### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs A pr il 29, 200 9



### ST A T E O F T E N N E SSE E v. E V E R E T T D A N IE L ME A D O R , II I

Appeal f rom the Cr im inal Cou rt for Washington Cou nty No. 33802 Lynn W. Brown , Judge

No. E2008-01710-CC A-R3- CD - Filed De cem ber 11, 2009

After a jury trial, the De fenda

nt, Evere tt Daniel Mea dor, I I I , was c onvict ed of driving under the influ en ce (D UI), first offe nse, a Class A misdemea nor. The D efe ndant appe als, contendingthat be c a us e the a rr e sti ngof

fi c e rs la c ke d pr ob a

ble c a us e to arr e st him
, the tr ia l c ourt e rr e d in de nyinghis motion to s uppress the e vidence resulting from his arr est. The De fenda nt also contends that the tria l

c ourt imp ro pe rl y

de nie d h is m oti on

fo r a mis tr ia l, whi ch was ba se d u po n th e re su lts of

his breathaly zer test, that wer e submitted to the jury afte r the trial c o u rt ruled that the r esults were inadmissible. After determining that a mi strial should have be en dec lare d, we r ever se the judg ment of the tr ia l c ourt , a

nd we re mand

the c a se fo r a

ne w tri a l.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt is Re verse d; Case Re m anded

D. K EL L Y T HOMAS , J R ., J
., delivere d the opinion of the cour t, in which J OS EP H M. T I PTON , P.J ., and N OR MA M C G EE O G LE , J ., joined.

D anR

. S m i t h
, J o h n s o nC i t y , T e n n e s s e e , f o r t h e a p p e l l an t , E v e r e t tD an i e l M e a d o r , III

.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and Re po rt e r; L e sli e E. Pr ic e , A ssi sta nt A tto rn e y

Ge ne ra l; Anthony Wade Clark, District Attorne y Gene ral; and Robin C

. R ay , As sistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

Th e re c or d r e fl e c ts that in Janu ary 20 08 , th e De fe nd a

nt f ile d a mot ion

to s up pr e ss t

he re su lts of the bre ath test which wa s administered followinghis a rre st f or driving under the influence . The Def endant a rg ued b oth that the police lac ked proba ble ca use to arr est him and that, pursuant to a“ For t he r es ul t s of s uch t es t or t es t s t o be adm i s s i bl e a s ev i dence [ i n D U I ca s es ]
, i t mus t f i r s t be es t abl i s hed 1

t h at a l l t es t s a dmi n i s t er ed we r e admi n i s t er ed t o t h e per s on w i t h i n t wo ( 2) h ou r s f ol l owi n g s u ch pe r s on ’ s a r r es t or initial d e te n tio n .” T e n n . C o d e A n n . § 5 5 -1 0 -4 0 6 (a )( 1 ) (S u p p . 2 0 0 6 ) (r e p e a le d 2 0 0 9 ).

-2- since-r epea led provision of Tenne ssee Co d e A n n o t at eds ec t i o n5 5 -1 0 -4 0 6 (a )( 1 ), t h e t es tre s u l t s were 1 inadmissible be cause the police administered the test more than two hours afte r the D ef endant’s initial detention.

At t he hea

ring on the motion, Office r Nichola s Anderson w ith the J ohnson City Police De p artm e n t te s ti f

ie d th a t a t 6 :1 4 th e mo r

n in g o f Ja

n u ar y 2 0
, 2 0 0 7
, h e ar

r iv e d o n the sce ne of a single -ca r ac cident. Of

fice r Ande rson saw a

white For d truck in the fr ont y ard of a re sidence

. Throug h the truck’s open driver- side door, Offic er Ander son saw the De fenda nt slumped over the truck’s stee ring whee l. T he office r said that the Def endant appea

red to be “unconsc ious, or passed out,” and that it took him a while to awaken the De fendant. The off icer shook the Def

endant a nd sh ou te d at him wit

ho ut suc c e ss, bu t the De fe nd ant aw ok e a ft e r the of fi c e r ru bb e d his knu c kle s a c ro ss t h e D e f e n d an t ’ s c h e s t

. T h e D e f e n d an t t o l d t h e o f

f i c e r t h a t h e w a s g o i n g t o h i s h o m e i n G r a y. Offic er A nderson “ g ot [t he Defenda nt] out of [ his] vehicle a

nd place d him in [ the] back seat” of the police cr uiser while the of

fice r filled out paper

work. The office r said he put the De fenda nt into the
po lic e c ar b e c a

us e it w a s c old

ou tsi de and

he wa nte d th e De fe nd ant t o s tay wa rm

.

