# FILED
June 30, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A

PPEALS OF TENN ESSEE AT NASHVILLE MAY SESSION,

1998

STATE OF TENN ESSEE, ) ) No. 01C01-9707-CC-00298 Appellee ) ) WILLIAMSON COUNTY vs. ) ) Hon. Donald P. Harris, Judge ELROY D. KAHANEK, ) ) (DUI, Third Offense) Appellant )
For the Appellant : For the Appellee : Lee Ofman John Knox Walkup 317 Main Street, Suite 208 Attorney General and Repor ter Franklin, TN 37064 Timothy F. Behan Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 Joseph D. Baugh, Jr. District Attorney General Mark Puryear Asst. District Attor

ney General P. O. Box 937 Franklin, TN 37065-0937

OPINION FILED: AFFIRMED
David G. Hay

es Judge2 OPINION

The appellant, Elroy D. Kahanek, appeals the verdict of a Williamson County jury finding him guilty

of driving under the influence, third offense. Th e trial court imposed
a sentence of 11 months, 29 days, sus pending all but 120 days, and assessed a

fine of $5,000. The appellant now appeals his conviction, raising the f ollowing issues: I. Whether the trial court erred by ov erruling the appellant’ s mot i on in limine to exclude evidence of the horizontal gaze ny stagmus test; II. Whether the trial cou rt e rred in restricting the appellant’s crossexamination of Officer Hardcastl e; III. Whether the trial court erred in rejecting the appellan t’s special jury instruction relating

to the “odor of alcohol;” IV. Whether the trial court erred in instructing the ju ry to disr egard portions of the appellant’s test imony; and V. Whether the trial court erred in commenti ng on the reliabi lit y of an intake, or, “Receiving Screen Form,” requir ed for the processing of detainees prior to incarc eration.

After a review of the evi dence and the applicable law, we conclude that the appellant’s issues are w ithout merit. The judgment of the tr ial court is affirmed.

Background

On March 28, 1996 at approxi mately 6:30 p

. m., Debbie Doebler was d riving home on I-65 south in Williamson County. M s. Doebler was following two v

ehicles: a small white automobile and a trac tor trailer truck. The tractor trailer was in the far right hand lane and the white car was in the adjacent lane.Ms. Doebler observ ed the white
c ar swerve, “ like it was going to hit the truck.” In r

esponse, she slowed her v ehicle. The white vehicle sw

erved again, and, this time, the car hit the truck, traveling across the four southbound lanes of the interstate, bouncing off the concrete median barrier, and traveling back acr

oss the four lanes where it came to a stop in the far rig hthand1 Nystagmus means a jerking of the eyes. Horizontal gaze nyst agmus refers to a jer king of the eye s as they gaz e to the si de. Gaze nyst agmus is observed in 50 to 60 percent

of the entire pop ulati on when the eyes a re deviat ed as far as possi ble to one si de. As people beco me intoxicated, the onset of the jerking occurs after fewer degrees o f turning, and the jerking at more extreme angles becomes more disti nct. The test is conducted by

having the

subject cover

one eye an d follo w an obje ct (the offic er’s f inger in this c ase ) with th e ope n eye u ntil the subj ect’s eye is at an angl e of 45° from his nose

. 3 lane. Ms. Doebler, assuming that someone was i njured, pulled onto the shoulder of the interstate and called 911 on her cellular phone.

Brentwood Police Officers AllenHardcastle and David Graves responded to the
scene of the accident. When Officer Hardcastle arrived at the scene, he o b served a small white car sitting in the far right lane of the interstate. The vehicle had sustained exten si ve damage to the right front por tion and left rear portion of the v ehicle. The damage to the passenger side was consistent with those made by a tire. The vehicle’s airbag was deployed in the wreck.
Shortlyafter arriving on the scene, the officers determined that the appellant w as the driver of the white car. U pon first making contact w ith the appellant, Officer Hardcastle noticed that the appellant hada strong odor of alcohol about him and that he answered questions slowly. Also, the appell ant’s eyes were bloodshot. The appellant

told Officer Hardcastle that, while he was traveling in the far right hand lane of the interstate, the tractor trailer truck attempted t o make a lane cha nge from the adjacent lane to the lane in whic h he was travel ing, resu lting in the accident. When asked by the officer whether he w as injured or needed to go to the hospital, the appellant

stated that he did not need any medi cal treatment. Officer Har dcastle did observe a small cut on the appellant’s wrist, but no incapacitating injuries.

