        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                October 18, 2011 Session

              STATE OF TENNESSEE V. GUY STEVEN CATHEY

               Direct Appeal from the Circuit Court of Dickson County
                  No. 22CC-2009-CR-760        Larry Wallace, Judge


               No. M2011-00438-CCA-R3-CD - Filed December 5, 2011


The defendant pled guilty to driving under the influence of an intoxicant (“DUI”), first
offense, and reserved the following two certified questions: (1) “Whether a magistrate that
conducts field sobriety tasks upon a defendant prior to issuance of a warrant is qualified as
[a] ‘neutral and detached’ magistrate for purposes of the Fourth Amendment to the
Constitution of the United States or its laws and/or in violation of the Constitution of the
State of Tennessee and its laws”; and (2) “Whether the issuance of a warrant after the
administration of field sobriety tasks by a magistrate to a defendant [was] in violation of the
Constitution of the State of Tennessee and/or its laws.” After the challenged warrant was
issued, the Grand Jury indicted the defendant, charging him with one count of DUI. We hold
that the certified questions are not dispositive of the defendant’s case because the subsequent
indictment cured any defects in the warrant. Accordingly, the appeal is dismissed.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J.,
and J OHN E VERETT W ILLIAMS, J., joined.

Olin J. Baker, Charlotte, Tennessee, for the appellant, Steven Guy Cathey.

Robert E. Cooper, Jr., Attorney General & Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; Dan M. Alsobrooks, District Attorney General; Kelly L. Jackson, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                               OPINION

                              Factual and Procedural Background

        On November 3, 2009, Officer Sam McCoy of the Tennessee Highway Patrol
responded to a vehicle accident in Dickson, Tennessee, in which Guy Steven Cathey (“the
Defendant”) was involved . Officer McCoy’s investigation led him to charge the Defendant
with DUI and a magistrate issued an arrest warrant later that same day. In February 2010,
the Grand Jury indicted the Defendant, charging him with one count of DUI. The Defendant
filed a motion to suppress and/or dismiss in May 2010. At the hearing on the motion, the
following proof was adduced.

        Officer McCoy testified that, when he attempted to interview the Defendant at the
scene, the Defendant “was standing by his truck, his speech was very slurred, he was holding
onto the vehicle.” When Officer McCoy inquired if the Defendant had been drinking, the
Defendant initially said “no,” but then said, “yeah, I drank about a pint.” Officer McCoy
asked the Defendant to perform three field sobriety tests, but stopped the Defendant during
his attempts to complete them out of fear that the Defendant “was going to fall and get hurt.”
Officer McCoy placed the Defendant under arrest and took him to the Dickson Police
Department. The Defendant took a breath alcohol test which indicated that he had a blood
alcohol level of .22.

        Officer McCoy subsequently took the Defendant before Magistrate Sutton. Officer
McCoy reported the salient facts of the Defendant’s arrest, including the test results.
Magistrate Sutton then requested the Defendant to perform additional field sobriety tests in
the hall. On cross-examination, Officer McCoy clarified that Magistrate Sutton did not sign
the arrest warrant before conducting his own investigation. Rather, the magistrate signed the
warrant “after the tests.” Officer McCoy also testified that it was common practice for
Magistrate Sutton to perform an independent evaluation of DUI suspects before issuing an
arrest warrant.1

       Harold Sutton testified that he was a magistrate in Dickson County, Tennessee, at the
time in question. He remembered Officer McCoy bringing in the Defendant and stated, “I
did an independent testing of Mr. Cathey of my own and issued a warrant for DUI.” He
added, “I always give an independent observation.” Mr. Sutton explained, “I feel like I am

        1
           We note that this Court addressed similar issues regarding magistrates performing independent
testing in the past. See State v. David Lane Goss, No. M2006-01467-CCA-R3-CD, 2007 WL 2200284
(Tenn. Crim. App. July 31, 2007), perm. app. denied (Tenn. Feb. 4, 2008) (expressly rejecting defendant’s
argument that a magistrate must personally view the allegedly intoxicated suspect to make a probable cause
determination and holding that “[i]n our view, the magistrate’s role is to determine whether the officer had
probable cause to arrest the suspect without a warrant.” Id. at *5 (emphasis added).