Offic er A nderson sa id that he did not administer any field sobriety

tests to the Defe ndant beca use his shift was ending

. There fore
, afte r plac ing the Def endant in his ca

r at a pproxi mately

6:20 a.m., he “ca lled for a relief office r.” Offic er Ander son explained that “ a ty pical wre ck take s an hour
to w or k” and tha t he wo uld

no t re c e ive ov e rt ime pa

y if he wo rk e d pa st the 7:0 0 a. m. e nd of his sh if t. He sa id that the Def

endant c alled his g irlfriend while they wer e waiting for the relief officer and that the re lief off

icer arr ived shortly

afte r the shift ende d. Offic er A nderson a cknowledg ed that allowing
someone to use a

phone while in police c ustody went ag ainst depar

tmental policy

.

On cr oss-examination, Of fice r Ander son acknow ledg ed that at a pr eliminary hear ing he had testified that when he ap p ro ac hed the De fenda nt, he smelled the odor of alcoholic be vera g es. He de n ie d te s ti f y in g a t t h e p r e li mi n ar

y h e ar in g th a t h e h a d

a d mi n is te r e d

f ie ld s o b r ie ty te s ts to the Def endant, a nd he ac knowledg ed that the De fenda nt was not fre e to le ave onc e he w as plac ed in the police cr uiser.

Of fi c e r M ic ha e l H ow ard

te sti fi e d th a t he wa s the of fi c e r dis patc he d to the a c c ide nt sc e ne to relieve Offic er A nderson. When Office r Howa rd ar rived on the sc ene, he saw the D efe ndant’s truc k “wr ecke d ag ainst a tree in the front y ard of a re sidential house,” with t h e Defendant sitting in the back of Offic er A nderson’ s police cruiser

. Offic er Howar d said that when he opened the police ca r’s

rea r passe ng er door
, he smelled “what a ppear ed to be an odor

of alc oholic bever ag e.” H e took the De fe nd ant to a

ne arb y sc ho ol t o c on du c t f

ie ld s ob ri e ty

te sts on the de fe nd ant. Of

fi c e r H ow ard

sa id that th e De fe nd ant “a

pp e are d to be havin g so me pr ob le ms [c omp le tin g the te sts ]. I no tic e d a lit tle

sw ay ing

. . . wh e n he wa s do ing the on e le g g e d sta nd .” Af te r the De fe nd ant c on se nte d to a br e a th test, the offic er took the D efe ndant to the J o h n s o n City Police Depa

rtment’s dete ntion center

.T he d ef end ant was i nd i ct ed on t wo co unt s o f dri vi ng unde r t he i nf

l uence; t he second co unt ref erenced t he 2

res ul t s o f t he d ef end ant ’ s b reat h t est

. Se e T enn. C o d e A nn. § 5 5

- 1 0

- 4 0 1 (a)( 2 ) (20 0 8 ) (cri m i nal i zi ng dri vi ng whi l e “ [t ]he al co ho l co ncent rat i o n i n t he p ers o n’ s b l o o d or b reat h i s ei ght

- hund redths of o ne p ercent (. 0 8 % ) or mo re. ”). W hi l e no order di s mi s s i ng C ount 2 of t he i ndi ct ment appear s i n t he r ecor d, t he r ecor d r ef l ect s t hat i n l i gh t of t he t r i al cour t ’ s order

su p p re ssin g the re su lts o f t h e b re a th te st, C o u n t 2 w a s n o t p re se n te d to the ju ry. -3- Offic er H owar d summoned Serg eant Donna Tallmadg e, an of

fice r certified to use the de partment’s breath testing machine, to administer the test. Of fice r Howa

rd testified that with this machine, ther e is a tw e n ty

- mi n u te p e r io d b e tw e e n th e ti me th e o f f ic e r “ lo g s in ” to th e ma c h in e an d th e ti me the office r administers the test. In this case, Ser g eant Ta llmadge logg ed in at 8:13 a.m. and the defe ndant s ubmitted his breath sample at 8:38 a.m. The test showed the D efe ndant’s blood alcohol content to be .17% at the time he submitted his sample.