Based on his init ial observations of the appel lant, Officer Hardcastle beli eved thatthe appellant had been drivi ng under the influence of alcoho l. He proc eeded to conduct three field sobriety tes ts, i.e. , the HorizontalGaze Nystagmus Test, 1 the “walk and turn” test, and the “one leg stand” test. During the”HGN” test, the appell ant failed4

to have “smooth pursuit, his ey es pursued in one jerky motion to 45°. He ha d a [di]stinct nystagmus at max[imum] dev iation on both eyes. He had onset of ny stagmus prior to 45°.” Officer Hardcastl e next conducted the “walk and turn” t est. The appellant
was unabl e to complet e the test as instructed; he r aised his arms, sway

ed, and stumbled to t he left, where he was caug ht by Officer Graves. The ap pellant then stumbled to the right, where he was caught by Officer Hardcastle. At

this point, Officer Hardcastle terminated the test for the appellant’s own safety. The final test administered was th e “one leg stand,” which required the raising of either foot six inches off the ground, while counti ng to thirty out loud. The appellant raised his arms, swayed, and put his foot down wit hin two seconds of picking it up. The app ell ant admitted that he could not complete th is test.

Officer Hardcastle concluded that the appellant’s conduct duri ng these tests was consistent

with his initial observations that the appell ant was und er the i nfl uence of alcohol. Officer Graves confirmed Officer Hardcastle’s results of the field sobriety tests and the appellant’s statements at the scene. The appellant w as arrested and transported to the Williamson County Jail.

The appellant, in his own def ense, testified that, on February 12, his wife had surgery which revealed the

spread o f cancer throughout her body. The doctors informed the ap pe llant and his wife that, w ithout chemotherapy treatments,she had nin e mont hs to live. The chemotherapy treatments cost approximately four to six thousand dollars per treatment and hi s wife refused any treatment if their insurance company

denied coverage. On the afternoon of the accident, the appellant w as notified thathis insurance would not cover his wife’s chemotherapy treatments. The appellant testified that this news was emotionally upsetting, causing him to “cr[y] all afternoon.”5 At5:30 p.m., the appellant left his Nashville office and went across the street to t he Nashville Country

Club “to wait for tr

affic to die down.” At the res taurant, t h e appe llanto rdered a scotch and water . Shortly thereafter, a fri end purchased the appellant

a second scotch and water as a belated birthday present. The appel lant lef t the restaura nt at 6:0 0 p.m. an d began hi s drive home on I-65 South. On the way home, he called his wife from his cellular phone and asked her if she wanted him to pick up
some fa st food for dinner. After ending hi s conversation with his wife, the appellant threw the telephone in the pas senger side seat. Realizing that he had not turned the telephone off, he leaned over to pick the t elephone up. At this point, the acci dent occurred. The appellant stated that, upon impact with the truck, his airbags exploded, causing burns

and cuts on his arms. He added that the airbags caused hi s knees to hit the dashboard. The appellant testi fied that he told Officer Hardcastle that his “knees are killing me, I cannot perform this test.”

Based upon this evidence, the jury returned a g uilty verdict as to the offense of driving under the in

fluence, third offense.

