State of Tennessee v. Edward Wayne Shumacker Alias Jeff Wayne Witt ( 2021 )

02/23/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 29, 2020
STATE OF TENNESSEE v. EDWARD WAYNE SHUMACKER ALIAS
JEFF WAYNE WITT
Appeal from the Criminal Court for Hamilton County
No. 303951 Don W. Poole, Judge
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No. E2019-01297-CCA-R3-CD
___________________________________
The Appellant, Edward Wayne Shumacker, was convicted in the Hamilton County
Criminal Court of driving under the influence (DUI), DUI per se, driving on a revoked
license, violating the seatbelt law, violating the financial responsibility law, and violating
the vehicle registration law, all misdemeanors. After the jury found the Appellant guilty,
he stipulated that he had five prior convictions of DUI and two prior convictions of driving
on a revoked license. The trial court sentenced the Appellant as a Range III, persistent
offender to twelve years for each conviction of sixth offense DUI, Class C felonies; merged
the convictions; and ordered that the Appellant serve the twelve-year sentence concurrently
with his misdemeanor sentences. On appeal, the Appellant contends that the trial court
erred by denying his motion for additional discovery, that the trial court erred by denying
his motion to exclude references to other bad acts, that the trial court erred by overruling
his objection to the admissibility of expert testimony, and that his twelve-year sentence for
DUI is excessive. Based upon the record and the parties’ briefs, we conclude that there is
no reversible error and affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which TIMOTHY L. EASTER
and J. ROSS DYER, JJ., joined.
Melody Farah Shekari (on appeal, at motion for new trial, at sentencing) and Mike A. Little,
Tori Smith, Brandy Spurgin-Floyd, and Emily Brenyas (at trial), Chattanooga, Tennessee,
for the appellant, Edward Wayne Shumacker.
Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Neal Pinkston, District Attorney General; and Kate Lavery, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
In January 2018, the Hamilton County Grand Jury indicted the Appellant for DUI,
eleventh offense; DUI per se, eleventh offense; driving on a revoked license, second or
subsequent conviction; violating the seatbelt law; violating the financial responsibility law;
and violating the vehicle registration law. The Appellant went to trial in November 2018.
At trial, Calvin K. Naipo, a trooper for the Tennessee Highway Patrol (THP),
testified that about 11:00 a.m. on November 24, 2017, which was the day after
Thanksgiving, he saw the Appellant driving without wearing a seatbelt. Trooper Naipo
said he knew the Appellant’s seatbelt was not fastened because he “could see the shiny
buckle” above the Appellant’s shoulder as the Appellant passed by him on Lee Highway.
Trooper Naipo began following the Appellant, verified he was not wearing a seatbelt, and
noticed he did not have a license plate on his car. Trooper Naipo initiated a traffic stop,
and the Appellant pulled over.
Trooper Naipo testified that another car had been following the Appellant. Trooper
Naipo told that vehicle’s driver, who was a woman, to pull in front of the Appellant, and
Trooper Naipo approached the driver’s window of the Appellant’s car. He said that the
Appellant “had bloodshot watery eyes,” smelled of alcohol, and had an injury on his face.
Trooper Naipo asked the Appellant about the injury, and the Appellant said he had been in
a motorcycle accident recently.
Trooper Naipo testified that he asked for the Appellant’s identification. The
Appellant claimed he did not have physical identification on his person but gave Trooper
Naipo a name, date of birth, and social security number. Trooper Naipo went to his police
vehicle, contacted THP dispatch, and asked dispatch to check the Appellant’s identification
“through NCIC.” Dispatch could not find any information for the Appellant, so Trooper
Naipo returned to the Appellant and verified the Appellant’s identification. Trooper Naipo
went back to his patrol vehicle and had dispatch check the Appellant’s identification a
second time. Again, dispatch could not find any information for the Appellant. Trooper
Naipo returned to the Appellant’s car and asked the Appellant for his identification again.
Trooper Naipo “wrote it down at this time” and showed the written identification to the
Appellant. The Appellant verified that the spelling of his name and that his date of birth
were correct. Trooper Naipo gave the identification to dispatch a third time, but dispatch
still could not find any information for the Appellant.
Trooper Naipo testified that he approached the driver of the second vehicle and that
he asked her for the Appellant’s correct name and date of birth. Trooper Naipo gave the
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information she provided to dispatch and “got a hit” on the Appellant. Trooper Naipo
learned that the Appellant’s driver’s license had been revoked and that his car was not
properly registered. The Appellant also did not provide Trooper Naipo with proof of
insurance. At some point, Trooper Naipo learned the Appellant did have physical
identification on his person.
Trooper Naipo testified that he had the Appellant perform field sobriety tests and
that he arrested the Appellant for DUI because the Appellant gave him “enough clues” to
conclude the Appellant was impaired. The State played a video recording of the stop,
including the Appellant’s field sobriety tests, for the jury.
Trooper Naipo testified that he transported the Appellant to jail and watched as a
nurse drew the Appellant’s blood at 1:20 p.m. The nurse gave the blood sample, in a sealed
and labeled vial, to Trooper Naipo, and Trooper Naipo sent the sample to the Tennessee
Bureau of Investigation (TBI) for analysis. Testing showed the Appellant’s blood alcohol
content (BAC) was 0.094 gram percent, which confirmed to Trooper Naipo that the
Appellant was impaired.
On cross-examination, Trooper Naipo acknowledged that after seeing the Appellant
not wearing a seatbelt, he initiated his blue lights and pulled in between the Appellant’s car
and the car that was following the Appellant. Trooper Naipo acknowledged that the
Appellant pulled over immediately and that the Appellant “used his blinker.” He also
acknowledged that the Appellant was cooperative and that he did not ask the Appellant
about alcohol until twenty minutes into the stop.
Sarah Douglas, a special agent forensic scientist for the TBI, testified as an expert
in forensic toxicology that she analyzed the Appellant’s blood sample. Agent Douglas
generated an Official Alcohol Report, showing that the Appellant’s BAC was 0.094 gram
percent. She said the Appellant’s BAC may have been higher when he was stopped than
when his blood was drawn about two and one-half hours later. However, she also said his
BAC may have been lower at the time of the stop than at the time of the blood draw. Agent
Douglas never received a request for independent testing of the Appellant’s blood sample.
On cross-examination, Agent Douglas testified that the TBI’s standard procedure
was to test a sample for alcohol twice and report the average of the two tests. In this case,
one machine reported the Appellant’s BAC as 0.0975 gram percent and another machine
reported his BAC as 0.0915 gram percent. She said that the two results differed by only
six thousandth gram percent, that she was confident the results were correct, and that the
two results met the TBI’s quality control criteria of being within five percent of the average.
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Agent Douglas testified that in addition to ethanol, N-propanol, methanol, and
acetone were found in the Appellant’s blood sample. Regarding the N-propanol, Agent
Douglas said that she had added N-propanol to the Appellant’s blood sample to make sure
the testing instrument was working correctly. Regarding the methanol and acetone, Agent
Douglas did not think the methanol in the sample affected the Appellant’s blood test, and
the amount of acetone was so low that Agent Douglas questioned whether it was actually
in the sample. Agent Douglas reiterated that the Appellant’s BAC may have been less than
0.094 gram percent at the time of his traffic stop. On redirect examination, though, she
said, “The most likely scenario is that he was higher or the same. But, again, in fairness,
it is possible [that his BAC was lower than 0.094 gram percent].”
