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State v. Worthington

Court of Criminal Appeals of Tennessee, Jackson

May 8, 2019

STATE OF TENNESSEE
v.
JARED WORTHINGTON

          Assigned on Briefs March 5, 2019

          Appeal from the Criminal Court for Shelby County No. 17-00687 J. Robert Carter, Jr., Judge.

         The Defendant, Jared Worthington, was convicted by a Shelby County Criminal Court jury of DUI per se, a Class A misdemeanor, and reckless driving, a Class B misdemeanor, after the State dismissed his DUI by impairment charge. He was sentenced by the trial court to concurrent terms of one day for the reckless driving conviction and 11 months, 29 days for the DUI conviction, suspended to probation after service of ten days in the county jail. On appeal, the Defendant raises the following issues: (1) Whether the trial court erred in its rulings regarding the admission and publication of the dashboard camera video of the Defendant's arrest; (2) Whether the trial court violated the Tennessee constitution by disparaging the evidence, which took the form of instructing the jury that much of the video was irrelevant; (3) Whether the trial court erred by not allowing defense counsel to question officers about the potential bias created by the fact that the Tennessee Bureau of Investigation ("TBI") blood alcohol or drug concentration test fee ("BADT") was collected only in those cases in which a defendant is convicted; and (4) Whether the trial court "shifted the burden of proof," thereby violating the Defendant's constitutional due process rights, by asking defense counsel in the presence of the jury whether the Defendant intended to put on any proof. Following our review, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

          Benjamin Michael Israel, Memphis, Tennessee (on appeal); and John McNeil, Memphis, Tennessee (at trial), for the appellant, Jared Worthington.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Sam Winning and Kenya Smith, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          ALAN E. GLENN, JUDGE.

         FACTS

         On the morning of July 31, 2016, Memphis Police Officer Brian Pirtle responded to the scene of a one-vehicle crash caused by the Defendant's running his pickup truck into a utility pole. The Defendant claimed he swerved to avoid a car that had pulled in front of him but Officer Pirtle was unable to find any skid marks or other evidence to corroborate that claim. In addition, he detected the odor of alcohol on the Defendant's person and observed that the Defendant's eyes appeared bloodshot. A DUI officer who responded to the scene conducted a series of field sobriety tests, on which the Defendant performed well but not perfectly, and administered a Breathalyzer test, which showed that the Defendant had a blood alcohol concentration ("BAC") of .141 percent.[1]

         The Defendant was subsequently indicted by the Shelby County Grand Jury for DUI by impairment, DUI per se, and reckless driving. The Defendant was tried on all three charges before a Shelby County Criminal Court jury, which was unable to reach a unanimous verdict, resulting in a mistrial. Before the start of the Defendant's March 12-14, 2018 retrial, the State dismissed the DUI by impairment count of the indictment, leaving the Defendant to be tried before a second Shelby County Criminal Court jury only on the charges of DUI per se and reckless endangerment.

         At trial, the State presented three witnesses in addition to Officer Pirtle. Memphis Police Officer Lawrence Marcrum, the DUI officer who conducted the field sobriety and Breathalyzer tests, described his training as a DUI officer, the Defendant's performance on the field sobriety and Breathalyzer tests, and the Defendant's initial failure to blow with sufficient force to generate a reading on the instrument. Memphis Police Officer Robert Galison, the keeper of the records for the DUI unit, identified the Defendant's Breathalyzer results and testified that Officer Marcrum had been certified on the instrument, an "Alco-Sensor 5," on August 22, 2013. Finally, TBI Special Agent Forensic Scientist Robert Marshall, the keeper of the records related to the Breathalyzer instruments, testified that he runs a calibration check on each instrument every 90 days and tests each instrument for accuracy once a month. He stated that he performed a calibration check on the instrument involved in the Defendant's case on May 18, 2016, and again on August 10, 2016. Both times, the instrument was operating properly. The trial court declined to allow defense counsel to cross-examine the police officers and TBI agent about the potential bias created by the fact that the $250 BADT fee was only paid to the TBI in cases in which the defendant was convicted.