On c ro ss- e xami natio n, Of

fi c e r H ow ard

te sti fi e d th a t in a dd iti on to t he on e -l e g g e d s tand

te st, he administere d the horizontal ga ze ny stag mus test and instructed the Def endant to walk a stra ight line. He sa id that his police cruiser’s in-car video camera rec orded the tests but that “the c amer a wa s not focused in pr operly . I t just had the front of the ca r, and only

some of the test showe d up, and the

a ud io w a s n ot o pe ratin g that da y .” Whe n ask e d whe the r the re c or din g “ re fl e c ts that [th e De fe nd a nt] did, in fact, do a s y ou re q u es t ed” pe rfor ming the one -leg g ed stand test, Of fice r Howa

rd re plied, “base d on what I

saw I thought I detec ted a little swaying on it, but, aga in, the fe et wer en’t shown, so, it doesn’t rea lly

show a whole lot of jerkiness in the motion of the body .”

Duri ngc ro ss- e xami natio n, the De fe nd a nt’ s atto rn e y

a sk e d to a dmi t th e re c or din g of the fi e ld

so br ie ty te sts int o e vid e nc e . T he tr ia l c ourt g ra nte d c ouns e l’ s r e qu e st; ho we ve r, the re c or d r e fl e c ts that e qu ipm e nt t o v ie w the re c or din g wa s unava ila ble in the c ourt

ro om dur ing the he ari ng . D e fe ns e

c ouns e l r e qu e ste d a

c on tin ua nc e to a c qu ir e the e qu ipm e nt t o p lay the re c or din g in the c ourt ro om. The trial c ourt denied the continuance , stating, “I think it would be y our re sponsibili ty to have the office r to bring his equipment. . .

. I t ’s 3 : 3 0 [ p

. m .]. W e quit at 5 o’c lock. . . . We started the hear ing, r equest for

continuance denied.”

At the conc lusion of the hear ing, t h e t ri al cour t suppressed the r esults of the De fenda nt’s breath test beca

use the test wa s administered more than t wo hours afte r t he poli ce initi ally detained the Def endant. Howeve r, t he trial court found that the officers did have probable cause to arre st the

2 Def endant, so the c ourt ruled that a ll other evidenc e related to t he De fenda nt’s arr est was a dmissibl e. Th e c a se the n p ro c e e de d to tr ia l.

Trial Te stimony

Martha Treva

than testified that at approximately 4:15 the morning of January 20, 2007, she hear d the noise of an eng ine running outside her home. She looked out the window and saw “ a truc k sitti ng up ag ainst the curb at the empty lot ne x t to [her] house.” Fifte en to twenty minutes later, she
went outside and saw the truck pa rked a g ainst the curb be tween he r drivew ay and the dr iveway

of the house ne x t door. When she left he r house a round 6:15 in the morning
, the truck wa s still parke d
ag ainst the curb, its eng ine running . Ms. Trevathan called 911 to r eport the truck; she said that she-4-

could not see a

ny one inside the truck, althoug h she ac knowledg ed that she “ rea lly didn’t look that closely beca use [she] was afra id of whoeve r wa s in there.”

Wil liam Givens, who l ived t hree houses down from Trevathan, testified that on the morning in q u es t i on, he initially

saw a truck ne ar Tr evatha

n’s house. He said that the truck’ s eng ine was running and its lights wer e on. Some time later, his w ife aler ted him that the tr

uck wa s in their y ard. Mr. Givens called 911; afte r hanging up, he we nt outside and saw a white truck in his y ard, w ith the front whee l of the truck positioned a g ainst a tree

. He said that he did not see any one inside the truck.

