author: GARRISON, Judge.

text:
    STATE of Missouri, Plaintiff-Appellant, v. Michael J. WELLS, Defendant-Respondent.
    No. 23519.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 22, 2000.

      Paul R. Boyd, Special Pros. Atty., Benton, for Appellant.
    Daniel T. Moore, Moore & Walsh, L.L.P., Poplar Bluff, for Respondent.
   GARRISON, Judge.

The sole issue on this appeal is the propriety of the trial court’s order suppressing contraband seized following the search of an automobile operated by Michael J. Wells (“Defendant”). The State appeals pursuant to § 547.200.1(3), RSMo Cum.Supp.1999, contending that suppression of that evidence was erroneous because it was properly seized pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); the officer had probable cause to search the remainder of the vehicle under the “automobile exception” after having found weapons in the car; and the evidence would have inevitably been discovered when an inventory was made of the car.

The State has the burden of showing by a preponderance of the evidence that a motion to suppress should be denied. § 542.296.6; State v. Franklin, 841 S.W.2d 689, 644 (Mo. banc 1992). Appellate review of a motion to suppress is limited to determining whether sufficient evidence exists to sustain the trial court’s holding. State v. Wise, 879 S.W.2d 494, 503 (Mo. banc 1994), cert. denied, 513 U.S. 1093, 115 S.Ct. 757, 130 L.Ed.2d 656 (1995). If the trial court’s ruling is plausible in light of the record viewed in its entirety, the appellate court may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. State v. Milliorn, 794 S.W.2d 181,184 (Mo. banc 1990). We defer to the trial court’s evaluation of the credibility of the witnesses and the weight of the evidence. State v. Villa-Perez, 835 S.W.2d 897, 902 (Mo. banc 1992).

On September 16, 1997, Donnie Elder (“Elder”) reported that a male with long brown hair, driving a small, shiny, red sports car with hidden headlights had shot at him on Highway 21 in Grandin, Missouri. Carter County Deputy Sheriff Clifford Cumins (“Deputy Cumins”) talked with Elder who told him that as he was pulling out of Grandin heading south, a red car came up behind him and the occupant shot at him. Deputy Cumins then went to Highway 21 and, with the assistance of another deputy, stopped a car matching Elder’s description, which was driven by Defendant. When Deputy Cumins approached the car he asked Defendant if he had any guns in the car, to which Defendant replied that he had a black long barrel rifle that was leaning against the front of the passenger seat, and a pistol located on the right floorboard. After having Defendant put his hands on the steering wheel, Deputy Cumins went to the passenger side of the car and removed a loaded .22 caliber pistol in a holster from under some motorcycle parts in the passenger floorboard. Deputy Cumins had not been able to observe the pistol from either the driver or passenger’s side of the car, although he had been able to see the rifle when he first approached the car. Deputy Cumins then instructed Defendant to get out of the car and asked him if there were other weapons in the car. Defendant said that there were none. According to Deputy Cumins, he asked for and received permission from Defendant to search the car. According to Defendant, however, he was never asked to consent to a search of the car, and he gave none.

When Deputy Cumins searched the rest of the car, he found a shop towel with two syringes rolled up in it behind the driver’s seat. The syringes had a small amount of liquid in them which, according to Deputy Cumins, Defendant said he used to give shots to the fighting chickens that he raised. Defendant was then placed under arrest for possession of a concealed weapon and for “investigation of illegal drugs,” and was taken to the Carter County Sheriffs Office. Another deputy drove Defendant’s car to the police station in Van Burén where its contents were inventoried. According to Deputy Cumins, it was department policy to inventory any impounded vehicle for identification and safekeeping of property contained in it, and he identified a document containing the inventory done . on Defendant’s car. Another witness employed with the SEMO Drug Task Force testified that it is a customary practice to do an inventory search of a vehicle after it is stopped if the subject is arrested or if the vehicle is seized. Other drug-related items were apparently found when the car’s contents were inventoried, but the identity and extent of those items is not apparent from the record before us.

Defendant filed a motion to suppress all items of evidence taken in the search of his car. The trial court held that the stopping of Defendant was consistent with the reasoning in Terry, and that Deputy Cumins was justified in retrieving the loaded pistol concealed in the front floorboard of the car. It held, however, that that “was the boundary of the Terry stop and subsequent weapons search [Defendant] had been removed from his auto the auto and weapon (a pistol) matching the victims [sic] statement had been found.” It continued, saying that “..the officer continued to search the vehicle relying on an ‘oral’ consent which [Defendant] vigorously denied giving under all the circumstances the burden is on the State to prove further search of the vehicle was by consent, this they failed to do.” Consequently, the trial court struck Count I of the information (possession of methamphetamine, a controlled substance, § 195.202), and Count II (attempt to manufacture a controlled substance, § 195.211). This left Count III for trial (possession of a concealed weapon, § 571.030). The State appeals.

In its sole point on appeal, the State contends:

' The trial court clearly erred in ruling that certain drug evidence seized by the State from a vehicle stop be suppressed because, A) the officers [sic] action of seizing the contraband from the passenger compartment of the car was proper under Terry v. Ohio and its progeny, B) the officer had probable cause to searh [sic] the rest of the passenger compartment of a motor vehicle for additional weapons or contraband after finding a concealed weapon in the passenger compartment under the automobile exception, and, C) the evidence suppressed by the court would have been inevitably discovered by the officer through an inventory of the vehicle or throgh [sic] the search incident to the [Defendant’s] arrest from his vehicle.

The issue here apparently relates to the seizure of the syringes and other drug-related items. That portion of the motion to suppress relating to the guns was overruled and is not before us. What the State complains about is the suppression of items found after the guns were discovered and removed from the car.

The State first argues that the search of the vehicle and seizure of items, after the handgun was seized, was authorized under the theory of Terry. Terry stands for the proposition that an investigative detention, while a seizure, is authorized where specific and articulable facts and rational inferences from those facts give rise to a reasonable suspicion that a person has committed or is committing a crime. 392 U.S. at 15-20, 88 S.Ct. at 1877-80, 20 L.Ed.2d at 902-05; State v. Spurgeon, 907 S.W.2d 798, 799 (Mo.App. S.D.1995). Probable cause to make an arrest is not necessary to make a stop authorized in Terry. State v. Fernandez, 691 S.W.2d 267, 269 (Mo. banc 1985). In this case, it is not the stop itself, which is in question, but whether the trial court erred in holding that the authorized search incident to that stop ended with the seizure of the pistol from the passenger floorboard of the car.

The State argues that the scope of the authorized Terry encounter extended beyond the seizure of the pistol and included the discovery and seizure of the drug-related items apparently found in the car as well as in the trunk and engine compartment. It cites Fernandez, 691 S.W.2d at 269-270, for the principle that a court should balance the need to locate criminals and protect the police officers against the invasion of the individual, considering the nature and quality of the intrusion. It also cites State v. Lanear, 805 S.W.2d 713, 716 (Mo.App. W.D.1991), for the proposition that the Terry stop principle has been “extended to the search of the interior of the vehicle ‘if the police officer possesses a reasonable belief based on specific and ar-ticulable facts which, taken together with rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.’ ”

The State acknowledges that the trial court apparently believed that Defendant had complied with Deputy Cumins’ direction to get out of the car before the search of the rest of the car during which the items in dispute were discovered. As indicated earlier, we defer to the trial court’s determination of credibility. The fact that Defendant was out of the car does not alone, however, prevent the officers from proceeding with the search authorized by the Terry stop. In U.S. v. Gleason, 25 F.3d 605, 608 (8th Cir.1994), cert. denied, 513 U.S. 911, 115 S.Ct. 283, 130 L.Ed.2d 199 (1994), the court said that the limited search of an automobile’s interior authorized by Terry is “permissible even when the occupant has been removed from the automobile to deny the occupant further access to his weapons.” The Gleason court described the area of the search authorized pursuant to an investigative stop to be that of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden. Id.

