            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE             FILED
                            JANUARY 1996 SESSION
                                                             July 3, 1996

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
STATE OF TENNESSEE,                )    No. 03-C-01-9503-CR-00107
                                   )
            APPELLEE,              )    Carter County
                                   )
v.                                 )    Lynn W. Brown, Judge
                                   )
DANIEL G. HAMPTON,                 )    (DUI, Driving on a Revoked
                                   )     License, and Violation of
            APPELLANT.             )     Implied Consent Law)




FOR THE APPELLANT:                      FOR THE APPELLEE:

Daniel G. Hampton, pro se               Charles W. Burson
Route 8, Box 1885                       Attorney General & Reporter
Elizabethton, TN 37643                  450 James Robertson Parkway
                                        Nashville, TN 37243-0497

                                        Darian B. Taylor
                                        Assistant Attorney General
                                        450 James Robertson Parkway
                                        Nashville, TN 37243-0493

                                        David E. Crockett
                                        District Attorney General
                                        Route 19, Box 99
                                        Johnson City, TN 37601

                                        Steven R. Finney
                                        Asst. District Attorney General
                                        Carter County Courthouse Annex
                                        Elizabethton, TN 37643




OPINION FILED: ____________________________


AFFIRMED


JOE B. JONES, PRESIDING JUDGE
                                         OPINION



       The appellant, Daniel G. Hampton, was convicted of driving under the influence,

second offense, a Class A misdemeanor, two counts of driving on a revoked license, Class

B misdemeanors, and violation of the implied consent law by a jury of his peers. The trial

court sentenced the appellant to eleven months and twenty-nine days in the Carter County

Jail with all but seventy days suspended for the driving under the influence, second

offense; six months suspended in the Carter County Jail for driving on a revoked license

on April 9, 1994 which was ordered to run concurrently with the other sentences; and six

months in the Carter County Jail with all but twenty days suspended for driving on a

revoked license on April 1, 1994 which was ordered to run consecutively to the driving

under the influence, second offense conviction.

       The appellant appeared pro se at trial and on appeal. In this Court, the appellant

contends that the evidence contained in the record is insufficient, as a matter of law, to

support a finding by a rational trier of fact that he was guilty of driving on a revoked license.

He challenges the authority of the Tennessee Highway Patrol to conduct roadblocks. He

claims he was denied his constitutional right to a trial by a jury. Finally, the appellant

claims he was denied a fair trial. After a thorough review of the record, the briefs of the

parties, and the law governing these issues, this Court is of the opinion that the convictions

and sentences should be affirmed.



                                            FACTS



       On the evening of April 9, 1994, the appellant was stopped at a Tennessee Highway

Patrol roadblock in Elizabethton, Tennessee. The appellant had bloodshot eyes, an odor

of an intoxicating beverage on his breath, and his speech was “just a little bit slurred.” An

alcohol detection device called a passive alcohol sensor indicated a strong presence of

alcohol coming from the appellant’s vehicle. The sensor indicated that the sample of air

was .10 or above. Tennessee Highway Patrol Officer Glover administered field sobriety

tests. The horizontal gaze nystagmus test resulted in nystagmus during smooth pursuit


                                               1
and at maximum deviation with the angle of onset at approximately 45 degrees. While

performing the HGN test, the appellant was unsteady on his feet. He swayed back and

forth. He refused to perform the one-leg-stand test and the walk-and-turn test due to an

alleged pulled hamstring muscle in his leg. Based upon his observations and training,

Trooper Glover believed the appellant was under the influence of alcohol.

       The appellant was read the implied consent form. He advised the state trooper that

he would not submit to a chemical breath test. The appellant’s refusal to submit to a

breath test was admitted at trial. Appellant signed a written waiver of his right to an

attorney and voluntarily and knowingly exercised his right to self-representation.



    SUFFICIENCY OF THE EVIDENCE FOR DRIVING ON A REVOKED LICENSE



       When an accused challenges the sufficiency of the convicting evidence, this Court

must review the record to determine if the evidence adduced at trial is sufficient "to support

the finding of the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e).

This rule is applicable to findings of guilt based upon direct evidence, circumstantial

evidence, or a combination of direct and circumstantial evidence. State v. Dykes, 803

S.W.2d 250, 253 (Tenn. Crim. App.), per. app. denied (Tenn. 1990).

       In determining the sufficiency of the convicting evidence, this Court does not

reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App.), per. app. denied (Tenn. 1990). Nor may this Court substitute its inferences for those

drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298,

305, 286 S.W.2d 856, 859, cert. denied, 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956).

To the contrary, this Court is required to afford the State of Tennessee the strongest

legitimate view of the evidence contained in the record as well as all reasonable and

legitimate inferences which may be drawn from the evidence. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978).

       Questions concerning the credibility of the witnesses, the weight and value to be

given the evidence, as well as all factual issues raised by the evidence are resolved by the

trier of fact, not this Court. Cabbage, 571 S.W.2d at 835. In State v. Grace, 493 S.W.2d



                                              2
474, 476 (Tenn. 1973), our Supreme Court said: "A guilty verdict by the jury, approved by

the trial judge, accredits the testimony of the witnesses for the State and resolves all

conflicts in favor of the theory of the State."

