        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs December 15, 2010

            STATE OF TENNESSEE v. JONATHAN T. STEWART

                 Appeal from the Circuit Court for Williamson County
                   No. II-CR104486       Timothy L. Easter, Judge




                   No. M2010-00355-CCA-R3-CD - February 4, 2011


The Defendant, Jonathan T. Stewart, entered a plea of guilty to driving under the influence,
first offense. The trial court imposed a sentence of eleven months and twenty-nine days to
be suspended to probation after the service of forty-eight hours of confinement. As part of
the plea agreement, the Defendant attempted to reserve a certified question of law,
challenging the trial court’s denial of his motion to suppress the evidence resulting from his
traffic stop. Because the Defendant has failed to properly certify his issue for review, the
appeal is dismissed.

               Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

D AVID H. W ELLES, J., delivered the opinion of the Court, in which R OBERT W. W EDEMEYER
and J.C. M CL IN, JJ., joined.

Rob McKinney, Nashville, Tennessee, for the appellant, Jonathan T. Stewart.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney
General; Kim R. Helper, District Attorney General; and Kelly Lawrence, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                     Factual Background
       The facts are not in dispute. On March 27, 2009, about ten minutes before 10:00 p.m.,
Officer Derrick Byrum of the Fairview Police Department received a call from dispatch
alerting him to “be on the lookout” (BOLO) for a dark colored-Pontiac, headed westbound
on Highway 100. A caller had reported that the Pontiac “was all over the road and was very
slow” and that the first three numbers of the license plate were “449.” Officer Byrum exited
the parking lot of the Fairview Police Department, located just off of Highway 100, and saw
“traffic being backed up by a dark-colored Grand Am, or Grand Prix.” He elaborated,
“There were several cars backed up from the red light to where [the police department] is.”
Officer Byrum was able to catch up with the car on Chester Road, and he began to follow it.
There was one car in between Officer Byrum’s cruiser and the Pontiac, and Officer Byrum
was assisted in surveillance by another patrol unit. The posted speed limit on the road was
thirty miles per hour, and the road was “a narrow country road” with not much room to pass
another vehicle. While following the vehicle, Officer Byrum’s speed fluctuated between
thirteen and twenty miles per hour. Officer Byrum saw the car start to veer to the left and
the right, but he was unable to tell whether the car ever crossed over the lines. Thereafter,
Officer Byrum initiated a traffic stop “due to the totality of the circumstances of having a
BOLO, the vehicle fluctuating its speed from 13 to 20, and [the observations of] another
officer behind me . . . .” After being stopped, the Defendant was unable to perform field
sobriety tasks and refused to submit to a blood alcohol test. All of these events were
apparently captured on video by a camera in Officer Byrum’s patrol car.1

        On October 12, 2009, the Defendant was charged by presentment with driving under
the influence (DUI), first offense, and violation of the implied consent law. The Defendant
filed a motion to suppress the evidence, seeking to suppress all statements and other evidence
obtained as a result of the March 27, 2009 traffic stop. Citing State v. Hanning, 296 S.W.3d
44 (Tenn. 2009), he argued that the stop was not based upon reasonable suspicion because
his slow speed was not impeding other drivers and, therefore, was not enough to corroborate
the anonymous call.

        At the conclusion of the suppression hearing, the trial court determined that the 911
call was an anonymous tip because Officer Byrum did not testify to an identifiable or named
person. Defense counsel also challenged Officer Byrum’s testimony about statements made
by the caller in the 911 call as violative of the Confrontation Clause, but the trial court found
no merit to this argument. Discussing the Hanning case cited by the Defendant, the trial
court determined, contrary to defense counsel’s assertions, that the holding was applicable
to the factual situation presented here, the only difference being the type of vehicle involved.
The trial court also concluded that the Defendant’s driving “created a sufficiently high risk
of imminent injury or death to members of the public to warrant his investigatory stop, even
if it was an anonymous tip.” Finally, the trial court, relying on the holding in Hanning, ruled,
“I find this officer had sufficient grounds for a warrantless detention of [the Defendant], and
that it was supported by a reasonable suspicion that [the Defendant] had committed, or was


        1
          The transcript provides that a copy of the video was entered as Exhibit 1. However, Exhibit 1 in
the appellate record is a recording of the conversation between the caller and dispatch. In this recording, the
caller clearly identifies herself. The video of the traffic stop is not included in the record on appeal.