At the conclusion of Agent Douglas’s testimony, the State rested its case. The
Appellant did not present any proof, and the jury retired to deliberate. During deliberations,
the State advised the trial court that although it had indicted the Appellant for DUI, eleventh
offense, only five of those prior DUI offenses occurred within twenty years of the date of
the instant violation and could be considered prior offenses. See Tenn. Code. Ann. § 55-
10-405(a). The jury found the Appellant guilty as charged of DUI and DUI per se, Class
A misdemeanors; driving on a revoked license, a Class A misdemeanor; violating the
seatbelt law, a Class C misdemeanor; violating the financial responsibility law, a Class C
misdemeanor; and violating the vehicle registration law, a Class C misdemeanor. The
Appellant stipulated to having five prior convictions of DUI, which elevated his DUI
convictions to Class C felonies, and two prior convictions of driving on a revoked license.
II. Analysis
A. Additional Discovery
The Appellant contends that the trial court abused its discretion by denying his
motion for additional discovery in which he requested the TBI’s scientific reports for his
blood test. He claims that the reports were relevant and material to his defense and that the
State’s suppression of the reports violated Brady v. Maryland, 373 U.S. 83 (1963). The
State argues that the trial court did not abuse its discretion because the Appellant failed to
show the scientific reports were material to the preparation of his defense and because the
Appellant failed to show the State intended to use the scientific reports in its case-in-chief.
We agree with the State.
The record reflects that the Appellant filed a general discovery motion pursuant to
Tennessee Rule of Criminal Procedure 16 before trial and that the trial court granted the
motion. Subsequently, the Appellant filed a Motion for Discovery and Production of
Discoverable Information, requesting that the State provide him with “the results and
reports of the Tennessee Bureau of Investigation scientific tests, also referred to as
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litigation packages and control run reports.” The State responded, arguing that it was not
required to turn over the requested information because the reports were work product,
because the reports were not material to the Appellant’s defense, and because the State
intended to use only the Appellant’s Official Alcohol Report in the State’s case-in-chief.
The State noted that the Appellant never requested independent testing of his blood sample.
The Appellant filed a response, contending that the scientific reports were
admissible pursuant to Tennessee Rules of Criminal Procedure 16(a)(1)(F) or 16(a)(1)(G).
The Appellant asserted that the scientific reports, which were produced by a machine, were
not work product. The Appellant also asserted that because the Official Alcohol Report
was a summary of the scientific reports, the State was going to use the scientific reports in
its case-in-chief. The Appellant then specifically requested the following “material”
documents:
“(1) A copy of the gas chromatography printout of the standards used at the
beginning of the run, just prior to Defendant’s sample, and the printout of the
standards just subsequent to the Defendant’s sample.
(2) Copies of the case notes, analytical data, standards, controls, and the gas
chromatography printouts of all samples, which were analyzed prior to the
Defendant’s, as well as all samples analyzed after the Defendant’s sample.
(3) Certificates of assay from an independent laboratory, not by the
manufacturer, on all of the ethanol standards used in the analysis of the
Defendant’s blood.
(4) A detailed description of the type of water used in preparation of the
alcohol standard, e.g., distilled, deionized or tap. This description should
include any analysis performed on the water, including the identification of
any screened minerals in the water.
(5) Sample worksheet for all samples analyzed on the day the Defendant’s
sample was tested.
(6) Raw data files from the defendant’s blood sample.”
The Appellant also listed eleven “common errors that occur with devices and testing
at issue in the defendant’s case.” The Appellant noted that at the trial of Benjamin Brewer,
“naphthalene was found in the TBI results from the gas chromatography test. TBI admitted
on cross-examination it was a contaminated sample, and that they had contaminated other
samples as well.” The Appellant stated that he wanted the “underlying data” for his own
test to determine whether his test also was contaminated.
At a hearing on whether the Appellant should receive the TBI’s scientific reports,
the trial court asked defense counsel how the reports were material, and defense counsel
responded as follows:
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One is for us to be able to prepare for cross-examination, to be able to
challenge the testing. I think we’re allowed to do that. And if we don’t know
what the underlying report that I argue that we’re entitled to, we cannot -- we
cannot let a -- well, first of all, we cannot develop our cross-examination
questions or what our strategy would be in showing the Court if there are
problems with this -- with the scientific -- I don’t know if there are.
Judge, we’re also allowed to have our -- this information reviewed by
an expert for him to determine whether or not -- if he finds any problems
with the testing. I can’t do that at trial. I can’t do that with doing a
subsequent testing on our own.
What is at issue is the test that the State is going to introduce at trial
and we have a right to challenge that evidence, but if we do not have the
scientific testing that backs the official report we’re not able to do that.
That’s why I think it’s material.
....
Now, I can get an example, Judge. . . . In [Mr Brewer’s] case we were
provided with all the documents, the scientific tests that backed up the
official report. And in that report we had an expert to take a look at it. A
pharmacologist looked at that report. And he -- we took the raw data files
that were in that case, he plugged them into the same software, very similar
to what TBI uses, and showed that there were problems with the results, how
the -- in that case how the drug was interpreted. And it was -- we discovered
through that process that there was naphthalene in the sample.
Now, when -- in that particular case that allowed us to cross-examine
the TBI agent in that case.
....
We cannot develop vigorous cross-examination regarding the TBI
agent and the testing without seeing the scientific test reports, and I think
that’s why it’s material.
The State argued that although the TBI’s testing in Mr. Brewer’s case showed the
presence of naphthalene, the naphthalene “had no affect on the methamphetamine
reading”; accordingly, Mr. Brewer’s case did not show “any problem” with the TBI’s
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analysis and did not support the Appellant’s claim that the TBI’s scientific reports were
material to his case. The State asserted that the presence of naphthalene in Mr. Brewer’s
case was “much ado about nothing” and that the Appellant wanted the scientific reports for
his own blood test in order to go on a “fishing expedition.” Defense counsel, who
represented Mr. Brewer at trial, responded that he never would have learned about the
presence of naphthalene from Mr. Brewer’s testing if the defense had not received the
TBI’s scientific reports and that the Appellant “had a right to question the testing.”
The State introduced a transcript of TBI Special Agent Melinda Quinn’s testimony
from Mr. Brewer’s trial into evidence.1 The State also called her to testify at the hearing.
Agent Quinn testified as an expert in forensic toxicology that the TBI used gas
chromatography and mass spectrometry to analyze blood samples and that two tests had to
be “run” in order for a sample to be considered “positive” for a particular drug. Agent
Quinn testified at Mr. Brewer’s trial that methamphetamine was in his blood sample. She
said that another substance had the same retention time as the methamphetamine but that
the substance’s “chemical fingerprint” was different. Agent Quinn thought the substance
“probably” was naphthalene, but she “didn’t run any naphthalene quality control.”
Regardless, the presence of naphthalene did not affect Mr. Brewer’s test for
methamphetamine. Agent Quinn stated that it was standard TBI procedure for a second
scientist to review test results, that a second scientist reviewed her work in the Mr. Brewer’s
case, and that no errors were found.