I. Horizontal Gaze Nystagmus Test

The appellant, rely ing upo n an unpublished opinion of this cou rt, i.e. , State v. Cora Mur phy , No. 01C 01-9412-CC-00401 (Tenn. Crim. App. at Nashville, Oct. 6, 1995), aff’d by , 953 S.W.2d 200 (Tenn. Oct. 13, 1997), filed a motion in limine on January 9, 1997 , to exclude evidence of the Horizontal Gaze N ystagmus Test as the St ate wa s required to establish that ther e is genera l acceptance of the test in the scientific
commun ity. The trial court denied the moti on finding that the HGN test does not constitute a scientific test. Onappeal, the appellant asserts that the trial court’s r uling2 We note that the appel lant’ s trial was conducted on February 11-12, 1997, eight months prior t o our supreme court’ s rulin g in Murphy , 953 S.W.2d at 200. Thus, at the t ime of the tr ial, the issue of whethe r the HG N test wa s a scien tific test was pending before th e supre me c ourt. Moreover, different panels of this court ha d reach ed differe nt results o n this issue

. Comp are State v. Ja nkowski , No. 03C01-9503-C R-00100 (Te nn. Crim. App. at Knoxville, Nov. 15, 1995), perm. to appeal de nied , (Tenn. Apr. 1, 1996) with Murphy , No. 01C 01-941 2-CC -00401

. Acc ordin gly, the appe llant’s cont entio n tha t the tr ial cou rt faile d to fo llow pr ece den t is no t a valid positi on, as there was no per se consist ent prec edent t o foll ow. 6 is in “er ror and is contrary to existing law within the court’s j urisdiction.” 2 Although conceding the error of the trial court’s ruling, the State contends that any error in admitting the evidence of the HGN test was harmless.

Initiall y, we note t hat this issue is now governed by our supr eme court’s ruling in State v. Murphy , 953 S.W.2d at 200. In State v. Murphy , the court held that the Horizontal Gaze Nystagmus tes t is a scienti fic t est. Murphy , 953 S.W.2d at 201. In so ruling, the court s

tated: In our view, the HGNtest does differ fundamentally from othe r field sobriety tests because the witness must necessarily ex plain the underlying scie ntific b asis of the test in order for the testimony to be meaning ful to a ju ry.

. . . A nd there is a nother distinction . . . and it concerns measurement. . . . [W]hen an officer testifies that the subject’s eye movement was rapid and very jerky at less than a 4 0 degree an gle , that officer is testifying about a measurement that probably should be taken with a measuring device. Therefore, the accuracy of this testimony may be questionable in light of the officer’s non-scientific measurement of a scientifically measurable phenomenon.
Id . at 203.

Since the HGN test is a scienti fic test, evidence resulting from the test must satisfy the requirements

of Tenn. R. Evid. 702 and 703. Id . at 203. Under these rules, the trial court must determine whether the evidence will substantially assist the trier of fact to determine a fact in issue and w hether the facts and data underly ing the evidence indicate a lack of trustworthiness

. See McDaniel v. CSX Transp., Inc. , 955 S.W.2d 257, 265 (Tenn. 1997), petition for cert. filed , 66 U.S.L.W. 3605 (Mar. 9, 1998) (No. 97- 1469). If the scientific evidence is vali d, a witness q ualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion7

or otherwise. Id . at 264. Moreover, the court must be assured that the opinion of the expertwitness is based onrelevant scientific metho ds, processes, and data, andnot upon an expert’s mere specul ation. Id . at 265.

I n the present case, Officer Hardcas tle testified regarding

the procedures involved in the administration of the HGN test and his la w enforcement training and certification relevant to field sobriety tests. He al so acknowledged the existence of other nystagmusin the eye other than horizontal and that they could be caused by factors other than alcohol. We cannot conclude that this testimony establ ished Officer Hardcastle as being qualified by his “knowledge, sk

ill, experience, tr

aining or education” to provide expert test imony that would “sub stantial ly assist the trier of fact [in] understand[ ing] the evidence or determin[i ng] a f ac t in issue.” See Murphy , 953 S.W.2d at 201 -20 2; see also State v . Grind staff , No. 03C01-9704-CR-00139 ( Tenn. Crim. App. at Knoxville, M ar. 23, 1998). As such, the trial court s hould have granted the appellant’s in limine motion.
Notwithstandingthe trial court’s error in admitting such testimony regarding the HGN test, we find the court’s error, at most, harmless, as there was more than sufficient evidence for a rational trier of fact to find the appellant guilty of driving under the influence. Tenn. R. App. P. 36(b). See, e.g. , State v. Summers , No.03C01-9606-CR00235 (Tenn. Crim. App. at Knoxv ille, Dec. 4, 1997); State v. Turner , No. 03C01-9604- CC-00151 ( Tenn. Crim. A pp. at Knoxville, Jul . 9, 1997). In addition to the H GN test, Officer Hardcastle conducted the “w alk and turn” test and the “o ne leg stand ” test. There is no doubt that neither of these tests r equire expe rt testimony. General field sobriety tests are not “scientific tests,” and, thus, not governed by Tenn. R. Evid. 702 and 703. See Turner , No. 03C01-9604-CC- 00151 (citing State v. Gilbert , 751 S.W.2d 454, 459 (Tenn. Crim. App. 1988)). The results of these two non-s cientific field sobriety tests in conjunction w