Deputy Cumins had stopped Defendant because of a report that a man driving a car described as similar to that driven by Defendant, had shot at someone. In addition, Deputy Cumins had seen one firearm in the car and had retrieved another, which was loaded and concealed, after being told of it by Defendant. Under these facts, it was reasonable for Deputy Cumins to have a belief that Defendant was dangerous and might gain immediate control of weapons so that he was authorized to search the passenger compartment of the car. When he did so, he found the syringes. He was not required to ignore what he believed to be drug-related items found during a search for weapons. Michigan v. Long, 463 U.S. 1032, 1050, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201, 1220 (1983); Gleason, 25 F.3d at 608; State v. Cross, 757 S.W.2d 613, 615 (Mo.App. W.D.1988). The concealed loaded pistol and syringes were found during the search of. the passenger compartment, which was authorized under these facts as an extension of the Terry stop.

The State also contends that Deputy Cumins had probable cause to search the rest of the passenger compartment of the vehicle for additional weapons or contraband after finding a concealed weapon in the passenger compartment under “the automobile exception.” It should be noted that this portion of the point, by its terms, goes only to the syringes found in the passenger compartment, and not to the other unspecified items found in the trunk and engine compartment.

A search of an automobile on the highways pursuant to probable cause to believe that contraband, weapons or evidence of a crime are within the automobile is a well established exception to the Fourth Amendment warrant requirement. State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. banc 1990). “The automobile exception to the warrant requirement stems from the fact an automobile’s mobility often presents an exigent circumstance making procurement of a search warrant unfeasible, and especially because citizens have a less significant expectation of privacy in their automobiles than in their homes or offices.” Id. “Such automobile search may be conducted on probable cause to believe that contraband is concealed within, a belief springing from circumstances that would justify issuance of a warrant.” Id. “Probable cause may arise when the facts and circumstances within the knowledge of the seizing officer are sufficient in themselves to produce in a man of reasonable caution a belief that the contents of the automobile offend the law.” Id. Reduced to its simplest formulation, probable cause requires no more than a reasonable belief that it is more probable than not that the vehicle contains illegal property. Milliom, 794 S.W.2d at 183.

In this case, Defendant had been stopped because his vehicle matched the general description of the car used in the reported shooting, and Deputy Cumins had already discovered a concealed weapon in the car. He had also observed another weapon against the passenger seat of the car. There is no suggestion that Deputy Cumins was required to then conclude that the car contained no other concealed weapons. Defendant seems to concede in his brief that the pistol found by Deputy Cumins was not the type reported involved in the shooting. That fact could be construed to raise the possibility of other weapons being in the car. Certainly, a further search was not prohibited by Defendant’s statement that there were no other weapons in the car. We hold that under these circumstances, Deputy Cu-mins had probable cause to proceed with the search of the car for other weapons. The right to do so did not, as apparently determined by the trial court, depend on whether Defendant consented.

It was during the search of other parts of the car that the syringes were found containing a liquid, which Deputy Cumins suspected was an illegal drug. As noted earlier, even though the continuation of the search was justified based on probable cause that the car contained other weapons, Deputy Cumins was not required to ignore the syringes with what appeared to be drugs, which he found during that search. It was after discovery of the syringes that Defendant was placed under arrest and removed from the scene along with his car, which was taken to the Van Burén police department.

Apparently an additional search of the car was conducted at the police department, resulting in the discovery and seizure of additional drug-related items. In this regard, we note that the existence of probable cause to search the vehicle at the scene does not necessarily preclude a continuation of that search after the car is taken from the scene to a police station. State v. Lane, 937 S.W.2d 721, 723 (Mo. banc 1997). See also Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975,1981, 26 L.Ed.2d 419, 429 (1970). In State v. Childress, 828 S.W.2d 935, 943 (Mo.App. S.D. 1992), we said that “[i]f the police have probable cause to justify a warrantless seizure of an automobile on a public roadway, they may conduct either an immediate or a delayed search of the vehicle,” citing California v. Acevedo, 500 U.S. 565, 569, 111 S.Ct. 1982, 1986, 114 L.Ed.2d 619, 623 (1991). We also said in Childress that if probable cause justifies a search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. 828 S.W.2d at 943.

The State also contends that the seizure of the items from the car was justified on the basis that law enforcement personnel would have inevitably discovered them in the course of an inventory of the vehicle’s contents following the vehicle’s impoundment. In Milliorn, 794 S.W.2d at 184, the Court quoted from Nix v.. Williams, 467 U.S. 481, 447, 104 S.Ct. 2501, 2511, 81 L.Ed.2d 377, 389 (1984), in saying “if the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings.” Inventory searches are reasonable on three basis: (1) the protection of the vehicle owner’s property, (2) the protection of the police from false claims of lost property, and (3) the protection of the police from potential danger. Milliom, 794 S.W.2d at 185. It is necessary, however, that there be some showing that the decision to impound and conduct an inventory was in accordance with standard procedures in the local police department. Id. at 186. Once the decision is made to impound in accordance with such standard procedures, the inventory that follows is reasonable if the government shows that it is motivated by a desire to protect itself against false claims of theft or to protect property from damage. Id.

In this case, there was testimony that it was the policy of the sheriffs department to inventory any impounded vehicle for the purposes of identification and safekeeping of any property in the vehicle. In State v. Shelton, 871 S.W.2d 598, 599 (Mo.App. E.D.1994), the court said “[e]videnee discovered during an inventory search conducted according to standardized procedures is admissible unless the police acted in bad faith or ‘for the sole purpose of investigation.’ ”

Defendant argues that the evidence demonstrated that this inventory search was in bad faith and for the sole purpose of investigation. In support, he says that the inventory search of his car was done by the Drug Task Force employee instead of an employee of the sheriffs department, and she conducted the search because she was informed that it was with his consent. He cites no authority, however, requiring that conclusion under these facts. In addition, contrary to Defendant’s assertion that the inventory search was conducted by the Drug Task Force employee, the testimony was that she only assisted other officers, including Deputy Cumins, in conducting that search. The fact, as found by the trial court, that the Drug Task Force employee was incorrect in any belief that Defendant had consented to the search, does not alone prevent the search from being an authorized inventory search. The existence of consent is not necessary if the search is justified on other grounds. See Childress, 828 S.W.2d at 944.

Defendant also argues that the inventory search of the car was unauthorized because it arose as a result of his arrest, which itself was predicated on the “illegal” search of the car at the scene where he was stopped. As discussed earlier, however, the roadside search that resulted in discovery of the syringes was authorized.

To sustain the trial court’s suppression of the evidence, this court is required to find the evidence sufficient to conclude that the search of the car complained of was not authorized by law. Because, as discussed, the evidence is insufficient to support such a finding, the order of suppression must be reversed. The order suppressing evidence found in the car is reversed, and this cause is remanded with directions to admit such evidence, if relevant and otherwise admissible.

CROW, J, and BARNEY, C.J., concur.

      . All references to statutes are to RSMo 1994 unless otherwise indicated.

      . Paraffin tests on Defendant came back negative, and Deputy Cumins testified that he was no longer a suspect with relation to the shooting.

      . The State’s Statement of Facts indicates that the Drag Task Force employee "assisted in the inventory of the items from [Defendant’s] vehicle associated with methampeta-mine.” The citation to the transcript in •support of that statement refers to that employee’s testimony m which she said she was called to the Van Burén, Missouri police department where they had Defendant’s vehicle that she said "contained what they believed to be a methamphetamine lab.” In the argument section of the State’s brief, reference is made to "the seizure of the syringes out of the passenger compartment of the car and the contraband found in the trunk and engine area of the vehicle,” which the State says was ordered suppressed by the trial court. The citation to the record in support of that statement is to the court's order sustaining the motion to suppress, but which contains no specific reference to anything seized other than the loaded pistol. The motion to suppress also referred to "other items in the trunk and engine compartment of the vehicle” without further clarification. We proceed with the discussion of this appeal based on the implied agreement of the parties that the seized items which are the subject of this appeal are the syringes and other items, all of which were drug related.

