Court of Criminal Appeals of Tennessee, Knoxville
Session Date: September 19, 2017
from the Criminal Court for Campbell County No. 16-654 E.
Shayne Sexton, Judge
bifurcated trial, a jury convicted the Defendant, Kevin Allen
Fleming, of one count of driving under the influence
("DUI"), fourth offense, and three counts of
aggravated vehicular homicide. The trial court sentenced the
Defendant to an effective sentence of forty-two years in
confinement. At the motion for new trial hearing, the parties
agreed that the Defendant's DUI fourth offense conviction
should have merged into his conviction for aggravated
vehicular homicide conviction, reducing his sentence to an
effective sentence of forty years. No amended judgment
appears in the record. On appeal, the Defendant contends
that: (1) the trial court erred when it denied his motion to
suppress the blood draw evidence; (2) the trial court erred
when it admitted the results from the blood draw because the
evidence was not authenticated and the chain of custody was
not established; (3) the trial court erred when it admitted
autopsy photographs of the victims; (4) the State violated
his Fifth Amendment right to remain silent; (5) the trial
court erred when it found that Trooper James Fillers was an
expert witness; (6) the trial court erred when it admitted
the written report of expert Dr. Davis because the report
contained hearsay; (7) the trial court erred when it
sentenced him; (8) the evidence is insufficient to sustain
his convictions; and (9) the cumulative errors by the trial
court constitute reversible error. After review and for the
reasons stated herein, we affirm the trial court's
judgments. We also remand the case for entry of an amended
judgment reflecting that the Defendant's DUI fourth
offense conviction is merged with one of his aggravated
vehicular homicide convictions.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Court Affirmed and Remanded
A.H. Bell (at trial), Knoxville, Tennessee, and Jessica M.
Van Dyke (on appeal), Nashville, Tennessee, for the
appellant, Kevin Allen Fleming.
Herbert H. Slatery III, Attorney General and Reporter;
Zachary T. Hinkle, Assistant Attorney General; Jared R.
Effler, District Attorney General; and Graham E. Wilson and
Blake Watson, Assistant District Attorneys General, for the
appellee, State of Tennessee.
W. Wedemeyer, J., delivered the opinion of the Court, in
which Norma McGee Ogle and Timothy L. Easter, JJ., joined.
W. WEDEMEYER, JUDGE
case arises from a single-vehicle accident that occurred on
July 21, 2014, at 7:15 p.m. while the Defendant was driving
and lost control of his vehicle, causing the death of the
three passengers in his vehicle. A Campbell County grand jury
indicted the Defendant, the driver and sole survivor of the
accident, for one count of driving under the influence
("DUI"), fourth offense, and three counts of
aggravated vehicular homicide.
Motion to Suppress
who responded to the accident scene drew the Defendant's
blood, the driver of the vehicle involved in the accident.
His blood tested positive for alcohol, cocaine, and
Hydrocodone. Before trial, the Defendant filed a motion to
suppress this evidence, contending that he did not actually
consent to the blood draw and that he could not consent to
the blood draw because of his medical state after the
hearing on the motion to suppress, the parties presented the
following evidence: John Tipton, an emergency medical
technician with the Campbell County Emergency Medical
Service, testified that he was trained to handle head trauma
injuries. At scenes involving patients suspected of suffering
from head trauma, Mr. Tipton would assess the subject using a
Glasgow Coma Score ("GCS") This process involved
three parts: (1) asking the patient his or her name, (2)
asking where they are located, and (3) assessing whether they
knew what event was going on. Mr. Tipton further explained
that a GCS was a sliding scale from three to fifteen based
upon a patient's verbal, eyes, and motor skills. Even if
the patient was dead when he arrived, the patient would still
have been a three on the scale. Someone who was alert and
oriented was a fifteen on the scale.
Tipton testified that he responded to the accident in this
case, and he saw three people lying on the ground and one
still in trapped in the vehicle. Mr. Tipton noted that the
Defendant was close to what he termed the "collapse
zone, " because he was only a few feet from the vehicle,
which was on its side. Mr. Tipton called for assistance,
stabilized the Defendant's spine, and pulled him away
from the vehicle, which did ultimately collapse afterward.
