Anthony Marcus Schenck was convicted by a jury of driving under the influence. He appeals following the denial of his amended motion for new trial, challenging the sufficiency of the evidence and arguing that the trial court should have declared a mistrial after the prosecutor impermissibly commented on his failure to testify at trial. The evidence presented at trial, construed to support the jury’s verdict, showed that on December 14, 2008, Keith Lengacher, a long haul truck driver from Indiana, was driving along Interstate 75 near Chattanooga, Tennessee when he came upon a slow moving vehicle traveling in the middle lane of the three southbound lanes. Lengacher moved into the right hand lane to pass the vehicle, but the vehicle moved towards him and was about to strike the side of his truck, forcing Lengacher to move over to avoid a collision. The vehicle continued to speed up and slow down and to weave across all three lanes. Because of the erratic manner in which the vehicle was being driven, Lengacher became concerned for his safety and the safety of other drivers so he continued to follow the driver. After observing the vehicle for another mile or two, Lengacher decided to call 911. During the call, a recording of which was played at trial, Lengacher described the vehicle, gave the license tag number and described the manner in which the vehicle was being driven. Lengacher continued to follow the vehicle until the responding officer got behind it and executed a stop as it was exiting off the highway. Lengacher testified he observed the vehicle almost hit a guard rail as it was exiting and being stopped.
Officer Thomas Agredano of the Tunnel Hill police department responded to a Be On the Lookout BOLO issued as a result of Lengacher’s 911 call. Agredano spotted the vehicle traveling down the interstate and pulled in behind it. He also activated the video camera inside his vehicle, and the recording was introduced at trial. Agredano testified he observed that the vehicle was being driven at a slow rate of speed and that it was weaving across its lane, crossing over the divider lines between the lanes and back over the fog line several times; the video recording also showed the vehicle going from one side of the lane to the other. Based on these observations, Agredano decided to initiate a stop of the vehicle.