      . No issue is raised on this appeal concerning the propriety of the order striking Counts I and II.


source: Caselaw Access Project

author: BARNEY, Chief Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Billy R. WELLS, Appellant.
    No. 23378.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 27, 2000.

      Nancy A. McKerrow, Asst. Public Defender, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Stacy L. Anderson, Asst. Atty. Gen., Jefferson City, for Respondent.
   BARNEY, Chief Judge.

Appellant, Billy R. Wells, was convicted, after a jury trial, of two counts of assault in the second degree. § 565.060, RSMo 1994. The trial court sentenced Appellant as a prior offender to two, seven year terms of imprisonment to run consecutively. In his appeal, Appellant raises two points of trial court error discussed below. We affirm.

Appellant does not challenge the sufficiency of the evidence supporting his conviction. “This Court accepts as true all evidence supporting the verdict, including all favorable inferences therefrom and disregards all contrary evidence and infer-enees.” State v. Dunn, 21 S.W.3d 77, 79 (Mo.App.2000).

On May 31, 1997, Arthur McGraw was operating a red Chevrolet Lumina. Larry Matjcek was a passenger in the car. They were traveling north on Highway 19 between Cuba and Steelville. Their vehicle had just come around a right curve, and as they started into a left curve, a gray, Dodge pick-up truck driven by Appellant appeared in front of them. According to Matjcek, Appellant’s truck’s left wheel was off the shoulder “on our side of the road” and gravel was spewing from the left wheel. The Lumina was then struck by the pick-up truck head on. Gary Callahan, a witness who was in his vehicle directly behind the Lumina, testified that the pickup had hit the Lumina and had driven over the top of it. Mr. Callahan further testified that after the collision he observed some cans of beer emerge from the window of the pick-up truck and saw Appellant crawl out, stagger, fall to his knees, and get back up again.

Chief Deputy Rick Walls was the first officer on the scene. He observed the pick-up truck overturned in the middle of the roadway and directly behind it was a maroon car in the ditch with two people trapped inside in “pretty bad shape.” Appellant was standing by the truck with a can of beer in his hand which he had opened. Deputy Walls observed six or seven cans of beer lying in the roadway. Deputy Walls asked Appellant three times to put the beer can down but received no response. As Deputy Walls repeated the command, Appellant shook his head no and started to take a drink from the beer can, forcing Deputy Walls to knock the beer can from his hand. Appellant drew back as if to strike Walls. A scuffle ensued. It then took three men to handcuff Appellant once he was down on the ground. He was arrested.

When Highway Patrolman Shawn Sat-terfield arrived at the site of the collision, he found a twelve pack box of Bud Light lying in the road and a total of seven beer cans, four opened and three unopened. From his investigation Patrolman Satter-field opined that Appellant had been driving in the wrong lane when the collision occurred. When Patrolman Satterfield interviewed Appellant in his jail cell, the patrolman related that he had noticed an odor of intoxicants on Appellant’s breath. After reading Appellant his Miranda rights, according to Patrolman Satterfield, Appellant stated to him that he had drunk two beers and smoked marijuana earlier in the day. At no time did Appellant request medical attention. Later, while being driven to the hospital, Appellant admitted that he had drunk a beer right after the collision with the Lumina. Patrolman Sat-terfield testified:

And then I asked him the next question which was, why would you do something like that? It was pretty obvious there were people that were injured and still in another vehicle. Then [Appellant] informed me that he had been informed by somebody else that if you’re involved in an accident and you think that you’re possible [sic] intoxicated, to drink an alcoholic beverage before the police arrives and therefore it would be impossible to determine what his alcohol level would be at the time of the accident.

In his first point of trial court error, Appellant contends that the trial court plainly erred when in voir dire the prosecutor was allowed to argue to the jury that the “evidence would show that [Appellant] had been using marijuana and alcohol and had swerved into the wrong lane.... ” Appellant asserts that these remarks by the prosecutor predisposed the jury to convict him before it had heard any evidence. Appellant seeks plain error review of the trial court’s failure to sua sponte intervene to prevent the prosecutor from making the foregoing remarks. See Rule 30.20, Missouri Court Rules (2000). “The act complained of, to constitute plain error, must ‘impact so substantially upon the rights of [a] defendant that manifest injustice or a miscarriage of justice will result.’ ” State v. Tarkington, 794 S.W.2d 297, 299 (Mo.App.1990)(quoting State v. Dñscoll, 711 S.W.2d 512, 515 (Mo. banc 1986)).

Appellant complains of the following statement made by the prosecutor:

This case is a criminal case as the judge indicated to you. On the 31st of May, 1997[,] in the early afternoon, two men named Larry Matjcek and Mark McGraw were driving an automobile on Highway 19 between Cuba and Steel-ville. Highway 19 is a primary road between Cuba and Steelville and the distance between the two is about 8 miles. In fact, Highway 19 continues on into Salem right through town here. They were driving from Steelville to Cuba going South in a Chevrolet Lumi-na. The defendant, at about the same time was driving north on Highway 19 in a pick-up truck. The defendant, the evidence will show, had been using alcohol and marijuana and swerved into the lane occupied by the two men in the Lumina and a crash occurred and those men were seriously injured. Has anyone here heard anything about this incident or read anything in the paper or know anyone involved or just heard about it from friends? Anyone at all? (emphasis added).

“Control of the voir dire examination is vested in the discretion of the trial court and we will differ or interfere with this discretion only when the record shows a manifest abuse of discretion and a real probability of injury to the complaining party.” Id.; see State v. Antwine, 743 S.W.2d 51, 58-59 (Mo. banc 1987). “A defendant has the right to an impartial jury — a jury which decides the case on the evidence presented at trial, not on information gleaned from some external source.” Antwine, 743 S.W.2d at 58; see Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). “In order to protect this right, the Court and the parties must determine a prospective juror’s personal knowledge of the crime or his exposure to pretrial publicity.” Ant-wine, 743 S.W.2d at 58. Necessarily, “[r]evelation of some portion of the facts of a case on voir dire is necessary to make this determination. An insufficient description of the facts jeopardize (sic) appellant’s right to an impartial jury.” Id. “We do not permit counsel, however, to try the case on voir dire by a presentation of the facts in explicit detail.” Id. “Nor is voir dire an appropriate occasion for argument.” Id. Accordingly, “[a] balance must be struck implicating both due process concerns and the requirements of the individual case.” Antwine, 743 S.W.2d at 58.

As previously set out, the “trial judge is in the best position to determine whether a disclosure of facts on voir dire is sufficient to assure the defendant of an impartial jury without, at the same time, being tantamount to a presentation of evidence.” Id. at 58-59. Here, the State had a legitimate purpose in setting out specific facts of the case in order to determine whether anyone had prior knowledge of the case. “Voir dire requires ‘the revelation of some portion of the facts of the case.’ ” State v. Clark, 981 S.W.2d 143, 147 (Mo. banc 1998)(quoting State v. Leisure, 749 S.W.2d 366, 373 (Mo. banc 1988)); see Antwine, 743 S.W.2d at 58. We find nothing argumentative or prejudicial about the context in which the State’s recitation of facts was made. Accordingly, we determine that there has not been a showing by Appellant of a real probability of injury to him or a manifest abuse of discretion by the trial court in not intervening on its motion to prevent the prosecutor from making his remarks. See Tarkington, 794 S.W.2d at 299. Point denied.

In his second point, Appellant contends that the trial court plainly erred in sustaining the State’s objection to his counsel’s arguing an adverse inference from the State’s failure to introduce any evidence “concerning [Appellant’s] blood alcohol content.” Again, Appellant seeks plain error review under Rule 30.20. “ ‘Plain error is one that is evident, obvious, and clear.’ ” State v. Hopper, 25 S.W.3d 691, 695 (Mo.App.2000)(quoting State v. Knight, 920 S.W.2d 612, 613 (Mo.App.1996)).

