IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED JANUARY 1997 SESSION June 18, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, * C.C.A. # 03C01-9605-CC-00199
Appellee, * JEFFERSON COUNTY
VS. * Hon. Ben W. Hooper, II, Judge
JERRY WAYNE EDISON, * (DUI)
Appe llant. *
For Ap pellant: For Appellee:
Lu Ann Ballew Charles W. Burson Asst. Public Defender Attorney General & Reporter P.O. Box 416 Dandridge, TN 37725 Michae l J. Fahey , II Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493
James L. Gass Assistant District Attorney General P.O. Box 70 Dandridge, TN 37725-0070
OPINION FILED:_____________________
AFFIRMED
GARY R. WADE, JUDGE OPINION
A jury found the defendant, Jerry Wayne Edison,1 guilty of DUI; the
trial court imposed a sentence of eleven months and twenty-nine days, suspended
after the service of seven days in jail, and revoked the defendant's license for one
year. The sole issue on appeal is whether the trial court erred by admitting the
results of the defendant's breath test into evidence at trial.
At approximately 3:30 a.m. on February 17, 1994, Officer Steve
Manning of the Jefferson County Sheriff's Department was on patrol in Dandridge
when he saw a stalled car sitting in the traveling lane of a roadway. Two individuals
were trying to push the car to the shoulder. Officer Manning approached the
defendant, who was the driver of the stalled vehicle, and detected a strong odor of
alcohol. The defendant was placing chewing tobacco in his mouth. As the other
individual returned to the passenger side of the vehicle, the officer directed the
defendant to get out of his vehicle and to remove the tobacco from his mouth. The
defendant, who admitted that he had consumed a few beers, failed the fingertip to
nose test, the standing on one foot balance test, and the hand and eye coordination
test. Officer Manning then placed the defendant under arrest.
Officer Merlin Foister testified that he had been trained by the TBI to
operate the Intoximeter 3000 breath machine. Over objection by the defense, the
officer was allowed to testify that the defendant registered a blood alcohol level of
.12.
The defendant's sister, Carol Hatley, testified for the defense. She
claimed that the defendant had spent the day at her house. She related that her
1 While some court documents refer to the defendant as "Jerry Wayne Eidson," it is the policy of this cou rt to use the defend ant's nam e as it is listed on the indictm ent.
2 son, Mark Wade, left with the defendant around 6:30 in the evening. She testified
that she saw her son the next day but has not seen him since because of his
"drinking problems."
The defendant testified that when he was arrested, he had a valid
Florida driver's license. He claimed that he and his nephew had been to Cotton
Eyed Joe's in Knoxville where he had had two beers and some snack foods. He
maintained that he drove from Knoxville to Dandridge without any difficulty but then
had car trouble. He said that he and his nephew were pushing the car out of the
road when Officer Manning arrived. His nephew had a beer in his possession. The
defendant contended he had difficulty with the field sobriety tests because the end
of his big toe on his right foot had been cut off in a lawnmower accident. Medical
records confirmed this. The defendant insisted that his driving had not been
impaired.
On appeal, the defendant argues the trial court erred by admitting the
breath test evidence. He asserts that Officer Foister's testimony should not have
been allowed under the test established in State v. Sensing, 843 S.W.2d 412 (Tenn.
1992).
Prior to Sensing, a prerequisite to the admissibility of the test results
was that the operator had to "know the scientific technology involved in the function
of the machine." Id. at 416. Our supreme court "relax[ed] the rigorous prerequisites
formerly required to authenticate the reliability of the scientific equipment ...." Id.
Although the testing officer does not have to testify about the "scientific technology
involved," he must be able to testify to the following:
(1) that the tests were performed in accordance with the standards and operating procedure promulgated by the forensic services division of the Tennessee Bureau of
3 Investigation;
(2) that [the testing officer] was properly certified in accordance with those standards;
(3) that the evidentiary breath testing instrument used was certified by the forensic services division, was tested regularly for accuracy and was working properly when the breath test was performed;
(4) that the motorist was observed for the requisite 20 minutes prior to the test, and during this period, he did not have foreign matter in his mouth, did not consume any alcoholic beverage, smoke, or regurgitate;
(5) evidence that [the testing officer] followed the prescribed operational procedure; and
(6) [that the testing officer] identify the printout record offered in evidence as the result of the test given to the person tested.
Id. In State v. Bobo, 909 S.W.2d 788, 790 (Tenn. 1995), our supreme court
described Sensing as "establish[ing] the prerequisites for threshold admissibility of
breath alcohol test results."