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about to commit, a crime; therefore, the stop was justified, and the Motion to Suppress
should be denied.” In the written order that followed, the trial court stated as follows:

               The [c]ourt heard testimony from Officer Derrick Byrum of the
        Fairview Police Department and viewed the Officer’s in-car video taken from
        the evening in question. Upon reviewing the evidence and hearing the
        arguments of both parties, the [c]ourt found that Officer Byrum had probable
        cause to initiate a traffic stop based upon the information he received from
        dispatch, his verification of that information and his own personal
        observations.

       Thereafter, the Defendant entered into a negotiated plea agreement under Rule 11 of
the Tennessee Rules of Criminal Procedure, in which he pleaded guilty to DUI, first offense,
a Class A misdemeanor. See Tenn. Code Ann. §§ 55-10-401, -403. He received a sentence
of eleven months and twenty-nine days, to be suspended to probation following service of
forty-eight hours in the county jail. The violation of the implied consent law charge was
dismissed. The plea was accepted by the trial court on February 8, 2010.

        As part of his plea, the Defendant, pursuant to Rule 37(b)(2)(A) of the Tennessee
Rules of Criminal Procedure, attempted to reserve the right to appeal a certified question of
law dispositive of the case. The respective judgment of conviction form contained the
following notation within the special conditions section: “Plea is being entered with a
certified question of law reserved under Rule 37(b).” On the bottom of the judgment form
it is noted, “See Exhibit 1 to the judgment.” “Exhibit 1” provides as follows:

                The [D]efendant enters the plea pursuant to Rule 37[(b)]2 of the
        Tennessee Rules of Criminal Procedure. The [D]efendant alleges the issue of
        the traffic stop and testimony from the suppression hearing.

                The [D]efendant asserts the court erred as follows:

              (1) The court found the traffic stop to be valid. The [D]efendant
        contends the court erred in finding that the tipster was unknown. Further, the
        [D]efendant contends that the instant case is distinguished from St[ate] v.
        Hanning.




        2
         The Defendant cites to section (d) of Rule 37; however, this section deals with pursuing or waiving
an appeal following a guilty plea.

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              (2) The [D]efendant further asserts the court erred in allowing the
       officer to testify to some facts in violation to the Rules of Evidence.

              This issue is dispositive of the case.

              The issue is whether the traffic stop violated the Tennessee and U.S.
       Constitution.

              This plea is with consent of the State. And the issue of the traffic stop
       is expressly reserved.

        The Defendant filed a timely notice of appeal. The State argues initially on appeal
that the certified question of law is simply too broad and ambiguous for appellate review.
We agree with the State.

                                        Analysis
       The Defendant has attempted to reserve his certified question pursuant to Rule
37(b)(2)(A) of the Tennessee Rules of Criminal Procedure, which provides that a defendant
may appeal from any judgment of conviction occurring as a result of a guilty plea if the
following requirements are met:

              (i)[T]he judgment of conviction or other document to which such
       judgment refers that is filed before the notice of appeal, contains a statement
       of the certified question of law that the defendant reserved for appellate
       review;

              (ii) [T]he question of law is stated in the judgment or document so as
       to identify clearly the scope and limits of the legal issue reserved;

             (iii) [T]he judgment or document reflects that the certified question was
       expressly reserved with the consent of the state and the trial court; and

              (iv) [T]he judgment or document reflects that the defendant, the state,
       and the trial court are of the opinion that the certified question is dispositive
       of the case[.]

See also State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003); State v. Preston, 759
S.W.2d 647, 650 (Tenn. 1988).