Offic er Anderson testified that when he a rrived on the scene at appr ox imately 6:20 that morning , he sawthe Def

endant’ s truck “c rashe d” ag ainst a “me dium size[d] tree ” in the front y ard of a re sid e nc e ; he a lso saw the de fe nd ant s lum pe d ov e r the ste e ri ngwh e e l in the tr uc k’ s d ri ve r’ s se a t. He a dded that the truck’s eng ine was running when he arr ived on the sce ne. Of fice r Ande rson turned the e ng ine of

f a nd a tte mpt e d to ro us e the De fe nd ant. Af te r sh a kin g the De fe nd ant’ s a rm fa ile d to produce a re sponse, the off icer rubbed his knuckles on the Def endant’ s chest; this action woke the Def enda n t. O f f ic e r A n d e r s o n te s ti f

ie d th a t w h e n th e D e f

e n d an t aw o k e , “ [h ]e w a s in c o h e r e nt . . . kind of dazed. He had slurre d speec h, and I st ar t ed to smell the - - a lcohol as he spoke more a nd more. . . . [W] hen I came to the door y ou could s mell alcohol, but, as he be g an to talk . . . the odor
g ot stronge r and strong er.”

Of fi c e r An de rs on te sti fi e d tha t bec a us e he wa s awa

re that th e a c c ide nt i nv e sti g a tio n w ou ld last “we ll bey ond” the 7:00 a.m. e nding of his shift, he called for a relief office r. Whil e he wa ited fo r th e o f f ic e r to ar r iv e , O f f ic e r A n d e r s o n qu e s ti o n e d th e D e f e n d an t a b o u t h is a c ti v it ie s

. The D e f e n d an tt o l d

t h e o f f i c e r th a th e h a d

b e e nt o a b i rt h d ay p art y an d

t h a t h e w a s h e a d e d h o m e t o G r a y. The De fenda

nt said that he had been drinking at the party , althoug h he did not tell the office r what he consume d or how much he consume d. The off icer said that bec ause the temperature wa s “ver y

c o ld ” th a t mo r

n in g , h e p u t th e D e f

e n d an t in th e b a c k o f h is p o li c e c r u is e r b e f o r e b e g inning the
paper work a ssociat ed with the acc ident. Offic er A nderson sa id that based on his training and experience as a police office r, he f ormed the opinion that the Defe ndant “wa s too intox icated to be
operating a

vehicle.” On cr oss-examination, Office r Ande rson ad m i t t ed that he did not arr est the Def endant a nd did not administ er f

ield sobriety

tests to the Defenda

nt. He said that while he did not

se e the De fe nd ant d

ri ve the c ar int o the tr e e , he sa id that gi ve n the fr os t- c ov e re d g ro un d, he c ou ld “ac tually see the [t ruck’ s tire] tracks whe re it we nt over the curb and

. . . follow [them] all the way to . . . the tree .”

Offic er Ho wa rd t es tified that when he arr ived at the a ccide nt scene to relieve Offic er An de rs on , th e De fe nd ant w a s st ill in O ff ic e r A nd e rs on ’s po lic e c ru ise r. Af te r O ff ic e r A nd e rs on

tol d Offic er H owar d about what ha d happene d, Offic er H owar d remove d the Def endant f rom Off icer Ander son’s ca

r and took him to his own pol ice cruiser. Offic er Howard said that when he opened the do or to O ff ic e r A nd e rs on ’s c ar, he sme lle d “ a str on g od or

of wh a t app eared to be a lc oh oli c b ev er age s ” an d found t hat the De fenda nt’s speec h “see med to be a little slurre d at the time.” He added that the Def

endan t also appe are d “slig htly unsteady on his feet.” Offic er H owar d said that based on the se obser

vations, coupled with his conver sations wit h Of fi cer Ander son and other witnesses, he c oncluded be fore administering t h e field sobriety tests that the Def

endant “ was-5-

probably under the influence .”

Offic er H owar d said that bec ause the stree t on which the ac cident occ urre d did not provide

a smo oth or le ve l surf a c e on wh ic h to c on du c t c e rt a in f ie ld s ob ri e ty te sts , he too k the De fe nd a nt t o

a ne arb y e le me nta ry sc ho ol t o a dmi nis te r t

he te sts . O ff

ic e r Ho wa

rd te sti fi e d th a t du

ri ngthe “ wa lk and turn” test, “it looked like from my observation that [ the Def endant] had sway ed a littl e bit as he walked a long the

. . . straig ht line. . . . His arms raise d at one point.” On c ross-examination, Office r Howar d said that the video recor ding of the field sobriety tests did not show the Defe ndant’s hand

or fe e t mo ve me nts and

a lso did no t a pp e ar to de pic t the De fe nd ant’ s sw ay ing and ra isi nghis a rm , which the of

fice r insisted that he saw w hile the Def endant pe rfor

med the tests. The of

fice r acknow ledg ed that the De fenda nt was cooper ative during the tests and that althoug h the Def endant’ s speec h was slurred, the off icer was a ble to understand the Def endant whe n he spoke. O ffice r Howar d said that at one point the De fenda nt’s g irlfriend a

rrived at t h e accident site a nd that she drove the Def

endant’ s truck fr om the scene beca use the damag e to the truc k was “ minor.”