Tipton noted that the Defendant suffered injuries during the
car accident, including swelling and a laceration near his
right eye that necessitated suctioning. Mr. Tipton said that
the Defendant knew that he was driving the vehicle at the
time of the accident, what road he was on, who he was, that
he had been in a wreck, and that he was in an ambulance. The
Defendant offered that he had chronic back pain for which he
took prescription Hydrocodone. He also said that he was not
allergic to anything. Mr. Tipton gave the Defendant a GCS of
fifteen out of fifteen. Mr. Tipton described the Defendant as
compliant with him and said that he had no problems treating
cross-examination, Mr. Tipton testified that he was the first
responder to approach the Defendant, along with a
paramedic-in-training, Samuel Roach. He said that this
accident occurred during daylight hours. The vehicle had
obviously rolled over several times before coming to a stop
against a tree. Three of the vehicle's occupants were no
longer in the vehicle, either having been ejected or exiting
on their own. Mr. Tipton responded to the Defendant first
because the Defendant was in danger of being hurt if the
Tipton testified that the Defendant was covered in blood,
especially on his face. The Defendant was blowing blood,
which appeared to be coming from a deep laceration to his
lip, out of his mouth. The Defendant's right eye was
swollen shut. Mr. Tipton identified photographs taken of the
Defendant at the hospital.
Tipton said that, in the ambulance, the Defendant resisted
being strapped down, saying he could not breathe. Mr. Tipton
believed it was because the Defendant was swallowing blood.
The Defendant repeatedly asked about his dog, asking who had
possession of the dog. Mr. Tipton said that there was, in
fact, a dog at the scene. Mr. Tipton noted that, at that
point, the Defendant's blood oxygen level was 89%, which
was lower than the normal 94%. Mr. Tipton said he started an
IV to administer fluids until the helicopter arrived to
transport the Defendant to the hospital.
Tipton agreed that, after this incident, a Tennessee Highway
Patrol ("THP") officer asked him to write a summary
of what had transpired. Mr. Tipton complied and left his
handwritten statement in the officer's box at the police
station. Mr. Tipton recalled that he smelled the odor of
blood coming from the Defendant during the forty minutes that
he treated the Defendant. He did not recall the odor of
alcohol coming from the Defendant.
redirect examination, Mr. Tipton testified that someone
contained the dog at the scene. When he was treating the
Defendant, the Defendant accurately recalled that there was a
dog with him.
Joe Brown, with the THP, testified that he responded to the
accident scene. He saw that a Dodge pickup truck had veered
off the right side of the roadway, over corrected, came back
into the roadway, went up an embankment, rolled several
times, and came to a rest against a tree in a field on the
left hand side of the roadway. Mr. Tipton said that he spoke
with the Defendant at the scene, while the Defendant was in
the ambulance. The Defendant told the officer that he lost
control of his truck as he attempted to pass a car. Officer
Brown said that he did not want to get in the way of medical
personnel, so he ended their conversation.
cross-examination, Officer Brown testified that he filled out
an alcohol influence report, indicating his suspicion that
the Defendant was under the influence. Officer Brown said he
was with the Defendant for between sixty and ninety seconds.
He said that the Defendant's right eye was swollen, but
his left eye looked okay. He also had a big cut to his lip as
well as other cuts to his face. Officer Brown described the
roadway where the accident occurred as very narrow with a
steep grade and no shoulder. The officer clarified that the
Defendant did not specifically say that he lost control of
his vehicle, but the officer interpreted what he said to mean
that the Defendant had lost control of his vehicle. Officer
Brown said that he did not detect the odor of alcohol on the
Defendant. The officer said that the Defendant did have
Brown said that he spoke with the medical examiner who
informed him that one of the passengers had died at the
hospital. Officer Brown agreed that he did not attempt to
obtain a search warrant for the blood draw. Officer Brown
said that he saw the Defendant at the hospital but that the
two did not speak, and he did not give the Defendant any
Deadrick, a trooper with the THP, testified that he was
dispatched to the University of Tennessee Medical Center with
regard to this accident with instructions to obtain a blood
draw. He located and spoke with the Defendant, who was in the
emergency room. Trooper Deadrick said that the Defendant had
bloodshot eyes, and when the Defendant recounted the
accident, his speech was slurred. The Defendant told him that
a cow had run out in front of him and that he had tried to
dodge the cow. Officer Deadrick smelled what he thought was
an alcoholic beverage on the Defendant's breath. Trooper
Deadrick asked the Defendant if he was the driver, and the
Defendant said yes. The Defendant offered that he had
consumed a couple of alcoholic drinks at a bar and then left.