Agent Quinn testified that she provided several hundred pages of documents to Mr.
Brewer’s defense and that the toxicology analysis encompassed at least one hundred pages.
1
A brief explanation of the naphthalene issue in State v. Benjamin Scott Brewer, No. E2019-00355-
CCA-R3-CD, 2020 WL 1672958, at *5 (Tenn. Crim. App. at Knoxville, Apr. 6, 2020), is in order. At Mr.
Brewer’s trial, Agent Quinn testified for the State as an expert in forensic toxicology that she analyzed Mr.
Brewer’s blood sample and that his blood contained .08 micrograms per milliliter of methamphetamine.
On cross-examination by defense counsel, Agent Quinn testified that the solvent she used to analyze Mr.
Brewer’s blood for drugs “‘was contaminated with naphthalene.’” Id. The naphthalene was not in Mr.
Brewer’s blood but caused a “‘naphthalene peak’” on the printout from the chromatogram. Id. Agent
Quinn said that she did not remember making any notes about the naphthalene in her report and that the
naphthalene did not prevent the TBI from being able to detect drugs in Mr. Brewer’s blood. Id. The State
turned over the TBI’s scientific reports for Mr. Brewer’s blood test to the defense, and a defense expert in
pharmacology reviewed the reports. The expert testified at trial that he informed the defense that Mr.
Brewer’s blood was contaminated with naphthalene. Id. at *6. The expert also testified that he did not
think the TBI’s test was reliable due to the contamination and that he did not think the results showed the
presence of methamphetamine. Id. Nevertheless, the jury convicted Mr. Brewer as charged of various
offenses, including six counts of vehicular homicide by intoxication and DUI. Id. On direct appeal of his
convictions, Mr. Brewer argued that the State committed a Brady violation by failing to disclose to the
defense before trial that his blood sample had been contaminated with naphthalene. Id. This court
concluded that Mr. Brewer failed to show a Brady violation. Id. at *10.
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She said that she photocopied the documents and sent them to Mr. Brewer and that doing
so for every defendant would impact her ability to analyze samples.
On cross-examination, Agent Quinn acknowledged that defense counsel cross-
examined her at Mr. Brewer’s trial about the contaminated solvent. The TBI’s
documentation did not specifically mention the contaminated solvent; instead, Mr.
Brewer’s expert noticed the contaminated solvent in the documentation. She said that the
“peak” on Mr. Brewer’s chromatograph printout was “unusual” but not “wrong” and that
she had never reported a test result that she later learned was inaccurate. She said that if
she were asked by a defendant to conduct an expert review of the TBI’s testing, she “would
want to look at the quality control packet and the case sample.” She said that she also
“would need the software associated with it. There’s lots of different software. I would
want to start with the quality control packet and the actual case printouts.” Agent Quinn
said that each quality control packet contained at least seventy pages of documents, that
she did not have an administrative assistant, and that she would have to print the pages
herself. She acknowledged that she would not generate an Official Alcohol Report without
also generating a scientific report.
Agent Douglas, an expert in forensic toxicology, also testified for the State at the
hearing. Agent Douglas analyzed the Appellant’s blood sample and issued an Official
Alcohol Report. The State asked, “How many pages does a typical alcohol test such as
Mr. Shumacker’s generate?” Agent Douglas answered, “The case itself is only four pages;
however, there [are] a lot of quality documents that are associated with that. It’s
approximately 140 for the batch.” She said that she tested about ninety samples per week
and that having to provide quality control packets to every defense attorney would amount
to more than 10,000 pages of documentation per week.
On cross-examination, Agent Douglas testified that the Appellant’s Official Alcohol
Report was the final report she prepared for the Appellant’s blood testing. She then
identified four pages of data for the Appellant’s blood test that were provided to the
defense. She acknowledged that the four pages were the first set of scientific reports
generated by the testing. Agent Douglas also acknowledged that defense counsel
interviewed her on the telephone and that defense counsel was unable to continue his
interview because he had only those four pages of the Appellant’s test reports.
Agent Douglas testified that she used the gas chromatograph and mass spectrometer
to analyze the Appellant’s blood for alcohol, that she and another toxicologist reviewed the
results, and that naphthalene was not an issue in this case. Defense counsel asked if Agent
Douglas provided the district attorney’s office with all of the testing information for DUI
cases, and she said that she would if asked but that “I’ve never had a district attorney ask
for my quality control packets.” She said that she thought the results of the Appellant’s
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blood test were correct and that she did not think she had ever made a mistake in testing,
explaining, “We have so many quality control policies that I feel like either I would catch
it or my reviewer. We go through our data very intensively before we issue a report and
then that reviewer looks at the data intensively as well to make sure everything meets
quality control criteria.” Agent Douglas stated that if a defendant asked her to conduct an
expert review of the TBI’s work, she would want to see the TBI’s quality control
documents as part of her review.
At the conclusion of the hearing, defense counsel advised the trial court that he
wanted the requested discovery so that an expert could review it for “any issues.” In a
written order, the trial court ruled that the Appellant was not entitled to the additional
information, finding that he failed to show the TBI’s scientific reports were material to the
preparation of his defense. The Appellant appeals the ruling of the trial court.
The Appellant maintains that the requested information was discoverable pursuant
to Tennessee Rule of Criminal Procedure 16(a)(1)(F) or (G). Tennessee Rule of Criminal
Procedure 16(a)(1) provides:
(F) Documents and Objects. Upon a defendant’s request, the state
shall permit the defendant to inspect and copy or photograph books, papers,
documents, photographs, tangible objects, buildings or places, or copies or
portions thereof, which are within the possession, custody or control of the
state, and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its case-
in-chief at trial; or
(iii) the item was obtained from or belongs to the
defendant.
(G) Reports of Examinations and Tests. Upon a defendant’s request,
the state shall permit the defendant to inspect and copy or photograph any
results or reports of physical or mental examinations, and of scientific tests
or experiments if:
(i) the item is within the state’s possession, custody, or
control;
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(ii) the district attorney general knows--or through due
diligence could know--that the item exists; and
(iii) the item is material to the preparing of the defense
or the state intends to use the item in its case-in-chief at trial.
It is within a trial court’s discretion to enter orders necessary to ensure compliance with
Rule 16. State v. Brown, 836 S.W.2d 530, 548 (Tenn. 1992). Therefore, we will review
the trial court’s denial of the Appellant’s request for additional discovery for an abuse of
discretion.
The Appellant first contends that the requested materials could be considered
documents and, therefore, were discoverable pursuant to Tennessee Rule of Criminal
Procedure 16(a)(1)(F). He claims that the documents were in the State’s possession and
discoverable pursuant to Rule 16(a)(1)(F)(i) because they were material to the preparation
of his defense and discoverable pursuant to Rule 16(a)(1)(F)(ii) because the State intended
to use the Official Alcohol Report, which was based on the documents, in its case-in-chief
at trial. The Appellant also contends that the requested discovery materials were reports
of scientific tests and, therefore, discoverable pursuant to Tennessee Rule of Criminal
Procedure 16(a)(1)(G) because the reports were within the State’s possession, the district
attorney general knew the reports existed, and the reports were material to preparing the
preparation of his defense or the State intended to use them in its case-in-chief at trial.