In State v. McCaslin, 894 S.W.2d 310 (Tenn. Crim. App. 1994), the
testing officer was unable to testify that he had watched the defendant for the
requisite twenty minutes; in consequence, the test results were found inadmissible.
In McCaslin, the officer had placed the defendant in the patrol car at 2:20 a.m.,
arrived at the police station at 2:30 a.m., and administered the test at 2:46 a.m. Id.
at 311. The "undisputed period of observation" was sixteen minutes. Id. Our court
held that the time the defendant was in the patrol car could not be considered
because the officer could not "say with certainty that the defendant did not
regurgitate while out of his view in the backseat of the patrol car from 2:20 a.m. until
they arrived at the station." Id. at 311-12.
In McCaslin, the state had argued that the test results should
nevertheless have been admitted because the defendant did not present any
4 evidence that he had in fact regurgitated. This court responded to that argument as
follows:
[T]he State's position is misplaced as it is the State's burden, not the defendant's, to present testimony through the testing officer that the Sensing pre-test requirements were met. Therefore, a claim that the defendant either presented or failed to present testimony of regurgitation is irrelevant in this case.
Id. at 312.
In Bobo, our supreme court reaffirmed the Sensing requirements; the
state had conceded that the operational procedures for administering the test were
not followed but argued that the result should have been allowed because the
procedural deviation benefitted the defendant by giving a lower reading. Our
supreme court rejected that argument:
Courts admit competent, reliable evidence to assure a fair, just result. Rules of admissibility must be applied uniformly and universally, regardless of the outcome. Here the state failed to meet the threshold requirements for admitting the results of defendant's breath alcohol test. The trial court was correct in suppressing the results.
Bobo, 909 S.W.2d at 790.
The six requirements in Sensing are mandatory and must be
"scrupulously followed." State v. Harold E. Fields, No. 01C01-9412-CC-00438, slip
op. at 4 (Tenn. Crim. App., at Nashville, Apr. 12, 1996). Further, it is the state's
burden to establish compliance with each of the requirements; the defendant does
not bear any burden to show non-compliance.
To properly review this issue it is necessary to consider Officer
Foister's testimony in some detail. He testified that he had been trained by the TBI
to operate the Intoximeter 3000 breath machine. When asked if the machine was
5 "certified as properly operating by the Tennessee Bureau of Investigation," he
responded affirmatively. When asked if he followed the "proper procedures," he
responded affirmatively. When asked "from all the information you used to operate
that machine and your training, was it operated properly at the time," he responded
affirmatively. When asked what steps he had taken with the defendant, the
following testimony ensued:
Officer Foister: [T]he first thing we do is, we had to observe him for twenty minutes. That's no cigarettes, no food, no nothing, intake. ... [A]fter that's done, then we print everything in the machine. ... [W]e print the name, date of birth, driver's license number, whether he was involved in an accident, the time, the arresting officer, all that's typed in. ... So after everything's in the machine, we hit, it starts and it purges itself, it cleans its whole system. ... So ... the machine tells us when we're ready to blow.
Gen. Gass: And it did that in this case?
Officer Foister: Yeah.
Before the officer testified as to the results of the breath test, defense
counsel was permitted to conduct a voir dire. The officer then acknowledged that he
did not have the TBI's certification of the intoximeter; he explained that the
document had been posted at the jail on the night of the defendant's arrest. The
officer testified that the machine is calibrated every three months: "I'd have to bring
all the records over here to give you the dates." When asked if he could "testify as
to when the last time this machine was calibrated before [the defendant] was
brought in," he responded in the negative. He also indicated he did not know when
"the last time ... a maintenance check had been done on this machine to insure that
it was functioning properly." When asked if he could recall whether he followed the
normal procedures in testing the defendant, the officer responded, "Well, I'm sure I
followed the procedures, but I can't remember."
6 The defendant argues the officer's testimony failed to establish
Sensing requirements (1), (3), and (5). Requirement (1) is that the tests were
performed in accordance with the standards and operating procedure promulgated
by the forensic services division of the Tennessee Bureau of Investigation. Officer
Foister testified that the machine had been certified as operating in compliance with
the procedures established by the Tennessee Bureau of Investigation. In our view,
that is enough.
Requirement (3) is that the evidentiary breath testing instrument was
certified by the forensic services division, was tested regularly for accuracy, and was
working properly when the breath test was performed. Officer Foister testified that
the documentation of certification was posted by the machine when he tested the
defendant; he asserted that the machine is "checked every three months" but was
uncertain as to when the machine was calibrated or last subjected to a maintenance
check. Sensing, in our view, does not require that the officer relate the last date the
machine was tested; it only requires that the officer testify that the machine is
regularly tested. The state established that. Moreover, although there was no direct
declaration that the machine was working properly, the officer's testimony implied
that.
