Court of Criminal Appeals of Tennessee, Nashville
Session February 11, 2015
Appeal from the Circuit Court for Williamson County No. ICR056413 Michael Binkley, Judge
Vanessa P. Bryan, District Public Defender; and Benjamin Signer, and Robert W. Jones, Assistant Public Defenders, Franklin, Tennessee, for the appellant, Phillip K. Adams.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Kim R. Helper, District Attorney General; and Carlin Hess, Assistant District Attorney General, for the appellee, the State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Robert L. Holloway, Jr. and Timothy L. Easter, JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE
Deputy David Borden, of the Williamson County Sheriff's Office, was on patrol in the early morning hours of October 16, 2011. He observed a vehicle make an illegal u-turn at the intersection of West McEwen and Carruthers Parkway. He then observed the car driving "at a high rate of speed." Deputy Borden's radar showed the car was traveling at 51 miles per hour in a 40 mile-per-hour speed limit zone. Deputy Borden activated his blue lights and siren and followed the vehicle onto I-65. The vehicle stopped, and Deputy Borden approached the driver of the vehicle, whom Deputy Borden identified at trial as Defendant. Deputy Borden noticed "a very heavy odor of alcohol." He testified that he asked Defendant for his driver's license and registration, and Defendant did not make eye contact with Deputy Borden. Deputy Borden testified that Defendant covered his mouth with his hand. Deputy Borden suspected that Defendant might be impaired because of "the smell of the alcohol and him trying to mask it like that[.]" Deputy Borden asked Defendant to exit the vehicle and perform field sobriety tests. Deputy Borden asked Defendant if he had been drinking alcohol, and Defendant told him that he drank four beers and a "Fireball."
Deputy Borden instructed Defendant to perform the nine-step walk-and-turn test. Deputy Borden testified that Defendant performed "poorly" on the test. Defendant "stepped off the line several times while walking the nine steps." Defendant also "raised his arms to catch himself from [losing] his balance and he did an improper turn . . . ." Deputy Borden then instructed Defendant to perform the "one leg stand." Defendant also performed "poorly" on that test. Defendant "put his foot down and raised his arms for balance." Finally, Deputy Borden instructed Defendant to recite the alphabet from C to X, and Defendant "missed some letters." Deputy Borden placed Defendant in custody and read the implied consent form to him. Defendant consented to submit to a blood alcohol test, and Deputy Borden transported Defendant to the Williamson County Medical Center. On cross-examination, Deputy Borden testified that Defendant was cooperative.
Special Agent April Hagar of the Tennessee Bureau of Investigation analyzed Defendant's blood sample. She was qualified by the court as an expert in forensic toxicology. She testified that she received the blood alcohol kit containing Defendant's blood sample on October 28, 2011. The sample was collected on October 16, 2011. The blood sample was contained in a "gray stopper tube" that contained a preservative and an anticoagulant. Agent Hagar testified that tests have been conducted which show that a blood sample can be accurately tested for "probably five years" after collection. She testified, "the only thing that's going to happen is you're going to have less alcohol that's going to occur over time. There's not going to be more alcohol, there's going to be less alcohol." Agent Hagar testified that Defendant's blood alcohol level was .18 percent. On cross-examination, Agent Hagar testified that sodium fluoride was the most commonly used preservative for blood. She testified that if a preservative failed to perform its function, "then you could have ethanol reduction."
Defendant testified that Deputy Borden told him that he stopped him because he was speeding at 51 miles per hour and because he made an illegal u-turn. Defendant testified, "I knew that was way, way wrong. I knew there was something sort of – something sort of off about that, so I sort of just tried to play along so I could just go ahead and get through with the experience[.]" Defendant testified that when Deputy Borden instructed him to do the nine-step walk-and-turn, Defendant told Deputy Borden that his "balance is sort of way off because at work [he has] to carry like eighty pound cylinders easily one hundred feet all day every day." Defendant testified, "after doing that . . . your knees will be sore for like days and days, so anytime I try to do any kind of balancing act or anything it's going to be sort of thrown off."
On cross-examination, Defendant testified that he had just left his friend's apartment when Deputy Borden stopped him. Defendant testified that he drank four beers between approximately 8:00 p.m. and 2:50 a.m. He testified that he drank two beers at his friend's apartment between 8:00 p.m. and 10:00 p.m. He and his friend went to "Drake's" from 10:00 p.m. to 12:00 a.m., and Defendant drank one 16-ounce beer. Then, they returned to his friend's apartment where Defendant drank another beer before he left. Defendant testified that he did not drink a "Fireball" shot. Defendant equivocated and testified, "I don't recall if I did. I remember there being a Fireball bottle there, but I don't recall taking a shot." Defendant testified that his car "is not in the best condition" and had "a vacuum leak at the time." He testified that his car could not have reached a speed of 51 miles per hour "in that short of distance." Defendant believed that the vehicle Deputy Borden saw make an illegal u-turn and speed off was not Defendant's vehicle. Defendant testified that he was "[w]orking on paperwork" at his friend's apartment.
Defendant's offers of proof
Defendant called his co-worker, Travis Adams, to testify as an expert witness. The State objected to the testimony of Mr. Adams, arguing that his testimony was not relevant. The State also asserted that Defendant did not provide any report or memorandum of the content of Mr. Adams' testimony. The trial court ...