State v. Drinnon ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
FILED
August 14, 1998
MAY 1998 SESSION
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 03C01-9708-CR-00347
)
vs. ) Hamblen County
)
MICHAEL TODD DRINNON, ) Hon. James E. Beckner, Judge
)
Appellant. ) (Evading Arrest - 2 cts.
) 3d offense Driving on Revoked
License - 2 cts.)
FOR THE APPELLANT: FOR THE APPELLEE:
GREG W. EICHELMAN JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
D. CLIFTON BARNES CLINTON J. MORGAN
Asst. District Public Defender Asst. Attorney General
419 High St. 425 Fifth Ave. N., 2d Floor
Maryville, TN 37804 Nashville, TN 37243-0493
C. BERKELEY BELL
District Attorney General
JOHN DUGGER
Asst. District Attorney General
510 Allison St.
Morristown, TN 37814
OPINION FILED:________________
AFFIRMED
CURWOOD WITT, JUDGE
OPINION
0 The defendant, Michael Todd Drinnon, appeals from his convictions
of two counts of evading arrest and two counts of third offense driving on a revoked
license. Drinnon received his convictions at the conclusion of his trial before a jury
of his peers in the Hamblen County Criminal Court. He received sentences of two
years each for the evading arrest convictions and eleven months, 29 days for the
driving on revoked license convictions. The evading arrest convictions were
imposed consecutively to each other and concurrently to the driving on revoked
license convictions, for an effective sentence of four years.1 In this direct appeal,
Drinnon challenges the sufficiency of the convicting evidence, the court's ruling that
a defense witness must not invoke his Fifth Amendment privilege if he took the
stand, and the sentence he received. Following a review of the record and the
briefs of the parties, we affirm the judgment of the trial court.
The state's evidence at trial was that the defendant, who has a
revoked driver's license, ran a stop sign and then fled from Officer Bob Ellis of the
Morristown Police Department on June 16, 1996. Shortly thereafter, on June 22,
1996, Officer Ellis again encountered the defendant, who led him on a second
chase. Officer Lynn Bales saw a videotape that Officer Ellis made of his second
pursuit of the defendant, and on June 26, 1996, Officer Bales encountered an
individual and a motorcycle, both of which matched those sought by Officer Ellis.
The individual was the defendant.
The defendant's trial evidence was that an individual other than
1
The sentences were imposed consecutively to a previous sentence for
which the defendant was on appeal bond at the time he committed these
offenses.
2
himself had driven the motorcycle.
I
The defendant's first challenge is to the sufficiency of the convicting
evidence. However, we are precluded from considering the issue before us
because the defendant has failed to see that all of the trial evidence is included in
the record. The key issue at trial was the identity of the perpetrator. The defendant
claimed someone else committed the crimes. Several exhibits were admitted which
apparently depict tattoos on the defendant's back and a similar tattoo on the back
of the person the defendant claims committed the crimes. These exhibits were not
included in the record on appeal. "It is the duty of the appellant to prepare a record
which conveys a fair, accurate and complete account of what transpired in the trial
court with respect to the issues which form the basis of the appeal." State v. Oody,
823 S.W.2d 554, 559 (Tenn. Crim. App. 1991); Tenn. R. App. P. 24(b). If the record
fails to contain necessary items with respect to an appellate issue, the court is
precluded from considering the merits of the issue. State v. Ballard, 855 S.W.2d
557, 560-61 (Tenn. 1993); Tenn. R. App. P. 24(b). Accordingly, we are unable to
consider this issue on its merits.
II
In his second issue, the defendant claims the trial court erred in
instructing a defense witness to answer a question after the witness invoked his
Fifth Amendment right not to give incriminating testimony against himself. The
defendant's brief contains no citation to any legal authority whatsoever. See Tenn.
Ct. Crim. App. R. 10(b); Tenn. R. App. P. 27(a)(7). Failure to follow the rules of
court is a perilous practice which often, as in this case, results in technical default
3
of the issues improperly presented.2 See Tenn. Ct. Crim. App. R. 10(b).
Moreover, if this issue had been properly presented, we would find it
without merit. Before the witness took the stand, the assistant district attorney
objected and informed the court that the defense was calling the witness solely so
he could invoke his Fifth Amendment privilege against self-incrimination when
asked whether he was the driver for the incidents with which the defendant was
charged. The court ruled that the witness must give his testimony, rather than
invoking his constitutional privilege. Thereafter, the defense offered the witness'
testimony. The witness admitted driving the motorcycle in question on two
occasions in June 1996. When asked whether he avoided a police vehicle which
was chasing him when he was riding the motorcycle, he first said he would "rather"
invoke his Fifth Amendment privilege. The court instructed him, "You need to
answer the question." Thereafter, he denied fleeing from a police officer on the
motorcycle.
An in-depth analysis of the applicable law is not necessary because
these facts reveal that the witness had no need to invoke his Fifth Amendment
privilege. His testimony is devoid of evidence of any crime he committed.
Furthermore, we find no evidence whatsoever to support the defendant's claim that
the witness' testimony in this regard was untruthful.3
2
Additional penalties for failure to file a brief which substantially conforms
with the requirements of the Tennessee Rules of Appellate Procedure include
striking the brief and ordering the offending party to file a new brief and ordering
payment of costs by the offending attorney or party. Tenn. R. Ct. Crim. App.
10(a). Willful noncompliance with the rules of this court may result in a contempt
citation. Tenn. R. Ct. Crim. App. 16.
3
The defendant also briefly argues that the trial court made improper
comments adversely reflecting on the credibility of this witness in the presence of
the jury. The record reflects that the challenged comments, which we do not find
illustrative of the witness' credibility, were made at a bench conference out of the
4
If this issue had been properly addressed in the defendant's brief, we
would find it without merit.
III
Finally, the defendant challenges the propriety of the maximum
incarcerative sentences he received on each count and the imposition of
consecutive sentences on two of the counts. Again, he has failed to make
appropriate references to the record and citation to relevant authorities. His
argument on this issue consists of three sentences and does not allege any specific
deficiency in the manner in which the trial court imposed the sentences. The issue
is waived. See Tenn. Ct. Crim. App. R. 10(b); Tenn. R. App. P. 27(a)(7).
In any event, the record reflects that the defendant received a proper
sentence. The trial court thoughtfully and methodically applied the principles of the
Sentencing Reform Act of 1989 in determining the length of the individual sentences
and imposing consecutive sentencing. The defendant has lived a protracted and
active life of crime, especially for a man of only 33 years of age. He has repeatedly
failed at serving probated or paroled sentences. He has continued to violate the law
and/or has received new sentences on several occasions despite being on
probation, parole or bond. He shows no prospect of reforming himself into a
productive, law abiding member of society, and the public deserves protection from
the defendant.
We affirm the judgment of the trial court.
hearing of the jury. We view the defendant's implication that the jury was
prejudiced by these comments as, at best, misguided, in light of the record's
reflection that the comments were not heard by the jury.
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_______________________________
CURWOOD WITT, JUDGE
CONCUR:
_____________________________
JOSEPH M. TIPTON, JUDGE
_____________________________
JOE G. RILEY, JUDGE
6