Assigned on Briefs March 5, 2019
from the Criminal Court for Shelby County No. 17-00687 J.
Robert Carter, Jr., Judge.
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.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
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.
E. Glenn, J., delivered the opinion of the court, in which
Robert L. Holloway, Jr., and Robert H. Montgomery, Jr., JJ.,
E. GLENN, JUDGE.
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.
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.
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.
Defendant opted not to testify and presented no evidence in
conclusion of the trial, the jury convicted the Defendant of
the two remaining indicted offenses.
Trial Court's Rulings with respect to the Dashboard
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.
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.
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."
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.
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.
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
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 ...