State v. Victor Kelly

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
SEPTEMBER 1998 SESSION
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 01C01-9709-CC-00429
)
vs. ) Williamson County
VICTOR S. KELLY, JR.,
)
)
)
FILED
Hon. Henry Denmark Bell, Judge
Appellant. ) (DUI)
January 19, 1999
Cecil W. Crowson
Appellate Court Clerk
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID BRANDON JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
211 Third Ave. North
Nashville, TN 37219 ELIZABETH B. MARNEY
Assistant Attorney General
PETER D. HEIL 425 Fifth Ave. N., 2d Floor
Attorney at Law Nashville, TN 37243-0493
P.O. Box 40651
Nashville, TN 37204 JOSEPH D. BAUGH
District Attorney General
LEE DRYER
Asst. District Attorney General
P.O. Box 937
Franklin, TN 37065-0937
OPINION FILED:________________
AFFIRMED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The defendant, Victor S. Kelly, Jr., stands convicted of driving under
the influence following a jury trial in the Williamson County Circuit Court. Kelly was
sentenced to eleven months and 29 days supervised probation, with six months
service in the county jail suspended after service of 48 hours. Terms of his
sentence include revocation of his driver's license and attendance of alcohol safety
school. He was fined $1,000. In this direct appeal, Kelly poses various challenges
to the soundness of his conviction:
(1) Whether there was sufficient competent proof to establish,
beyond a reasonable doubt, that he was under the influence of
an intoxicant at the time he was driving his motor vehicle.
(2) Whether the trial court adequately instructed the jury on the
permissible inference of intoxication which may be drawn from
blood alcohol test results.
(3) Whether the trial court properly determined that the state met
its burden of establishing an unbroken chain of custody for the
defendant's blood sample.
(4) Whether the trial court committed plain error by admitting
testimony of the TBI toxicologist regarding controlled sobriety
test studies absent the witness having any underlying
documentation with him at trial.
Having reviewed the record, studied the briefs of the parties and heard the oral
arguments of counsel, we affirm the judgment of the trial court.
In the early morning hours of March 21, 1996, Trooper Richard Cash
of the Tennessee Highway Patrol observed the defendant operating a motor vehicle
at an excessive rate of speed on Interstate 65 in Williamson County. Trooper Cash
clocked the defendant's speed at 90 miles per hour and initiated pursuit. After
Trooper Cash stopped the defendant, he noticed the smell of alcohol coming from
the defendant and his vehicle. The defendant was unsteady on his feet and
admitted to having a martini and two other mixed drinks in the previous hour. The
defendant performed poorly on field sobriety tests. Trooper Cash had no doubt in
2
his mind that the defendant was under the influence of alcohol. At 1:30 a.m.,
Trooper Cash placed the defendant under arrest for driving under the influence.
Trooper Cash transported the defendant to Williamson Medical
Center, and at 2:10 a.m., John Marshall Osborne, a licensed laboratory technician,
drew a blood sample from the defendant. Trooper Cash and Mr. Osborne filled out
a form entitled "Alcohol/Toxicology Request" with the defendant's name, sex, race,
date of birth, driver's license number, date and time of collection of the blood
sample. Both Trooper Cash and Mr. Osborne signed the request form. Trooper
Cash took the blood sample from Mr. Osborne and sealed it along with the request
form in a test kit, which he mailed to the Tennessee Bureau of Investigation ("TBI").
The test kit was received at the TBI crime lab by Julie Fleak, an
evidence technician. She followed standard procedures in opening the kit, putting
identifying numbers on the sample vial, and placing the vial in a refrigerator. Ms.
Fleak noticed that the vial did not have the defendant's name written on it, so she
wrote his name on the vial. She then placed the sample in the refrigerator.
Special Agent John W. Harrison of the TBI, who is a toxicologist,
retrieved the sample from the refrigerator and analyzed it using a scientific
instrument used for that purpose. His analysis revealed that the blood alcohol
content was .14 grams percent of ethyl alcohol. Special Agent Harrison explained
that the TBI lab, which enjoys national accreditation, has stringent quality control
standards which yield accurate blood alcohol analysis. The lab maintains a reliable
chain of custody of an individual's blood sample.