Trooper Deadrick asked the Defendant if he would submit to a
blood test to determine the alcohol and drug content of his
blood, and the Defendant said yes. The Defendant also
admitted that he had taken Hydrocodone earlier in the
Deadrick said he watched the lab draw the Defendant's
blood at 9:45 p.m. and then placed it in a Tennessee Bureau
of Investigation ("TBI") box to be tested. Trooper
Deadrick filled out the TBI alcohol and toxicology request.
cross-examination, Trooper Deadrick agreed that, when he was
dispatched, he was told that he had to do a mandatory blood
draw. He further agreed that, on the implied consent form, he
wrote that, because of the Defendant's "hospital
trauma, " he was unable to sign the form. Trooper
Deadrick then checked the box indicating that the blood draw
was mandatory. The trooper testified that his failure to mark
the box that said that the Defendant consented was a
"Mistake." Trooper Deadrick reiterated that he
found the Defendant "alert" and talking and said he
smelled of beer.
Deadrick agreed that his one-page statement, created close in
time to these events, did not contain many of these details.
He said, however, that he included all the details he
remembered in his report, which was created some seven months
after this incident.
Smith, a sergeant with the THP, testified that he responded
to this accident scene and was there for a very brief period
of time. He said he went to the hospital and located the
vehicle's occupants, one of whom had died. Sergeant Smith
testified that he went to where the Defendant was being
treated and left the room after determining that his injuries
were to such an extent that he could not be interviewed.
cross-examination, Trooper Smith testified that he knew that
night that Trooper Deadrick had requested a blood draw
earlier that night from the Defendant.
Fleming, who was married to the Defendant at the time of this
accident, testified that there was a trooper in her
husband's hospital room when she arrived at the hospital.
She said that the trooper was not speaking to her husband.
Ms. Fleming said that the Defendant was in a neck brace at
the time and hooked up to "some things." She took
pictures of him with her cell phone. Ms. Fleming said that
she did not smell alcohol on the Defendant. Ms. Fleming said
that the Defendant had difficulty talking due to his
injuries. She said that there were times during that night
that he became more alert and others that he seemed to drift
in and out of total consciousness.
cross-examination, Ms. Fleming testified that she spoke with
her husband while the trooper was in the room. She said that
because the Defendant was "in and out" of
consciousness, she was unsure whether he would have been able
to consent to a blood draw when talking to the trooper. She
said that when she spoke with him he was more coherent at
some times than others.
redirect examination, Ms. Fleming testified that her husband
was on Hydrocodone for chronic back pain.
upon this evidence, the trial court denied the
Defendant's motion to suppress.
case proceeded to a bifurcated trial on the indictments. The
State first attempted to establish the Defendant's guilt
of DUI, first offense, and vehicular homicide. During this
portion of the trial, the parties presented the following
evidence: John Tipton responded to this accident on July 21,
2014, in his capacity as an Emergency Medical Technician
("EMT") with the Campbell County Emergency Medical
Service ("EMS"). He testified that, when he arrived
at the scene, he determined that the vehicle was still
occupied by Darrell Carroll. He also noted that the Defendant
was in an area termed the "collapse zone, " meaning
he was in an area that was in danger of collapsing, so he
responded to the Defendant first in order to move him to
safety. The Defendant was "hurting" and did not say
much. Mr. Tipton did a quick assessment and secured the
Defendant in an ambulance. Mr. Tipton said that the Defendant
stated that he was the driver the vehicle and that his
vehicle had "come off the roadway." The Defendant
asked about his dog that was at the scene, wanting to know if
someone was taking care of it. The Defendant also asked about
the occupants of his vehicle.
