and the charge had been read
         but prior to opening argument;

         2) During opening argument, defense counsel stated “Mr. Zachary
         was in the wrong, and he’s come here before you today and he
         admitted he was in the wrong. He should not have been driving the
         car because his license was not valid at that time. He admits that.”;

         3) On cross-examination by the State, the appellant admitted that he
         knew that his license was revoked yet he continued to drive to and
         from work and whenever his children needed something;

         4) Prior to closing argument, the trial court advised the jury, “[p]lease
         recall what they say to you in closing statements is not evidence, but it
         is helpful because they can summarize the facts as they heard it . . . .”;

         5) The prosecutor’s comment was made in the context of labeling the
         issue before the jury as one of credibility between the police officer,
         “who is out doing his job,” and the appellant, who is “on trial not
         wanting to go to jail”;

         6) Defense counsel, in his closing argument, also addressed the issue
         before the jury as one of credibility;

         7) In its charge to the jury, the trial court instructed “. . .closing
         arguments of the attorneys are intended to help you in understanding
         the evidence and the law, but they are not evidence. If statements
         were made by an attorney that are not supported by the evidence, you
         should disregard those statements.”; and

         8) At the motion for new trial, the trial court found that the
         prosecutor’s comments regarding the appellant’s admission of driving
         while his license was revoked went to the issue of credibility and not to
         show that the appellant “had a plethora of criminal record.”



         It is clear from the record before us that the prosecutor was not using the

appellant’s history of driving on a revoked license as proof of the appellant’s guilt,

but rather as proof against his credibility. 3 See State v. Ronnie Roberts, No.

03C01-9502-CR-00049 (Tenn. Crim. App. at Knoxville, May 20, 1996), perm. to

appeal denied, (Tenn. Nov. 4, 1996) (citing State v. Hardison, 705 S.W.2d 684, 687

(Tenn. Crim. App. 1985)). Such use has been determined to be appropriate. Id.

         3
          W e ack now ledge that, typ ically, a n obj ectio n m ade to a pr ose cuto r’s sta tem ent s imila r to
the o ne in th e pre sen t cas e wo uld be sus taine d bas ed up on a la ck o f relev anc e. Ho weve r, in this
case, the appellant interjection of the credibility issue during the course of the trial justified the
prosec tor’s rem arks d uring clos ing argum ent.

                                                        6
Moreover, any objection to the use of the appellant's prior conviction in closing

argument is unjustified as it was the appellant himself who introduced the evidence

of which he now complains. See Tenn. R. App. P. 36(a). Accordingly, we conclude

that the prosecutor’s comment of the appellant’s “viola[tions] of the law at will” does

not serve as a basis for a new trial when measured by the test established in Judge.

This issue has no merit



       The judgment of the trial court is affirmed.




                                   ____________________________________
                                   DAVID G. HAYES, Judge


CONCUR:




_________________________________
JOE G. RILEY, Judge


_________________________________
L. T. LAFFERTY, Senior Judge




                                         7
