State v. Willard C. Cook, Sr. ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL 1995 SESSION
August 15, 1997
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
)
Appellee, ) No. 01C01-9501-CC-00001
)
) Coffee County
v. )
) Honorable Gerald L. Ewell, Sr., Judge
)
WILLARD C. COOK, SR., ) (Driving Under the Influence)
)
Appellant. )
For the Appellant: For the Appellee:
Robert S. Peters Charles W. Burson
100 First Avenue, S.W. Attorney General of Tennessee
Winchester, TN 37398 and
Sharon S. Selby
Assistant Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
C. Michael Layne
District Attorney General
and
Stephen E. Weitzman
Assistant District Attorney General
307 S. Woodland
P.O. Box 147
Manchester, TN 37355
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, Willard C. Cook, Sr., was convicted by a jury in the Coffee
County Circuit Court of driving while under the influence of an intoxicant. He was
sentenced to eleven months, twenty-nine days in jail, to be suspended upon serving
two hundred forty hours in confinement, and fined three hundred fifty dollars. In this
appeal as of right, the defendant essentially contends the following:
(1) the evidence was insufficient to convict him;
(2) the trial court erred in admitting into evidence the
defendant’s breath test result, holding that he waived objection
by not proceeding by a pretrial motion to suppress, when the
proof showed that the defendant took the test with his dentures
in his mouth;
(3) the trial court erred in rejecting the defendant’s requested
jury instruction to the effect that the jury could not consider the
breath test result until the jury determined that certain
preliminary facts had been placed into evidence.
Although we hold that the trial court erred in deeming the defendant’s objection to be
waived, we affirm the judgment of the trial court.
Tennessee Highway Patrolman Don Kelsey testified that after 2:00 a.m.,
July 10, 1993, near Manchester, he saw a car drifting from lane to lane without
signaling. He said he stopped the car as it was about to enter the wrong way on a one-
way road. He said that the defendant was driving and that he noticed an alcoholic
beverage smell on the defendant’s breath, who also had bloodshot eyes. The
defendant admitted drinking and Trooper Kelsey found a half-empty half-pint bottle in
the car.
Trooper Kelsey testified that the defendant had some trouble maintaining
his balance in getting out of his car. He said that he gave the defendant two field
sobriety tests, the horizontal gaze nystagmus test and a walk and turn test. He stated
that the defendant’s eyes bounced, indicating the defendant was under the influence of
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alcohol, and that he was unable to keep his balance in walking heel-to-toe. Trooper
Kelsey arrested the defendant for DUI and took him to the jail. He added that the
defendant was staggering when walking from the patrol car to the jail.
Coffee County Jailer Charley Jones testified that he gave the defendant a
breath test and that the defendant registered .13. Mr. Jones explained the procedures
that he followed, and the defendant replied “no” when Mr. Jones asked if there was any
foreign matter in the defendant’s mouth. Mr. Jones acknowledged that he was unaware
that the defendant had dentures with a cotton pad base.
The defendant testified that he had been to the Last Chance Saloon with
two women. He said that he consumed part of a half-pint of Lord Calbert over some
four and one-half hours before they left. He said that the car was owned by one of the
women, but he drove because she was sick. He said that the car weaved because one
of the women was hollering. He explained that he was polite and courteous to Trooper
Kelsey and that he performed three field sobriety tests. He denied being under the
influence of alcohol and stated that any difficulties he had with the field test related to
his physical problems.
Susan Lynn Gibson testified that she saw the defendant at the Last
Chance Saloon and that he did not appear to her to be intoxicated. She said that he
was with two women and that when one got sick, the defendant offered to drive the
woman home. Ms. Gibson said that the defendant followed when she left the
establishment.
I
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The defendant contends that the evidence was insufficient to prove that
he was under the influence of alcohol, primarily indicating that the breath test result was
unreliable. This issue is without merit.
On appeal, the state is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). When the sufficiency of the evidence is
challenged, the relevant question for an appellate court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2791, 2782 (1979).
The defendant was seen driving in an erratic manner with the odor of
alcohol on his breath. He had trouble maintaining his balance, and he could not
perform properly on sobriety tests. His eyes were bloodshot, and he admitted that he
drank alcohol prior to his arrest. Trooper Kelsey’s testimony reflects that he was of the
opinion that the defendant was under the influence. His testimony, alone, supports the
jury verdict. Obviously, the breath test result was additional evidence of the defendant’s
intoxication.