Sarah Per ry , the Def

endant’ s fiancé e, testified that she and the De fenda nt went to a birthday
pa rt y the nig ht b e fo re the De fe nd ant’ s arr e st. S he sai d th a t th e De fe nd ant “ ha d a fe w d ri nk s w ith dinner[,] may

be,” a lthough she could not rec all how many drinks he had that evening . She said that she l eft the par

ty b e tw e e n1 :0 0 an d

1 :3 0 th e n e xt m o r

n in g an d th a t a f r ie n d to o k h e r h o me

. She called the Def

endant a round 1:50 a.m. and told him that she was g oing to be d; he r ep l i ed that he would be home soon. When Perry awoke around 6:45 a .m., the Def endant wa s not home. She called the Def endant, who e x plained to her what had ha

ppened. She then went to the acc ident scene . Perry

c la ime d th a t w he n s he sp ok e to th e Defen da nt at th e sc e ne , s he c ou ld n ot s me ll a ny a lc oh oli c be ve ra g e s o n h im.

The jury found the De fenda nt guilty of driving under the influence , first offe nse, as c harg ed in the indictment. See Tenn. Code A nn. § 5 5 -1 0 -4 0 1 (a )( 1 ) (2008) . The trial c ourt sentenc ed the Def endant to e leven months, twe nty -nine day s, with the sentenc e suspended afte r the ser vice of ten da y s in the c ounty

ja il. Th e De fe nd ant s ub se qu e ntl y fi le d a tim e ly no tic e of a pp e a l.

A N A LY S IS

I : Mo tio n to Sup pr e ss

Th e De fe nd a nt f

ir st a rg ue s th a t th e tr ia l c ou rt

e rr e d in c on c lud ing that the po lic e ha d p ro ba ble

cause to arr est him for driving under the influenc e. He also asserts that he was pr ejudiced by the trial court’s ref

usal to gr ant a continuance during the suppression hearing so that he coul d ac q u i re equipment to play in c ourt the video rec ording of the Def endant’ s field sobriety tests. W e disagre e.

“[A ] trial court’s findings of fac t in a suppression hea

ring will be upheld unless the e vidence preponde rate s otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)

. Qu estions about the “cr edibility of the witnesses, the we ight and value of the evidenc e, and resolution of conflicts in the evidenc e ar e matter s entrusted to the trial judge as the trier of fac t.” Id. Both proof pr esente d at the suppression hea

ring and proof

prese nted at trial may be considere d by an appe llate court in deciding the proprie ty of the t rial court’s ruling on a mot ion to suppress. State v. He nning, 975 S.W.2d 290,-6-

299 (Tenn. 1998) ; St at e v

. P er ry, 13 S .W.3d 724, 737 (Te nn. Crim. App. 1999). Howe ver, the preva iling par t y “i s enti tled to the strongest legitimate view of the evidenc e adduc ed at the suppression hea

ring as we ll as all rea sonable and legitimate infere nces tha t may be dra wn from that evidenc e.” O dom, 928 S.W.2d at 23. An appe llate court’s revie w of the tria l court’s a pplication of law to the fa cts is conducted under a de novo standard of revie w. State v.Walton, 41 S.W.3d 75, 81 (Tenn. 2001) (citations omitted).