The trial courts have broad discretion in the control of closing arguments. State v. Barton, 936 S.W.2d 781, 783 (Mo. banc 1996); State v. Anderson, 867 S.W.2d 571, 576 (Mo.App.1993). Unless it clearly appears the trial court abused its discretion, its rulings will not be disturbed on appeal. See State v. Brown, 939 S.W.2d 882, 883 (Mo. banc 1997). “ ‘[I]f reasonable [persons] can differ about the propriety of the action taken by the trial court, then it cannot be said tnat the trial court abused its discretion.’ ” State v. Brown, 939 S.W.2d 882, 883-84 (Mo. banc 1997)(quoting Shirrell v. Missouri Edison Co., 535 S.W.2d 446, 448 (Mo. banc 1976)).

During Appellant’s counsel’s closing argument he stated, in pertinent part, that:

Aside from the fact that we have a very horrible accident here, State’s produced no physical evidence that [Appellant] was intoxicated. They took [Appellant] up to the Baptist Hospital. They had a lab tech come out and draw blood. Where is it?

The prosecuting attorney objected to Appellant’s counsel’s foregoing remarks on the basis that Appellant had previously filed a motion to suppress the very laboratory tests which Appellant “now ... wants to use against the state.... ” The trial court sustained the objection. However, the prosecuting attorney never moved to strike Appellant’s counsel’s remarks; nor did the prosecuting attorney object to the following pertinent remarks made thereafter to the jury by Appellant’s counsel, to-wit:

There is no physical evidence that [Appellant] was intoxicated at the time of this horrible accident.... Here, the conduct requires that [Appellant] was intoxicated at the time that this accident occurred.... But there’s simply not evidence beyond a reasonable doubt that he was intoxicated at the time of that accident.

Accordingly, we fail to see how the trial court either abused its discretion or created prejudice to Appellant in sustaining the State’s objection to Appellant’s closing argument. Clearly Appellant placed before the jury his argument that the State had “no physical evidence” of Appellant’s intoxication. Appellant was able to draw the adverse inference that the State had failed to introduce any physical evidence of Appellant’s intoxication. “On direct appeal we review the trial court ‘for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.’ ” State v. Clayton, 995 S.W.2d 468, 474 (Mo. banc 1999)(quoting State v. Morrow, 968 S.W.2d 100, 106 (Mo. banc 1998), cert. denied, 525 U.S. 896, 119 S.Ct. 222, 142 L.Ed.2d 182 (1998)). Appellant has not demonstrated that the action of the trial court was either erroneous or ‘“so substantially impacted upon his rights that manifest injustice or a miscarriage of justice will result if the error is left uncorrected.’ ” State v. Smith, 944 S.W.2d 901, 915 (Mo. banc 1997) (quoting State v. Hombuckle, 769 S.W.2d 89, 92-93 (Mo. banc 1989)). Point denied.

The judgment is affirmed.

PREWITT, J. concurs.

CROW, J., concurs.

      . Mr. Matjek suffered brain damage, a broken jaw, lost all of his teeth and suffered other injuries. Mr. McGraw testified at trial from a wheelchair. He had sustained injuries to his legs and abdomen. Both related that they suffered constant pain since the collision.

      . In his brief, Appellant omits the italicized portion of prosecutor's argument.

      . The record shows that at the hospital a laboratory technician had drawn Appellant’s blood for purposes of determining the amount of alcohol in his system. Prior to trial Appellant moved to suppress the results of the blood test and the State conceded that the blood alcohol test should not be introduced as evidence because five hours had elapsed between the time of the collision and the time Appellant’s blood was tested. Indeed, during trial. Patrolman Satterfield testified that a blood alcohol test should be given within ninety minutes after arrest of an individual suspected of driving while intoxicated.

      . Recall, however, the testimonies of Deputy Walls, Highway Patrolman Satterfield and Gary Callahan, which are probative of Appellant’s legal intoxication. See State v. Teaster, 962 S.W.2d 429, 431 (Mo.App.1998) (quoting State v. Ruark, 720 S.W.2d 453, 454 (Mo.App. 1986))(" [T]he state is not required to produce results of chemical tests to prove intoxication.' ”).


author: WILLIAM M. BARKER, J., JANICE M. HOLDER, J.,

text:
    STATE of Tennessee v. Guy BINETTE.
    Supreme Court of Tennessee, at Knoxville.
    Oct. 5, 2000.
    Jerry S. Sloan, Chattanooga, TN, for the appellant, Guy Binette.
    Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; and Ellen H. Pollack, Assistant Attorney General, Nashville, TN, for the appellee, State of Tennessee.
    Jerry H. Summers, Chattanooga, TN, for the amicus curiae, Summers & Wyatt, P.C.
   OPINION

WILLIAM M. BARKER, J.,

delivered the opinion of the court,

in which E. RILEY ANDERSON, C.J., and FRANK F. DROWOTA, III, and ADOLPHO A. BIRCH, Jr., JJ., joined.

This is an appeal from the Criminal Court for Hamilton County, which overruled the defendant’s motion to suppress all evidence obtained by the State after the defendant was stopped by a police officer on suspicion of driving while under the influence of an intoxicant. The defendant entered a conditional plea of guilty and reserved for appeal as a dispositive question of law the issue of the lawfulness of the stop. The Court of Criminal Appeals affirmed the trial court’s judgment. The defendant thereafter sought, and this Court granted, permission to appeal on the following issue: whether reasonable suspicion, based on specific and articulable facts, existed to authorize a stop of the defendant’s vehicle. Having reviewed the record in this case, we hold that the evidence does not support the trial court’s finding that the police officer acted with reasonable suspicion when he stopped the defendant. Accordingly, the judgment of the Court of Criminal Appeals is reversed, the conviction as entered by the trial court is vacated, and the charge of driving while under the influence of an intoxicant is dismissed.

On the evening of February 13, 1997, Guy Binette was driving in Chattanooga, Tennessee, when he was stopped by Officer Gerry Davis of the Chattanooga Police Department. Prior to the stop, Officer Davis followed Binette for several minutes and videotaped Binette’s driving. During this time, the officer made several statements that were recorded on the audio portion of the tape regarding what he considered to be driving errors made by Binette. He commented that Binette had “already crossed the yellow line twice,” observed that “the vehicle just made a hard swerve,” and noted that Binette, at one point, was “running about 60 miles per hour in a 45 mile per hour zone.” Based upon his observations, Officer Davis decided to stop Binette and subsequently arrest him.

After he was indicted for driving under the influence of an intoxicant, Binette filed a motion to suppress all evidence gained by the State following the stop. He argued that there was no reasonable suspicion based upon articulable facts for an investigative stop. At the suppression hearing, Binette testified and denied making the driving errors alleged by the officer. Athough Officer Davis did not testify at the hearing, the videotaped recording was introduced without objection. Basing its decision solely on the visual portion of the videotape evidence, the court reached the following conclusion:

[Tjhere was weaving within the lines, fairly significant weaving about the time the video started up until the time [Binette] turned and the lights were activated, so I do find that there was articu-lable suspicion for the stop in this case and so I will overrule the motion to suppress.

Pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(iv), Binette entered a conditional plea of guilty and reserved as a dispositive question of law for appeal the issue of the lawfulness of the stop. The plea agreement provided for a sentence of eleven months and twenty-nine days in county jail, suspended after serving forty-eight hours in jail; a fine of $360; a suspension of Binette’s driving privileges in Tennessee; and a requirement that Binette attend a DUI school. The court sentenced Binette pursuant to the agreement and issued an order holding the sentence in abeyance pending resolution of Binette’s appeal. The Court of Criminal Appeals reviewed the videotape and a majority affirmed the trial court’s judgment, finding that Binette did “swerve and weave” within his lane. Binette then sought, and this Court granted, permission to appeal on the following issue: whether reasonable suspicion based on specific and articulable facts existed to authorize a stop of Binette’s vehicle.