We note that the defendant made clear to the jury that he had dentures
when he took the breath test, that his dentures contained a cotton pad, and that this
could have affected the test result. Further, the defendant testified to his physical
conditions which he claimed affected his performance on the sobriety tests. He also
explained to the jury that his car weaved because of one of the girls’ actions.
Obviously, the jury was not convinced by his evidence. In this respect, the weight and
credibility of the witness’ testimony are matters entrusted exclusively to the jury as the
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trier of fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). The evidence was
sufficient to convict the defendant.
II
Next, the defendant contends that the trial court erred in admitting the
breath test result into evidence. First, he complains about the trial court’s finding that
his objection to the result was waived. Second, he asserts that his dentures constituted
foreign matter in his mouth that would bar the admission of the test result as unreliable
under State v. Sensing, 843 S.W.2d 412 (Tenn. 1992). We agree with the defendant’s
first complaint, but not the second, given the circumstances of this case.
When the state called Charley Jones as a witness about the breath test,
the defendant requested a jury-out hearing for the purpose of contesting the
admissibility of the test result because the test was taken with the defendant having
dentures. The defendant based his objection upon Sensing, in which our supreme
court addressed the foundation requirements1 that a party must establish to admit
breath test results obtained from an Intoximeter 3000 instrument, the one used in this
case. One of the requirements is that the testing officer must be able to testify that the
test subject was observed for twenty minutes before the test, and that during this
period, he did not have foreign matter in his mouth, did not consume any alcoholic
beverage, smoke or regurgitate. 843 S.W.2d at 416.
1
In State v. Bobo, 909 S.W .2d 788, 790 (Tenn. 1995), our supreme court stated the
Sensing requirements as follows:
First, the testing ope rator m ust testify that the test used followed
Tennessee Bureau of Investigation standards. Second, the operator must
be certified in accordance with those standards. Third, the machine must
be certified, tested reg ularly for ac curacy, and working properly. Fourth, the
motorist m ust be pe rsonally obs erve d for the requisite minutes before taking
the test. Fifth, the operator must follow the instrument’s prescribed
operational procedure. Lastly, the op erato r m ust ide ntify the tes t resu lts
offered in evidence .
5
At the evidentiary hearing, the fact that the defendant had dentures was
first disclosed. Mr. Jones testified that Trooper Kelsey, then he, observed the
defendant and that the defendant had not been sick, had anything to drink, or anything
else. He testified that upon being questioned, the defendant denied having any foreign
matter in his mouth. Mr. Jones acknowledged that he was unaware of the defendant
having dentures with a cotton pad, but that if he had known, he would have had the
defendant remove them. The trial court ruled that the defendant was required to have
filed a pretrial motion to suppress on the issue. Also, it noted its belief that the
defendant’s claim went to the weight of the evidence, not its admissibility.
A
The defendant contends that he was not obligated to file a pretrial motion
to suppress to raise the issue of the test result being inadmissible because the state
failed to follow the Sensing requirements. He asserts that he did nothing more than to
contest the admissibility of evidence as would any midtrial objection. In response, the
state notes that the defendant was moving to exclude the test result. It relies upon Rule
12(b)(3) and (f), Tenn. R. Crim. P., which require that a motion to suppress evidence
must be filed before trial and that a failure to file a motion timely constitutes a waiver.
The purpose of this rule is not only to avoid the
unnecessary interruption and inefficiency in conducting jury
trials caused by needlessly removing the jury from the
courtroom for protracted suppression hearings, but also to
ensure the right of the state to an appeal of an adverse ruling
by the trial judge without placing the defendant twice in
jeopardy.
State v. Randolph, 692 S.W.2d 37, 40 (Tenn. Crim. App. 1985).
In support of the state’s position, we note that this court has previously
indicated that a defendant’s failure to file a motion to suppress timely relative to an
attempt to exclude a blood-alcohol test constitutes a waiver. See, e.g., State v. Braden,
874 S.W.2d 624, 625 (Tenn. Crim. App. 1993). However, upon further consideration,
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we believe that Rule 12(b)(3), Tenn. R. Crim. P., regarding motions to suppress
evidence was not meant to apply to an issue relating to whether a sufficient foundation
has been laid for the admission of scientific test results into evidence.
The Advisory Commission Comments to Rule 12 state that our rule
conforms to its federal counterpart. Given this, we note that in United States v.
