        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE              FILED
                             JULY SESSION, 1998         November 20, 1998

                                                     Cecil W. Crowson
STATE OF TENNESSEE,            )                   Appellate Court Clerk
                                    C.C.A. NO. 01C01-9707-CR-00309
                               )
      Appellee,                )
                               )
                               )    DAVIDSON COUNTY
VS.                            )
                               )    HON. FRANK G. CLEMENT
TURNER P. WILLIAMS,            )    JUDGE
                               )
      Appe llant.              )    (Direct Ap peal - D .U.I.)




FOR THE APPELLANT:                  FOR THE APPELLEE:

CHARLES R. RAY                      JOHN KNOX WALKUP
211 T hird Aven ue No rth           Attorney General and Reporter
P. O. Box 198288
Nashville, TN 37219-8288            LISA A. NAYLOR
                                    Assistant Attorney General
JAME S BR YAN L EW IS               425 Fifth Avenu e North
217 Se cond A venue N orth          Nashville, TN 37201-1649
Nashville, TN 37201-1649
                                    VICTOR S. JOHNSON
                                    District Attorney General

                                    GEORGE BONDS
                                    Assistant District Attorney
                                    Washington Square, Suite 500
                                    Nashville, TN 37201-1649




OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                      OPINION

       On May 19, 1997, a Davidson County jury found Appellant, Turner

Williams, guilty of Driving Under the Influence of an Intoxicant, first offense. The

trial court sentenced Appellant to eleve n months and twenty-nine days

incarceration, all suspended except for two days, the remainder to be served on

probation. Appe llant filed a time ly notice of app eal, raising two issues on appe al:

       (1) Wh ether th e trial co urt erre d in ad mitting into evid ence highly p rejudicial
statem ents made by Appellant wh ich were not pro bative of guilt and we re
allege dly introduced for the purpose of inflam ing an d preju dicing the jury in
violation of Rule 403 of the Tennessee Rules of Evidence; and
       (2) Whether the trial court erred in refusing to suppress the results of a field
sobriety test where the officer gave the test under such adverse conditions that
the results were inva lid and should n ot have bee n presented to the jury.


       After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                          FACTS




       On May 1 ,1996 Serg eant R obert N orton, O fficer W illiam Turbeville, and

Officer Shane Stokes were at the Kwik Sak Convenience Market on West End

Avenue, when A ppellant a pproac hed the m. Acc ording to Serge ant Norton,

Appellant asked whether the three knew Lieutenant Glen Yates. When one of the

officers replied that he knew the name, Appellant responded, “well, next time you

see him, tell him to kiss my ass.” Sergeant Norton testified that Appellant’s eyes

were glassy and blood-shot and Appellant’s speech was slurred. He further

indicated Appellant smelled of an alcoholic beverage. Sergeant Norton advised

Appellant not to drive, and Appellant assured him that he would not. One of the

officers looked outside and observed that another individual was pumping gas



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into the car which seem ed to be the one in which A ppellant h ad arrived . W hen

Appellant left the store and got into the driver’s side of the ca r, the three officers

pursued.



      Officer Turbeville stopp ed Appe llant’s car at the corner of 18th Ave. and

West End. According to Officer Turbeville, Appellant stated that the officer

“needed to get Lieutenant Yates or Chief Turner on the phone.” Appellant also

made a “vulgar comment” towards Officer Turbeville, indicating that the officer

was in trouble because Appellant knew Emmitt Turner and helped him get

elected.



      Sergeant Norto n testifie d that th e hee l-to-toe field sobriety test pre ferably

shou ld be performed on a flat surface. He further related that were the test

performed on a steep grade, the incline could invalidate the results of the test.

Sergeant Norton described the point at which Appellant was stopped as a valley

“midway between two hills.” Officer Turbeville testified and that there w as a wh ite

fog line alongside the road at the point where Appellant was stopped and that the

line was used in administering the heel-to-toe test. Once shown photographs of

the site, Officer Turbeville stated that perhaps he was mistaken in testifying that

there had been a fog line. He testified that according to the photograph of the

location, th ere was no fog line at the site.



      According to Officer Turbeville, Appellant did not pass the heel-to-toe field

sobriety test, and the officers did not perform the one-leg-stand test for fear

Appe llant would injure him self. During the heel-to-toe test, Appellant began the

test before instructed to do so, m issed some of the steps from heel to toe, and

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stepped off the line. Additionally, Appellant made 12 steps before turning around,

although the instructions were that he was to make 9 steps before turning. An

officer advised Appellant of the implied consent law, and Ap pellant refu sed to

consent to a brea th test. Officer Turbe ville testified that he did not obse rve

Appellant driving in an erratic or otherwise unsafe manner, and that he did not

see Appellant break any traffic laws. Officer Turbeville also testified that Appellant

continued to ma ke thre atenin g rem arks to him a bout th e towin g of Ap pellan t’s

vehicle. Once in the booking room, Officer Turbeville reported that Appellant

asked, “ you d on’t plan on m aking captain, d o you?”