Tipton described the roadway where the accident occurred as
"horribly narrow." He said that one would have to
be alert when driving on the roadway, in part because it is
hard to maneuver. During the ambulance ride to the hospital,
Mr. Tipton asked the Defendant if he was taking any
medications, and the Defendant said he was taking
Tipton identified a photograph of the truck involved in the
accident, and he noted that the roof had been extricated off
cross-examination, Mr. Tipton said that he saw the
Defendant's dog at the scene, and he identified a picture
of the dog. Mr. Tipton identified a picture of the Defendant,
which showed that he was bleeding from both his mouth and his
eyes. The Defendant's right eye was swollen shut. The
Defendant did not remember the accident, but knew that he had
been in an accident. The Defendant repeatedly asked about his
friends and his dog. Mr. Tipton did not smell alcohol on the
Defendant and only smelled blood. Mr. Tipton noted that the
Defendant's blood oxygen level was low, but Mr. Tipton
had a hard time getting the Defendant to accept oxygen. He
said that the Defendant's head injury was of the
"kind of magnitude" that it made him disoriented.
Brown, a THP officer, testified that he arrived at the scene
at around 7:30 p.m. on July 21, 2014. When he arrived, he saw
a pickup truck lying on its side and medical personnel
attending to a patient trapped inside the vehicle. He also
saw medical personnel attending a man who was lying on the
left side of the roadway and two other people who were
already loaded into ambulances, one of whom was the
Defendant. The trooper asked the Defendant what had happened,
and the Defendant responded that he was attempting to pass a
vehicle when his pickup truck ran off of the roadway. The
Defendant did not mention any animal running into the
Brown described the road where the accident had occurred as
"very narrow." He said that it was possible for two
cars to pass on the roadway but that one of the cars would be
in the ditch line. Trooper Brown said that, from his
preliminary investigation, it appeared that the pickup truck
was traveling "fast" when it left the roadside on
the right and went into the ditch. He said that it appeared
that the driver had overcorrected and struck the embankment,
which caused the vehicle to go into a roll. Trooper Brown
identified a photograph of a Bud Light can that was located
at the scene.
cross-examination, Trooper Brown testified that some of the
damage to the vehicle was sustained from the "jaws of
life" being used to extract the vehicle's occupants.
The trooper agreed that he did not cite speed as a factor in
his initial accident report. He said that, as part of his
investigation, he did not try to calculate the
Defendant's speed at the time of the accident. Trooper
Brown said he assumed the Bud Light can came from the
vehicle, but he was not sure. Trooper Brown clarified that
the Defendant told him that he was attempting to pass a
vehicle coming the opposite direction, toward him, at the
time he lost control of his truck.
Deadrick, another trooper with the THP, testified that he was
asked to go to UT Medical Center to retrieve a blood draw
from the Defendant. Trooper Deadrick said that, at the time,
he did not know the details of the accident. When he arrived
at the hospital, he asked the Defendant what had happened.
Trooper Deadrick said that the Defendant had watery,
bloodshot eyes, had blood on him, smelled of beer, and was
lying on a stretcher. The Defendant told the officer that a
cow had run in front of his truck. He also told the officer
that he had consumed a "couple" of alcoholic drinks
earlier and that he had taken a Hydrocodone that morning.
Trooper Deadrick was certain that the Defendant had not
mentioned any dogs or other animals.
Deadrick testified that, at this point, he asked the
Defendant to submit to a blood test, and the Defendant
agreed. The trooper explained the process of the blood sample
retrieval, and he was present when the Defendant's blood
was drawn. The trooper said that after the blood was drawn,
he took it to the district office, entered it into evidence,
placed it in the evidence locker or "drop box, "
and left a copy of the paperwork with the evidence custodian,
who then took it to the TBI crime laboratory.
cross-examination, Trooper Deadrick said that the Defendant
had his eyes open and was talking to him. He was unsure if
the Defendant's eyes swelled shut after their
conversation. Trooper Deadrick said that he created a
memorandum summarizing his interaction with the Defendant
four months after the interview. He said that, in his report,
he noted that the Defendant had bloodshot eyes, constricted
pupils, and smelled of alcohol. He said that he asked the
Defendant to submit to a blood test, and the Defendant
agreed. Trooper Deadrick testified that he also obtained
blood draws from the other occupants of the vehicle.