DISCUSSION

I. Standard of Review

In State v. Odom, 928 S.W.2d 18 (Tenn.1996), this Court examined the different standards of appellate review then used by Tennessee courts to evaluate a trial court’s findings of fact and conclusions of law on suppression issues. The Court observed that our appellate courts generally applied three different standards of review: preponderance of the evidence, any material evidence, and a standard combining both the preponderance of the evidence and any material evidence standards. See id. at 22-28. The Court resolved the split among Tennessee courts by adopting the following standard for review of suppression issues:

Questions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact. The party prevailing in the trial court is entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences that may be drawn from that evidence. So long as the greater weight of the evidence supports the trial court’s findings, those findings shall be upheld. In other words, a trial court’s findings of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise.

Id. at 23.

While Odom is certainly relevant in determining the question now before this Court, the Odom standard presupposes issues of credibility. We grant trial courts considerable deference on review of these issues because such courts are uniquely positioned to observe the demeanor and conduct of witnesses. See State v. Moats, 906 S.W.2d 431, 435 (Tenn.1995). But when a court’s findings of fact at a suppression hearing are based solely on evidence that does not involve issues of credibility, such as the videotape evidence in this case, the rationale underlying a more deferential standard of review is not implicated. Consequently, we must determine the standard of review for a trial court’s finding of fact on a motion to suppress when they are based on evidence that does not involve issues of credibility.

In the context of workers’ compensation cases, this Court has held that “where the issues involve expert medical testimony and all the medical proof is contained in the record by deposition ... then this Court may draw its own conclusions about the weight and credibility of that testimony.” Krick v. City of Lawrenceburg, 945 S.W.2d 709, 712 (Tenn.1997). The rationale allowing an appellate court to review such evidence de novo without a presumption of correctness is clear: the reviewing court is in the same position as the trial court and is just as capable of reviewing the evidence. See id. Similarly, when a trial court’s findings of fact on a motion to suppress are based solely on evidence that does not involve issues of credibility, appellate courts are just as capable to review the evidence and draw their own conclusions. Accordingly, we hold that when a trial court’s findings of fact at a suppression hearing are based on evidence that does not involve issues of credibility, a reviewing court must examine the record de novo without a presumption of correctness.

II. Application of Standard of Review

We now turn our attention to the precise issue before the Court: whether specific and articulable facts existed to authorize a stop of Binette’s vehicle. The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure ... against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.” Article I, section 7 of the Tennessee Constitution similarly prohibits unreasonable searches and seizures and is identical in intent and purpose with the Fourth Amendment. See Sneed v. State, 221 Tenn. 6, 423 S.W.2d 857, 860 (1968). “Consequently, under both the federal and state constitutions, a warrantless search or seizure is presumed unreasonable, and evidence discovered as a result thereof is subject to suppression unless the State demonstrates that the search or seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant requirement.” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.1997).

One exception to the warrant requirement exists when a police officer makes an investigatory stop based upon reasonable suspicion, supported by specific and articulable facts, that a criminal offense has been or is about to be committed. See Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Bridges, 963 S.W.2d 487, 492 (Tenn.1997). Upon turning on the blue lights of a vehicle, a police officer has clearly initiated a stop and has seized the subject of the stop within the meaning of the Fourth Amendment of the Federal Constitution and Article I, section 7 of the Tennessee Constitution. See State v. Pulley, 863 S.W.2d 29, 30 (Tenn.1993). Thus, in order for the stop in this case to be constitutionally valid, at the time that Officer Davis turned on his vehicle’s blue lights, he must have had reasonable suspicion, supported by specific and articulable facts, that Binette had committed, or was about to commit, a criminal offense.

Reasonable suspicion is a particularized and objective basis for suspecting the subject of a stop of criminal activity, see Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), and it is determined by considering the totality of the circumstances surrounding the stop, see Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). In this case, the State argues that the following specific and articulable facts give rise to reasonable suspicion that Binette was driving a vehicle while under the influence of an intoxicant:

(1) the defendant was traveling on a road in Hamilton County, Tennessee at about midnight on February 13, 1997; (2) it was not raining, and the weather was not inclement; (3) there was no construction and np traffic of any consequence; (4) [the videotape shows that] in a two minute period of time, the defendant’s car appears to touch the center line at least four times ... [ (5) ] [the videotape also shows that] the defendant’s car made a sudden swerve within his own lane.

According to the State, the first three facts, which are undisputed, eliminate other alternative explanations for the erratic driving it attributes to Binette. The State argues that “[w]hen a car weaves back and forth several times in its own lane late at night in clear weather with little traffic and no construction, a trained police officer may infer from those facts that the driver may be driving while intoxicated.” However, in each of the cases cited by the State in which other courts have found probable cause to stop a driver who was weaving within a single lane of traffic, the police officer observed the defendant weave in a pronounced manner to the outside and inside boundaries of the lane.

We have viewed the videotape, and we have listened to the officer’s recorded narration of his observations. Equally as capable as the trial court of reviewing this evidence, we find that the officer’s statements, made at the time of the investigation, are clearly contradicted by the visual portion of the tape, and thus, we give them little weight in our de novo review of the evidence. We simply do not find any evidence of pronounced weaving or hard swerving by Binette, and we disagree with the State’s contention that the videotape shows that Binette touched the center line at least four times. We note that a majority of the Court of Criminal Appeals, after viewing the videotape, found only two instances in which Binette’s vehicle touched the center line. The majority and dissenting opinions from that court agreed that the “weaving” was entirely within his lane of travel and was not exaggerated. We agree with the Court of Criminal Appeals that any movement Binette’s vehicle made within his own lane of travel was clearly not exaggerated. The number of times that a vehicle touches the center line or drifts within in a lane is not dispositive of the issue before this Court. Rather, as we have previously noted, a court must consider the totality of the circumstances in determining whether reasonable suspicion was present at the time a stop was initiated.

Prior to the initiation of the stop, the videotape shows Binette proceeding correctly through a number of intersections and stop lights and maintaining appropriate distances behind the vehicles that he was following. Moreover, Binette was traveling along a winding road — a more difficult course on which to travel in a straight line. Contrary to what Officer Davis stated that he observed, we find that Binette did not violate any rules of the road during the period in which the video camera recorded his driving. The video portion of the recording does not reflect that the vehicle was traveling at an excessive speed. Admittedly, Binette occasionally drifted from the center of the lane. Our legislature has stated that “[whenever any roadway has been divided into two (2) or more clearly marked lanes for traffic, ... [a] vehicle shall be driven as nearly as practicable entirely within a single lane.... ” Tenn.Code Ann. § 55-8-123(1)(1998) (emphasis added). “[I]f failure to follow a perfect vector down the highway ... [was] sufficient reasonf ] to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy.” United States v. Lyons, 7 F.3d 973, 976 (10th Cir.1993). Likewise, in his dissenting opinion in the court below, Judge Jerry L. Smith emphasized the danger of finding reasonable suspicion under these facts:

In essence ... [finding reasonable suspicion] creates a “stop at will” standard for police since it is the rare motorist indeed who can travel for several miles without occasionally varying speed unnecessarily, moving laterally from time to time in the motorist[’]s own lane, nearing the center line or shoulder[,] or exhibiting some small imperfection in his or her driving.

State v. Binette, No. 03C01-9802-CR-00075, at 7 n. 2 (Tenn.Crim.App. June 28, 1999) (filed at Knoxville) (Smith, J., dissenting).

The Court of Criminal Appeals has recently refused to find that an officer had reasonable suspicion to stop a driver whose driving it found not to be erratic or in any way improper. Explaining its rationale, the court stated, “We are not willing to ignore the guarantees of the Fourth Amendment and indirectly hold that ‘[t]he word “automobile” is ... a talisman in whose presence the Fourth Amendment fades away and disappears.’ ” State v. Smith, 21 S.W.3d 251 (Tenn.Crim.App.1999) (citing Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). We agree.