Special Agent Harrison opined that an average, 150-pound individual
3
would need to consume four to six drinks1 within 45 minutes to an hour and a half
in order to achieve a blood alcohol content of .10 grams percent. A larger individual
would require more alcohol to achieve the same blood alcohol content.2 He further
opined that the average individual's body can rid itself of .02 grams percent of
alcoholic content from the blood in an hour.
I
First, we consider whether the evidence is sufficient to sustain the
defendant's conviction of driving under the influence. When an accused challenges
the sufficiency of the evidence, an appellate court’s standard of review is whether,
after considering 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, 324, 99 S. Ct. 2781, 2791-92
(1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e).
This rule applies to findings of guilt based upon direct evidence, circumstantial
evidence, or a combination of direct and circumstantial evidence. State v. Dykes,
803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).
In determining the sufficiency of the evidence, this court should not
reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779
(Tenn. Crim. App. 1990). Questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). Nor may this court substitute its inferences for those drawn by the
trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d
1
Special Agent Harrison identified a "drink" as twelve ounces of beer, four
ounces of wine or one ounce of 90 or 100 proof liquor.
2
According to Trooper Cash, the defendant weighs 185 pounds.
4
856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On
the contrary, this court must afford the State of Tennessee the strongest legitimate
view of the evidence contained in the record as well as all reasonable and legitimate
inferences which may be drawn from the evidence. Cabbage, 571 S.W.2d at 835.
In pertinent part, driving under the influence is committed where an
individual
drive[s] or [is] in physical control of any automobile or other motor
driven vehicle on any of the public roads and highways of this state,
or on any streets or alleys, or while on the premises of any shopping
center, trailer park or any apartment house complex, or any other
premises which is generally frequented by the public at large, while .
. . [u]nder the influence of any intoxicant, marijuana, narcotic drug, or
drug producing stimulating effects on the central nervous system . .
..
Tenn. Code Ann. § 55-10-401 (1993) (amended 1996).
The defendant contends the proof of his intoxication is insufficient
based upon a vigorous attack on the reliability of the blood alcohol test result. We
disagree. In the light most favorable to the state, the defendant admitted having a
martini and two other mixed drinks. He was driving at a grossly excessive rate of
speed on an interstate highway. When he was stopped by Officer Cash, he smelled
of alcohol, was unsteady on his feet and did not perform field sobriety tests
satisfactorily. The defendant was, as described by Officer Cash, "very intoxicated."
All of this evidence is strong, probative evidence of the defendant's guilt beyond a
reasonable doubt of driving under the influence. Cf., e.g., State v. Clinton Darrell
Turner, No. 03C01-9604-CC-00151, slip op. at 2-6 (Tenn. Crim. App., Knoxville,
July 9, 1997) (defendant properly convicted of DUI based upon evidence of slurred
speech, unsteady gait, bloodshot eyes, smell of alcohol, driving without headlights
at 1:30 a.m., performance on field sobriety tests, and admission of drinking). The
fact that the defendant's blood alcohol content was .14 grams percent only 40
5
minutes after his arrest only further adds to the certainty of his guilt. Cf. State v.
McKinney, 605 S.W.2d 842, 846 (Tenn. Crim. App. 1980) (jury properly inferred
defendant's intoxication at time of offense from alcohol content of blood sample
drawn approximately two and one-half hours after the offense).
II
The defendant questions whether the trial court adequately instructed
the jury on the permissible inference of intoxication which may be drawn from blood
alcohol test results. The DUI statute as it existed at the time of the defendant's
crime has been a source of grief for the courts of this state. See, e.g., State v.
Gregory Steele, No. 01C01-9706-CC-00218 (Tenn. Crim. App., Nashville, Apr. 7,
1998), pet. for perm. app. filed (Tenn., June 6, 1998); State v. Charles Bourgeois,
No. 01C01-9611-CR-00483 (Tenn. Crim. App., Nashville, Oct. 24, 1997); State v.