       Since a verdict of guilt removes the presumption of innocence and replaces it with

a presumption of guilt, the accused, as the appellant, has the burden in this Court of

illustrating why the evidence is insufficient to support the verdicts returned by the trier of

fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This Court will not disturb a

verdict of guilt due to the sufficiency of the evidence unless the facts contained in the

record are insufficient, as a matter of law, for a rational trier of fact to find that the accused

is guilty beyond a reasonable doubt. Tuggle, 639 S.W.2d at 914.

       The appellant argues that the evidence was legally insufficient to support a guilty

verdict on the charges of driving a motor vehicle after his driver’s license was revoked

because (1) the state could not revoke his license when he consciously let the license

expire, and (2) he did not have the criminal intent to violate the law because he was

unaware that his driver’s license had been revoked.

       The custodian of the Tennessee State Driving Records for the Department of

Highway Safety in Nashville testified that the appellant’s license was revoked on June 17,

1986. The appellant’s license was on revoked status when he committed the offenses.

       Tenn. Code Ann. § 55-50-504(a)(1) makes it illegal for any person to drive a motor

vehicle on any public road “when the person’s privilege to do so is canceled, suspended,

or revoked. . . .” Tenn. Code Ann. § 55-50-102 (42) defines “Revocation of driver license”

as “the termination . . . of a person’s driver license or privilege to operate a motor vehicle

on the public highways.” Here, the appellant intended to drive his car knowing that his right

to operate a motor vehicle had been terminated by the state. The fact that appellant did

not know or understand that the law proscribed the conduct he intentionally undertook

provides no legal excuse. State v. Hayes, 899 S.W.2d 175, 182 (Tenn. Crim. App.), per.

app. denied (Tenn. 1995); State v. Anderson, 894 S.W.2d 320 (Tenn. Crim. App. 1994).



       This issue is without merit.




                                                  3
                            LEGALITY OF THE ROADBLOCK



       Tenn. R. Crim. P. 12 (b)(3) requires that all motions to suppress be filed prior to the

day of the trial. State v. Aucoin, 756 S.W.2d 705, 709 (Tenn. Crim. App.), cert. denied,

489 U.S. 1084, 109 S.Ct. 1541, 103 L.Ed.2d 845 (1989). The appellant filed a motion to

suppress on September 22, 1994, prior to the September 27, 1994 trial. However,

appellant did not get a motion date for a suppression hearing on the motion. Rather,

appellant wanted his motion heard on the day of trial. The trial court informed the appellant

that he was required to schedule a hearing so the motion could be heard prior to trial. As

such, the appellant has waived this issue. Tenn. R. Crim. P. 12(f); Tenn. R. App. P. 36(a).

An accused who validly asserts his constitutional right to represent himself does so at his

own peril. Faretta v. California, 422 U.S. 806, 835-36, 95 S.Ct. 2525, 2541, 45 L.Ed.2d

562 (1975).

       The trial court considered the motion to suppress while the jury was excused.

Appellant’s motion to suppress raised the following issue:


              Defendant’s Fourth Amendment rights were violated due to an
              unconstitutional/unlawful stop by said named officer, without
              probable/reasonable cause in a “D.U.I. Sobriety Checkpoint
              Roadblock”. Defendant also holds that a Tennessee Statute
              granting authorization for such an unlawful stop does not exist.


The trial court denied the motion.

       The Tennessee Highway Patrol, with the help of local officers, was conducting a

roadblock as part of a program called “Checkpoint Tennessee,” which is sponsored by the

Tennessee Department of Safety. The officers stopped all vehicles traveling towards and

traveling away from Elizabethton on Highway 67. Once stopped, the officers checked the

drivers’ licenses, vehicle registration, and looked for signs of intoxication. If there was no

indication that the driver had been drinking and the driver had a valid driver’s license and

registration, he or she was allowed to drive away. However, if the officer developed a

reasonable suspicion that the driver had been drinking, he or she was detained for

investigation of driving under the influence.

       The appellant alleges that roadblocks are illegal because they are conducted



                                                4
without a suspicion of wrong-doing. However, the United States Supreme Court has held

that such stops do not violate the Fourth Amendment. Michigan Dept. of State Police v.

Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). Article I, Section 7 of the

Tennessee Constitution is interpreted no differently than the Fourth Amendment in the

context of suspicionless roadblock stops. State v. Sarah Hutton Downey, Hamilton County

No. 03-C-01-9307-CR-00221 (Tenn. Crim. App., Knoxville, October 10, 1995), per. app.

granted (Tenn., April 1, 1996). Given the strong interest of the state in preventing drunk

driving, the minimal intrusion imposed on individuals stopped in this roadblock, and the lack

of officer discretion in deciding which vehicles to stop, this roadblock did not violate the

Tennessee or United States Constitutions.