In conjunction with our findings based on the videotape, Binette testified that he did not make the driving errors alleged by the officer. Although we give strong deference to the conclusions of the trial court when it weighs and considers a witness’s live, in-court testimony, there is no explicit indication in the record concerning whether the trial judge found Binette to be credible. Indeed, absolutely no reference was made to Binette’s testimony; the trial judge relied entirely on her own perceptions of what was depicted on the videotape. Thus, even were we to assume that Binette was not credible, but see Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 775 (Tenn.2000) (assuming the credibility of a witness in part based on the absence of trial judge’s findings on the record), we nevertheless find that the evidence does not support the trial court’s findings, and we thus reverse the trial court’s determination that the officer had reasonable suspicion to stop Binette.

CONCLUSION

In summary, based on our review of the entire record of the suppression hearing, we hold that the evidence does not support the trial court’s finding that Officer Davis had reasonable suspicion to stop Binette for driving while under the influence of an intoxicant. While Binette did move laterally at times within his lane while operating his vehicle, we find that his movement was not pronounced, and therefore did not give rise to reasonable suspicion that he was under the influence of an intoxicant. Accordingly, the judgments of the trial court and the Court of Criminal Appeals denying Binette’s motion to suppress are reversed, the conviction as entered by the trial court is vacated, and the charge of driving while under the influence of an intoxicant is dismissed.

Costs of this appeal are assessed to the State of Tennessee.

HOLDER, J., filed a dissenting opinion.

JANICE M. HOLDER, J.,

dissenting.

I respectfully dissent. There is no need to adopt a new standard to review the videotaped evidence presented in this case. I would hold that an application of the standard of review traditionally applied in Tennessee establishes that the officer in this case had reasonable suspicion to stop Binette.

The majority reviews the videotaped evidence in this case de novo with no presumption of correctness afforded to the trial court. The standard of review is contrary to our decision in State v. Odom, 928 S.W.2d 18 (Tenn.1996). In Odom, we held that a trial court’s findings of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise. See id. at 23. The majority rejects this standard based on its conclusion that the trial court was “in no better position” than the appellate court to review the evidence because there are no issues of credibility.

Contrary to the majority’s position, there are credibility issues in this case. Questions of credibility arise whenever opposing evidence is presented. See, e.g., Thomas v. Lloyd, 17 S.W.3d 177, 187 (Mo.Ct.App.2000) (“A reviewing court’s deference to a trial court’s resolution of credibility is not limited to the issue of witness credibility, but also to conclusions of the trial court.”). The trial court had before it three competing descriptions of the events: the officer’s subjective interpretation as stated in the audio portion of the videotape, the defendant’s subjective explanation, and the videotape’s record of the event. Even if we assume that the trial court based its decision solely on the videotaped evidence, the trial court did so only after determining that the videotape was a more credible version of the facts than the explanation offered by the defendant. Trial courts are not otherwise entitled to disregard admissible evidence. Cf. State v. Hornsby, 858 S.W.2d 892, 895 n. 2 (Tenn.1993) (allowing appellate courts to disregard testimony of facts that are “inherently impossible and absolutely at variance with well-established and universally recognized physical laws” because it is “not credible evidence.”) (quoting Nelms v. Tennessee Farmers Mut. Ins. Co., 613 S.W.2d 481, 483 (Tenn.Ct.App.1978)).

The majority relies upon the “deposition rule” enunciated in workers’ compensation cases. The rationale for the “deposition rule” is that deposition evidence reaches the appellate court in the same form in which it was presented to the trial court. Accordingly, the trial court occupies no better position than the appellate court in reviewing and interpreting that evidence. The majority has determined that the videotape is in a similar posture — it comes to this Court in a form identical to that presented to the trial court. The majority therefore concludes that we are not bound by the trial court’s interpretation of the videotape because the trial court was not required to determine credibility.

Strong policy reasons exist, however, for presuming a trial court’s factual findings correct, even where credibility is not an issue. In Mitchell v. Archibald, 971 S.W.2d 25 (Tenn.Ct.App.1998), the Court of Appeals was asked by a party to consider de novo the credibility of a witness’s testimony because that testimony was on videotape. The court declined to do so, citing precedent that the trial court is in the best position to observe the witness and to determine that witness’s credibility. The court also noted that there are reasons, unrelated to credibility, for deferring to the trial court’s factual findings:

The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much.

Id. at 29 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574-75, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (internal quotations omitted)).

It is telling that three different judicial interpretations of the facts of this case were elicited by three independent reviews of the videotape at each level of review. The majority’s opinion now becomes the “correct” interpretation. But cf. Anderson, 470 U .S. at 574, 105 S.Ct. 1504 (stating “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”). By failing to give any presumption of correctness to the trial court, the majority essentially endorses a “last in line is right” rule.

If a trial court is truly in “no better position” than the appellate court to evaluate evidence, then the rationale for eliminating the presumption of correctness of the trial court’s findings is that the true facts are more likely to be gleaned from three interpretations of the evidence (at the intermediate appellate level), and eventually five interpretations of the evidence (at the Supreme Court level), than from the trial court’s single interpretation. This rationale ignores a fact that Mitchell and Anderson recognize: trial judges are the expert fact-finders. I am convinced that trial courts are in a better position than appellate courts to make findings of fact, irrespective of the form of the evidence.

Giving a presumption of correctness to the trial court in this case, I would hold that the evidence supports a finding that the stop in this case was based upon reasonable suspicion. Under Odom, appellate courts give a presumption of correctness to the trial court’s factual findings as long as the record does not preponderate against those findings. See Odom 928 S.W.2d at 23. Application of the law to the facts is de novo. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.1997).

The only factual finding made on the record in this case was that there was “fairly significant weaving.” Under Odom, I presume this finding to be correct. This presumption stands so long as the evidence in the record does not preponderate against it.

I cannot agree with the majority opinion in that there is no “evidence of pronounced weaving or hard swerving by Binette.” The officer states in the audio component of the videotape that “the vehicle just made a hard swerve.” The officer was in a good position to judge the severity of the swerve, which was barely caught on camera. Further, Binette’s vehicle does weave from side to side within his lane of travel throughout the video, albeit in slow repetition. Thus, I would hold that the record does not preponderate against the trial court’s finding of “fairly significant weaving.”

The remainder of the evidence includes the officer’s assertion that Binette had “already crossed the yellow line twice” and that Binette’s “vehicle is running about 60 miles per hour in a 45 mile per hour zone.” The trial court did not make findings of fact as to these statements. We must, however, consider the entire record to determine whether the officer had reasonable suspicion to stop Binette. The officers’s statements were admissible evidence. The statements, therefore, may be considered in determining whether the officer had reasonable suspicion.

The trial court’s specific finding of fact and the remainder of the evidence, including the trial court’s implicit rejection of Binette’s version of the facts, convinces me that the officer had reasonable suspicion that Binette was driving while impaired. I would therefore affirm.

      . Our holding is limited to the facts and issue presented in this appeal. We hereby expressly reserve decision on the issue of the proper standard of appellate review of a videotaped trial record until that issue is squarely presented.

      . See State v. Kvam, 336 N.W.2d 525, 526 (Minn.1983) (finding probable cause where police officer saw defendant’s car "pull out of the parking lot ... ‘kind of fast’ and make a ‘very wide’ right turn onto Highway 3 southbound ... saw another southbound car, a Rabbit, pull over onto the shoulder to avoid being hit and saw defendant’s car pull completely into the northbound lane, where it remained for about a block before getting back into the appropriate southbound lane ... [and observed defendant’s vehicle] ‘weaving within its lane' ”); see also People v. Perez, 175 Cal.App.3d Supp. 8, 221 Cal.Rptr. 776, 776 (1985) (finding probable cause where police officer saw "pronounced weaving” to the left and right for about three quarters of a mile); State v. Tompkins, 507 N.W.2d 736, 737 (Iowa Ct.App.1993) (finding probable cause where police officer "observed defendant’s car weave from the center line to the right side boundary several times”); State v. Field, 252 Kan. 657, 847 P.2d 1280, 1281-82 (1993) (finding probable cause where defendant’s vehicle "was weaving from the middle of its lane to the outside of the lane, to the inside of the lane and back to the middle” within one block and weave three additional times over three more blocks).