Requirement (5) directs the examiner to follow the prescribed
operational procedures. On cross-examination, the officer candidly admitted that he
could not remember whether he followed the procedures or not. At the hearing on
the motion for new trial, the trial judge characterized the issue as follows:
[I]t appears to me that there could be some questions raised that may need to be resolved. I would think that this certainly is not the first case where an officer was not able to remember precisely what took place, and I don't know whether that testimony amounts to a finding that whatever took place was certainly not proper procedure. I don't think I would want to go that far. It's a question of
7 what effect does that type testimony have on the State's burden of proof. Of course it's far from saying yes, I didn't do so-and-so. Anyway, the Motion [for New Trial] is overruled.
We conclude from this that the trial judge made a factual determination that the
officer did not remember what procedures he followed in testing the defendant.
Officer Foister's testimony on the fifth requirement raises evidentiary
issues of first impression. First, we must determine by what standard of proof must
the state establish that the Sensing requirements have been met. Secondly, we
must determine what is the appropriate standard of appellate review of the trial
judge's decision to admit the evidence. It has not been necessary to resolve these
issues in prior cases interpreting Sensing because the proof in the prior cases
established that certain of the procedures had not been followed. See, e.g., Bobo,
909 S.W.2d at 790 (state conceded that "prescribed operational procedure was not
followed"); McCaslin, 894 S.W.2d at 311 (the "undisputed period of observation ... of
sixteen minutes" was insufficient to meet the twenty minutes observation
requirement). Because the proof here was not overwhelming in either direction, it is
necessary to determine the applicable burden of proof and our scope of review.
Initially, we hold that the state must establish by a preponderance of
the evidence that the Sensing requirements have been met.2 In State v. Stamper,
863 S.W.2d 404, 405 (Tenn. 1993), our supreme court held that "the standard of
proof necessary to show the existence of a conspiracy for the purpose of admitting
co-conspirator statements is proof ... by a preponderance of the evidence." The
2 Oth er sta te juris dictio ns, h owe ver, h ave u sed a high er sta nda rd fo r varyin g type s of s cien tific evidence. In City of Jackson v. Langford , 648 S.W .2d 927, 929 (Mo. App. 1983 ), the Missouri court required that the reliability of radar tests be established "beyond a reasonable doubt." Texas has the following rule for "novel scientific evidence": "The proponent of the evidence must prove to the trial judge, by clear and convincing evidence and outside the presence of the jury, that the proffered evidenc e is reliable an d therefo re relevan t." Cam pbell v. State , 910 S.W.2d 475, 478 (Tex. Crim. App. 1995), cert. denied, 116 S. Ct. 1430 (1996).
8 Stamper court concluded as follows:
[T]he appropriate standard of proof for preliminary facts required for the admission of evidence is proof by a preponderance of the evidence. We are satisfied that the preponderance standard is sufficient to satisfy the reliability concern that underlies the hearsay rule and has shaped the exceptions to it, including the exception for co-conspirators' statements.
Id. at 406 (footnote omitted).
Our rules of evidence provide that "[p]reliminary questions concerning
the ... admissibility of evidence shall be determined by the court ...." Tenn. R. Evid.
104(a). One authority has noted that the preponderance of the evidence is the
standard of proof under Tenn. R. Evid. 104, given our supreme court's broad
language in the Stamper case:
Rule 104 does not indicate what standard of proof must be satisfied in order to assess whether the facts necessary for an evidentiary rule to apply are present or absent. In State v. Stamper, the Tennessee Supreme Court held that "the appropriate standard of proof for preliminary facts required for the admission of evidence is proof by a preponderance of the evidence." Although this decision dealt specifically with the evidence necessary to establish a coconspirator's admission, the standard was expressed in general terms and may reflect the test in Tennessee.
Neil P. Cohen et al, Tennessee Law of Evidence, § 104.3 at 28-29 (3d ed. 1995) (footnotes omitted).
In this case, after hearing testimony from Officer Foister, and after
hearing argument from counsel, the trial judge ruled that a "proper foundation has
been laid." Implicit in this ruling is that the trial judge found the officer had, in fact,
followed the required Sensing procedures.
Next, the admissibility of breath test evidence is analogous to the
admissibility of expert testimony. The standard of review of the admissibility of
9 expert testimony is, of course, whether the trial court abused its discretion. Our
supreme court recently described that standard as follows:
In Tennessee the qualifications, admissibility, relevancy and competency of expert testimony are matters which largely rest within the sound discretion of the trial court. State v. Rhoden, 739 S.W.2d 6 (Tenn. Crim. App. 1987). Such discretion, however, is not absolute and may be overturned on appeal where the discretion is arbitrarily exercised. Baggett v. State, 220 Tenn. 592, 421 S.W.2d 629, 632 (1967).