Granted, the TBI reports were in the State’s possession. See State v. Goodman, 643
S.W.2d 375, 379 (Tenn. Crim. App. 1982) (providing that “[w]hen the state utilizes the
facilities of the F.B.I. Laboratory for various scientific tests, the F.B.I. is an agent for the
State of Tennessee, and reports in its possession are in the state’s possession for the
purposes of [Rule 16]”). Regarding materiality, this court has explained:
“‘Materiality means more than that the evidence in question bears some
abstract logical relationship to the issues in the case. . . . There must be some
indication that the pretrial disclosure of the disputed evidence would have
enabled the defendant significantly to alter the quantum of proof in his
favor.’” United States v. Buckley, 586 F.2d 498, 506 (5th Cir. 1978) (quoting
United States v. Ross, 511 F.2d 757, 762-63 (5th Cir. 1975)); see also United
States v. Maniktala, 934 F.2d 25, 28 (2d Cir. 1991); United States v. RMI
Co., 599 F.2d 1183, 1188 (3d Cir. 1979); United States v. Lloyd, 992 F.2d
348, 351 (D.C. Cir. 1993); Moore’s Federal Practice—Criminal § 616.05
(2002); Timothy M. Hall, Annotation, Books, Papers, and Documents
Subject to Discovery by Defendant Under Rule 16 of Federal Rules of
Criminal Procedure, 108 A.L.R. Fed. 380, 400 (1992). This definition of
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materiality is not restricted to exculpatory evidence because the discovery of
inculpatory evidence may enable the defendant to “‘alter the quantum of
proof in his favor’ in several ways: by preparing a strategy to confront the
damaging evidence at trial; by conducting an investigation to attempt to
discredit that evidence; or by not presenting a defense which is undercut by
such evidence.” United States v. Marshall, 132 F.3d 63, 68 (D.C. Cir. 1998).
In order to be material, the discoverable item must “significantly help[ ] in
‘uncovering admissible evidence, aiding witness preparation, corroborating
testimony, or assisting impeachment and rebuttal.’” United States v. Gaddis,
877 F.2d 605, 611 (7th Cir. 1989) (quoting United States v. Felt, 491 F. Supp.
179, 186 (D.D.C. 1979)); Lloyd, 992 F.2d at 350 (relying upon Felt’s
definition of materiality). This court has previously defined the phrase
“material to the preparation of the defendant’s defense” using this definition:
a tangible object under Rule 16(a)(1)(C) is material “‘if there is a strong
indication that [the evidence] will play an important role in uncovering
admissible evidence, aiding witness preparation, corroborating testimony or
assisting impeachment and rebuttal.’” State v. Hershel Clark, No. 02C01-
9112-CR-00273, [1993 WL 188052, at *6] (Tenn. Crim. App. [at Jackson,]
June 2, 1993) (quoting Felt, 491 F. Supp. at 186).
State v. Thomas Dee Huskey, No. E1999-00438-CCA-R3-CD, 2002 WL 1400059, at *59
(Tenn. Crim. App. at Knoxville, June 28, 2002).
In order to make a showing of materiality,
the defendant “must do more than emphatically state he needed certain
discovery. He must show how the discoverable items were material to the
preparation of his defense.” Id. at *60. The defendant should make an offer
of proof or seek to have the documents entered into the record under seal in
order to assist this Court in evaluating his claim of materiality. See State v.
Phillip Matthew Burgess, M2013-00252-CCA-R3-CD, 2014 WL 309644, at
*7 (Tenn. Crim. App. [at Nashville,] Jan. 28, 2014) (citing State v.
Schiefelbein, 230 S.W.3d 88, 148 (Tenn. Crim. App. 2007)), no perm. app.
filed; State v. Elizabeth Gay Tindell, No. E2008-02635-CCA-R3-CD, 2010
WL 2516875, at *16 (Tenn. Crim. App. [at Knoxville,] June 22, 2010), perm.
app. denied (Tenn. Nov. 17, 2010). On appeal, the defendant “bears the
burden of showing ‘the degree to which the impediments to discovery
hindered trial preparation and defense at trial.’” State v. Anthony D. Forster,
M2002-0008-CCA-R3-CD, 2011 WL 1431980, at *14 (Tenn. Crim. App. [at
Nashville,] Apr. 12, 2011) (quoting State v. Brown, 836 S.W.2d 557, 560
(Tenn. 1993)), perm. app. denied (Tenn. Aug. 24, 2011).
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State v. Jordan Thomas Peters, No. E2014-02322-CCA-R3-CD, 2015 WL 6768615, at *6
(Tenn. Crim. App. at Knoxville, Nov. 5, 2015).
The Appellant’s case is factually similar to State v. Zane Allen Davis, Jr. In that
case, the defendant possessed his blood test results showing that his BAC was 0.23 percent
but requested various additional information from the TBI such as the raw data from his
blood testing, including handwritten notes; line graphs and tabulated data printed by the
testing equipment; and “any other document generated as a result of the testing of
Defendant’s blood sample.” State v. Zane Allen Davis, Jr., No. M2000-00737-CCA-R3-
CD, 2000 WL 1879518 at *4 (Tenn. Crim. App. at Nashville, Dec. 28, 2000). The State
responded that the defendant was not entitled to the additional discovery under Tennessee
Rule of Criminal Procedure 16. Id. The defendant filed a motion to compel, and the trial
court denied the motion. Id. In affirming the ruling of the trial court, this court explained
as follows:
Not only is the record of the hearing on Defendant’s motion to compel and
Defendant’s brief devoid of any proof establishing that the requested
information was material, the trial record is deficient in this regard as well.
Namely, we do not have before us any proof concerning what Defendant’s
expert would specifically require in the way of pertinent facts nor what he
would do with them if he had them. We similarly lack proof of what
particular documents the TBI has in its possession that would be helpful and
how the documents would assist Defendant’s case. Neither has Defendant
offered any proof such as incompetency concerning the TBI’s lab personnel
or historical proof of inaccuracies or unreliable results with respect to the
lab’s instruments or equipment. We further observe that counsel could have
asked that the trial court perform an in camera examination of the requested
documents. In sum, since the State did not present the information in issue
as evidence during trial and Defendant did not offer any proof as described
above, we find no evidence that the requested documents were material.
Defendant is not entitled to relief on this issue.
Id. at *5.
The Appellant contends that he demonstrated the requested documents were
material to the preparation of his defense because “the defense in this case listed not only
the specific types of report and information that they were seeking but also the list of errors
that had been recently or in literature discovered to be at issue with these tests in particular.”
However, the Appellant did not provide any authority for his list of common errors and did
not present any expert testimony regarding such errors at the hearing. Instead, he relied on
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Benjamin Brewer, in which a contaminated solvent was discovered during testing, to show
that the documents from his own testing were material. Agent Quinn testified at Mr.
Brewer’s trial and at the Appellant’s hearing, though, that the naphthalene in Mr. Brewer’s
blood sample was unusual but did not affect the presence of methamphetamine in Mr.