      . I cannot agree with the majority's assumption that the trial court "basted] its decision solely on the visual portion of the videotape.” The trial court’s order specifically references the point at which "the blue lights were activated.” That event can be determined only from the officer's statement that was recorded on the videotape.

      . Both parties stipulated to the admissibility of the videotape in its entirety. The officer's hearsay statements may thus be considered as substantive evidence. See State v. Smith, 24 S.W.3d 274 (Tenn.2000).


author: DROWOTA, J.,

text:
    Wade NANCE v. STATE INDUSTRIES, INC. and ITT Hartford Insurance Co.
    Supreme Court of Tennessee, Special Workers’ Compensation Appeals Panel, at Nashville.
    Dec. 27, 2000.

      Donald D. Zucarello, Nashville, for appellant, Wade Nance.
    Gina L. Zylstra, Nashville, for appellees, State Industries and ITT Hartford Insurance Company.
   MEMORANDUM OPINION

DROWOTA, J.,

delivered the opinion of the court,

in which TURNBULL, Sp.J., and CLEMENT, Sp.J., joined.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel in accordance with Tenn.Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employee contends that the trial court erred in finding that the employee’s conduct amounted to a willful failure or refusal to use a safety appliance pursuant to Tenn.Code Ann. § 50-6-110(a). To clarify this area of workers’ compensation law, the panel adopts a new standard which requires the employer to prove four elements in order to make out the affirmative defense of willful failure or refusal to use a safety appliance. The Panel vacates the trial court’s judgment and remands the case for a new trial in which the new standard will be applied.

The issue in this workers’ compensation appeal is whether the employee’s willful failure or refusal to use a safety appliance required by the employer bars an award of workers’ compensation benefits pursuant to Tenn.Code Annotated § 50-6-110(a)(1999).

Tenn.Code Ann. § 50-6-110(a), provides:

No compensation shall be allowed for an injury or death due to the employee’s willful misconduct or intentional self-inflicted injury, or due to intoxication or illegal drugs, or willful failure or refusal to use a safety appliance or perform a duty required by law.

In addition, Tenn.Code Ann. § 50-6-110(b) provides that “[i]f the employer defends on the ground that the injury arose in any or all of the above stated ways the burden of proof shall be on the employer to establish such defense.” Consequently, the defenses listed in § 50-6-110(a) are affirmative defenses. See Rule 8.03, Tenn.R.Civ.P.

Our research discloses that although there are numerous Tennessee cases pertaining to the more general defense of “willful misconduct,” there are relatively few Tennessee cases considering the issue of an employee’s alleged willful failure or refusal to use a safety appliance. Cordell v. Kentucky-Tennessee Light & Power Co., 173 Tenn. 596, 121 S.W.2d 970 (1938); Knoxville Power & Light Co. v. Barnes, 156 Tenn. 184, 299 S.W. 772 (1927); overruled in part by, Standard Glass Co. v. Wallace, 189 Tenn. 213, 218, 225 S.W.2d 35,37 (Tenn.1949); Nashville, C. & St. L. Ry. v. Coleman, 151 Tenn. 443, 269 S.W. 919 (1925); Ezell v. Tipton, 150 Tenn. 300, 264 S.W. 355 (1924); and Nashville, C. & St. L. Ry. v. Wright, 147 Tenn. 619, 250 S.W. 903 (1923). The general rule from these cases was stated in Nashville, C. & St. L. Ry. v. Wright:

according to the great weight of authority, “willful failure” to observe a safety rule or use a safety appliance is not a mere voluntary failure. Otherwise contributory negligence would defeat a recovery under a compensation statute. Willful misconduct means something more than negligence. It carries the idea of deliberation and intentional wrongdoing.

Id., 147 Tenn. at 623, 250 S.W. at 904.

"While the preceding statement of law is correct, we conclude that the law applicable to the defense of willful failure or refusal to use a safety appliance should be clarified. Accordingly, we adopt the following standard to be applied in such cases. This standard is intended to further the underlying purpose of Tenn.Code Ann. § 50-6-110(a), which is to promote safety in the workplace.

I.Elements of Willful Failure or Refusal to Use Safety Appliance

In light of Tenn.Code Ann. § 50-6-110(b), we turn to a consideration of the elements the employer must prove in order to carry its burden of proof on the affirmative defense of willful failure or refusal to use a safety appliance. Based upon the Tennessee case law on this issue and on the related issue of “willful misconduct” in general, as well as the discussion of this topic in 2 Lex K. Larson, Workers’ Compensation Law, §§ 32-35 (1997) (“Larson”), we hold that to establish this defense, the employer must prove that:

1. at the time of the injury the employer had in effect a policy requiring the employee’s use of a particular safety appliance;
2. the employer carried out strict, continuous and bona fide enforcement of the policy;
3. the employee had actual knowledge of the policy, including a knowledge of the danger involved in its violation, through training provided by the employer; and
4. the employee willfully and intentionally failed or refused to follow the established policy requiring use of the safety appliance.

In applying these standards, the court must determine whether the employer made bona fide efforts to enforce the established policy. (See # 2 above). Specifically, if the employer’s efforts were so inconsistent or intermittent as to suggest a lack of conscientiousness about the policy, the affirmative defense will fail. Furthermore, the employer cannot carry its burden of proof if it can be shown that the employer had knowledge of safety violations by its employees and acquiesced in those violations. Bryan v. Paramount Packaging Corp., 677 S.W.2d at 455 (stating that “disobedience of a ‘rule’ is not willful misconduct where the ‘rule’ is habitually disregarded with the knowledge and acquiescence of the employer.”).

Likewise, if the proof only shows that the employee had constructive (as opposed to actual) knowledge of the established policy (see # 3 above), the employer cannot be found to have carried its burden of proof. Nashville, C. & St. L. Ry. v. Wright, 147 Tenn. at 622-23, 250 S.W. at 904 (finding that employer’s posting of rule on bulletin board requiring use of goggles was insufficient to establish that employee knew of requirement). “One cannot deliberately break a rule unless one in fact knows the rule exists.” Larson at § 35.02.

In evaluating whether the employee’s conduct was willful (see #4 above), the court must distinguish between those cases in which the employee’s conduct was accidental, negligent, inadvertent, thoughtless, an error of judgment, or even reckless, and those cases in which the conduct was willful. Wheeler v. Glens Falls Ins. Co., 513 S.W.2d 179, 183 (Tenn.1974). Moreover, the word “willful” as used in “willful failure or refusal to use a safety appliance” must be construed consistently with its use in the more general defense of “willful misconduct.” See Rogers v. Kroger Co., 832 S.W.2d 538, 541 (Tenn.1992) (stating that “three elements are needed to constitute willful misconduct for purposes of the statute: (1) an intention to do the act, (2) purposeful violation of orders, and (3) an element of perverseness.”); Wright v. Gunther Nash Min. Const. Co., 614 S.W.2d at 798 (stating, “[i]n defining the term ‘willful’ this Court has limited its scope to the most extreme situations, and has for all practical purposes limited its application to willful disobedience to known and understood prohibitions.”); and Coleman v. Coker, 204 Tenn. 310, 315, 321 S.W.2d 540, 542 (Tenn.1959) (stating that “in the overwhelming majority of cases in which this defense has been made it has failed because of the absence of willfulness as that term is normally and usually defined and understood”).

Also in considering whether the employee’s action was willful, the Court must determine whether there is a plausible explanation for the employee’s failure or refusal to use the safety appliance. See Larson at § 35.04. For example, if the proof shows that the employee was not using the safety device because it was inadequate or defective, the employee should not be barred from receiving the benefits to which he or she would otherwise be entitled. Id. If there is a plausible explanation for the employee’s failure or refusal to use a safety appliance, the employee’s conduct cannot be found to have included “an element of perverseness” and consequently cannot be found to have been “willful.”

