DUI judges behaving badly
The cite: Tennessee v. Gaddis (decided 11/20/08 by the Court of Criminal Appeals of Tennessee).
The third issue on appeal in this case was:
“(3) argues that the trial judge erred in permitting certain colorful but crude testimony describing the Defendant as "shit-faced" and by making disparaging comments about defense counsel in front of the jury”
What the officer said on the witness stand:
“When asked if he noticed "anything else about [the Defendant's] demeanor or appearance," Officer Beeam responded, "Well, an intoxicated person has a look about them.... I call it 'shit-faced.' " According to Officer Beeam, the Defendant had "that look about him" on the evening in question. Officer Beeam witnessed Officer Monteith explaining the implied consent form to the Defendant, and Officer Beeam also affixed his signature to the form.”
Was the judge wrong, or just acting like a jerk in the following exchange taken from the record:
Q. Okay. You found out the driver's license had expired. How long had that been expired?
A. Well, I had to run them through the computer, I think they had been expired--
MR. ROGERS: Objection, your Honor.
THE COURT: Sustained.
GENERAL WINNINGHAM: Pardon?
THE COURT: Sustained.
GENERAL WINNINGHAM: I didn't hear what his objection was, your Honor.
MR. ROGERS: Hearsay.
THE COURT: It's not relevant. Move on.
Q. Do you know how long the license had expired?
MR. ROGERS: Objection?
THE COURT: Sustained.
GENERAL WINNINGHAM: Your Honor, may I approach?
THE COURT: You can approach.
(GENERAL WINNINGHAM APPROACHED THE BENCH AND THE FOLLOWING TOOK PLACE OUT OF THE HEARING OF THE JURY:)
GENERAL WINNINGHAM: Your Honor, we've discussed the records and—
THE COURT: Just ask him about the sheet.
GENERAL WINNINGHAM: I just wanted to make sure that I--
THE COURT: Go ahead.
(THIS CONCLUDED THE CONFERENCE AT THE BENCH AND THE FOLLOWING TOOK PLACE IN THE HEARING OF THE JURY:)
MR. ROGERS: Did I miss it?
THE COURT: Yes, you missed it.
MR. ROGERS: I'm sorry, Judge, I've got up as quick as I could.
THE COURT: You've got to move quicker.
MR. ROGERS: I guess I'm getting old, I can't move much quicker.
THE COURT: That's where us little people have an advantage sometimes.
The Ruling on issue(s) number three:
The Defendant failed to make a contemporaneous objection to either of the statements. "Objections must be timely and specific." Tenn. R. Evid. 103, Advisory Commission Comments. Relief is not available to a party who is responsible for, or fails to take action to prevent, an error. Tenn. R.App. P. 36(a). Additionally, the Defendant did not include the trial court's comments about defense counsel as error in his motion for new trial. Generally, issues are waived if they are not presented in a motion for new trial. See Tenn. R.App. P. 3(e). Accordingly, we conclude that the Defendant's assignments of error are waived.
Nonetheless, we find it necessary to admonish the trial court. A bench conference should not have been conducted without defense counsel, and the trial judge's comments to defense counsel following the bench conference, regarding his stature and girth, were inappropriate, particularly when made in front of the jury. See Tenn. R. Sup.Ct. 10, Canon 3B(4), (5). Moreover, the trial court should have preserved the dignity and decorum of the courtroom by admonishing Officer Beeam for his crude and vulgar language. See Tenn. R. Sup.Ct. 10, Canon 3 B(3). However, the record does not establish that the trial court's actions deprived the Defendant of a fair trial.
Analysis and practice tips: That’s life in the big city folks. A trial judge can bully the defense attorney all he wants. The less competent the trial attorney (or the worse day she is having) to more leeway the trial judge has to be jerk.
The issue comes down to did the defendant and his lawyer jump through the proper procedural hoops? The answer is that they did not. No timely objection. No mention of the issue in the motion for new trial. Sorry, no love from the court of appeals
Warning: This opinion is not currently published so use caution in citing as authority.