Brewer’s blood. Moreover, Agent Douglas, who analyzed the Appellant’s blood sample,
testified that naphthalene was not an issue in the Appellant’s case. Defense counsel had
an opportunity to question Agent Douglas about the Appellant’s blood analysis at trial, and
Agent Douglas testified about other substances found in the Appellant’s blood sample. She
said those substances did not affect the Appellant’s ethanol result, and defense counsel’s
cross-examination of Agent Douglas did not reveal any problems or potential problems
with her analysis. “[W]here . . . the movant simply hopes that a later expert evaluation
might reveal some flaw . . . , the subpoena is ‘nothing but a classic fishing expedition.’”
Elizabeth Gay Tindell, No. E2008-02635-CCA-R3-CD, 2010 WL 2516875, at *16
(quoting Commonwealth v. House, 295 S.W.3d 825, 827 (Ky. 2009)).
We note that Agent Quinn and Agent Douglas testified that they would want to see
the TBI’s quality control documents if asked to conduct an expert review. However, they
did not explain what they would have done with the documents or what the documents
could have shown them, and the Appellant did not present any proof as to what information
his own expert would have needed from the TBI or what the expert would have done with
the information. The Appellant also did not ask that the trial court conduct an in-camera
review of the requested discovery and did not include the exhibits from the discovery
hearing, which included the four pages of testing reports he received before trial, in the
appellate record. See Tenn. R. App. App. 24(a). Finally, he did not ask that the requested
discovery be placed into the appellate record under seal, which “severely hamper[s]” our
review. Phillip Matthew Burgess, No. M2013-00252-CCA-R3-CD, 2014 WL 309644, at
*7. In sum, we conclude that the Appellant failed to show that the requested discovery was
material to the preparation of his defense.
As to the Appellant’s assertion that the State’s use of the Official Alcohol Report in
its case-in-chief equated to use of the scientific test reports, Agent Douglas testified that
that no district attorney had ever asked her for her quality control packets. Therefore, we
reject that argument as well.
Lastly, the Appellant claims that the State’s suppression of the reports violated
Brady v. Maryland, 373 U.S. 83 (1963). However, as noted by the State, the Appellant
failed to raise this issue in the trial court and failed to raise it in his motion for new trial.
Therefore, it has been waived. See State v. Patricia Adkisson, No. M2010-02501-CCA-
R3-CD, 2012 WL 12931581, at *6 (Tenn. Crim. App. at Nashville, May 2, 2012) (Brady
issue waived for failing to raise it in trial court); State v. Charles Madison Blackman, Jr.,
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No. 01C01-9708-CC-00335, 1998 WL 761811, at *4 (Tenn. Crim. App. at Nashville, Oct.
30, 1998) (Brady issue waived for failing to raise it in motion for new trial).
B. Prior Bad Acts
The Appellant contends that the trial court erred by allowing the State to present
evidence about his giving Trooper Naipo incorrect identifying information because the
evidence was inadmissible under Tennessee Rule of Evidence 404(b). The State argues
that the evidence was admissible. We agree with the State.
Before trial, the Appellant filed a motion in limine to prohibit the State from
introducing evidence at trial that the Appellant gave Trooper Naipo incorrect identifying
information. In the motion, the Appellant requested a jury-out hearing pursuant to
Tennessee Rule of Evidence 404(b) in order for the trial court to determine whether a
material issue existed other than conduct conforming to a character trait and, if so, whether
the probative value of the evidence was outweighed by the danger of unfair prejudice.
The trial court held a jury-out hearing prior to Trooper Naipo’s trial testimony.
During the hearing, the prosecutor advised the trial court that she did not intend “to
characterize [the Appellant’s behavior] in any particular way” and argued that the
Appellant’s giving Trooper Naipo incorrect identifying information was relevant to the
Appellant’s impairment.
Trooper Naipo testified at the hearing that after he stopped the Appellant, he
approached the Appellant’s car. The Appellant had bloodshot and watery eyes and smelled
of alcohol. Trooper Naipo asked the Appellant for his identifying identification, and the
Appellant told Trooper Naipo that his name was Edward Lee Shumacker. The Appellant
also spelled his name for the officer. Trooper Naipo reported the name to dispatch, but
dispatch could not find any information for the Appellant. Trooper Naipo verified the
information with the Appellant, returned to his police vehicle, and “tried it again.”
However, dispatch still was unable to find any information for the Appellant. Trooper
Naipo explained as follows:
I went back for the third time and physically showed him, wrote down the
name and he stated that it was the correct spelling, date of birth, social
security number. I went back to my vehicle, ran it again and nothing came
up. I then talked with the female subject that was actually following Mr.
Shumacker and asked if she knew the subject and she said she did. She gave
me a correct spelling of his name and the date of his birth.
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Using the correct information, Trooper Naipo learned that the Appellant’s driver’s license
had been revoked and that the Appellant’s car was not property registered.
At the conclusion of Trooper Naipo’s testimony, the State advised the trial court
that it planned to have Trooper Naipo testify about the Appellant’s giving him incorrect
identifying information and planned to play the video of the stop “to understand that the
trooper is telling the truth as well.” The trial court found clear and convincing evidence
that the Appellant gave Trooper Naipo an incorrect name and that the evidence was relevant
“to give a complete story of the crime, because I think the jury would understand if
somebody is stopped, that [to] complete the story you would be asked your name,
registration, driver’s license and so forth.” Regarding prejudice, the trial court found that
the evidence “really doesn’t show propensity at all in regard to any of the crimes for which
he is charged.” Accordingly, the trial court ruled that the evidence was admissible.
Generally, a party may not introduce evidence of an individual’s character or a
particular character trait in order to prove that the individual acted in conformity with that
character or trait at a certain time. Tenn. R. Evid. 404(a). Similarly, evidence “of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order to show
action in conformity with the character trait.” Tenn. R. Evid. 404(b). Such evidence may
be admitted for other purposes, though, if relevant to some matter actually at issue in the
case and if its probative value is not outweighed by the danger of its prejudicial effect.
Tenn. R. Evid. 404(b); State v. Wyrick, 62 S.W.3d 751, 771 (Tenn. Crim. App. 2001).
Issues to which such evidence may be relevant include identity, motive, common scheme
or plan, intent, or the rebuttal of accident or mistake defenses. Tenn. R. Evid. 404(b),
Advisory Comm’n Cmts. Before the trial court may permit evidence of a prior crime,
wrong, or act, the following procedures must be met:
(1) The court upon request must hold a hearing outside
the jury’s presence;
(2) The court must determine that a material issue exists
other than conduct conforming with a character trait and must
upon request state on the record the material issue, the ruling
and the reasons for admitting the evidence;
(3) The court must find proof of the other crime, wrong,
or act to be clear and convincing; and
(4) The court must exclude the evidence if its probative
value is outweighed by the danger of unfair prejudice.
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Tenn. R. Evid. 404(b). Provided that the trial court has complied with these procedures,
this court will not overturn the trial court’s decision to admit or exclude evidence under
Rule 404(b) absent an abuse of discretion. State v. DuBose, 953 S.W.2d 649, 652 (Tenn.
1997).