State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993). Expert testimony typically
involves some type of scientific or specialized knowledge. The breath test is also
based on science, even though Sensing established that the testing officer did not
have to testify to the scientific basis for the test. This court has consistently ruled
that "whether to admit or exclude expert testimony and scientific evidence rests
within the discretion of the trial court and relief on appeal will only be afforded if
there was an abuse of discretion which was prejudicial." State v. Tizard, 897
S.W.2d 732, 748 (Tenn. Crim. App. 1994) (emphasis added). The breath test is
clearly a type of scientific evidence.
We acknowledge that our supreme court clarified the standard for
reviewing suppression determinations by the trial court in State v. Odom, 928
S.W.2d 18 (Tenn. 1996):
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. We also note that this standard of review is consistent with Tenn. R. App. P. 13(d), which provides that in civil cases, findings of fact by a trial court are presumed correct "unless the preponderance of the evidence is otherwise."
10 Hereafter, the proper standard to be applied in reviewing suppression issues is the "preponderance of the evidence" standard.
Id. at 23 (emphasis added). If construed broadly, portions of the paragraph imply
that all factual determinations a trial judge must make before deciding to admit
evidence are subject to the Odom standard; since Odom, however, our court has
continued to apply the abuse of discretion standard in the review of expert
testimony. See State v. Leroy Hall, Jr., No. 03C01-9303-CR-00065, slip op. at 28
(Tenn. Crim. App., at Knoxville, Dec. 30, 1996) ("the trial court's ruling [to allow the
expert testimony] was within its discretion and was appropriate"); State v. Terrance
B. Pulliam, No. 02C01-9507-CR-00206, slip op. at 9 (Tenn. Crim. App., at Jackson,
Oct. 22, 1996), perm. to app. filed, Dec. 24, 1996; State v. James Ryion, No.
01C01-9511-CC-00365, slip op. at 14 (Tenn. Crim. App., at Nashville, Dec. 30,
1996), perm. to app. filed, Feb. 12, 1997. Our courts have also continued to use the
abuse of discretion standard in reviewing chain of custody issues. See State v.
Kirby G. Thurmon, No.02C01-9512-CR-00375, slip op. at 8 (Tenn. Crim. App., at
Jackson, Oct. 17, 1996), perm. to app. filed, Dec. 16, 1996.
Odom dealt specifically with the standard of review of a trial court's
determination that a confession was voluntary. 928 S.W.2d at 22-23. All of the
cases cited in Odom concern the admissibility of evidence allegedly obtained in
violation of the Fourth or Fifth Amendment. Id. It is our view that admissibility of
breath test evidence is more closely akin to admissibility of expert testimony than it
is to determinations on the admissibility of illegally seized evidence. As indicated by
the cases cited above concerning the standard of review of the admissibility of
expert testimony and the determination that the chain of custody has been satisfied,
the Odom standard of review has not been interpreted as applying to every single
factual determination a trial judge must make before deciding to admit evidence.
See also State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996) (In discussing the
11 admissibility of hearsay statements under the medical diagnosis exception, our
supreme court, post-Odom, stated, "It is well established that trial courts have broad
discretion in determining the admissibility of evidence, and their rulings will not be
reversed absent an abuse of that discretion.")
Accordingly, we conclude the appropriate standard of review is
whether the trial court abused its discretion. Using this standard, we cannot find
error in this case. The evidence is not overwhelming either way. There is, however,
a modicum of proof to support the trial court's determination that the testing officer
more probably than not followed the correct procedures in this case. Officer Foister
insisted that he was certain he had followed the correct procedures, notwithstanding
his failure to recall the specifics. The officer was able to testify to the correct
procedures. The test results printout shows that the officer tested a blank against a
standard and then tested a blank against the defendant's breath. Officer Manning
testified that he observed the defendant for the requisite twenty minutes and then
witnessed the breath test. Obviously, the trial judge is in a better position than we to
assess the officer's credibility. Thus, it is our conclusion that the trial court did not
abuse its discretion by admitting the results. The state might consider the use of a
checklist so as to more closely adhere to the Sensing requirements.
Accordingly, the judgment of conviction is affirmed.
__________________________________ Gary R. Wade, Judge
CONCUR:
__________________________________ Joseph M. Tipton, Judge
12 _________________________________ Curwood Witt, Judge