Both the F ourth Amendment to the United States Constitution and article I , section 7 of the Te nn e sse e Con sti tut ion

pr ote c t in divid ual s fr om u nr e a so na ble se arc he s and

se izur e s. “ Th e ba sic constitutional rule is that a war rantless sear ch or seizure is pre sumed unrea sonable a nd any evidenc e discovere d is s u b

j ec t to suppression.” State v. Da y , 263 S.W .3d 891, 901 (Tenn. 2008) (citing Coolidge v. N ew Ha

mpshire, 403 U.S. 443, 454-55 (1971) ; State v. Br idge s, 963 S.W .2d 487, 490 (Tenn. 1997) ). Two ty

pes of police -citizen encounte rs ar e conside red se izures for constitutional analy sis purposes: “(1) the full-sca le ar rest, which must be suppor ted by probable cause ; [ and] (2)
t h e b ri ef i n v es t i gat o ry

d et en t i o n , wh i ch m u s tb e s u p p o rt edb y

re as o n ab l e s u s p i c i o n o f wr o n gdoing[.]” Da y , 263 S.W .3d at 901 (c itations omi tted). In this case, the D efe ndant does not ar g ue that the po lic e la c ke d r e a so na ble su sp ic ion

to d e ta in h im b e fo re a dmi nis te ri ngthe fi e ld s ob ri e ty te sts or that the time, manne r, or scope of his investig atory detention re ndere d his detention constitutionally

improper. The Def

endant a lso does not argue that his arr est was illeg al. See Te nn. Code Ann. § 40-7- 103(a) (6) ( 2006) (pe rmitting, as r elev an t to this case , arr est of drive r “[a]t the

sc e ne of a tr a ff ic a c c ide nt .

. . wh e n, ba se d on pe rs on a l inve sti g a tio n, the of fi c e r ha s p ro ba

ble c a us e to believe that the [driver ] has committ ed an of fen s e under the provisions” of the DUI statute; defe ndant in this case wa s not arre sted at t he accident scene)

. I nstead, the Defe ndant ar g ues only that the po lic e la c ke d p ro ba

ble c a us e to a rr e st h im.

I n D ay , the Te nn e sse e Sup re me Court e xpla ine d th e c on c e pt o f p ro ba ble c a us e a s f oll ow s:

“Probable cause ”— the highe r standard nece ssary to make a full-sca le ar rest—mea

ns more than ba

re suspicion: “Probable cause ex ists wher e ‘the fac ts and circ umstances within [ t h e off

icer s’] knowledg e, and of which they

had re asonably

trustworthy inf or ma tio n, [ar e ] suf

fi c ie nt i n th e mse lve s to wa rr ant a man o f r e a so na

ble c a uti on in the belief that’ an of

fense has been o r i s being committed.” B rineg ar v. U nited States, 338 U.S. 160, 175-76 (1949) ( quoting Car roll v. United States, 267 U.S. 132, 16 2 ( 19 25 )) . “ Th is d e te rm inatio n d e pe nd s u po n ‘w he the r a t that mom e nt t he fa c ts

and c ir c ums tanc e s w ith in [th e o f f i c e rs ’] k no wl e dg e and

of wh ic h th e y

ha d r e a so na

bly trustworthy

information wer e suff

icient to war

rant a prudent man in believingthat the petitioner had committed or was committing an offe nse.’” Goines v. State, 572 S.W .2d 644, 647 (Tenn. 1978) (quoting Be ck v. Ohio, 379 U.S. 89, 91 (1964))

. Day , 263 S.W .3d at 902.

I n the pre sent ca se, the police had proba ble ca use to arr est th e De fe n dant bef ore O ffice r Howar d took the Def

endant to the sc hool for the field sobriety tests. Offic er Ander son testified that when he came to the acc ident scene , he saw the Defenda nt’s truck crashe d ag ainst a tre e in the fr ontT hi s ex hi bi t i s a t wo- page do cumen t ; t he r es ul t s of t he brea t h t es t ar e l i s t ed at t he bo t t om of t he s econd page

. 3 -7- y ard of a house; the t ruck’ s door was open and the engine running

. The officer saw the D efe ndant in the driver’ s seat of his truc k, slumpe d o v er the steeringwhee l. The De fenda nt did not respond to Office r Ande rson’s initial attempts to awaken him; once the Def endant a woke, the of

fice r noted that he had slurr ed speech and the odor of alcohol on his breath. Of fice r Howa

rd testified that be fore he c on du c te d the fi e ld s ob ri e ty te sts , th e De fe nd ant “ a

pp e ar[e d] to have slu

rr e d s pe e c h, wa s “ sli g htl y unsteady on his feet,” and had “ the strong odor of a lcoholic beve rag es” on his person. Such e vidence do e s n ot p re po nd e rate a g a ins t th e tr ia l c ourt ’s de te rm inatio n th a t th e po lic e ha d p ro ba ble c a us e to

arr est the De fenda

nt for driving under the influence

.