Barletta, 644 F.2d 50, 54 (1st Cir. 1981), the First Circuit stated the following:
At least as used in 12(b), “suppress” has a rather definite and
limited meaning, as explained by the Advisory Committee
notes accompanying the Rule. Motions to suppress are
described as "objections to evidence on the ground that it was
illegally obtained," including "evidence obtained as a result of
an illegal search" and "other forms of illegality such as the use
of unconstitutional means to obtain a confession." Advisory
Committee notes, Federal Rule Criminal Procedure 12(b)(3),
foll. 18 U.S.C.A., citing 3 C. Wright, Federal Practice &
Procedure: Criminal § 673 (1960). Put generally, then,
suppression motions concern the "application of the
exclusionary rule of evidence," or matters of "'police conduct
not immediately relevant to the question of guilt'", id., quoting
Jones v. United States, 362 U.S. 257, 264, 80 S. Ct. 725, 732
4 L. Ed. 2d 697 (1960) . . . .
In other words, a motion to suppress is contemplated to deal with the issue of excluding
“illegally obtained” evidence. In fact, the Ohio Supreme Court has followed this
rationale to require a pretrial motion to suppress in order to contest the admissibility of
alcohol breath test results relative to foundational requirements. In Ohio v. French, 650
N.E.2d 887, 891-92 (Ohio 1995), the court noted that the testing requirements came
from the Department of Health administrative regulations and concluded that a motion
to suppress should be used to address evidence that is “illegally obtained” whether by
violation of constitutional or statutory provisions. See also State v. Kirn, 767 P.2d 1238,
1239-40 (Haw. 1989) (for interlocutory appeal purposes, the state may appeal the
pretrial suppression of breath test results deemed obtained in violation of an
administrative rule). However, we do not believe that such reasoning applies under
Tennessee law.
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Although a trial court is not barred from addressing admissibility of test
results by a pretrial motion under certain circumstances, we believe that matters of
evidentiary foundations, historically rooted in the concerns for the reliability and,
therefore, the relevancy of evidence submitted to the jury, are typically assessed at trial
and remain the burden of the offering party. In this sense, it is an altogether different
procedure that deals with whether a sufficient evidentiary foundation exists to allow
expert or scientific evidence to be used. Our rules of evidence contemplate that midtrial
determinations of such admissibility issues will occur. See, e.g., Tenn. R. Evid. 104.
Scientific test results and their interpretations presented by an expert
witness are admissible only upon a threshold showing of certain existing circumstances.
Given the fact that this foundation laying is a prerequisite to admissibility, the burden
falls upon the party seeking to introduce scientific test results to prove that the
prerequisites are met. See Neil P. Cohen et al., Tennessee Law of Evidence, § 702.4,
at 464-66 (3d ed. 1995). Absent the prerequisites being proven to exist, the evidence is
inadmissible. Also, that treatise states that if a contest of the qualifications is desired, it
is preferable for the opponent to request a jury-out hearing to allow counsel to probe
"the witness's expertise by asking about the witness's background and about the
scientific basis for the tests and the instruments used in the tests." Id. at 465; see also
Tenn. R. Evid. 104(c) (dealing with jury-out hearings for preliminary matters relating to
admissibility). We believe that the record in the present case reflects that the
defendant sought nothing more than to invoke this procedure.2
In specific terms of the admissibility of breath test results in order to prove
the alcohol content in the blood, Tennessee previously required the party seeking to
admit the results to show that (1) the test instrument used was capable of measuring or
2
W e note that the issue of the admissibility of the breath test results in Sensing arose by
the defenda nt’s m idtrial obje ction a nd w as re solve d thro ugh a jury-out hearing. See State v. James D.
Sensing, No. 01-C -01-900 7-C C-0 018 0, Dicks on C oun ty (Tenn. C rim . App . Apr. 4 , 1991), aff’d 843 S.W .2d
412 (T enn. 1992).
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calculating data being used by the interpreting expert and was based upon scientific
principles accepted by the scientific community, (2) the instrument was functioning
properly and was used properly at the time of the test, (3) the test was conducted by a
person qualified to administer it, and (4) the interpretation of the test results must have
been by a qualified person, including the person having an understanding of both the
scientific principles behind and the operative functions of the test. See Pruitt v. State,
216 Tenn. 686, 393 S.W.2d 747 (1965); Fortune v. State, 197 Tenn. 691, 277 S.W.2d
381 (1955); Tenn. R. Evid. 702; Cohen, supra §§ 401.17--401.20, 401.22, 702.2--
702.4. Although in Sensing our supreme court relaxed the evidentiary foundation
needed for admission of breath test results obtained from an Intoximeter 3000, it did not
alter the burden for establishing that foundation.
