IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED NOVEMB ER SESSION, 1997 February 4, 1998
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9701-CC-00022 )
Appellee, )
)
) WILLIAMSON COUNTY
VS. )
) HON . DON ALD P . HARR IS STACY LYNN COLLIER, ) JUDGE )
Appe llant. ) (DUI)
ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF WILLIAMSON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
VANESSA P. BRYAN JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter P.O. Box 68 Franklin, TN 37065 JANIS L. TURNER Assistant Attorney General 425 5th Avenu e North
Nashville, TN 37243
JOE D. BAUGH, JR.
District Attorney General
JOHN BARRINGER
Assistant District Attorney General P.O. Box 937
Franklin, TN 37065-0937
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE
OPINION
The Defe ndan t, Stacy Lynn C ollier, ap peals as of rig ht purs uant to Rule 3 of the Tennessee Rules of Appellate Procedure. She was convicted by a Williamson County jury of driving un der the influence of an intoxicant (“DU I”).1 The trial court sen tenced her to thirty da ys in the co unty jail, all suspended except for forty-eight hours, and eleven months and twenty-nine days of supervised probation. The trial co urt also im posed a fine of thre e hund red fifty dollars ($350), revoke d the D efend ant’s d river’s license for one year, and ordered that she use an ignition interlock during he r probationary period.2 In this appeal, the Defendant argues that the evidence was legally insufficient to support her conviction, that the trial court erred in admitting the result of an Intoximeter 3000 breath test, and that the trial court erred in admitting testimo ny concern ing a horizontal gaze nystagmus (“HGN”) field sobriety test. After reviewing the record, we conclude that the Defendant’s issues provide no basis for the reversal of her conviction . Accord ingly, we affirm the judgm ent of the tria l court.
The State’s proof at trial consisted of the testimony of two officers of the Fairview, Tennessee Police Department. Officer Joe Singer testified that he had been a police o fficer for two and one-half years and had received specialized training in DUI detection. At approximately 4:30 a.m. on the morning of May 14, 1995, Singer was driving his marked patrol car north on Highway 96 in Fairview. He observe d a vehicle traveling tow ard him with the left fron t tire on the center
1 Tenn. Code Ann. § 55-10-401.
2 The trial court noted that the Defendant would be eligible for a restricted driver’s license.
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line. As the car pa ssed him, h e swe rved slig htly but wa s able rema in in his lane. After the car had passed him, he watche d the vehicle throu gh his rearview m irror. Singer saw the car drift over the center line of the highway to the point where the vehicle ’s mid-line w as over th e cente r line. After obs erving the movem ents of the vehicle, Singer suspected that the driver was potentially intoxicated or asleep at the wheel. He turned his patrol car around, pursued and caught up with the vehicle in question. He initiated an investigatory stop. The Defendant was the driver of the vehicle.
Officer Singer n oted tha t the Defe ndant p ulled over onto the side of the road abruptly. Upon approaching the Defendant, he noticed a moderate odor of alcoh ol. According to Singer, the Defendant staggered upon exiting her vehicle. Singer informed the Defendant why he had stopped her and asked he r to perform a series of field sobriety tests. The Defendant had been wearing high heels that night but chose not to wear them during the field sobriety tests.
Singer first performed an HGN test on the Defendant. Singer testified that the Defendant’s eyes did not smoothly pursue the pen as he moved it, that he noticed nystagm us at m aximum deviation, a nd that he noticed the onset of nystagmus before an angle of forty-five degrees from the Defendant’s line of sight. He then ask ed the D efenda nt to perform a walk and turn test, consisting of nine heel-to-toe steps along the fog line of the highway, followe d by a turn and nine heel-to-toe steps bac k alon g the lin e, all the while w ith the D efend ant’s hands at her sides. According to Singer, the Defendant missed placing her heel to her toe on every step, swayed and brought her arms up to maintain balance, stepped off the white fog line on her first step bac k, and perform ed a military turn
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instead of the type o f turn instruc ted. Sing er then a sked the Defen dant to perform a one-legged stand test, consisting of lifting either of her feet appro ximate ly six inches off the ground and holding it there w hile coun ting to thirty, all the while with her hands at her sides. According to Singer, the Defendant was very unsteady, lifted her arms to maintain balance and put her foot down five times. He stopped the test before its completion for the Defenda nt’s safety.