The De fen d an t al s o argues that the trial c ourt err ed by deny ing his suppre ssion hearing motion for a re cess to proc ure a DVD play er so that the cou rt could view the r ecor ding of the De fe n d an t ’s field sobriety tests. The De fenda

nt asserts that the DV D “de monstrated a suc cessf ul completion of the tests and that any rea sonable suspicion dissipated.” The S tate does not re spond
to t his argume nt.

Although the Def

endant should have been mor e dilige nt in ensuring th at the prope r equipment for vie wing the DVD was pre sent in the courtr oom at the suppression hea ring , the trial court should have g rante d a re cess to allow the De fe n d ant to acquir e a D VD play er—at the very le a st, the tr ia l c ourt

sh ou ld h a ve vie we d th e re c or din g of the fi e ld s ob ri e ty

te sts before mak ingits decision. Howeve r, afte r viewing the rec ording
, we c onclude that the tr ial court’s f ailure to viewthe DVD at the suppression hea ring did not pr ejudice the Def endant. As Offic er Howar d testified at the suppression hea

ring , there is no sound present on the rec ording
, and the rec ording does not depict the Def endant’ s hands and f

eet. Althoug h the Def

endant’ s “sway

i n g, ” which O ffice r Howa rd

su pp os e dly ob se rv e d d

ur ingthe fi e ld so br ie ty te sts , is no t re a dil y a pp are nt fr om the re c or din g , th is fa c t a lon e do e s n ot p re po nd e rate a g a ins t th e oth e r e vi de nc e su pp or tin g the tr ia l c ourt ’s pr ob a ble

cause deter

mination. W e conc lude that the trial c ourt did not err in denying in pa

rt the De fenda

nt’s
mot ion to s up pr e ss.

I I : Mistrial

During Offic e r

H o war d’s trial testimony , the State moved to admit into evidence an “A lcohol I nf lue nc e Re po rt ” tha

t th e of fi c e r pr e pa

re d c on c e rn ing the De fe nd ant’ s a rr e st. Th e De fe nd a nt d id not object to this ex h i b i t ’s admis sion, and the trial cour t gr anted the State’ s motion. During the jur y ’s de lib e ratio ns , it

su bmi tte d tw o qu est ion s to the tr ia l c ourt . T he fi rs t qu e sti on re a d, in i ts entirety , “leg al limit ? ” and the second r ead, “ broug ht into evidence do w e conside r it even if not verba liz ed in court? ” Responding to the f irst question, the trial court wr ote, “The leg al limit has no rele vance in this case .” The trial court initially stated that it did not understand the sec ond question, but the bailiff informe d the trial cour t that the Alcohol I nfluenc e Report c ontained the r esults of the De fe nd ant’ s b re a th t e st, wh ic h the tr ia l c ourt ha d e xclu de d. Th e tr ia l c ourt ini tia lly state d th a t “ if 3 it’s part of an ex h i b i t t h en , o f course, [the jury ] can consider it. . . . [ I ]t ’s too late. . . . [I ]t ’s y our obligation to object to evidence if it’s not being introduced pr operly .” Def ense counsel stated the trial court’ s assessment wa s“funda mentally unfair to the de fenda

nt” and that counsel did not object-8-

to t he e xhibi t be c a

us e he re lie d u

po n th e State ’s a tto rn e y , who , “a s an of fi c e r of the c ourt

. . . s ho uld have c lear ly

excluded any

thing r elative to t h i s co u rt ’s orde r” be fore proff eringthe exhibit . The State’s attorney insisted that she did not intentionally include the br eath tests re sults in t he prof fer ed

e xhibi t.

The De fenda

nt then moved for a

mistrial, which the trial cour t denied. The trial court issued the following curative instruction: “You ar e not to consider a ny part of a n exhibi t re gar d i n g an intox imeter or r esults thereof .” On appeal, t he Defenda nt argues that the trial c ourt’s re fusal to g rant a mistrial constituted reve rsible err or, while the State counter s that the trial court’s issuing a c urative instruction remedie d any

potential prejudice

.

