State v. Nuchols ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
MAY 1998 SESSION June 10, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) NO. 03C01-9709-CC-00400
Appellee, )
) BLOUNT COUNTY
VS. )
) HON. D. KELLY THOMAS, JR.,
FRED NUCHOLS, ) JUDGE
)
Appellant. ) (DUI, Revoked License)
FOR THE APPELLANT: FOR THE APPELLEE:
C. MICHAEL ROBBINS JOHN KNOX WALKUP
3074 East Street Attorney General and Reporter
Memphis, TN 38128
(On Appeal) CLINTON J. MORGAN
Assistant Attorney General
RAYMOND MACK GARNER Cordell Hull Building, 2nd Floor
District Public Defender 425 Fifth Avenue North
419 High Street Nashville, TN 37243-0493
Maryville, TN 37804-4912
(At Trial) MICHAEL L. FLYNN
District Attorney General
PHILIP H. MORTON
Assistant District Attorney General
363 Court Street
Maryville, TN 37804-5906
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Fred Nuchols, appeals his Blount County jury convictions
for driving under the influence of an intoxicant, third offense, and driving on a
revoked license, third offense. The sole issue presented for review is whether
the trial court erred in permitting the state to recall a witness in rebuttal. The
judgment of the trial court is affirmed.
FACTS
Deputy Rusty Borden of the Blount County Sheriff’s Department testified
that he observed the defendant’s van straddling the white line on the right side of
the highway. The van was traveling approximately twenty-five (25) to thirty (30)
miles per hour, which was below the posted limit. When the van passed the
deputy, the defendant had a “glazed look.”
Based on the van’s travel on the outside line, its slow rate of speed, and
the appearance of the driver, the deputy decided to stop the vehicle to
investigate whether the driver was under the influence of an intoxicant. The van
pulled into the parking lot of an adjacent store. Before the deputy could
approach the defendant, the defendant went inside. When the defendant
reemerged, he got into the backseat of the van, and another person drove the
van.
Deputy Borden subsequently stopped the van. The defendant was sitting
in the backseat at this time. The deputy testified that the defendant had the odor
of alcohol on his breath, slurred speech, bloodshot eyes, and was unsteady on
his feet. The defendant explained to the officer that they switched drivers
because he “had a little too much to drink.” The defendant declined to perform
field sobriety tests or take a blood alcohol test. After running a check of the
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defendant’s license, the deputy discovered it had been revoked in Tennessee.
The defendant produced an expired Georgia license.
The defendant testified that he had two (2) beers with breakfast and was
not driving the van at any time that morning. He also denied ever having his
Tennessee driver’s license revoked. The essence of his testimony was that the
deputy was “the lyingest (phonetically) human I ever seen in my life.”
In response to the defendant’s testimony the state recalled Deputy
Borden to ask whether he was able to form an opinion as to whether the
defendant was intoxicated. The deputy stated his opinion was that the
defendant was intoxicated when he was arrested.
REBUTTAL TESTIMONY
The defendant contends he was unfairly prejudiced by the state
presenting the rebuttal testimony of Deputy Borden. He alleges this testimony
was not proper rebuttal testimony, but rather was a restatement of the deputy’s
former testimony.
Rebuttal evidence is that which tends to explain or controvert evidence
produced by an adverse party. Cozzolino v. State, 584 S.W.2d 765, 768 (Tenn.
1979). Whether to permit rebuttal testimony is within the sound discretion of the
trial court. State v. Brown, 795 S.W.2d 689, 695 (Tenn. Crim. App. 1990). The
trial court’s decision in this regard will only be reversed on appeal upon a
showing of a clear abuse of discretion. State v. Scott, 735 S.W.2d 825, 828
(Tenn. Crim App. 1987).
In the instant case we find no abuse of discretion by the trial court. The
defendant in his testimony had specifically denied being intoxicated. Allowing
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the deputy to contradict this testimony in rebuttal, even if the deputy had briefly
testified to the same thing during the state’s case-in-chief, was not an abuse of
discretion. This issue is without merit.
Accordingly, the judgment of the trial court is affirmed.
_________________________
JOE G. RILEY, JUDGE
CONCUR:
_________________________
JOSEPH M. TIPTON, JUDGE
_________________________
CURWOOD WITT, JUDGE
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