ith the officers’ initial obs ervations of the

appellant’s demeanor, his admission of consuming alcoh ol prior to driving h ome, and eyewitness testi mony8

of the appellant’s erratic driving were p roperly before the jury and are sufficient evidence from whi ch a rati onal juror could infer that t he appellant was under the infl ue nce of an intoxicant, impairing his ability to operate his vehicle. This issue is without merit.

II. Cross-Examination of Officer Hardcastle
During cross-examination of Officer Hardcastle, defense counsel initiated a li ne of questi oning regar

ding the officer’s opinion of the fairness of the standardized field sobriety tests. Defense counsel then ask ed Officer Hardcastle: “If y ou were designing this test to cause imbalance andsway, would you have them hav e their feet standing apart like this o r have one foot out about six inches off the ground?” The prosec utor objected to the q uesti on as being argumentativ e, stating that Officer Hardc astle had already answered defense counsel’s q uestions regarding the fairness of the test. The tri al court sustained the State’s objection, finding that the questio n was pose d as a hypothetical, that the officer had previously stated that he did not and d oes not design the test, and that the question “has nothing to do with this case.”

“The right to cross-ex

amination is f undamental, thus, the denial of this r ight to apprise the accused a fairtrial is ‘constitutional error of the first magnitude.’” State v. Henning , No. 02C01-9504-CC-001 15 ( Tenn. Crim. App. at Jackson, Jan. 9, 1997), perm. to appeal granted , (Tenn. Jul. 7, 1997) (quoting State v. Hill , 598 S.W.2d 8 15, 819 (Tenn. Crim. App. 1980)). Y et, the propriety, scope,manner and control of testimony

and other evidence, including the scope of cross-examination , is within the sound discretion of the trial c ourt, which wil l not be reversed absent an abuse o f that discretion. See State v. Hutchinson , 898 S.W.2d 161, 172 (Tenn. 1994), cert. denied , 516 U.S. 846, 116 S.Ct. 137 (1995) ; State v. Barnard , 899 S.W.2d 617, 624 (Tenn.9

Crim. App.), perm. to appeal denied , (Tenn. 1994) (citing State v. Banks , 564 S.W.2d 947, 949 (Tenn. 1978)); Tenn. R. Ev id. 611.

The scope of cross-examination extends to “any matter relevant to any issue in the case, including credibility.” Tenn. R. Evid. 611(b). Defense counsel’s inquiry as to the poli ce office r’s des ign of a hypothetical sobriety

test wasirrelevant to the is sue at hand. Officer Hardcastle had, on more than one occasion, expresse d his opinion as to the fairness of the field sobriety tests conducted in th e present case. Moreover,
c onsidering Officer Hardcastle’s testi mony in its totality, we cannot conclude that th e appellant

was prejudiced by the court’s ruling. Accordingly, w e find no abuse of discretion by the tri al court. This issue is without merit.

