Court of Criminal Appeals of Tennessee, Knoxville
Session July 22, 2014
Appeal from the Criminal Court for Washington County No. 38722 Stacy Street, Judge
Gene G. Scott, Jr., Jonesborough, Tennessee, for the appellant, Joseph Scott Morrell.
Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; Tony Clark, District Attorney General; and Justin Irick, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the Court, in which Robert W. Wedemeyer, J., and Timothy L. Easter, Sp. J., joined.
JAMES CURWOOD WITT, JR., JUDGE
At the defendant's October 1, 2013 jury trial, Washington County Sheriff's Officer David Cate testified that at 12:53 a.m. on May 31, 2012, he "was dispatched to Arrow Jet for a person that appeared to be passed out in a vehicle in the parking lot." When he arrived, he "observed a vehicle with a subject that appeared to be passed out in the vehicle." Officer Cate approached the vehicle and discovered the defendant asleep in the driver's seat. He noted that the keys were in the ignition and that the defendant appeared to be "kind of leaned towards the passenger's side." He said the defendant was not lying "straight back." Officer Cate knocked on the window, and, after "a minute, " the defendant woke up. Officer Cate testified that the defendant "seemed confused, " that "[h]e had red bloodshot watery eyes, " and that "an odor of an alcoholic beverage" was "coming from his person." Officer Cate said that when asked whether he had been drinking, the defendant replied with slurred speech that "he had a few beers." The defendant told the officer that he had been "at a friend's house" and that he had driven to that location. Officer Cate said that the defendant was the only person in the car.
Officer Cate testified that at that point, he asked the defendant to step out of the car. As he exited the vehicle, the defendant "dropped his wallet . . . and he just seemed unsteady on his feet." Officer Cate asked the defendant to perform field sobriety tests, and the defendant responded "that he had back and leg problems, but he said he would do the tests." He could not recall whether the defendant had a cane with him that night. Officer Cate said that he had no camera in his cruiser to record the field sobriety tests because his camera had been sent for repairs. During the instruction phase of the walk-and-turn test, the defendant was unable to maintain his balance. During the test itself, the defendant "didn't use heel to toe. He stepped off the line. He used his arms for balance and on the ninth step he stopped and asked what to do." During the one-legged-stand test, the defendant put his foot down too soon, used his arms for balance, and hopped on one foot.
At that point, Officer Cate placed the defendant under arrest and had the defendant's vehicle towed to the police impound area. After being advised of his right to refuse blood alcohol testing, the defendant agreed to allow his blood to be drawn for the purpose of blood alcohol testing. Toxicology testing performed by the Tennessee Bureau of Investigation ("TBI") established the presence of alprazolam, oxycodone, methadone, and alcohol in the defendant's blood. The defendant's blood alcohol level was .06 percent.
Officer Cate testified that the defendant stated that he had driven to the Arrow Jet and did not say that he had been driven to that location by another party. He said that the defendant did not tell him that the car was not operational. When asked where he was going, the defendant "said he was going home."
During cross-examination, Officer Cate testified that the defendant's car was parked off the roadway and that it was not running when Officer Cate arrived. The defendant, he reiterated, was asleep at the wheel. He acknowledged that he could not recall whether the car's window was down or up. He said that the defendant was cooperative throughout the investigation. He could not recall whether the defendant had attempted to explain the extent of his medical problems or whether the defendant told him that the car was not operational. He also could not recall whether the defendant told him that a friend had gone to get a trailer to tow the car.
During redirect-examination, Officer Cate estimated that he remained at the scene for more than an hour and that, during that time, no one arrived with a trailer other than the tow truck driver called by Officer Cate.
Doctor Kenneth Ferslew, the director of the toxicology section at the William L. Jenkins Forensic Center at East Tennessee State University, testified that he reviewed the affidavit of complaint prepared by Officer Cate, the report drafted by Officer Cate at the time of the defendant's arrest, the scoring of the field sobriety tests, the report of toxicology testing from the TBI, and information from the Washington County Sheriff's Office regarding the defendant's "body weight, his address, his age, his date of birth, and other pertinent information." Doctor Ferslew said that assuming "a normal rate of elimination, " the defendant's maximum blood alcohol concentration at the time he was first observed by Officer Cate would have been "0.094 grams percent." That level of intoxication would have resulted in "loss of inhibition, " "impairment of his motor functions, slurred speech, altered perception, " "a change in judgment[, ] and loss of motor skills." These symptoms would have been exacerbated by the level of oxycodone and methadone, both opiates, in the defendant's blood. He described the level of oxycodone as being "in a toxic to potentially lethal concentration range." The level of methadone was in the "therapeutic range, " and the level of alprazolam, a benzodiazepine, was "in a therapeutic to potentially toxic concentration range." He said that the combination of alcohol, opiates, and benzodiazepine would have caused the defendant to be more impaired than had he consumed any one of them individually. Doctor Ferslew concluded that, based upon the levels of the drugs and alcohol in his system, the defendant would have been impaired when Officer Cate observed him asleep behind the wheel of his car.
During cross-examination, Doctor Ferslew explained, "When someone takes a drug chronically, if you're prescribed a medication, you become more tolerant to it." He acknowledged that the defendant's tolerance to any of the individual drugs in his system would have affected his level of impairment, but he maintained that the defendant was impaired.
Following Doctor Ferslew's testimony, the State rested, and the defendant presented the testimony of Arnold Saylor. Mr. Saylor testified that on the evening of May 30, 2012, the defendant, who worked with Mr. Saylor, came to Mr. Saylor's residence on Sand Valley Road. Mr. Saylor said that his driveway was 630 feet from the Arrow Jet parking lot. He said that he and the defendant worked on the defendant's car in the "big bay" of the shop behind Mr. Saylor's house. Mr. Saylor explained that "some additive . . . that's supposed to clean the engine out" had been added to the defendant's engine during his last oil change and that "it really started knocking, giving a lot of trouble." He said that the men decided "to change it again and get that stuff out of it to maybe get the car to stop knocking." He said that in addition to changing the oil, they also worked on the "tension, or pulley" to alleviate the noise, which he described as "metal smacking - - slapping together sounding like something fixing to fly apart."
At some point later in the evening, a decision was made for Mr. Saylor to test drive the defendant's car. He said, "I've worked on cars a whole lot more than [the defendant] and I was going to run it smooth, bring the RPM's up gradually to try to get the oil moving back through the engine." He said that instead of getting better, the car "just got worse" and that he "couldn't get the oil to start circulating and . . . finally [it] just locked up." He said that after the car "locked up, " he "let it roll across the street into the parking lot" and that he "swung it at an angle to where [he] could load it onto a trailer 'cause . . . it was done for the engine . . . the car was going nowhere after that." He said that the car would not start after it came to rest in the Arrow Jet parking lot.
Mr. Saylor said that at that point, he decided to locate one of the several trailers that he used in his business to take the car "somewhere that had a lot more knowledge than us to be fixed." He testified that he first attempted to get a trailer from his brother, but he eventually found a suitable trailer in the "Fox Meadows Subdivision. It's kind of on the Blountville, Bluff City, you know, line right there." Mr. Saylor said that he made the 24-mile drive to get the trailer alone, the defendant having decided to wait with the car. Mr. Saylor testified that it took him a while to get the ...