       The defense presented Wally Kemp, the owner of Valentino’s Ristorante,

a friend and business partner of Appellant’s, who testified that Appella nt was w ith

him p rior to his arrest. The witness indicated that Appe llant ha d a co cktail ea rly

in the night and sh ared a bottle of wine with three other pe ople during dine r. Mr.

Kemp testified that Appellant did not appear to be intoxicated when he left the

restaura nt shortly be fore his arre st.



                             I. Prejudicial Sta temen ts




       Appellant contends that the trial court erred in admitting into evidence

statem ents made by Appellant to the police officers immediately prior to and at

the time of his arrest. Appellant filed a motion in limine to exclude the statem ents

he deemed prejudicial. The trial court’s ruling excluded some of the comments,

but allowed the State to present some of the offensive statements. In evaluating

a trial cou rt’s ruling on a Tenness ee Ru les of Evide nce Ru le 403 m otion to




                                           -4-
exclude evidence, the initial inquiry is whether the evidence offered was relevant

to the case under Tennessee Rule of Evidence Rule 401.



               The determination of whether eviden ce is relevant,
       or, if relevant, should be excluded for one of the reasons
       set forth in Rule 403, addresses itself to the sound
       discretion of the trial cou rt. State v. Hill, 885 S.W.2d 357,
       361 (Tenn . Crim. A pp.), per. app. denied (Tenn .1994). In
       deciding these issues , the trial court must con sider,
       among other things, the ques tions of fact that the jury will
       have to cons ider in d eterm ining th e acc used 's guilt as well
       as other evidence that has been introduced during the
       course of the trial.


State v. D ulsworth, 781 S.W .2d 277 , 287 (T enn. C rim. App . 1989).



              If a trial court in the exercise of its discretion finds
       that evidence is relevant within the meaning of Rule 401,
       and the accused is not entitled to have the evidence
       excluded for one of the grounds set forth in Rule 403, this
       Court will not interfere with the exercise of this discretion
       unless it appears on the fac e of the rec ord that the trial
       court clearly abu sed its disc retion. State v. Hayes, 899
       S.W.2d 175, 183 (Tenn. Crim . App.), per. app. denied
       (Tenn.19 95).


State v. Williamson, 919 S.W.2d 69, 79 (Tenn. Crim. App. 1995)



       Tennessee Rule of Evidenc e Rule 4 03 perm its a court to exclude relevant

evidence "if its prob ative va lue is substantially outweighed by the d ange r of unfa ir

prejudice ." The S uprem e Cou rt has state d that unfair prejudice is "[a]n undue

tendency to suggest decision on an improper basis, commonly, though not

necessa rily, an em otional on e." State v. DuBose, 953 S.W .2d 649, 654 (Tenn.

1997) (citing State v. Banks, 564 S.W .2d 947 , 951 (T enn.19 78); see also State

v. McCary, 922 S.W .2d at 515 ).


                                           -5-
      In State v. Banks, the Supreme Court recognized the "policy of liberality in

the admission of eviden ce in both civil and crim inal case s." Banks, 564 S.W.2d

at 949. The trial court must weigh the probative value against p rejudicial effe ct.

This Court cannot substitute its judgment for that of the trial court or declare error

absent a finding th at the trial cou rt abuse d its discretion . State v. Robinson, 930

S.W.2d 78, 85 (Tenn. Crim. App. 1995 (citing State v. Melson, 638 S.W.2d 342

(Tenn .1982)).



       Appe llant’s belligerence and obnoxious behavior toward police officers, at

a time when clear th inking would certain ly call for a more subd ued a pproa ch, is

highly probative on the qu estion of A ppellant’s intoxication . Moreover, although

these statem ents were less than wisely made under the circumstances, they do

not strike a chord that co uld be said to undu ly suggest a decision by the jury on

some basis other that the facts of the case. Finally, there is overwhelming

evidence of App ellant’s guilt of D .U.I. an d even without the statem ents it is

virtually certain he wo uld have been convicted. Under these circumstances, we

find that the trial court did not abuse its discretion in determining that the

statem ents were relevant and that the prejud icial effe ct did n ot sub stantia lly

outweig h the pro bative valu e. This iss ue is witho ut merit.



                               II. Field Sobriety Test




       Appellant further complains that the trial court erred in admitting evidence

of the field sobriety test, because the officer who administered the test failed to

com ply with the guidelines set out by the National Highway Traffic Safety

Administration. W e disagree. The admission of evidence is a matter within the

                                          -6-
discretion of the trial court. State v. Banks, supra, at 949. The trial court permitted

defense counsel wide latitude in cross-examining the officers regarding the

results of the field-sobrie ty tests and the circum stance s unde r which the tests

were administered. The defense was able to put before the jury testim ony by a

participating officer that a failure to strictly adhere to the safety guidelines might

affect the reliability of the sobriety test. The conditions under which the tests w ere

preformed relate to the weight to be afforded the test results, not the ad missibility

of the results. The weight to give such evidence is a question fo r the jury . This

Court will not second-gu ess such jury determinations. This issu e is withou t merit.



      Accordingly, the judgment of the trial court is affirmed.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
DAVID G. HAYES, JUDGE




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