B e fo re a dd

re ssi ngthe tr ia l c ourt ’s de nia l of the De fe nd ant’ s mo tio n f or a mis tr ia l, w e mus t consider the issue of wa iver. The rec ord re flec ts that the document conta ining the blood- alc o hol level wa s admitted into evidence without objection. Failure to raise a conte mporane ous objection typically results in a waiver of the issue on appe al. Tenn. R. App. P. 36(a ) ; See also State v. Smith, 24 S.W .3d 274, 280 (Tenn. 2000)

. Thus, the Def endant is limited to plain error r eview of this iss ue. Te nn e sse e Rul e s o f A

pp e llate Pr oc e dure 36 (b ) p ro vid e s f or pla in e rr or

re vie w a s f

oll ow s:

When nece ssary

to do substantial justice, a n appellate court may

consider a

n err or that has

a ff e c te d th e su

bs tanti a l r ig hts of

a pa rt y a t any tim e , ev e n thou g h th e e rr or wa s n ot r a ise d in the mot ion

fo r a ne w tri a l or

a ssi g ne d a s e rr or

on a pp e a l.

Our supre me cour

t has adopted the fac tors develope d by this c ourt to be consider ed whe n deciding “‘w hether an er ror c onstitut es “ p l ai n er ro r’” in the absenc e of a n objection at trial: ‘( a) the rec ord

mus t c le arl y

e sta bli shwh a t oc c ur

re d in the tr ia l c ourt ; ( b) a

c le ar a nd un e qu ivo c a l ru le of

law mus t have be en bre ache d; (c) a substantial r ight of the acc used must have been adver sely aff ecte d; (d) the

acc used did not waive the issue for tac tical re asons; and (e ) consideration of the er ror is nec essar

y to do substantial justi ce.’ ” Smith, 24 S .W.3d at 282 (quoting State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). I n order for this court to re verse the judg ment of a tria l court, the

err or must be “of such a g reat mag nitude that it probably chang ed the outcome of the [proce eding s],” and “r ecog nition shoul d be limited to err ors that had an unfair prejudicia l impac t w hich under mined the fundamental fa irness of the tr ial.” Adkisson, 899 S.W.2d at 642.

Th e re c or d c le arl y

e sta bli sh e d w hat occ ur

re d in the tr ia l court

. A cl e ar an d une qu ivo c a l r ule of law w as brea ched w hen the doc ument was e ntere d into evidence afte r the trial c ourt ruled that the document wa s inadmissibl e. The exchang e betwe en the tria l court and counsel for the Def endant shows that the failure to obje ct was not a ta ctical de cision. The trial c ourt had a lrea dy deter mined that th e br e a tha ly

zer te st re su lts we re ina dmi ssi ble and ha d so ru le d. Th e a dmi ssi on of the re su lts

c on tr ary to t he e arl ie r ru lin g vio la te d the De fe nd ant’ s ri g ht to an imp art ia l de te rm inatio n of his g uil t or innoce nce a

nd consideration of the err or is nece ssary to do substantial justice

. The a dmission of the suppresse d evidenc e, a doc ument stating that the Def endant’ s blood-alcohol level was twice the l e g a l l i m i t , w a s p l a i ne r

r o r w h i c h r e s u l t e d i n a m an i f e s t n e c e s s i t y t o d e c l ar e a

m i s t r i a l

. A c c o r d i n g l y,

we c onclude that a dmission of the test r esults “ preve nt[ ed] a n impartial verdic t from beingrea ched.” Ar no ld v . St a te , 5 63 S.W. 2d 79 2, 79 4 ( Te nn . Cr im. Ap p. 19 77 ). Th e re fo re , w he n th e e rr or c a me to-9-

the trial cour

t’s attention, the Def

endant’ s motion for a mistrial should have bee n g rante d, and the failure to gr ant the motion was an a buse of the tr ial court’s discr etion. See State v. Reid, 91 S.W.3d 247, 279 (Tenn. 2002) ; State v. Adkins, 786 S.W .2d 642, 644 (Tenn. 1990)

.

CONCLUSION

Upon consider ation of the for egoing and the r ecor d as a whole, the judgment of the trial court is r e ve rs e d. Th e c a se is r e ma nd e d f or a ne w t ri a l.

_______

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _____ D. KELLY THOMAS, JR., JUDGE

.