III. Jury Instruction on Odor of Alcohol

The appellant next complains t hat the trial court erre

d by refusing his special instruction regardin g the odor of alcohol. In per tinent part, the refused instru ction reads: The bare fact that there was an odo r of into xicant on the Defendant’s person is not sufficient

to support a finding that he was driving under the influence of an intoxicant. Newby v. State , 388 S.W.2d 136, 138 (Tenn. 1965). The trial courtrefused the appellant’s reque st, finding that the instruction w as “covered by [the] charge that req uires [a] finding of impairment. ” The court determined that: This request may

be confusing in that jurors may infer the court is stating odor of alcohol is in the Court’ s opinion the only evi dence indicating that the defendant was under the influence.
Where the charge, as given, fullyand fairly states the law applicable to the case, itis not error to refuse a sp ecial request. State v. Bush , 942 S.W.2d 489, 523 (Tenn. 1997), cert. denied , --U.S. --, 118 S.Ct.376 (1997); State v. Taylor , 771 S.W.2d 387, 398 (Tenn. 1989), cert. denied , 497 U.S . 1031, 110 S.Ct. 3291 (1990). We find that10

the jury instructions

provided by

the trial court adequately covered the applicable law on this subject. This iss ue is without merit.

IV. Cross-Examination of the Appellant

On cross-examination of the appel lant, the prosecuting attor ney asked the appellant

if there was any pers

on at the Nashville Country Club who knew him an d would those people have been able to te stify as to the appellant’s sobriety. The appellant

responded that, if hehad been intoxicated, those peopl e would not have let him drive and someone would have taken him home o r he would have call ed a limousine service to take him home. The prosecutor then requested a jury-out during which he asked the court to instruct the jury to disregard the appell ant’s statem ent, since the prosecu tor was not able to introduce evide nce of the appellant’s two pr ior convictions

for driv ing under the influence. The trial court ruled that the appe llant’s statement

was unrespo nsive to the question asked by t he prosecutor and was volunteered by the appellant. The jury was then instructed to disregard the appellant’s statements. The appellant contests the court’s rul ing arguing that the court’s instruction to the jury “was a c

ommenton the evidence which is disallowed in Tennessee, Hooper
v. State , 325 S.W.2d 561 (Tenn. 1959), and, further, that instr uction cast doubt on the Defendant’s credib ility , thereb y denying the

Defe ndant his d ue process right to a fair trial under the Tennessee and United States Constitutions.”
Contraryto the appellant’s assertions, we agree with the State that there is no evidence that the trial court commented upon the evidence. Rather, the trial court only instructed the jury to disreg ard the appellant’s statement as it was unresponsiv

e to the prosecutor’s “yes or no” questi on. As stated previously, the scopeand control of the examination of wit nesses rests within the sound discretion of the trial court; and this court will not interfere w ith the exercise of this discretion unless it clearly appears upon3 The Receiving Screen For m, generated at the time the appel lant was i niti ally booked at the jai l, i ndicated that the appel lant di d not appear t o be intoxi cated. However, testi mony indicat ed that the “no” response t o this question was computer generat ed, and, must be manuall y changed to indi cate an affi rmative response. As such, the re sponses on the screeni ng form were subject to human error. 11 the face of the record that the trial court abused its discreti on w hen rulin g. See Hutchinson , 898 S.W.2d at 172; Barnard , 899 S.W.2d at 624. We fail to find that the trial court abused its discretion in instructing the jury to disregard the appellant’s extemporaneous testimony. This issue is without merit.

V. Trial Court’s Com ment Upon Reliabilit y of Receiving Screen Form

In his final is

sue, the appel lant complai ns that the tr ial court ma

de imp rope r comments to the jury regardi ng the reliability of the inta ke or receiving scr een form, 3 which is required for the proc essing of a detainee. This form w as introduced into evidence by the defense through the custodian of record s at the Williamson County Jail. Initially, we agree with the State that the appellant has waived this issue for failure to cite to that w hich he complain s of. Tenn. R. App. P. 27(a)(7).This court will not speculate as to the alleged errors of the tri al court. Notwithstanding waiver of this issue, this court fails to findthat the trial court made any improper comments to the jury regarding the form’s reliabi lit y. Indeed, the video tape t ranscript of the trial in dicates thatany comments made by the trial c ourt were made during a jur y out hearing. Accordingly, there is no merit to this issu e.

Conclusion

After a review

of the record

before us, w

e affirm t he judgm ent of conviction entered by the Williamson County Ci rcuit Court.12 ____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

____________________________________ GARY R. WADE , Presiding Judge

____________________________________ JERRY L. SMITH, Jud ge