State v. Willard C. Cook, Sr. ( 1997 )


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  •              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE                     FILED
    August 15, 1997
    APRIL 1995 SESSION
    Cecil W. Crowson
    STATE OF TENNESSEE,                   )                           Appellate Court Clerk
    )
    Appellee,               )   No. 01C01-9501-CC-00001
    )
    )   Coffee County
    v.                                    )
    )   Honorable Gerald L. Ewell, Sr., Judge
    )
    WILLARD C. COOK, SR.,                 )   (Driving Under the Influence)
    )
    Appellant.              )
    SEPARATE CONCURRING & DISSENTING OPINION
    In accordance with Court procedure, I originally was assigned this case.
    Upon completion, my colleagues agreed that the appellant’s conviction should be
    affirmed. However, they both disagree with me that a pretrial motion to suppress
    the results of the intoximeter test was required. Judge Tipton has eloquently and
    persuasively stated the majority’s position. I, however, remain unswayed in my
    belief that a pretrial motion to suppress is the required course of action to suppress
    evidence of intoximeter results. I will succinctly explain my rationale below.
    At trial, the appellant challenged the admissibility of the test results under
    State v. Sensing, 
    843 S.W.2d 412
    (Tenn. 1992). In Sensing, the Court addressed
    the necessary foundation that the state must establish to admit breathalyzer test
    results. 
    Id. at 416. One
    of the requirements is that the testing officer must be able
    to testify that the motorist was observed for the requisite twenty minutes prior to the
    test; and that during this period, he did not have foreign matter in his mouth, did not
    consume any alcoholic beverage, smoke, or regurgitate. 
    Id. The appellant claims
    that the trial court improperly admitted the test results into evidence because he had
    foreign matter in his mouth prior to and when the test was administered. The
    appellant asserts that his dentures are foreign matter. The trial court held that he
    waived the issue of admissibility because he failed to file a pretrial motion to
    suppress the evidence. The court did not abuse its discretion in not granting relief
    of such waiver.
    Judge Tipton’s majority opinion makes a distinction between an issue
    relating to sufficient foundation and the typical suppression motion involving
    evidence “illegally obtained.” I am not persuaded as to the distinction. I believe we
    should deal in substance, not form. The purposes of Rules 12(b)(3) and 12(f) are to
    avoid unnecessary trial interruption and, more importantly, to assure that the state
    may appeal an adverse ruling without double jeopardy consequences. See State v.
    Braden, 
    874 S.W.2d 624
    , 625 (Tenn. Crim. App. 1993); State v. Randolph, 
    692 S.W.2d 37
    , 40 (Tenn. Crim. App. 1985). Allowing a defendant to pursue a
    suppression issue like this one at the midpoint of a trial would destroy the state’s
    case by giving the prosecution no appellate avenue if the ruling is adverse.
    I believe that the trial court properly denied the appellant’s challenge to the
    admissibility of the test results. A motion to suppress evidence must be raised prior
    to trial. Tenn. R. Crim. P. 12(b)(3). Failure to do so constitutes a waiver of the
    objection. Tenn. R. Crim. P. 12(f). Appellant’s counsel could have made a motion
    to suppress the test results based on the state’s inability to lay the proper foundation
    prior to trial. Therefore, I concur in the results affirming the conviction but dissent on
    the suppression-waiver issue.
    _____________________________
    PAUL G. SUMMERS, Judge
    2
    

Document Info

Docket Number: 01C01-9501-CC-00001

Filed Date: 8/15/1997

Precedential Status: Precedential

Modified Date: 10/30/2014