The trial court complied with the procedures of Rule 404(b), but we disagree with
the trial court’s determination that the evidence was necessary to complete the story. In
State v. Gilliland, 22 S.W.3d 266, 271 (Tenn. 2000), our supreme court stated that
“evidence offered to show contextual background need not be excluded simply for the
reason that it involves evidence of prior acts.” However, our supreme court went on to
explain that
when the state seeks to offer evidence of other crimes, wrongs, or acts that is
relevant only to provide a contextual background for the case, the state must
establish, and the trial court must find, that (1) the absence of the evidence
would create a chronological or conceptual void in the state’s presentation of
its case; (2) the void created by the absence of the evidence would likely
result in significant jury confusion as to the material issues or evidence in the
case; and (3) the probative value of the evidence is not outweighed by the
danger of unfair prejudice.
Gilliland, 22 S.W.3d at 272.
Evidence that the Appellant gave Trooper Naipo incorrect identifying information
was not needed to avoid a chronological or conceptual void in the State’s case and was not
needed to avoid jury confusion. Therefore, the evidence was not needed for completion of
the story. That said, the evidence was relevant to the Appellant’s impairment for DUI.
Trooper Naipo testified that he asked the Appellant three times for the Appellant’s correct
identifying information and that the Appellant gave him incorrect information each time.
Trooper Naipo even wrote down the information for the Appellant, and the Appellant
verified that he had spelled his name correctly for Trooper Naipo. We agree with the State
that the jury could reasonably infer from the Appellant’s repeatedly giving the officer a
false name that the Appellant’s judgment was impaired due to his intoxication, particularly
when someone traveling with the Appellant could provide his correct name to the officer.
We note that while the evidence suggested the Appellant was trying to deceive Trooper
Naipo so that Trooper Naipo would not learn the Appellant had prior offenses for DUI,
was driving on a revoked license, and was driving without proper vehicle registration,
Trooper Naipo never claimed the Appellant lied to him or tried to deceive him. Moreover,
the State advised the trial court during the Rule 404(b) hearing that it was not going to
characterize the Appellant’s behavior. We note that the Appellant has failed to include the
closing arguments in the appellate record; therefore, we do not know if or how the State
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addressed the issue in its arguments to the jury. Therefore, while such evidence may have
been somewhat prejudicial, we conclude that the probative value of the evidence was not
outweighed by the danger of unfair prejudice. Thus, the evidence was not prohibited by
Tennessee Rule of Evidence 404(b).
C. Expert Testimony
The Appellant contends that the trial court erred by allowing Agent Douglas to
testify about “BAC scenarios” because her testimony was confusing and outside of her area
of expertise as a forensic toxicologist. The State argues that the trial court did not err. We
agree with the State.
Agent Douglas testified that she had a Bachelor of Science degree in applied
chemistry with a “special focus” in forensics and that she had a Master of Science degree
in chemistry. For her master’s thesis, she “collected waste water and tested it for opiate
compounds.” As a graduate assistant at Tennessee Tech, Agent Douglas taught forensic
chemistry, quantitative analysis, and general chemistry and “helped teach” organic
chemistry. Agent Douglas stated that she had been working as a forensic toxicologist at
the TBI Crime Laboratory for more than two years and that she had tested about 4,500
samples for the presence of alcohol during that time. She stated that while she had been
employed with the TBI, she had attended “special training” for a controlled drinking study
at the Tennessee Law Enforcement Training Academy. During the study, Agent Douglas
watched individuals drink alcohol and interacted with them to learn the effects of alcohol.
Agent Douglas also attended a program on alcohol and highway safety testing at the
University of Indiana. She explained that the program was “a week long study and they
just give presentations on what different alcohol levels do, how people will show those
signs or not . . . and also how to do calculations related to blood alcohol content.” She
stated that both of the studies, as well as journal articles she had read, had been the “biggest
impactors” on her learning the effects of drugs on the human body. She said that she
currently was not a member of any professional organizations but that she used to be a
member of the American Chemical Society and the American Society for Biochemistry
and Molecular Biology. The trial court allowed Agent Douglas to testify, without any
objection from the Appellant, as an expert in forensic toxicology.
During Agent Douglas’s testimony, the State asked her about the general effects of
alcohol on “most people.” Defense counsel objected, arguing that such testimony was
outside her area of expertise. The trial court overruled the objection. The State asked
Agent Douglas if a person with a BAC of 0.09 would be “staggering and falling down,”
and she said that “it would depend on the person” and whether the person was an
“inexperience or infrequent drinker.” The State noted that the Appellant’s blood was not
drawn until two hours and twenty minutes after his traffic stop and asked if Agent Douglas
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knew the rate alcohol dissipated in a person’s blood. Agent Douglas explained that when
a person consumed alcohol, the person’s BAC started to rise and peaked thirty to sixty
minutes after the person stopped drinking. She said that “people generally come down at
0.01 to 0.02 gram percent per hour which is roughly a drink an hour.” The State asked if
she could estimate the Appellant’s BAC at the time of the stop, and Agent Douglas offered
three “scenarios.” In the first scenario, she said that if the Appellant’s BAC “peaked” at
the time of the stop or before the stop, then his BAC may have been greater than 0.094
gram percent at the time of the stop. In the second scenario, she said that if the Appellant’s
BAC peaked midway between the stop and the blood draw, then his BAC would have been
about 0.094 gram percent at the time of the stop. In the final scenario, she said that if the
Appellant’s BAC peaked after the blood draw, then his BAC may have been less than 0.094
gram percent at the time of the stop. The State asked Agent Douglas to estimate the
Appellant’s BAC under the first scenario, and she said that it would have been between
0.114 and 0.134 gram percent. On cross-examination, defense counsel asked, “So it’s fully
possible that he had a lower [BAC] than .094 at the time he was driving?” Agent Douglas
answered, “Yes, again it is possible based on that [third] scenario I gave you earlier.”
It is well-settled that “the allowance of expert testimony, the qualifications of expert
witnesses, and the relevancy and competency of expert testimony are matters which rest
within the sound discretion of the trial court.” State v. Rhoden, 739 S.W.2d 6, 13 (Tenn.
Crim. App. 1987) (citing Murray v. State, 377 S.W.2d 918, 920 (1964); Bryant v. State,
539 S.W.2d 816, 819 (Tenn. Crim. App. 1976); State v. Holcomb, 643 S.W.2d 336, 341
(Tenn. Crim. App. 1982)). This court will not disturb the trial court’s ruling absent a clear
showing that the trial court abused its discretion in admitting or disallowing expert
testimony. Id.; State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002). Moreover, this court
will not find an abuse of discretion unless it “‘appears that the trial court applied an
incorrect legal standard, or reached a decision which is against logic or reasoning that
caused an injustice to the party complaining.’” Stevens, 78 S.W.3d at 832 (quoting State
v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).
In this case, Agent Douglas testified as an expert in forensic toxicology. She said
she had studied the effects of alcohol on the human body, and the State asked if she knew
the alcohol dissipation rate in the human body. Agent Douglas said ethanol dissipated at a
rate of 0.01 to 0.02 gram percent per hour. Given that the Appellant’s blood was not drawn
for almost two and one-half hours after his traffic stop, Agent Douglas then gave three
scenarios in which the Appellant’s BAC may have peaked at or near the time of his stop,
peaked midway between his stop and his blood draw, and peaked after his blood draw. In
our view, Agent Douglas’s testimony was neither outside her area of expertise nor
confusing to the jury. Therefore, we conclude that the trial court did not abuse its
discretion.
