         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   March 13, 2002 Session

                    STATE OF TENNESSEE v. DANNY TROUT

               Direct Appeal from the Criminal Court for Davidson County
              No. 98-T-1162    Cheryl Blackburn and Steve R. Dozier, Judges



                     No. M2001-00462-CCA-R3-CD - Filed April 24, 2002


The defendant was convicted by a Davidson County jury of DUI. In this appeal, he alleges the
Vehicular Crimes Grand Jury, which was convened in Davidson County to consider only vehicle-
related crimes, was illegally empaneled. He further contends the investigatory stop of his automobile
was improper. We affirm.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOE G. RILEY, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and JOHN
EVERETT WILLIAMS, JJ., joined.

David E. Brandon (at trial and on appeal) and Peter D. Heil (on appeal), Nashville, Tennessee, for
the appellant, Danny Trout.

Paul G. Summers, Attorney General and Reporter; Gill Robert Geldreich, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and David G. Vorhaus and Ed
Ryan, Assistant District Attorneys General, for the appellee, State of Tennessee.


                                            OPINION

                            VEHICULAR CRIMES GRAND JURY

A. Procedural History

        Defendant was indicted for DUI by the Vehicular Crimes Grand Jury, as it is termed in
Davidson County. The judge presiding over the Vehicular Crimes Grand Jury is the Circuit Court
Judge of Division VII, has concurrent chancery jurisdiction, has exclusive probate jurisdiction, and
sits by interchange or designation in some criminal matters. The foreperson of this grand jury is
specially appointed by the circuit court judge, and the grand jurors are selected randomly from the
jury pool. The only cases presented to the Vehicular Crimes Grand Jury are those cases which in
some manner involve vehicular crimes. The regular grand jury, coordinated by the criminal court
judges, considers all other criminal matters.

       Following defendant’s indictment by the Vehicular Crimes Grand Jury, defendant moved for
dismissal of the indictment alleging the grand jury was empaneled contrary to state law. The trial
court denied the motion.

B. Analysis

        Defendant contends the Vehicular Crimes Grand Jury was empaneled contrary to the general
provisions of state law. Defendant recognizes the circuit court judge of Davidson County was
authorized to empanel grand juries pursuant to Chapter 31 of the 1849-50 Tennessee Private Acts.
However, defendant contends this legislation was repealed by implication with the enactment of
Chapter 53 of the Private Acts of 1947. The 1947 Private Act provides comprehensive requirements
for jury selection in Davidson County and makes no mention of the special authority granted the
circuit court judge in the 1849-50 Private Act.

       Nevertheless, defendant recognizes that this court has expressly ruled against his position in
State v. McFarland, 638 S.W.2d 416, 417 (Tenn. Crim. App. 1982). He asks us to overrule
McFarland; we decline. McFarland was decided by this court in 1982; permission to appeal was
denied by the Supreme Court of Tennessee on June 14, 1982; and a majority of this court voted to
publish the opinion. Although the Supreme Court of Tennessee is not necessarily committed to all
views expressed in an opinion of an intermediate appellate court when discretionary review is
denied, see Swift v. Kirby, 737 S.W.2d 271, 277 (Tenn. 1987), our supreme court has stated that

               the published opinions of the intermediate appellate courts are
               opinions which have precedential value and may be relied upon by
               the bench and bar of this state as representing the present state of the
               law with the same confidence and reliability as the published opinions
               of this Court, so long as [they] are not overruled or modified by
               subsequent decisions.

Meadows v. State, 849 S.W.2d 748, 752 (Tenn. 1993). We are unaware of anything that has
occurred after McFarland, either legislatively or judicially, to call its holding into question.

        Rule 4(H)(2) of the Rules of the Supreme Court of Tennessee provides that opinions reported
in the official reporter are to be considered controlling authority unless the opinion is reversed or
modified by a court of competent jurisdiction. Although this panel agrees defendant’s argument on
the merits is indeed persuasive, it is not so persuasive as to require us to disregard or overrule this
controlling authority. We decline to do so and believe it to be more appropriate for this issue to be
addressed by the Supreme Court of Tennessee.




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        Defendant further argues the Vehicular Crimes Grand Jury was empaneled contrary to Rule
6 of the Tennessee Rules of Criminal Procedure. Although McFarland did not address Rule 6, this
rule was in effect at the time McFarland was decided. Regardless, the rule provides grand juries may
be empaneled by any “judge of the court authorized by law” to do so. Tenn. R. Crim. P. 6(a)(1).
Thus, if McFarland is controlling in its determination that the circuit court judge of Davidson County
has such authority, we see no violation of Rule 6.

       Defendant next contends the Vehicular Crimes Grand Jury is illegal since it is designated to
hear only “particular matters and causes.” We respectfully disagree.

       Defendant relies upon the following statement in Flynn v. State:

                       The statutes regulating the selection of grand juries are
               enacted for public reasons rather than for the benefit of any
               individual; they are intended to facilitate the selection of a jury, to
               equalize the burden of jury service, and to preclude the packing of
               juries or the selection of jurors with reference to particular matters
               and causes likely to be submitted to them for determination.