After the completion of the tests, Officer Singer believed that the results indicated that the Defendant’s driving ability was impaired due to the use of an intoxican t. He placed her under arrest for DUI. The Defendant agreed to take a breath test at the Williamson County Jail. Officer Singer drove on the trip to the jail, the Defendant rode in the backseat directly behind him and Officer Chris Ivey rode in the backseat next to her. Officer Ivey rode in the backseat for the express purpose of obser ving the D efenda nt prior to the breath te st. Although Officer Singer did not observe the Defendant during the entire trip, he testified that he did not witness the Defendant cough, regurgitate, drink, smoke, or place any foreign material in her mouth. Once they had arrived at th e W illiamso n Cou nty Jail, Officer Singer administered a breath test on the Intoximeter 3000. Singer testified that the result of the breath test indicated that the Defendant had a 0.15% blood alc ohol con tent.
On cr oss-e xamin ation, S inger a dmitte d that h is repo rt would not indica te any factors or clue s from the field sobrie ty tests s uppo rting the Defe ndan t’s sobriety, such as her attentiveness during instructions for the various tests. He also admitted that he was unaware that the Defendant had asthma. Singer
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testified that the Defendant was carrying a purse, which he placed on the front seat d uring th e trip to th e jail.
Officer Chris Ivey testified to es sentially the same facts as Officer Singe r.
Officer Ivey corroborated Officer’s Singer’s testimony concerning the circumstances surrounding the stop of the Defendant’s vehicle. Ivey noticed an odor of alco holic beverage and stated that the Defendant was unsteady on her feet as she exited her car. Ivey observed Officer Singer as he gave the Defendant the field sobriety tests. Ivey corrob orated Singer’s testimo ny with regard to the walk and turn test and the one-legged stand test. Ivey stated that he was not in a po sition to observe the Defenda nt’s eyes during the HG N test. Officer Ivey testified that during the trip to the jail, he sat in the backseat of the patrol car next to the Defendant and observed her continuously in anticipation of the breath te st. Accord ing to Office r Ivey, the D efendant d id not burp , vomit, smoke, or consume alcohol or food. Ivey also stated that he did not observe the Defendant using an inhaler for her asthma.
On cross-examination, Officer Ivey admitted that he was unaware that the Defendant had as thma. Ive y stated tha t to the bes t of his recollection, the Defendant was carrying a purse that night, but that he neve r had cu stody of it. Officer Ivey testified that although the Defendant was hand cuffed, her wrists we re sma ll enough for her to slip her hands out of the handcuffs, which she did on at least one occasion. The Defendant informed the officers of this fact and even put her han ds bac k in the ha ndcuffs a fter they ha d slipped out.
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The Defendant testified in m arked con trast to Officers Singe r and Ivey.
She stated that at the time of the offense, she was a student and also worked at Middle Tennessee Mental Health Institute. She worked from 3:00 p.m. to 11:00 p.m. on Saturday, May 13, 1995. After her shift ende d at 11:00 p.m., she met a friend, Shannon Batey, and followed her to a nearby dance club known as “Big Dadd y’s.” They arrived at Big Daddy’s at approximately 11:30 p.m. and remained there until 2:45 a.m. on Sunday morning. During that time, the Defendant consumed two Icehouse brand beers and drank water. Upon leaving Big Daddy’s, the Defendant drove to a Waffle House restaurant and ate breakfast with friends. Sh e did not c onsum e any alco hol with breakfa st. After brea kfast, she drove home along Interstate 40, exiting at Highway 96. She was pulled over by Officers Singer and Ivey on Highway 96.