And in applying the standard set out above, the court must apply the familiar rule of construction that the workers’ compensation statutes are remedial in nature and are to be construed liberally in order to attain the purposes for which they were enacted. As we stated in Betts v. Tom Wade Gin, 810 S.W.2d 140, 142-43 (Tenn.1991),

this Court must interpret those statutes in a manner designed to protect workers and their families from the economic devastation that, in many instances, can follow on-the-job injuries. Furthermore, Tennessee’s workers’ compensation laws must be construed so as to ensure that injured employees are justly and appropriately reimbursed for debilitating injuries suffered in the course of service to the employer.

With the foregoing principles in mind, we now turn to an application of those principles to the facts of this case.

II. Application of the Standard to This Employee’s Conduct

The employee-appellant, Wade Nance, suffered a fractured right ankle on the evening of June 7, 1998, while performing his duties as a greaser and oiler for the employer-appellee, State Industries, a water heater manufacturer. State Industries employs an estimated seventeen hundred people and has a facility that spans approximately thirty-three acres under one roof. Throughout his employment, which began in 1996, Nance has worked in State Industries’ maintenance department and primarily has been responsible for greasing and oiling the industrial machinery.

On the evening he was injured, Nance had positioned himself on a ladder approximately four to five feet off the floor and was attempting to grease a turn-roller machine located in the company’s paint shop. Another employee unexpectedly activated the power to the turn-roller, causing Nance to fall from the ladder, injuring his ankle. It is undisputed that Nance failed to use a safety appliance and failed to follow the safety procedures that were adopted by State Industries with respect to greasing and oiling the industrial machinery.

To prevent machines from activating while they are being cleaned and otherwise maintained, the Occupational Health and Safety Administration (“OSHA”) has adopted the “lockout/tagout” procedure. 29 C.F.R.1910.147. This procedure prevents a machine from engaging its power source and thereby reduces the number of workplace injuries that would otherwise occur as a result of unexpected power surges. Pursuant to OSHA regulations, each employer, including State Industries, must provide its employees with a personalized lock and identification tag for use while cleaning or maintaining industrial machinery. When it is properly utilized, the lock serves to disable the power source while the tag identifies which employee is presently working on the machine.

To ensure compliance with the OSHA regulations concerning workplace safety, State Industries hired Health Consultants, an independent organization specializing in consultation and training with respect to OSHA’s rules governing employee safety. Beginning in 1995, following the development and adoption of company safety procedures concerning the lockout/tagout device, Health Consultants conducted safety classes for State Industries’ employees. The training classes focused primarily on the lockout/tagout procedure. Typically, forty-five minutes of the two-hour training class were dedicated to informing the employees of their general rights and responsibilities under OSHA’s safety rules and regulations. The remaining time was allotted specifically for employee training on the safety procedure. Upon completion of the training class, each employee was provided with a personalized lock and tag.

Nance attended the class and received his lock and tag in January of 1997. However, Nance testified that immediately following his training, he never used his lock or tag, not even a single time. Nance said that after the training class, he threw his lock and tag “in the toolbox” and forgot about it.

At trial, two of State Industries’ employees, both of whom worked with Nance, testified about the use of the lockout/tag-out procedure by State Industries’ employees. Although both workers testified that their use of the safety device was infrequent, they both confirmed that State Industries deemed the use of the locks and tags to be a mandated company safety procedure. Both workers testified that their supervisor had specifically instructed them to use the lock and tag. Also, both men testified that their supervisor had reminded them at least once of the importance of using the safety device following their training session with Health Consultants. However, although both of Nance’s co-workers had been told that they would get in trouble should they choose to disregard the employer’s safety procedures, both employees stated that because they worked the late shift and because they worked on their own throughout the large factory, they knew it was unlikely their supervisor would discover that the procedures were being disregarded. One of the two workers conceded that if his violations of the safety rule were discovered he could “get in trouble.”

There is, however, no indication as to what kind of trouble would be visited upon a violator of the safety rule. The record is silent as to what, if any, discipline policy had been adopted by the employer to ensure enforcement. Indeed, no warning signs had been posted to remind employees of the rule. Neither is there any evidence in the record that any employee had been disciplined for a violation. Apparently, Nance’s continuous violation of the safety rule for seventeen months either had not been detected, or had been overlooked by the employer. The record is silent as to any policy or procedure put in place by the employer to encourage compliance or prevent employees from disregarding the rule.

After hearing the evidence, the trial court made a number of findings of fact concerning the use of the safety device. Specifically, the trial court placed a great amount of weight on Health Consultant’s training classes and concluded that the employees who attended the training class were able to learn the importance of properly using the lockout/tagout device as well as the dangers involved should the device not be used. In addition, the trial court found that: (1) Nance attended the training class; (2) Nance knew about the lockout/tagout procedure; (3) Nance was provided with a personalized lock and tag; (4) Nance never used the lock or tag; and (5) Nance’s co-workers had used the lock and tag at least occasionally and were aware that it was a mandatory procedure. The Court concluded that Nance had “full knowledge of the danger involved, he had familiarity with the safety rules, disregarded the rules, and he was injured.” Based upon these findings, the trial court found that Nance’s conduct constituted willful misconduct under Tenn.Code Ann. § 50-6-110(a). The court therefore dismissed the employee’s complaint.

Our standard of reviewing the trial court’s findings of fact is “de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of evidence is otherwise.” Tenn.Code Ann. § 50-6-225(e)(2) (1999). In addition, we note that the trial court is in the best position to evaluate the credibility of witnesses. Story v. Legion Ins. Co., 3 S.W.3d 450, 451 (Tenn.1999).

Applying the principles discussed above to the facts of this case, we find that the evidence would support a finding that at the time of the injury the employer had in effect a policy requiring use of the lockout/tagout device. In addition, the evidence would support a finding that the employee had actual knowledge of the established policy due to the training he received through the employer, as well as knowledge of the danger of not using the device. Likewise, the record would support a finding that the employee willfully and intentionally failed or refused to follow the established policy requiring use of the safety appliance. Immediately after the training class, the employee threw his lock and tag in his toolbox and never used it a single time. Nance has not presented any legitimate, plausible, or reasonable excuse for his consistent violations of State Industries’ mandatory company policy. Nowhere has it been suggested that Nance’s lock and tag were defective, nor is there any evidence that Nance’s conduct was the result of inadvertence or mere negligence. Nance did not merely forget to use the device on a single occasion; rather, he willfully and intentionally decided to violate a company safety policy.

Thus, the evidence would support a finding that the employer carried its burden of proof on three of the four elements of the standard adopted above. As to the fourth element-the employer carried out strict, continuous and bona fide enforcement of the policy-we find insufficient evidence in the record to support a finding that the employer carried its burden of proof as to this element. Although the testimony of the employee’s two co-workers tends to show that the employer took some steps to enforce the established policy, the evidence in the record is insufficient to prove strict, continuous and bona fide enforcement of the established policy.

Because neither party nor the trial court had the benefit of the standard adopted in this opinion, we conclude that the trial court’s judgment should be vacated and the case remanded for a new trial in which both parties may present their cases in light of the principles stated in this opinion. The judgment of the Chancery Court is vacated and the case is remanded for a new trial. The costs are taxed to the appellee.

      . The employer in the pending case raised the safety-appliance affirmative defense in its answer to the complaint.

      . See generally Wright v. Gunther Nash Min. Const. Co., 614 S.W.2d 796 (Tenn.1981).

      . There are additional cases on the related question of failure to comply with an employer’s order or safety rule (not involving a safety appliance). See e.g. Bryan v. Paramount Packaging Corp., 677 S.W.2d 453, 455 (Tenn.1984); Wright v. Gunther Nash Min. Const. Co., 614 S.W.2d at 798; Kingsport Foundry & Mach. Works v. Sheffey, 156 Tenn. 150, 153-54, 299 S.W. 787, 788 (1927).