203 Tenn. 337, 313 S.W.2d 248, 253 (1958) (emphasis added). The actual holding in Flynn is that
a grand jury empaneled contrary to the statutorily prescribed method was a de facto grand jury whose
actions were valid. 313 S.W.2d at 251. The quoted language in Flynn was not determinative of the
issue presented, and we believe this literal language has been taken out of context.

         Our present rule authorizes the empaneling of a grand jury during the regular term or any
special term. Tenn. R. Crim. P. 6(a)(1), (2). Furthermore, concurrent grand juries are authorized.
Id. at (3). A statute authorizes the reconvening of the grand jury to consider “a criminal offense
which is a felony [that] has been committed in the jurisdiction.” Tenn. Code Ann. § 40-12-103
(emphasis added); see generally Cheairs v. State, 543 S.W.2d 70, 72 (Tenn. Crim. App. 1976).
Furthermore, we presently have statutory authorization for the use of an “investigative grand jury”
to consider specified kinds of criminal activity. See Tenn. Code Ann. § 40-12-201(a) (specifying
money laundering, obscenity matters relating to minors, drugs, official misconduct, bribery,
racketeering, gambling and governmental interference).

        We find nothing in our law that would prohibit the empaneling of a grand jury in which a
particular kind of case is presented. However, we also find nothing in our law that would prevent
such a grand jury from considering other matters should it desire to do so. See Tenn. R. Crim. P.
6(e)(1), (2) (setting forth the duty of the grand jury to not only consider matters submitted to it by
the district attorney general, but also criminal offenses brought to its attention by a member of the
grand jury); Tenn. Code Ann. § 40-12-206(c)(2) (directing an “investigative grand jury” to consider
the crimes specified in the petition, but not “preventing indictment for any offenses found by the
grand jury to have occurred in the course of its investigation”).



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       For these reasons, we decline to grant defendant relief on this issue.


                                    INVESTIGATORY STOP

        Defendant contends the initial stop of his vehicle was an improper investigatory stop;
therefore, all evidence against him should have been suppressed. Again, we respectfully disagree.

A. Testimony/Ruling

         At the motion to suppress Officer David Slessinger of the Metropolitan Nashville Police
Department testified that at 7:55 a. m. on January 24, 1998, he was following defendant’s car on
Hermitage Avenue in Nashville. The officer indicated the defendant’s car was swerving back and
forth within his lane and, on two separate occasions, crossed the center line. Based upon his
observations, the officer made a traffic stop. The officer testified the defendant smelled of alcohol,
had bloodshot eyes, had slurred speech, and was very unsteady on his feet. The officer further
testified the defendant performed poorly on the field sobriety tests and was arrested for driving under
the influence. The defendant’s blood alcohol level subsequently tested 0.14%.

        The defendant testified at the suppression hearing that upon being stopped, he informed the
officer that he had the flu. The defendant offered no testimony concerning the manner in which he
was driving prior to the stop.

       The trial court found the officer had proper grounds for an investigatory stop and denied the
motion to suppress.

B. Analysis

         A policeman may make an investigatory stop when the officer has a reasonable suspicion,
supported by articulable and specific facts, that a criminal offense has been or is about to be
committed. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889 (1968); see also
United States v. Arvizu, ___ U.S. ___, ___, 122 S. Ct. 744, 750, 151 L. Ed. 2d 740 (2002); State v.
Simpson, 968 S.W.2d 776, 780 (Tenn. 1998). For a court to determine whether a policeman's
reasonable suspicion is supported by articulable and specific facts, the court must consider the
totality of the circumstances, that is, the entire picture. Arvizu, ___ U.S. at ___, 122 S. Ct. at 750;
Simpson, 968 S.W.2d at 783.

        Defendant relies upon State v. Binette, 33 S.W.3d 215 (Tenn. 2000). In Binette the court first
concluded the trial court’s findings were based exclusively on a videotape of the defendant’s driving
prior to the stop; therefore, the appellate court’s standard of review was de novo without a
presumption of correctness. Id. at 217. The court then found, based upon its review of the
videotape, that defendant’s alleged “weaving” was entirely within his lane; it was not exaggerated;
and the defendant only “touched the center line” on two occasions. Id. at 219. The court then


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concluded that the totality of the circumstances did not provide a reasonable suspicion of a criminal
offense; thus, the investigatory stop was improper. Id. at 219-20.

         We believe the case at bar to be distinguishable from Binette. First, the trial court did not
rely upon a videotape, but rather upon the testimony of witnesses. Our standard of review is,
therefore, whether the evidence preponderates against the findings of the trial court; the prevailing
party is entitled to the strongest legitimate view of the evidence as well as all reasonable inferences
that may be drawn from that evidence. Id. at 217 (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996)). Second, the officer testified the defendant not only weaved within his lane, but also “crossed
over the center line” on two separate occasions. Under these circumstances, the trial court did not
err in finding reasonable suspicion to justify the investigatory stop.


                                          CONCLUSION

       For all of these reasons, we affirm the judgment of the trial court.


                                                       ___________________________________
                                                       JOE G. RILEY, JUDGE




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