         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 September 20, 2005 Session

               STATE OF TENNESSEE v. DAVID BARTLEY BELL

                 Direct Appeal from the Circuit Court for Rutherford County
                         No. M-55859    James K. Clayton, Jr., Judge



                   No. M2005-00081-CCA-R3-CD - Filed November 8, 2005


A Rutherford County Grand Jury indicted the defendant, David Bartley Bell, of driving under the
influence, third offense, and violation of the implied consent law. The defendant filed a motion to
suppress evidence from the traffic stop, arguing the stop was not based on reasonable suspicion.
After a suppression hearing, the trial court dismissed the charges against the defendant because the
arresting officer was not present to testify. On appeal, the State argues that the trial court erred in
dismissing the charges against the defendant. After our review, we reverse the order of the trial court
and remand for further proceedings.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                        Remanded

J.C. MCLIN , J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA MCGEE
OGLE, JJ., joined.

Frank M. Fly and Kerry Knox, Murfreesboro, Tennessee, for the appellant, David Bartley Bell.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General; and Thomas S. Santel, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                         BACKGROUND

        The following evidence was presented at the suppression hearing. On October 11, 2003,
Officer Tommy Massey of the Murfreesboro Police Department noticed the defendant driving on the
wrong side of an unlined street. Officer Massey followed the defendant to his residence where he
initiated a traffic stop. Ed Gorham, a DUI enforcement officer, also arrived at the scene and
conducted several field sobriety tests on the defendant. After the defendant failed the field sobriety
tests and refused to submit to a test of his blood alcohol content, Officer Gorham arrested the
defendant. The grand jury returned an indictment against the defendant for driving under the
influence and violation of the implied consent law. The defendant filed a motion to suppress all
evidence adduced after he was pulled over by Officer Massey, including the field sobriety tests
conducted by Officer Gorham. In his motion, the defendant argued that Officer Massey did not have
reasonable suspicion to conduct the initial traffic stop.

        At the suppression hearing, the State presented the testimony of Officer Massey, the officer
who initially stopped the defendant. After the State’s direct examination of Officer Massey, defense
counsel informed the court that Officer Massey was not the officer who obtained the warrant and
arrested the defendant. Defense counsel argued that Officer Gorham must be present because he was
the officer who generated the evidence sought to be suppressed. The trial court, sua sponte,
dismissed the charges against the defendant because the State failed to produce both officers at the
hearing. However, the trial court signed two orders of dismissal, one dismissing the charges with
prejudice and the other dismissing the charges without prejudice. The State filed a request for the
court to clarify its order. The trial court conducted a hearing on the State’s request to clarify after
the State had already filed its notice of appeal. At the hearing, the trial court stated that it intended
that the dismissal be without prejudice, but that this Court could decide the issue because the State
had already filed an appeal.

                                             ANALYSIS

        On appeal, the State asserts that the primary issue to be determined by the trial court was
whether Officer Massey formulated reasonable suspicion to stop the defendant’s vehicle. The State
argues that the trial court erred by diverting from the substance of the motion, and dismissing the
charges against the defendant.

        We begin our analysis by noting that “[t]he decision whether to dismiss an indictment lies
within the discretion of the trial court[,]” subject to an abuse of discretion review. State v. Harris,
33 S.W.3d 767, 769-70 (Tenn. Crim. App. 2000). “The abuse of discretion standard contemplates
that before reversal the record must show that a judge ‘applied an incorrect legal standard, or reached
a decision which is against logic or reasoning that caused an injustice to the party complaining.’”
State v. Coley, 32 S.W.3d 831, 833 (Tenn. 2000) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn.
1999)); see also State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997). Appellate courts “may not
interfere with a ruling made within the discretionary powers of the trial court absent clear abuse.”
State v. Street, 768 S.W.2d 703, 709 (Tenn. Crim. App. 1988). Therefore, absent an abuse of
discretion, we will not disturb the findings of the trial court. Harris, 33 S.W.3d at 770.

        Upon review, we note that the defendant’s motion to suppress challenged Officer Massey’s
reasonable suspicion to stop his vehicle. In part, the motion stated that “Defendant moves the Court
to suppress all evidence resulting from his October 11, 2003, traffic stop by Officer Massey because
Officer Massey lacked reasonable suspicion to perform the stop.” We have thoroughly examined
the record and we do not see any findings as to whether there was reasonable suspicion for the stop.
The trial court appears to have dismissed the indictment because both officers were not present at


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the hearing and failed to rule on the suppression issue.1 Although the trial court does have the
discretion to dismiss an indictment, the trial court cannot abuse that discretion.

         We conclude that the trial court abused its discretion by dismissing the indictment without
addressing the merits of the defendant’s motion to suppress. Whether the stop was based on
reasonable suspicion will dictate whether the stop and ensuing arrest were legal. Such a finding by
the trial court is a necessary precursor to any further determination regarding the suppression of the
evidence and dismissal of the indictment. Moreover, the initial stop was made by Officer Massey,
who was available to testify. Accordingly, it was an abuse of discretion for the trial court to dismiss
the indictment without addressing the reasonable suspicion issue as the State was prepared to present
with Officer Massey’s testimony. We therefore reverse the order of the trial court, dismissing the
indictment against the defendant, and remand for the trial court to make findings of fact regarding
the reasonableness of the stop. If the trial court finds the stop was not based on reasonable suspicion,
then the motion to suppress should be granted and charges dismissed. See State v. Phillips, 30
S.W.3d 372, 373 (Tenn. Crim. App. 2000) (noting the substantive effect of the trial court’s decision
to grant a motion to suppress is dismissal of the indictment). If the trial court finds the stop was
based on reasonable suspicion, then the motion to suppress should be denied and the case should
proceed. Because we have determined that the trial court abused its discretion in dismissing the
indictment without first addressing the merits of the defendant’s motion to suppress, we need not
address whether the dismissal should be with or without prejudice.

                                               CONCLUSION

        Accordingly, we reverse the order of the trial court and remand for further proceedings.




                                                             ___________________________________
                                                             J.C. McLIN, JUDGE




        1
         The defendant’s argument suggests that the trial court granted the motion to suppress and dismissed the
indictment. However, we cannot find anything in the record to show the trial court ruled on the suppression issue.

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