         The Defendant opted not to testify and presented no evidence in his defense.

         At the conclusion of the trial, the jury convicted the Defendant of the two remaining indicted offenses.

         ANALYSIS

         I. Trial Court's Rulings with respect to the Dashboard Camera Video

         The Defendant first contends that the trial court abused its discretion in its rulings with respect to the admission and publication to the jury of the DUI officer's dashboard camera video recording of the Defendant's arrest. The Defendant argues that the trial court erred by initially ruling that the video was irrelevant to the DUI per se charge and prohibiting defense counsel from mentioning the video during opening statements; by ruling that the entire video could not be admitted because it contained self-serving hearsay statements by the Defendant; and by ultimately admitting the entire video for the jury to view in an unorthodox manner. The State responds by arguing, inter alia: that the trial court properly excluded the video until it became relevant; that the trial court properly declined to permit any reference to the video until its relevance was established; and that the Defendant waived any objections to the manner in which the trial court admitted the video by not raising a contemporaneous objection at trial, by not including an adequate record on review, and by not raising the issue in his motion for new trial. We agree with the State.

         As a general rule, "[a]dmission of evidence is entrusted to the sound discretion of the trial court, and a trial court's ruling on evidence will be disturbed only upon a clear showing of abuse of discretion." State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004). Trial courts also "have wide discretion in controlling arguments of counsel, including opening statements, and a trial court's ruling concerning the arguments of counsel will not be reversed absent an abuse of discretion." State v. Stacy Johnson, No. W2004-00464-CCA-R3-CD, 2005 WL 645165, at *14 (Tenn. Crim. App. Mar. 15, 2005) (citing State v. Sutton, 562 S.W.2d 820, 823 (Tenn.1978)). We review this issue, therefore, under an abuse of discretion standard.

         To understand the context in which the trial court made its rulings, we must review in some detail the somewhat lengthy discussion/argument that counsel had with the court about the video. The initial discussion occurred before jury selection on the first day of trial after the prosecutor announced that the State was going to dismiss the DUI by impairment count of the indictment. The trial court asked whether the prosecutor intended to play the entire video, as he had during the first trial. The prosecutor responded that he thought he needed to show at least part of the video and believed if that were the case defense counsel "would have the right to play the whole video[, ] including the field sobriety test."

         The trial court expressed doubt about whether the field sobriety tests were relevant to the DUI per se charge and also noted that much of the video consisted of the Defendant's "self-serving hearsay" about his educational background and his "hopes and plans for the future." Defense counsel, citing the rule of completeness, argued that the entire video should be played in fairness to the Defendant. The court replied that it might allow the defense to play a portion of the video if counsel could show a valid reason, such as to impeach the officer's testimony, but did not believe the rule of completeness justified the introduction of the entire video.

         The following day, the prosecutor announced that the State had decided not to introduce the video into evidence in its case-in-chief and made a motion in limine that the defense be prohibited from mentioning any part of the video that was not reasonably likely to come into evidence in the case. Defense counsel responded that he intended to mention the video. When asked what part of the video he intended to introduce, defense counsel said that he thought he needed at least parts of the video to satisfy the Sensing requirements. See State v. Sensing, 843 S.W.2d 412 (Tenn. 1992). The trial court replied that Sensing motions should have long since been heard and that there were other ways to meet the Sensing requirements. The trial court agreed, however, that parts of the video might be relevant, depending on other evidence introduced at trial, and suggested that it would be better if defense counsel refrained from mentioning the video during opening statements and instead waited until the court could determine which parts were relevant as the issue arose during trial.

         As the discussion continued, defense counsel again expressed his belief that the entire video was relevant and argued that the portion showing the field sobriety tests, at a minimum, was relevant to rebut the inference that the Defendant was under the influence. The State responded by arguing that the rebuttable presumption was not part of the DUI per se statute.

         After reviewing the statute, the trial court agreed with the prosecutor. The court again ruled, however, that although the field sobriety tests were "really not relevant" to the charge of DUI per se, the court might admit them depending on the other proof introduced. The court also specifically ruled ...


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