The Defendant denied driving across the center line of the highway. She also denied being unsteady on her feet upon exiting her vehicle. It is undisputed that she knew both officers from h igh school. Sh e testified that the officers we re sarca stic with her and that she fo und th eir demeanor to be somewhat rude and intimidating. With regard to the HGN test, she stated that although she was facing away from the patrol car, she found the flashing emergency lights to be distracting. With reg ard to the walk and turn test, she stated that she performed this test in her bare feet on broken, rocky pavement and, as a result, her feet hurt during the test. She admitted that she pe rformed a military turn during the test, but stated that Officer Singer never instructed her to do a particular type of turn. According to the De fendant, she was never asked to perform the one-legged stand tes t.
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After her arrest, the Defendant rode to the Williamson County Jail in the backseat of the patrol car. She testified that Officer Singer drove the patrol car and Officer Ivey rode in the front pa sseng er seat. A ccording to the De fendan t, Officer Ivey did not observe her during the trip to the jail. Instead, he and Officer Singer carried on a conversation. The Defendant testified that although she was handcuffed, the handcuffs were too large for her wrists. A s a result, she w as ab le to slip her ha nds ou t of the han dcuffs. During the trip to the jail, she slipped her hands ou t of the handcu ffs and used a n asthma inhaler.
Shannon Batey testified for the defense. Her testimony corroborated the Defe ndan t’s testimony concerning the first half of the evening. In particular, Batey testified that she had met the Defendant at Middle Tennessee Mental Health Institute at approximately 11:00 p.m. on May 13, 1995. They drove a short distance to a da nce c lub kn own a s Big Dadd y’s, arrivin g at ap proxim ately 11:30 p.m. Batey and the Defendant each had two beers during the evening. Batey stated she was sure the Defendant had consumed only two beers because they had been together the entire time for safety purposes. They left Big D addy’s at 2:30 to 2:45 a.m. on May 14, 1995. Batey followed the Defe ndan t to a W affle House restaurant, where they parted company. Batey testified that the Defe ndan t’s driving on the way to th e W affle H ouse was n orma l.
The Defendant was indicted on one count of DUI. She was tried on November 11, 1996. After considering the proof presented at trial, the jury found the De fendan t guilty as cha rged. Sh e now a ppeals to this Cou rt.
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In her first issue on appeal, the Defendant argues that the evidence was legally insufficient to suppo rt her con viction. The Defendant contends that the evidence does not demonstrate that her ability to drive was impaired through the use of intoxicants . She po ints to her testimony, co rroborated by S hannon Batey, that she consumed only two beers over the course of three hours. Moreover, she contes ts the testimony of Officers Singer and Ivey regarding the results of her field sobriety tests. Furthermore, she argues that the results of her breath test are not re liable bec ause s he use d an as thma in haler prior to the test.
When an accused challenges th e sufficiency of the convicting evidence, the standard is whe ther, aft er revie wing th e evide nce in the ligh t mos t favora ble to the prosecution, any rational trier of fact could have found the essential eleme nts of the crime beyond a reaso nable d oubt. Jack son v. V irginia, 443 U.S. 307, 319 (1979). Questions concern ing the credibility of the witnesses, the weight and valu e to be given the evidence, as well as all factual issues raised by the evidence, are resolved by the trier of fa ct, not this co urt. State v. Pappas, 754 S.W.2d 620, 623 (T enn. Crim. A pp. 1987). N or may this cou rt reweigh or reevalua te the evide nce. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 197 8).
A jury verdict approved by the trial judge accredits the State’s witnesses and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate view of the evid ence and a ll inference s therefro m. Cabbage, 571 S.W.2d at 835. Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the burden in this court of
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illustrating why the evidence is insufficient to support the verdict returned by the trier of fact. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982); Grace, 493 S.W.2d at 476.
In the case sub judice, the trial court instructed the jury on the elements of the charged offense as follows:
Any person who commits the offense of driving under the influence of an intoxicant is guilty of a crime.
For you to find the defend ant guilty of th is offense , the state must have proven beyond a reasonable doubt the existence of the following essential elements:
(1) that the defendant was driving or was in physical control of an automobile or motor driven vehicle;
(2) that this act occurred on a public road or highw ay or pu blic street or alley; and,
(3) that the defendant was under the influence of an intoxicant to the extent her ability to operate an automobile was impaired.