As our supreme court stated in State v. Bobo, the Sensing requirements
are “prerequisites for threshold admissibility of breath alcohol test results.” 909 S.W.2d
at 790. As such, the proponent of the evidence, in this case the state, has the burden
of laying sufficient foundation to allow the admission of the breath test results. If the
foundation is not proven, the evidence may be excluded upon objection. In fact, this
court has already so held. See State v. Harold E. Fields, No. 01C01-9412-CC-00438,
Williamson County (Tenn. Crim. App. Apr. 12, 1996).
Therefore, the fact that the defendant raised the threshold admissibility
issue midtrial did not constitute a waiver of that issue. Nor did the fact that he
proceeded by motion at the beginning of Mr. Jones’ appearance as a witness -- as
opposed to objecting during Mr. Jones’ testimony -- change the nature of the inquiry or
the state’s burden to establish a proper foundation. However, this does not mean that
the state failed to meet its burden in this case.
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B
The defendant contends that the fact that he was tested with his dentures
renders the test result inadmissible because the dentures were a foreign substance in
his mouth. He notes that Mr. Jones testified that if he had known of the dentures, he
would have had them removed. Obviously, the requirement that no foreign matter be in
the mouth is intended to insure that the breath that the defendant blows into the
Intoximeter 3000 is not tainted by some substance that might alter, by alcohol retention
or otherwise, the instrument’s reading of the defendant’s deep lung air sample.
However, we believe that the circumstances in the present case did not call for the
exclusion of the breath test results.
Initially, we note that some jurisdictions have been unwilling to consider
false teeth to be foreign matter that should bar admission of test results. See People v.
Witt, 630 N.E.2d 156 (Ill. App. Ct. 1994); State v. Allen, 702 P.2d 1118 (Or. App. 1984);
see also City of Sunnyside v. Fernandez, 799 P.2d 753, 755 (Wash. App. 1990)
(administrative regulation excludes “dental work” from “foreign substances” relative to
breath test procedures). We are inclined to agree relative to the threshold admissibility
prerequisites. However, whether we view dentures to be foreign matter is not
dispositive in this case.
The defendant was observed for the required time and nothing unusual
was seen. He denied having any foreign matter in his mouth. The record reflects that
the fact that he wore dentures was not even disclosed to his counsel until the time of
trial. Also, the defendant stipulated to Mr. Jones’ qualifications and to the Intoximeter
being certified to be functioning properly several months before and weeks after his
arrest. Finally, as a matter of omission, there is no evidence in the record that tells us
what effect, if any, dentures could potentially have on the test result.
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The subject of a test should not be allowed to withhold a fact relevant to
the test procedures as required by Sensing and then seek exclusion of the test results
on the ground that the procedures used were incomplete because of the withheld fact.
In this case, if the dentures were considered foreign matter, Mr. Jones was entitled to
rely upon the defendant’s answer that no foreign matter was present. Thus, either way
that the dentures are viewed, the state was entitled to introduce the breath test result
into evidence.
In this respect, we believe it to be significant that Sensing requires the
subject to be observed for twenty minutes and does not otherwise require a physical
probe of the mouth or interrogation of the subject about his or her mouth contents.
Obviously, given the fact that a defendant may attack the validity of the test results
before the jury, it might be advisable, as a practical matter, for the test operator to ask
the subject about dentures. We do not, though, believe it to be a prerequisite to
admissibility.
III
Finally, the defendant contends that he was entitled to the jury being
instructed that the breath test result could not be considered until the jury determined
that the preliminary facts had been proven. We disagree. As we previously noted, the
Sensing requirements are prerequisites for the test result to be admitted into evidence.
As such, the trial court -- not the jury -- has the duty to determine whether a proper
foundation has been proven in order to allow the test result into evidence.
Once the trial court has determined threshold admissibility, the
submission of the breath test result into evidence is unconditional. The jury, as the trier
of fact, has the right to consider all of the evidence presented and to determine its
relative worth. As Sensing indicates, the admission of the test result does not foreclose
11
the defense from calling the result into question before the jury, whether by cross-
examination, presentation of witnesses, or jury argument. 843 S.W.2d at 416.
However, whether the jury disregards the test result is a decision left to it as the trier of
fact. There is no bar to the jury’s consideration of the test result once it is admitted into
evidence. Thus, the defendant’s requested jury instruction was an incorrect statement
of the law, and the trial court properly rejected it. See State v. Moore, 751 S.W.2d 464,
466-67 (Tenn. Crim. App. 1988).
In consideration of the foregoing, and the record as a whole, the judgment
of conviction is affirmed.
________________________________
Joseph M. Tipton, Judge
CONCUR:
(See separate concurring & dissenting opinion)
Paul G. Summers, Judge
___________________________
William M. Barker, Judge
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