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       Additionally, in Preston, our supreme court explicitly provided prerequisites to
appellate consideration of a certified question of law under Rule 37(b)(2)(A),3 stating as
follows:

       Regardless of what has appeared in prior petitions, orders, colloquy in open
       court or otherwise, the final order or judgment from which the time begins to
       run to pursue a T.R.A.P. 3 appeal must contain a statement of the dispositive
       certified question of law reserved by defendant for appellate review and the
       question of law must be stated so as to clearly identify the scope and the limits
       of the legal issue reserved. For example, where questions of law involve the
       validity of searches and the admissibility of statements and confessions, etc.,
       the reasons relied upon by defendant in the trial court at the suppression
       hearing must be identified in the statement of the certified question of law and
       review by the appellate courts will be limited to those passed upon by the trial
       judge and stated in the certified question, absent a constitutional requirement
       otherwise. Without an explicit statement of the certified question, neither the
       defendant, the State nor the trial judge can make a meaningful determination
       of whether the issue sought to be reviewed is dispositive of the case. Most of
       the reported and unreported cases seeking the limited appellate review
       pursuant to Tenn. R. Crim. P. 37 have been dismissed because the certified
       question was not dispositive. Also, the order must state that the certified
       question was expressly reserved as part of a plea agreement, that the State and
       the trial judge consented to the reservation and that the State and the trial judge
       are of the opinion that the question is dispositive of the case. Of course, the
       burden is on defendant to see that these prerequisites are in the final order and
       that the record brought to the appellate courts contains all of the proceedings
       below that bear upon whether the certified question of law is dispositive and
       the merits of the question certified. No issue beyond the scope of the certified
       question will be considered.

Preston, 759 S.W.2d at 650; see also State v. Pendergrass, 937 S.W.2d 834, 836-37 (Tenn.
1996). The Defendant bears the burden of “reserving, articulating, and identifying the issue.”
Pendergrass, 937 S.W.2d at 838.

        The certified question states the issue in general terms, providing only “the issue of
the traffic stop.” The Defendant elaborates in “Exhibit 1”: “The court found the traffic stop


       3
         The Tennessee Rules of Criminal Procedure were amended subsequent to Preston, said changes
becoming effective July 1, 2006. See Compiler’s Notes, Tenn. R. Crim. P. (2006). As part of this
undertaking, numerous sections and/or subparts of various rules were renumbered.

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to be valid. The [D]efendant contends the court erred in finding that the tipster was
unknown. Further, the [D]efendant contends that the instant case is distinguished from
St[ate] v. Hanning.” This overly broad question as reserved in “Exhibit 1” violates the
mandates announced in Preston.

        The Defendant contends that the trial court erred in finding that the tipster was
unknown, which is in direct contradiction to what defense counsel argued at the suppression
hearing—that the enhanced concern of reliability of an anonymous informant applied to the
case. The Defendant seemingly changes positions again in his appellate brief, posing the
question as whether the anonymous tip was sufficiently corroborated, presumably in effort
to better frame the legal limits of the issue reserved: “The trial court erred in denying a
motion to suppress where the police seized [the Defendant] based on an anonymous tip
without sufficient corroboration of its reliability.” The question as stated in “Exhibit 1” does
not extrapolate on what this Court should review if, in fact, the trial court was incorrect in
ruling that the tipster was unknown.

       The Defendant does not expressly identify the reasons he believed the stop to be
invalid. In attempting to reserve the question, the Defendant provides this Court with no
guidance as to the substance of the holding in Hanning or how that holding is distinguishable
from the present case. Moreover, the question as posed does not mention an anonymous
informant, reliability, or reasonable suspicion, all of which would presumably be central to
the Defendant’s claim. As framed, the question is patently non-specific.

        In his second issue (“testimony from the suppression hearing”), the Defendant
challenges the admission of Officer Byrum’s testimony “to some facts in violation to the
Rules of Evidence.” Again, the issue is overly broad and fails to clearly identify the scope
and limits of the legal issue reserved. We are unable to discern from this general statement
what facts or what rules of evidence to which the Defendant refers. Review of the question
as presented would require a complete dissertation on the laws of evidence. Moreover,
referring to the other documents in the record and the Defendant’s brief on appeal, the
Defendant is apparently challenging the testimony on Confrontation grounds. We are
without jurisdiction to review the merits of the Defendant’s claim because he has failed to
properly reserve his certified question of law.

                                         Conclusion
       After carefully reviewing the record and the pleadings in this case, we conclude that
the Defendant has failed to properly frame his certified question of law. Accordingly, this
Court has no jurisdiction to entertain the appeal, and the appeal is dismissed.




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      _________________________________
      DAVID H. WELLES, JUDGE




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