Mark Spencer King, No. 01C01-9608-CR-00343 (Tenn. Crim. App., Nashville, Sept.
18, 1997). The statute as it existed on March 21, 1996 provided a conclusive
presumption of intoxication and impairment upon a showing the blood alcohol
content was .10 percent or greater. See Amendments, Tenn. Code Ann. § 55-10-
408 (Supp. 1996). The statute in this form has been declared unconstitutional
because it created a mandatory presumption, as opposed to a permissible
inference. Mark Spencer King, slip op. at 2. During the effective period of this
version of section 55-10-408, there was understandable confusion about the proper
instruction to be given regarding the statutory presumption. See Bourgeois, slip op.
at 4-7.
In the present case, the state during voir dire inquired of the jury,
"Does everyone agree that if the state proves beyond a reasonable doubt that this
defendant's blood alcohol content was over .10 that there is a presumption he's
under the influence? Is there anyone here who can't apply that presumption?"
6
These inquiries met with objection by the defense, which was sustained by the trial
court. The trial court then explained to the jury panel that although the statute
called for a presumption to be drawn from a blood alcohol content of greater than
.10, the correct terminology was inference, not presumption. The court told the jury
panel that it would be instructed that if they found the defendant had a blood alcohol
content of more than .10, they would be able to infer impairment without further
proof, although it would be their prerogative whether to draw the inference from
such evidence. The prosecution resumed voir dire and reaffirmed that the
defendant is presumed innocent and that the state had the burden of proving guilt.
When the defense began voir dire, counsel characterized the inference as a
rebuttable presumption. The court corrected counsel, and explained to the jury
panel that they may draw the inference of impairment based upon the blood alcohol
content. Ultimately, the trial court properly instructed the jury at the close of proof
that if it found the defendant's blood alcohol concentration was .10 or greater, it
"may" infer that the defendant was under the influence of an intoxicant and that his
ability to drive was impaired. Further, the jury was instructed that if it chose to make
the inference, the inference is not conclusive and should be considered with all the
evidence.
The trial court correctly stated the law in its instructions, and it
adequately cured the misstatements of the state and the defense that occurred
during voir dire. See U.S. Const. amend XIV, § 1 (due process requires that state
prove every element of crime beyond a reasonable doubt); Francis v. Franklin, 471
U.S. 307, 105 S. Ct. 1965 (1985) (prosecution may not use evidentiary
presumptions which are conclusive in nature or shift the burden of proof to the
defendant); Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450 (1979); State v.
Sensing, 843 S.W.2d 412, 417 (Tenn. 1992); cf. Bourgeois, slip op. at 6-7 (outlining
proper jury instruction for offenses committed prior to 1996 amendment of § 55-10-
7
408).
III
In his third issue, the defendant alleges that the state failed to meet
its burden of establishing an unbroken chain of custody for the defendant's blood
sample. The state is not required to establish the identity of a blood sample beyond
all possible doubt. State v. Ferguson, 741 S.W.2d 125, 127 (Tenn. Crim. App.
1987) (citation omitted). Likewise, the state is not required to exclude all
possibilities of tampering. Ferguson, 741 S.W.2d at 127. Rather, the state must
show with reasonable assurance the identity of the evidence. Ferguson, 741
S.W.2d at 127. The sufficiency of proof regarding the chain of custody of physical
evidence is a matter addressed to the sound discretion of the trial court which will
not be overturned on appeal absent a clearly mistaken exercise of discretion. State
v. Baldwin, 867 S.W.2d 358, 361 (Tenn. Crim. App. 1993) (citation omitted).