Aksanov, with the TBI crime laboratory, testified that her
laboratory had a "drop box" where police officers
could drop their blood evidence kits. At the end of each day,
a specific evidence technician would then retrieve the kits
from the drop box and store them in a secured vault in a
refrigerator. In the following days, that same technician
would open the boxes one at a time, look at the contents,
document what was on the test tubes, and then assign the kit
a unique laboratory number.
point, the Defendant objected to the chain of custody of the
blood sample. He specifically contended that the State had
not offered the testimony of the person who had drawn the
blood and argued that the State had not shown that Trooper
Deadrick, in retrieving all four of the vehicle's
occupants' blood, did not mix up the samples. The trial
court overruled the objection, finding that the State had
shown a legal chain of custody.
Aksanov then testified that she tested the Defendant's
blood sample, which was collected at 9:45 p.m. The
Defendant's blood tested positive for alcohol at a level
of .07 percent. Agent Aksanov then explained that alcohol was
a central nervous system depressant and it slowed down a
person's senses. She said alcohol made a user's
reaction times slower, made it harder for them to concentrate
on more than one thing, caused slurred speech, and could make
the user drowsy. She agreed that a blood alcohol level of .08
percent was the presumptive level of intoxication but said
that one could be impaired at a "much lower" level.
cross-examination, Agent Aksanov testified that, based upon
the condition of the blood before testing, which she said had
not clotted or degraded, she assumed that the instructions
for obtaining and preserving the blood sample were followed.
She said that she was required to go by what was labeled on
the tubes as to whom the blood belonged, and she acknowledged
that the blood of three individuals from the truck were taken
within a fifteen minute period.
Dotson, with the TBI crime laboratory, testified as an expert
in forensic drug analysis and identification that she tested
the Defendant's blood. She said that the Defendant's
blood tested positive for cocaine, cocaethylene, and also
Hydrocodone. Agent Dotson testified that Hydrocodone was a
central nervous system depressant and that cocaine, while
affecting people differently, caused alertness and sometimes
anxiety, confusion, restlessness, tremors, and insomnia,
among other things. Cocaethylene, she explained, was a
chemical the body produced when cocaine and alcohol were
consumed simultaneously. She said that cocaethylene was
"just as potent as [c]ocaine." She said it had a
longer half-life, meaning that it would remain in the blood
longer and produce euphoria longer in the body. Agent Dotson
said that she was unable to quantify the amount of cocaine
and cocaethylene because those substances are not stable in
the blood, making them difficult to quantify.
cross-examination, Agent Dotson testified that she did not
quantify the amount of Hydrocodone in the Defendant's
blood, although that was possible. She explained that she had
"issues" with her instrument, which made her only
able to report that it was positive and not the quantity.
Michael Lees testified that he had lived in the area of the
accident for over thirty years. He said that, around the time
of this accident, he was working on a broken-down tractor.
Mr. Lees said that, around 6:00 p.m., he heard a vehicle
"under hard acceleration for a few seconds." He
then heard tires sliding or going sideways on the roadway,
followed by an impact, and a car horn continuously sounding.
Mr. Lees said that he went to his garage and got on his
motorcycle and rode toward the noise. He followed the sound
of the horn toward the accident site. When he arrived, he saw
a man in the road walking and asking for help. Mr. Lees told
him to get out of the road and sit down.
Lees testified that he could see a vehicle on its side on the
passenger side. He saw a man hanging from the driver's
seat by a seatbelt or a shoulder harness. Mr. Lees called 911
but did not return to the accident scene. He said that the
accident scene was "so bad" that there appeared to
be nothing that he could do to help. He said that, as he
called 911, he heard sirens approaching the area of the
Lees testified that the road where the accident occurred was
a "bad road." He said that, at most, one could
safely travel twenty miles per hour. He said that the road
was too narrow to safely accelerate quickly.
cross-examination, Mr. Lees testified that he did not see any
trash or beer cans in the area of the accident but that he
had picked up beer cans on that road many times.
Fillers, a trooper with the THP, testified as an expert in
accident reconstruction. He identified a scaled diagram of
the accident scene that showed tire marks from the
Defendant's vehicle. He said that the roadway was less
than fifteen feet wide. Trooper Fillers testified that the
Defendant's vehicle came to a rest 175 feet after it left
the roadway. He said that, due to the dynamics of the crash,
he could not determine the exact speed of the vehicle at the
time that the Defendant lost control. He opined, however,
that speed was a factor in the accident.
cross-examination, Trooper Fillers testified that the posted
speed limit of the ...