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D. Excessive Sentence
The Appellant contends that his twelve-year sentences for DUI are excessive.
Specifically, he asserts that the trial court should have mitigated his sentences because he
had “a place to live, work, and family support”; because he was not a danger to other
motorists at the time of his arrest, “as evidence by a lack of speeding ticket or allegations
of swerving”; and because he was not on probation at the time of his arrest. The State
argues that the trial court properly sentenced the Appellant. We agree with the State.
At the Appellant’s sentencing hearing, Michelina Rolston of the Tennessee
Probation Office testified that she prepared the Appellant’s presentence report. She
acknowledged that her investigation for the Appellant’s report was one of the “most
extensive” investigations she had ever conducted. The Appellant had multiple prior
offenses, which included twelve felonies and additional misdemeanors. The crimes
spanned an extensive period of time. Ms. Rolston said that according to a risk assessment
completed for the Appellant, he began using alcohol or drugs when he was between
fourteen and seventeen years old. The assessment stated that the Appellant had never been
“clean and sober” for six months or more.
On cross-examination, Ms. Rolston testified that the Appellant reported no gang
affiliation but that the TOMIS system showed he was suspected of being in the Crazy White
Boys Gang. The Appellant reported no current health problems, and Ms. Rolston did not
remember him saying that he had surgery on his right leg or hip. The Appellant told Ms.
Rolston that he had not received any substance abuse treatment, but the TOMIS system
showed he was in a treatment program. Ms. Rolston acknowledged that the Appellant
received a Strong-R assessment and that he was considered a moderate risk of reoffending.
The State introduced the Appellant’s presentence report into evidence. In addition
to Ms. Rolston’s testimony, the report showed that the Appellant was fifty-three years old
and single. According to the report, the Appellant dropped out of high school in the twelfth
grade but obtained his GED. In the report, the Appellant described his physical health as
good and said that he did not have any problems with drugs or alcohol. The Appellant said
he may have had a drinking problem “when he was younger but that . . . his drinking habits
[had] gotten better as he had gotten older.” The Appellant stated that he had been self-
employed as a builder for more than thirty years but that he did not have a business license
and “worked under the table.”
The Appellant’s criminal history spanned eight pages of the report and showed that
he began committing crimes in 1984 when he was eighteen years old. He continued to
commit crimes at almost every age until 2012 when he was forty-seven years old. The
report showed that the Appellant had approximately fifty convictions with eleven or twelve
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of them being felonies. The Appellant’s felony offenses included numerous DUI
convictions, several convictions of felonious operation of a motor vehicle, a conviction of
aggravated assault, and a conviction for a weapons offense. The Appellant’s misdemeanor
offenses included driving on a revoked license, driving without a license, simple assault,
public intoxication, driving while impaired, criminal impersonation, evading arrest,
reckless endangerment, speeding, violating the open container law, driving on the wrong
side of the road, improper passing, escaping from a workhouse, failure to appear,
shoplifting, malicious mischief, and reckless driving. From 1980 to 1983, the Appellant
was adjudicated delinquent of prowling, carrying a dangerous weapon, and disorderly
conduct.
Jonathan Johnson testified for the Appellant. Mr. Johnson testified that he was the
court liaison for House of Refuge and was responsible for completing intake of new clients
or potential clients. Mr. Johnson described House of Refuge as a twelve-month, faith-
based program “where we help guys back into society, help them build a savings account,
help them go to work, doing programming and going to church.” He explained that the
program had three residential houses in Chattanooga and that the houses were supervised
twenty-four hours per day. Participants were required to work, and House of Refuge
provided transportation for them. They also were subjected to random drug screens. Mr.
Johnson met with the Appellant about the program prior to the Appellant’s sentencing
hearing, and they discussed how the program could help the Appellant. Mr. Johnson said
that the Appellant “seemed like a good potential client,” that the Appellant “seemed
genuine about making some changes [in] his life,” and that House of Refuge had a “spot”
available for the Appellant.
On cross-examination, Mr. Johnson acknowledged that the Appellant was convicted
of his first DUI in 1984. In 2002, the Appellant was sentenced to five years for another
DUI. The Appellant’s probation for that DUI was revoked, and he was ordered to serve
his sentence in confinement. Mr. Johnson acknowledged that nothing indicated the
Appellant had previously sought treatment at House of Refuge.
Brenda Mayhan, the Appellant’s older sister, testified that the Appellant lived in a
house owned by their family in East Brainerd and that the Appellant “keeps it up.” The
Appellant had been living in the house “[o]ff and on for years,” and he and Ms. Mayhan
grew up in the house. Ms. Mayhan said that she and the Appellant had “pretty rough”
childhoods, that they were “subjected to the criminal element and alcohol was in [the]
household,” and that “all of us started drinking at eight or nine, something like that.” Ms.
Mayhan was in therapy for twelve years, which helped her, and she suggested substance
abuse treatment to the Appellant several times. However, he would not get treatment
because he was addicted to alcohol. Ms. Mayhan explained that their father was a teamster
and an alcoholic and that their mother was a bail bondsman. She said that the family home
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was still available to the Appellant, that she would support him if the trial court granted an
alternative sentence, and that she could drive him to appointments.
On cross-examination, Ms. Mayhan acknowledged that she had tried to be a positive
influence on the Appellant but said that she had watched him “[d]estroy himself.” The
State asked Ms. Mayhan if the Appellant hit their mother with a motorcycle helmet in 2008,
and she answered as follows:
Well, mother was pretty violent herself. She had hit him in the head with a
piece of stove wood, he was trying to get away from her. She was coming
after him with something. I mean that’s just the way our family was, you
know, highly abusive. So that’s probably the only way he could get away
from her. And she had bruises on her arms right here and it was fingerprints
where he had tried to hold her off of him. My mother was an undiagnosed
schizophrenic and her doctor told her so when she came down with
Alzheimer’s in 2010. So, you know, that’s what we lived with.
The Appellant made an allocution in which he stated, “I have never assaulted my
mother in my life, never the first time.” He said that when Trooper Naipo pulled him over,
he did everything Trooper Naipo asked. He said that he was not feeling the effects of
alcohol but that Trooper Naipo smelled alcohol on him and arrested him. The Appellant
said he had been in confinement for eighteen months and, therefore, had not consumed any
alcohol during that time. He admitted that he was an alcoholic and said that he would be
willing to comply with House of Refuge, house arrest, or any program in which he could
receive treatment for his addiction. He said that he had been to prison twice for DUI
convictions and that treatment would help him recover from his alcoholism and “probably
would stop this problem with my driving.” The Appellant promised the trial court that he
would “never get another DUI.” After the Appellant’s allocution, defense counsel
introduced the Appellant’s mental health records from Silverdale Detention Facility into
evidence, showing that the Appellant suffered from alcohol-induced mood disorder,
anxiety, and major depressive disorder.
