        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 30, 2010

               STATE OF TENNESSEE v. DENNIS RAY BAILEY

              Direct Appeal from the Circuit Court for Dickson County
                     No. 2008-CR-411     George Sexton, Judge


                 No. M2009-01620-CCA-R3-CD - Filed June 17, 2010


The Defendant-Appellant, Dennis Ray Bailey, was convicted by a jury in the Circuit Court
of Dickson County of driving under the influence, second offense, a Class A misdemeanor.
He was sentenced to eleven months and twenty-nine days, suspended after serving 45 days
in confinement, and ordered to pay a $600 fine. Bailey claims on appeal that he was denied
a fair trial due to prosecutorial misconduct. Upon review, we affirm the judgment of the trial
court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and D. K ELLY T HOMAS, J R., JJ. joined.

Michael J. Flanagan, Nashville, Tennessee, for the Defendant-Appellant, Dennis Ray Bailey.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; Dan M. Alsobrooks, District Attorney General; and Kelly Jackson,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

       Facts. Bailey was charged with driving under the influence, second offense. His first
conviction, case number 5400501, occurred in May of 2001. At the trial for the second
offense, the following testimony was presented:

       Officer Michael Richard Eggman of the Dickson County Sheriff’s Office testified that
he was on patrol on March 7, 2008. At around 2:00 a.m., he noticed a vehicle, which was
driven by Bailey, traveling at “a high rate of speed.” Officer Eggman followed the vehicle
to observe Bailey’s driving. He noticed that Bailey left the roadway three separate times.
Each time, Bailey drifted past the right fog line and went entirely off the roadway. After
following Bailey for several miles, Bailey “slowed very abruptly” to make a left-hand turn.
Bailey was late in making the turn, and he was still traveling at a high rate of speed;
consequently, his vehicle went “dramatically off the roadway.” Officer Eggman initiated an
investigatory stop. He approached Bailey’s vehicle and asked for his driver’s license and
proof of insurance. Officer Eggman noticed that there was a passenger in Bailey’s vehicle.
Bailey struggled to find the requested documentation, so he handed Officer Eggman four
envelopes from his glove box. Officer Eggman said one of the envelopes contained the
vehicle registration and proof of insurance.

        After reviewing Bailey’s documentation, Officer Eggman asked Bailey to step out of
his vehicle to perform standard field sobriety tests. Officer Eggman testified that Bailey used
his vehicle to steady himself. Officer Eggman stated, “[W]hen I told Mr. Bailey to go ahead
and sit down on the back of the vehicle he almost sat off of the side. I had to literally grab
him and put him on the bumper to make sure he didn’t fall over.” Officer Eggman had Bailey
perform a sobriety test called the nine-step walk and turn. Bailey did not perform the test as
instructed and lost his balance twice. Officer Eggman also asked Bailey to perform a test
called the one-legged stand. According to Officer Eggman, “Mr. Bailey said that he would
not be able to complete this task given the fact that he was having trouble balancing himself.”
As alternatives, Officer Eggman had Bailey perform a finger-dexterity test and the Romberg
test. Bailey was unable to complete either test as instructed. Officer Eggman said Bailey
admitted that he had been drinking that night. Officer Eggman concluded that Bailey was
intoxicated.

        On cross-examination, Officer Eggman said he was unsure whether he was parked or
driving when he first noticed Bailey’s vehicle. He did not use radar to determine how fast
Bailey was traveling. Officer Eggman stated that Bailey’s front, right tire went off the
roadway three times. He said Bailey’s front tire again went off the roadway when he made
the abrupt left-hand turn. Officer Eggman was unsure if he asked Bailey whether he had any
medical conditions. Officer Eggman did not mention the finger-dexterity test or the Romberg
test in the charging documents because they are not recommended tests of the National
Highway and Safety Administration.

       Kevin Holman testified that he was with Bailey on the night of his arrest. At around
7:30 p.m., he went to Bailey’s home. They talked for about ten minutes before going to a
restaurant to meet a friend, Jerry McKinney, who was visiting from out-of-town. Holman
did not see Bailey consume alcohol before they left. Bailey drove to the restaurant, and
Holman rode as a passenger. Holman testified that they met with McKinney at the restaurant
for about ten minutes and that he did not observe Bailey drink any alcohol. McKinney
wanted to go to Nashville that night to visit a particular downtown bar. They left the

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restaurant, and McKinney drove to Nashville with Holman and Bailey riding as passengers.
Bailey’s vehicle remained at the restaurant.

        Holman testified that they arrived at the Nashville bar at around 8:45 p.m. They
stayed at the bar for about two hours, and Bailey drank one beer. Next, they spent an hour
at a nearby bar where Bailey consumed another beer. After midnight, they left Nashville and
returned to the restaurant. Holman said Bailey did not drink alcohol on the way back to the
restaurant. They conversed in the restaurant parking lot for about thirty minutes before
parting ways with McKinney. Bailey began to drive home with Holman riding as a
passenger. Holman described Bailey’s condition as exhausted, but not impaired. He denied
that Bailey drove erratically or drove too fast. Holman said Bailey did not have trouble
getting out of the vehicle or walking. He explained that Bailey has a “balance problem.”
Holman testified that Bailey had two beers that night and was not intoxicated.

       The State began its cross-examination of Holman with the following line of
questioning:

       STATE:        Does Mr. Bailey have a problem with alcohol?

       HOLMAN: No, ma’am.

       STATE:        Has alcohol ever gotten him in trouble before?

       HOLMAN: Not while I was around.

       STATE:        Not when you were around?

       HOLMAN: No, ma’am.