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in between the officer and the person under arrest. I’m not for one or the other, and I have
to make the determination based on probable cause in my observation before I sign off on
a warrant.” In accordance with his understanding of his role as magistrate, Mr. Sutton asked
the Defendant to perform “the nine step heel to toe, . . . an alphabet and . . . a finger count.”
Mr. Sutton determined that the Defendant performed these tests “poorly.” Mr. Sutton then
issued the warrant for the Defendant’s arrest.


        After hearing the above proof and considering briefs filed subsequently by the parties,
the trial court denied the Defendant’s motion to suppress and/or dismiss. The Defendant
subsequently pled guilty to DUI, first offense, and reserved the following two certified
questions for appeal to this Court:

              Whether a magistrate that conducts field sobriety tasks upon a
       defendant prior to issuance of a warrant is qualified as [a] “neutral and
       detached” magistrate for purposes of the Fourth Amendment to the
       Constitution of the United States or its laws and/or in violation of the
       Constitution of the State of Tennessee and its laws; and

              Whether the issuance of a warrant after the administration of field
       sobriety tasks by a magistrate to a defendant [was] in violation of the
       Constitution of the State of Tennessee and/or its laws.

Because we have determined that these questions are not dispositive of the Defendant’s case,
we dismiss the appeal.

                                           Analysis

        Tennessee Rule of Criminal Procedure 37(b) sets forth the requirements for preserving
certified questions for appeal from guilty pleas:

       The defendant may appeal from any judgment of conviction . . . on a plea of
       guilty . . . if . . . the defendant entered into a plea agreement under Rule
       11(a)(3) but explicitly reserved – with the consent of the state and of the court
       – the right to appeal a certified question of law that is dispositive of the case
       ....

Tenn. R. Crim. P. 37(b)(2)(A). Strict compliance with Rule 37’s requirements is mandatory.
See State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003).




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        A question of law is dispositive of the case when the reviewing court, upon answering
the question, either must affirm the judgment or reverse and dismiss the case. State v.
Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984). The fact that the trial court, the
State, and the defendant in the case agree that the question is dispositive is not binding on
the appellate court. State v. Preston, 759 S.W.2d 647, 651 (Tenn. 1988). Rather, this Court
must “make an independent determination of the dispositive nature of the question reserved,
and appellate review must be denied if the record does not clearly demonstrate how the
question is dispositive.” State v. Oliver, 30 S.W.3d 363, 364 (Tenn. Crim. App. 2000) (citing
Preston, 759 S.W.2d at 651). If the question reserved is not dispositive of the case, this Court
lacks jurisdiction to consider the issue and, accordingly, must dismiss the appeal. See
Wilkes, 684 S.W.2d at 667; see also State v. Crouch, No. M1999-02057-CCA-R3-CD, 2000
WL 31859, at *1 (Tenn. Crim. App. Jan. 18, 2000) (holding that, where certified question
was not dispositive of the case, “we are without jurisdiction to consider the issue and must
dismiss this appeal”).

        Both of the certified questions in this case focus on the legality of the warrant issued
after the magistrate conducted his own investigation into whether there was sufficient
probable cause to support issuance of the warrant. However, any defect in the warrant, even
if otherwise fatal, is of no avail to the Defendant because the subsequent indictment cured
any such defect. As pointed out by our Supreme Court in 1960, “all questions as to the
sufficiency of the warrant are foreclosed by the finding of an indictment, because . . . grand
juries in this State are given inquisitorial powers over all indictable or presentable offenses
committed or triable within the county.” Jones v. State, 332 S.W.2d 662, 667 (Tenn. 1960).
The indictment in this case is regular upon its face. It contains sufficient allegations to
charge the Defendant with DUI. It is signed by the District Attorney General, Dan M.
Alsobrooks. Finally, it lists the name of Sgt. Sam McCoy as the prosecutor. See State v.
Southland News Co., 587 S.W.2d 103, 106 (Tenn. Crim. App. 1979). “[T]herefore, the
indictment being valid, it can in no wise be affected by any of the proceedings, irregular or
otherwise, that were attendant to the issuance of” the warrant. Id.

        While the certified questions in this case may have been dispositive at one point in
time, the validity of the warrant challenged by the certified questions is now rendered
irrelevant because any defects were cured by the subsequent indictment. Accordingly, the
certified questions are not dispositive of the case and, therefore, do not meet the mandatory
requirements of Rule 37.




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                                        Conclusion

       Because the certified questions in this case are not dispositive, we lack jurisdiction
to consider the appeal. Accordingly, the appeal is dismissed.


                                           _________________________________
                                           JEFFREY S. BIVINS, JUDGE




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