       The appellant also argues that no law exists which authorizes the Highway Patrol

to conduct these roadblocks. Tennessee Highway Patrol Officers have the statutory duty

to enforce all laws regulating the use of Tennessee Highways. Tenn. Code Ann. § 4-7-

104.   This would obviously include laws against drunk driving. There are no laws

prohibiting the use of roadblocks for drunk driving detection.

       This issue is without merit.



                               NOTICE OF THE CHARGES



       The appellant complains that despite repeated requests of the trial court and the

assistant district attorney general, he was never offered laws or statutes to inform him of

“the nature and cause of the accusations.” Based on the transcript of the proceedings, the

appellant’s main complaint is that when the trial court denied his motions to suppress and

to dismiss, it did not cite an exact statute or case law that the appellant was charged with

violating.

       The transcript indicates that the appellant was furnished with a copy of the

indictment which contained all of the charges against him prior to trial. Each count

identified the specific statute the appellant was charged with violating. A review of the

indictments indicates adequate notice of the charges facing the appellant. See State v.

Mayes, 854 S.W.2d 638, 640 (Tenn. 1993); State v. Sowder, 826 S.W.2d 924, 928 (Tenn.



                                             5
Crim. App. 1991), cert. denied,        U.S.    , 114 S.Ct. 229, 126 L.Ed.2d 184 (1993).

       This issue is without merit.



                             RIGHT TO WAIVE A TRIAL BY JURY



       The appellant claims that the trial court required him to be tried by a jury over his

objection. The only evidence in the record that the appellant waived his right to a trial by

jury appears at the motion for new trial. The appellant recalled that at his arraignment he

“simply made the statement that [he] did not feel a jury was necessary” and was then told

by the judge “[w]e’re going to have a trial by jury.” The court did not remember this

conversation. The appellant admitted that he never filed a written motion to waive the jury

trial. The record supports this assertion. Absent a written waiver of the right to a trial by

jury, the court must provide a trial by jury. Tenn. R. Crim. P. 23(a); State v. Bobo, 814

S.W.2d 353, 359 (Tenn. 1991) (citing State v. Durso, 645 S.W.2d 753, 758 (Tenn. Crim.

App. 1983)).

       This issue is without merit.



                                        DUE PROCESS



       The appellant claims that he was denied a fair trial because he did not know the trial

would start the same day the jury was selected. However, the record does not contain a

defense motion for continuance. Nor does the record indicate that the appellant’s lack of

preparation was brought to the attention of the trial court. Appellant’s brief, which was filed

on November 17, 1995,1 indicates that he did not present a defense in the trial court

because he mistakenly believed he could introduce facts in this Court. This issue is

therefore waived. Tenn. R. App. P. 36(a); State v. McPherson, 882 S.W.2d 365, 373

(Tenn. Crim. App.), per. app. denied (Tenn. 1994); State v. Gregory, 862 S.W.2d 574, 578

(Tenn. Crim. App. 1993); State v. Thomas, 818 S.W.2d 350, 364 (Tenn. Crim. App.), per.

app. denied (Tenn. 1991).


       1
           The appellant filed three appellate briefs in this case.

                                                6
       The appellant also argues that his trial was fundamentally unfair because the trial

court refused to consider the law cited in the appellant’s motion to suppress. As a result,

the appellant chose to “stand mute” during the trial.

       The appellant’s decision to “stand mute” during the trial was a knowing and

voluntary choice. The appellant was not denied the opportunity to present his case, cross-

examine witnesses, or appeal the judge’s rulings of law. Moreover, the appellant executed

a written waiver of the right to counsel. The appellant felt it in his best interest to represent

himself even after all the verdicts in this case except the second offense of driving under

the influence were returned. The following colloquy took place in regards to additional

charges of driving on a revoked license:


               The Court:    [Y]ou have the -- the same three choices
                             regarding representing yourself, hiring an
                             attorney, or asking the Court to appoint you an
                             attorney as we -- as I explained the last time. . .
                             . [W]hat do you want to do in that case regarding
                             a lawyer?

               Appellant:    Represent myself.

               The Court:    And, state for the record why you want to do
                             that.

               Appellant:    I feel it’s my best interest.

               The Court:    [A]re you still under the belief what you told me
                             about Abraham Lincoln?

               Appellant:    Oh, I still believe that.

               The Court:    What -- what did Mr. Lincoln say?

               Appellant:    He said, anyone who has a -- anyone who
                             represents himself in a court of law has a fool for
                             a client, and Abraham Lincoln was an attorney.

               The Court:    This is true. So, you understand that -- that you
                             are -- are held to all of the technical knowledge --
                             Rules of Evidence, Rules of Procedure that --
                             that a lawyer would be?

               Appellant:    Yes, sir.


The trial court took extra precautions to assure a fair trial. The court sua sponte excluded

testimony elicited by the state that was objectionable. In short, the appellant was not

denied a fair trial.



                                               7
    This issue is without merit.




                                       JOE B. JONES, PRESIDING JUDGE


CONCUR:



    JOHN H. PEAY, JUDGE




  DAVID H. WELLES, JUDGE




                                   8