       STATE:        But you’ve know [sic] him for how many years?

       HOLMAN: Well, since I was probably 15, 14.

       STATE:        So you’ve known him for a while?

       HOLMAN: Yes, ma’am.

       STATE:        Would you say you were close friends?

       HOLMAN: Yes, ma’am.

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       STATE:        And you’re telling me right now that you have no recollection
                     of alcohol having gotten him into trouble in the past?

       HOLMAN: No. Because when I got married – I was married for about 20
               something years, I got away from Dennis. I didn’t see him for
               years.

       STATE:        Because he was a hard drinker ------

       HOLMAN: No.

       STATE:        –and you weren’t drinking then–

       DEFENSE COUNSEL:             Your Honor I’m going to object. I don’t [know]
                                    why this has any relevance as to whether or not
                                    this man knew him. We’re getting into prior bad
                                    acts and I think that irrelevant.

       STATE:        Well, you were the one who mentioned perjury, [Defense
                     Counsel].

       HOLMAN: I was married – Can I finish?

       STATE:        Absolutely.

       HOLMAN: I knew Dennis when I was a young man, young –

       DEFENSE COUNSEL:             Your Honor, I want to make sure that your
                                    objection got heard, your ruling was you sustained
                                    my objection, is that right?
       COURT: Right.

Holman estimated that it takes an hour to drive from the restaurant to downtown Nashville
late at night.

       Following the proof at trial, Bailey was convicted of driving under the influence,
second offense. He filed a motion for new trial, arguing that the State engaged in
prosecutorial misconduct by questioning Holman about Bailey’s prior problems with alcohol.
This motion was denied by the trial court. In its written order, the trial court found that the
State’s questioning did not constitute prosecutorial misconduct, and that Bailey was not

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denied a fair trial. The court also stated that a limiting instruction was not given because
defense counsel failed to make a contemporaneous objection at trial. Bailey filed a timely
notice of appeal following the denial of his motion for new trial.

                                         ANALYSIS

       Bailey claims he was denied a fair trial because the State committed prosecutorial
misconduct in questioning Holman. The State asked Holman on two separate occasions
whether alcohol had ever gotten Bailey into trouble. Bailey asserts that the State’s questions
were intended to illicit testimony regarding Bailey’s prior conviction, which he claims was
inadmissible. He contends he was prejudiced by the State’s questioning because “[t]he jury
was left to speculate as to the prior history of the defendant involving alcohol.” In response,
the State argues that Bailey waived this issue by failing to raise a contemporaneous objection.
The State also claims that its questioning was not so inflammatory as to affect the verdict.

      In claiming prosecutorial misconduct, Bailey is required to show that the prosecutor’s
conduct was so improper that it affected the jury’s verdict to his detriment. State v. Green,
947 S.W.2d 186, 188 (Tenn. Crim. App. 1997) (citing Harrington v. State, 385 S.W.2d 758,
759 (Tenn. 1965)). This court is to consider the following factors in assessing the
prosecutor’s conduct:

       the intent of the prosecutor, the curative measures which were undertaken by
       the court, the improper conduct viewed in context and in light of the facts and
       circumstances of the case, the cumulative effect of the remarks with any other
       errors in the record, and the relative strength or weakness of the case.

Id. (citing Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)).

        Bailey’s claim is predicated on the assertion that evidence of his first conviction for
driving under the influence was inadmissible. In support of this assertion, his brief sets forth
the following argument, “In these cases, to ensure a fair trial, a jury can hear no evidence of
the prior offense in determination of guilt or innocence.”

       We must first note that Bailey did not lodge a contemporaneous objection following
the prosecutor’s alleged misconduct. Rule 36(a) of the Tennessee Rules of Appellate
Procedure states in part, “Nothing in this rule shall be construed as requiring relief be granted
to a party responsible for an error or who failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of an error.” See also Tenn.R.Evid. 103
(a)(1). Here, the State asked Holman on two separate occasions whether alcohol had ever
gotten Bailey into trouble. Bailey did not object after the first question was asked; instead,

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he allowed the State to ask seven additional questions, including the second inquiry about
Bailey’s past troubles with alcohol. Once the trial court sustained the objection, Bailey did
not request a curative instruction. Bailey simply failed to take measures that were reasonably
available to prevent the prejudicial impact of the State’s questioning.

        Because Bailey did not comply with Rule 36(a), we would only be permitted to review
this issue for plain error. See T.R.A.P. 36(b) (“When necessary to do substantial justice, an
appellate court may consider an error that has affected the substantial rights of a party at any
time, even though the error was not raised in the motion for a new trial or assigned as error
on appeal.”). In State v. Adkisson, this court stated that in order for an error to be considered
plain:

       (a) the record must clearly establish what occurred in the trial court;
       (b) a clear and unequivocal rule of law must have been breached;
       (c) a substantial right of the accused must have been adversely affected;
       (d) the accused did not waive the issue for tactical reasons; and
       (e) consideration of the error is “necessary to do substantial justice.”

899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (citations omitted). All five factors must
be shown, and it is not necessary to consider every factor if it is obvious that one of the
factors cannot be established. State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000). Here,
consideration of this issue is not necessary to do substantial justice because a substantial right
of the accused was not adversely affected. The State asked Holman two times whether
alcohol had ever gotten Bailey into trouble. Both times, Holman responded that he was not
aware of any prior misconduct. Accordingly, the State’s questioning does not amount to
plain error. Bailey is not entitled to relief.

                                       CONCLUSION

        Based on the foregoing, the judgment of the trial court is affirmed.




                                                     ______________________________
                                                     CAMILLE R. McMULLEN, JUDGE




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