...
You have he ard from the proo f that at the time of the defendant’s arrest, she consented to and was given a test for the purpose of determining the alcohol content of her blood.
Evidence from the test that there was, at the time alleged, ten-
hundredths of one percent (.10% ) or mo re by w eight o f alcoh ol in the defendant’s blood, creates an inference that the defendant was under the influence of such intoxicant, and that her ability to drive was impaired.
If you find from the proof that the defendan t was found by means of a blood test or brea th test to have ten-hundredths of one percent (.10%) or more by weight of alcohol in her blood, you, the jury, are permitted to infer that the defendant was under the influence of such intoxicant, and that her ability to drive was therefore impaired sufficiently to constitute a violation of the law again st driving unde r the influ ence of alco hol.
Howeve r, you are never required to mak e this infere nce. It is the exclusive p rovince o f the jury to determ ine whe ther the fac ts and circumstances shown by the evidence in this case warrant any inference which the law permits you the jury to draw from any blood or breath test result. Also, the inference may be rebutted by other evidence and circumstances.
It is for the jury to determine, after a consideration of all the evidence, whether to make the inference which the law permits, the correctness of such in ference , and wh at weigh t is to be given to such evidence.
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See T.P.I. -- Crim. 38.01, 38.05, 38.05(a ); see also Tenn. Code Ann. §§ 55-10- 401; 55-10-408. The Defendant does not challenge the elements that she was driving an automobile or that she was driving on a public high way. Her complaint focuses solely on the issue of impairment by intoxication.
Reviewing the evid ence in the lig ht most favorable to the State, we can only conclude that the proof w as leg ally suffic ient to s uppo rt the D efend ant’s conviction. Officers Singer and Ivey testified that they observed the Defe ndan t’s vehicle being operated in an unsafe manner, crossing over the center line of Highway 96. According to the State’s proof, the Defendant was unsteady on her feet and had an odor of alcohol about her. The Defendant performed a series of field sobriety tes ts, the resu lts of which indicated impairm ent in the opinion of Officer Singer. T he De fendan t was then transpo rted to the W illiamson Coun ty Jail where she was administered a breath test on an Intoximeter 3000. The results of the breath test revealed that the Defendant had a 0.15% blood alcohol conten t.
Of course, the Defendant contests the testimony of Officers Singer and Ivey regarding her manner of driving on th e night of th e offense and the results of the field sob riety tests. The resolution of the conflicting testimo ny, however, was a ma tter for th e jury to r esolve . The ju ry reso lved the issue against the Defen dant, finding he r guilty. In addition, although the Defendant testified that she had used an asthma inhaler prior to her brea th test, she offered no expert proof concerning the effects that the inhalant might have on the results of her breath test. It was for the jury to dec ide wh ether to accre dit the D efend ant’s testimony regarding her use of an asthma inhaler and whether her testimony
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created any doubt about the validity of the breath test results. Once again, the jury resolved the issue against the Defendant. From our review of the record, we believe that the evidence was legally sufficient to support the jury’s verdict. The Defen dant’s first issu e lacks m erit.
In her second issue on app eal, the Defen dant argue s that the trial court erred in adm itting the result of the Intoxim eter 3000 bre ath test. More specifically, she contends that the State did not demonstrate that she was observed for twenty m inutes im media tely prior to the breath te st. See State v. Sensing, 843 S.W.2d 412, 416 (Tenn. 1992). Prior to trial, the Defendant filed a motion to suppress the result of the breath test. The trial court treated the motion to suppress as a motion in limine and conducted a hearing on July 29, 1996. At the hearing, the Defendant, Officer Singer and Officer Ivey all testified. At the conc lusion of th e hearin g, the trial cou rt denied the Defe ndant’ s motion, ruling that the result of the breath test was admissible.