The defendant in the case sub judice claims the state failed to offer
sufficient proof of the chain of custody of the defendant's blood sample. We are
unpersuaded. The blood sample was drawn by Laboratory Technician Osborne and
given to Trooper Cash. Mr. Osborne and Trooper Cash filled out an
Alcohol/Toxicology Request form, then Cash mailed the sample and completed
form to the TBI lab in a kit provided for that purpose. The kit was opened by
Evidence Technician Fleak, who marked the vial of blood with the defendant's name
and identifying numbers and then placed it in a refrigerator. The sample was later
retrieved from the refrigerator by Special Agent Harrison, who analyzed the sample
for blood alcohol content using standard TBI procedures. The procedure employed
by Special Agent Harrison included measures to ensure that each test result was
properly identified as belonging to the person who gave the sample.
8
We are firmly convinced of the completeness and reliability of the
chain of custody established in this case. Accordingly, we find no merit in this
issue.3
IV
Finally, in an issue raised at oral argument but not in his brief, the
defendant claims he was denied his constitutional right to confront the witnesses
against him when the trial court admitted Special Agent Harrison's testimony
regarding controlled sobriety test studies even though Harrison did not have any
documentation regarding these studies available at trial for use in defense cross-
examination. The defendant urges us to recognize this alleged shortcoming as
plain error.
Special Agent Harrison testified during direct examination about
controlled sobriety studies he had conducted. He explained that these studies were
conducted by giving the test subjects measured quantities of alcohol, then
observing their reactions and administering tests. These studies were conducted
on individuals of both sexes and various races and weights. The studies also varied
3
We are concerned, however, by the trial court's partial abdication of its
role in determining the threshold admissibility of the evidence based upon a
demonstration of a satisfactory chain of custody. The trial court admitted the
evidence but instructed the jury that it should not accredit the toxicologist's
testimony unless it found beyond a reasonable doubt that the blood sample was
taken from the defendant. The question of whether the threshold requirement of
a satisfactory chain of custody has been met is a matter for the sound discretion
of the trial court, not a question of fact for the jury. See State v. Pamela Jean
Rankins, No. 01C01-9602-CC-00052, slip op. at 6 (Tenn. Crim. App., Nashville,
Feb. 26, 1998) (trial court did not err by not giving special instruction on chain of
custody because such was an issue for sound discretion of trial court); State v.
Willie Gene Ogburn, No. 01C01-9105-CR-00150, slip op. at 5 (Tenn. Crim. App.,
Nashville, May 13, 1992). In this case, the error is harmless because the
evidence of record very clearly establishes a complete chain of custody. In the
future, however, the trial court should determine in its discretion the admissibility
of the proffered physical evidence based upon the chain of custody established
by the proof; the court should refrain from giving a special instruction delegating
this responsibility to the jury.
9
by when and where they were performed and how many subjects participated. He
gave specific information about the studies, including the number of participants and
the identity of the individuals or groups involved with him in conducting the studies.
When an expert witness testifies about matters within his expertise,
he may be required to divulge the underlying facts or data upon cross-examination.
Tenn. R. Evid. 705. Furthermore, an expert witness's credibility may be impeached
by use of published treatises, periodicals or pamphlets. Tenn. R. Evid. 618.
In the case under consideration, the witness explained the studies in
detail. He gave identifying information about the individuals or groups that
participated with him in conducting the studies. After explaining the procedures
employed, he testified about the conclusions he drew from the results obtained.
The defense had the opportunity to extract details about the "underlying facts or
data" on cross-examination but chose not to do so. See Tenn. R. Evid. 618. The
defense apparently sought the underlying information in written form, but there is
no indication in the record that published documentation of these studies exists.
See Tenn. R. Evid. 618, 705. Moreover, we find no indication the defense was
limited in its ability to impeach Special Agent Harrison from published treatises,
pamphlets or periodicals which supported different conclusions than those to which
he testified on direct examination. See Tenn. R. Evid. 705. Because the defense
was in no way limited in its ability to cross-examine Special Agent Harrison, the
claim that the defendant's right to confrontation was abridged must fail.
In sum, we affirm the judgment of the trial court.
________________________________
JAMES CURWOOD WITT, JR., JUDGE
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CONCUR:
_______________________________
GARY R. WADE, PRESIDING JUDGE
_______________________________
THOMAS T. WOODALL, JUDGE
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