The prosecutor advised the trial court that she had never seen a prior criminal record
as extensive as the Appellant’s record and that “[f]rom 1981 to the present day, almost no
gaps in criminal behavior.” She also advised the trial court that the Appellant had “a
number” of probation violations. The State requested that the trial court enhance the
Appellant’s sentences based on his history of criminal convictions and behavior, for his
failure to comply with probation in previous cases, and for his driving on a busy highway
in which Trooper Naipo’s video showed that there was “a fair amount of traffic.” Defense
counsel stated that the Appellant had “a long criminal record” but that “the vast majority
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of it is misdemeanors.” Defense counsel requested that the trial court mitigate the
Appellant’s sentences because his criminal conduct did not cause serious bodily injury and
because he had a mental condition for which he needed treatement. Defense counsel also
requested that the trial court mitigate the Appellant’s sentences under the “catchall”
because the Appellant had a place to live and family support and because House of Refuge
was willing to accept him. See Tenn. Code Ann. § 40-35-113(13). The Appellant
requested that he serve his serve his sentences in community corrections.
The trial court applied enhancement factor (1), that “[t]he defendant has a previous
history of criminal convictions or criminal behavior, in addition to those necessary to
establish the appropriate range,” stating, “Sadly, Mr. Shumacker has an unbelievably bad
criminal conviction record.” Tenn. Code Ann. § 40-35-114(1). The trial court gave the
factor “great weight.” As requested by the State, the trial court also applied enhancement
factors (8), that “[t]he defendant, before trial or sentencing, failed to comply with the
conditions of a sentence involving release into the community,” and (10), that “[t]he
defendant had no hesitation about committing a crime when the risk to human life was
high.” Tenn. Code Ann. § 40-35-114(8), (10). The trial court found that the Appellant had
been granted probation or partial suspension of his sentences seventeen times and that his
probation had been revoked at least four times and gave great weight to enhancement factor
(8). The trial court held that the Appellant was entitled to “some” mitigation under the
catchall factor due to his “rough and tough childhood” and mental illness. See Tenn. Code
Ann. § 40-35-113(13).
The trial court stated that the Appellant’s potential for rehabilitation was “not great”
due to his prior criminal history and failures on probation and noted that he was not eligible
for probation because his DUI sentences were not ten years or less. See Tenn. Code Ann.
§ 40-35-303(a). The trial court found that confinement was necessary to protect society
from a defendant who had a long history of criminal conduct, that confinement was
necessary to avoid depreciating the seriousness of the offenses, and that measures less
restrictive than confinement had been frequently or recently applied unsuccessfully to the
Appellant.
The trial court sentenced the Appellant as a Range III, persistent offender to twelve
years for each DUI conviction, a Class C felony, and merged the convictions. See Tenn.
Code Ann. § 40-35-112(c)(3). The trial court sentenced the Appellant to eleven months,
twenty-nine days for driving on a revoked license, third offense, a Class A misdemeanor;
thirty days for violating the seatbelt law, a Class C misdemeanor; and thirty days for
violating the vehicle registration law, a Class C misdemeanor. The trial court imposed a
fifty-dollar fine for violating the financial responsibility law, a Class C misdemeanor. The
trial court ordered that the Appellant serve all of the sentences concurrently for a total
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effective sentence of twelve years and denied the Appellant’s request for alternative
sentencing.
This court reviews the length, range, and manner of service of a sentence imposed
by the trial court under an abuse of discretion standard with a presumption of
reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); State v. Caudle, 388
S.W.3d 273, 79 (Tenn. 2012) (applying the standard to alternative sentencing). In
determining a defendant’s sentence, the trial court considers the following factors: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report;
(3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature
and characteristics of the criminal conduct involved; (5) evidence and information offered
by the parties on enhancement and mitigating factors; (6) any statistical information
provided by the Administrative Office of the Courts as to sentencing practices for similar
offenses in Tennessee; (7) any statement by the defendant in his own behalf; and (8) the
potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210;
see also Bise, 380 S.W.3d at 697-98. The burden is on the Appellant to demonstrate the
impropriety of his sentence. See Tenn. Code Ann. § 40-35-401, Sent’g Comm’n Cmts.
In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:
(1) The minimum sentence within the range of punishment is the
sentence that should be imposed, because the general assembly set the
minimum length of sentence for each felony class to reflect the relative
seriousness of each criminal offense in the felony classifications; and
(2) The sentence length within the range should be adjusted, as
appropriate, by the presence or absence of mitigating and enhancement
factors set out in §§ 40-35-113 and 40-35-114.
Tenn. Code Ann. § 40-35-210(c).
Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see
also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our
supreme court has stated that “a trial court’s weighing of various mitigating and
enhancement factors [is] left to the trial court’s sound discretion.” Carter, 254 S.W.3d at
345. In other words, “the trial court is free to select any sentence within the applicable
range so long as the length of the sentence is ‘consistent with the purposes and principles
of [the Sentencing Act].’” Id. at 343 (quoting Tenn. Code Ann. § 40-35-210(d)). Appellate
courts are “bound by a trial court’s decision as to the length of the sentence imposed so
- 23 -
long as it is imposed in a manner consistent with the purposes and principles set out in
sections -102 and -103 of the Sentencing Act.” Id. at 346.
The Appellant contends that the trial court abused its discretion by sentencing him
to more than the minimum punishment in the range, ten years, because the trial court failed
to consider in mitigation that he had a place to live and work, that he had family support,
that he was not a danger to others at the time of his arrest, and that he was not on probation
at the time of his arrest. The Appellant claims that he “needed structure and mental health
treatment, not incarceration.” However, the Appellant does not contest the trial court’s
application of three enhancement factors. Two of those factors were based on the
Appellant’s prior criminal history and his failures to comply with the terms of probation.
The trial court gave those two factors great weight but enhanced the Appellant’s sentence
only two years above the minimum punishment in the range. The Appellant’s abominable
criminal history alone supports that enhancement.
To the extent the Appellant is arguing that the trial court should have sentenced him
to community corrections, this court has previously held that “eligibility for probation is
not required for consideration of community corrections under section (a).” State v.
Johnson, 342 S.W.3d 520, 523 (Tenn. Crim. App. 2009). That said, an offender is not
automatically entitled to community corrections upon meeting the minimum requirements
for eligibility. State v. Ball, 973 S.W.2d 288, 294 (Tenn. Crim. App. 1998). When
determining a defendant’s suitability for alternative sentencing, courts should consider
whether the following sentencing considerations, set forth in Tennessee Code Annotated
section 40-35-103(1), are applicable:
(A) Confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of
the offense or confinement is particularly suited to provide an effective
deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant.
Additionally, “[t]he potential or lack of potential for the rehabilitation or treatment of the
defendant should be considered in determining the sentence alternative or length of a term
to be imposed.” Tenn. Code Ann. § 40-35-103(5). A defendant with a long history of
criminal conduct and “evincing failure of past efforts at rehabilitation” is presumed
unsuitable for alternative sentencing. Tenn. Code Ann. § 40-35-102(5).
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The trial court found that all three of the sentencing considerations in Tennessee
Code Annotated section 40-35-103(1) were applicable and that the Appellant had a poor
potential for rehabilitation. The Appellant first committed DUI in 1984. Despite repeated
convictions of DUI and various other offenses, he never sought treatment for his addiction.
Accordingly, we agree with the trial court’s assessment and conclude that it did not abuse
its discretion by denying the Appellant’s request for community corrections.
III. Conclusion
Based upon the record and the parties’ briefs, we affirm the judgments of the trial
court.
_________________________________
NORMA MCGEE OGLE, JUDGE
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