In Sensing, our Supreme Court set forth the criteria for the admissibility of breath test results, holding that the testing officer must be able to testify to the following:
(1) that the tes ts were performed in accordance with the standards and operating pro cedure promulgated by the forensic services division of the Tennessee Bureau of Investigation, (2) that he was prope rly certified in accordance with those standards, (3) that the evidentiary breath testing instrument used was certified by the forens ic 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 te st, and during this period, he did not have foreign matter in his mouth, did not co nsum e any a lcoho lic beverage, smoke, or regurgitate, (5)
evidence that he followed the prescribed operational procedure, (6)
identify the printout record offered in evidence as the result of the test given to the person tested.
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Sensing, 843 S.W.2d at 416. The Defendant’s cha llenge in this ap peal is directe d sole ly at the fourth requirement, the twenty-minute observation period.
In the present case, it is undisputed that the period between the Defenda nt’s arrest an d the ad ministratio n of the bre ath test exc eeded twenty minutes. The focus of the dispute centers instead upon exactly what occurred during that period of time. O fficer Singer testified that during the trip from the scene of the arrest to the jail, Officer Ivey sat in the backseat of the patrol car next to the Defendant for the express purpose of observing her prior to the breath test. Likewise, Officer Ivey testified that he sat in the backseat of the patrol car during the trip to the jail and observed the Defenda nt. According to O fficer Ivey, the Defendant did not cough, regurgitate, consume liquids, use her inhaler or put anything in her mouth during the period of observation. O fficer Singer adm inistere d the b reath te st to the Defe ndan t upon their arr ival at the jail.
In contrast, the Defendant testified that Officer Ivey sat in the front passenger seat of the patrol ca r during the tr ip to the jail. She testified further that Ivey and S inger we re carrying on a con versation during the trip, not observing her. In fact, the Defendant stated that s he was able to remove the handcuffs from her hands and use her asthma inhaler during the trip.
After hearing the conflicting testimony at the pretrial motion hearing and evaluating credibility, the trial c ourt foun d that the tw enty-minute observation requirement had b een m et and ruled th at the D efend ant’s breath test result was admissible. The trial court was in a better p osition to e valuate credib ility than th is Court. We believe this record does contain sufficient proof to establish that the
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twenty-minu te observa tion period was sa tisfied. According ly, we cannot conclude that the trial court erred in admitting the result of the breath test. The Defe ndan t’s secon d issue la cks m erit.
In her third issue on appeal, the Defendant argues that the trial court erred in admitting testimon y conce rning the HGN field sobriety test. In particular, she contends that the HGN test is scientific evidence and that the State did not present proof that the HGN test meets the standard of general acceptance in the scien tific comm unity. See Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). Thus, because the State did not establish the reliability of HGN testing through acceptance in the scientific community, Officer Singer’s testimony concerning the results of the HGN test performed upon the Defendant should not have been admitted.
Prior to trial, the Defendant filed a motion in limine to preclude the State from offering tes timony re garding the resu lts of the HG N test with out first requiring the State to demonstrate that the HGN test is ge nerally acce pted in the scien tific comm unity. The trial court ruled that the results of H GN testing a re not scien tific evidence and, therefore, the State was not required to prove acceptanc e in the scientific com munity.
Our supreme court recently provided guidance on this issue in State v.
Murphy, 953 S.W .2d 200 (Tenn . 1997). C ontrary to the trial c ourt’s ru ling in the case at bar, our supreme court held in Murphy that the HGN test is a s cientific test. Murphy, 953 S.W.2d at 201. As such, HGN evidence must satisfy the admis sibility requirem ents applicab le to scientific e vidence . Id. Contrary to the
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Defe ndan t’s argument in the present case, howe ver, the applic able admis sibility requirem ents do not stem from Frye. Rather, the 1991 adoption of Rules 702 and 703 of the Tennessee Rules of Evidence superseded the general acceptance test of Frye. McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257, 265 (Tenn. 1997). In explaining the admissibility requirements for scientific evidence set forth in Rules 702 and 703, our supreme court stated the following:
In Tennessee, under the recent rules, a trial court must determine whether the evid ence will substantially assist the trier of fact to determine a fact in issue and whether the facts and data underlying the evidence indicate a lack of trustworthiness. The rules together nece ssarily require a determination as to the scientific validity or reliability of the evidence. Simply put, unless the scientific evidence is valid, it will not su bstan tially ass ist the trie r of fact, n or will its underlying facts and data appear to be trustworthy, but there is no requirement in the rule that it be generally accepted.
Although we do n ot expres sly adop t Daube rt [v. Merrell Dow Phar mac eutica ls, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)], the non-exclus ive list of factors to determine reliability are useful in applying our Rules 7 02 and 703. A Tennes see trial court may consider in determining reliability: (1) whether scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether a potential rate of error is known;
(4) whether, as formerly requ ired by Frye, the evid ence is gene rally accepted in the sc ientific co mm unity; an d (5) w hethe r the ex pert’s research in the field has been conducted independent of litigation.
Id.
In the case sub judice, the trial court found that the results of the HGN test did not co nstitute scientific evidence. In light of o ur sup reme court’s holdin g in Murphy, the trial cour t’s finding wa s errone ous. See Murphy, 953 S.W.2d at 201. The trial judge, because he did not find HGN evidence to be scientific, obviou sly made no determination with regard to whether the HGN evidence satisfied the admis sibility requirem ents ap plicable to scientific evidence. From the record now
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before us, we are un able to determ ine wh ether th e app licable adm issibility requirem ents we re met. See Murphy, 953 S.W.2d at 201-02.
Considering the record in its entirety, however, we do not believe that the admis sibility of Officer Singer’s testimony concerning the results of the Defe ndan t’s HGN test appears to have affected the result of the trial on the merits. The State offered a great deal of evidence other than the results of the HGN test in support of the guilt of the Defendant. Officers Singer and Ivey testified that the Defendant’s car crossed the center line of Highway 96, that the Defendant was unsteady on her feet, and that they noticed an odor of alcohol about the Defendant. In addition, Officer Singer testified that the results of the walk and turn test and the one-legged stand test indicated that the Defendant was impaired due to intoxication. Furthermore, Officer Singer testified that the result of the breath test administered to the Defendant revealed that she had a 0.15% blood alc ohol con tent.
The Defenda nt contested n umerou s aspects of the State’s evidence, including the testimony regarding her manner of driving, whether she was steady on her feet, her performance on the walk and turn test and whether the one- legged stand test was even p erform ed. Mo reove r, the D efend ant su cces sfully cross-examined Officer Singer regardin g his kno wledge of the HG N test. Although Officer Sin ger testified on direct e xamina tion that he was trained and certified to administer the HGN test, cross-examination revealed that Sin ger did not recall having been taught about the effect various prescription drugs might have on nystagmus. Singer admitted that he did not know if some drugs might cause early or exagge rated nystagm us or that fatigue might have an effect on
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nystagmus. In short, the cross-examination of Officer Singer was vigorous and called into q uestion th e depth of his kno wledge of the HG N test.
In spite of the Defendant’s rigorous cross-examination concerning the HGN test and her own testimony contradicting the observations of Officers Singer and Ivey, it is clear from the guilty verdict that the jury simply did not accredit the Defendant’s version of the facts. The jury performed its function of evaluating credibility and res olving con tradictory tes timony, e ventually find ing that the State had established the Defendant’s guilt beyond a reasonable doubt. In view of the volume of evidence other than the HGN test offered by the State to support the guilt of the Defendant, we conclude that any error on the pa rt of the tr ial cou rt in admitting the HGN evidence was harmless under the circumstances of this case. See Tenn. R . App. P. 36(b); T enn. R. Crim . P. 52(a).
For the reasons set forth in the discussion above, we conclude that the Defe ndan t’s issues on appeal provide no basis for the reversal of her conviction. We therefore affirm the ju dgme nt of the trial co urt.
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DAVID H. WELLES, JUDGE
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CONCUR:
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JOHN H. PEAY, JUDGE
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JOSEPH M. TIPTON, JUDGE