IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

September 19, 2017 Session

STATE OF TENNESSEE v. KEVIN ALLEN FLEMING

Appeal from the Criminal Court for Campbell County

No. 16-654 E. Shayne Sexton, Judge

No. E2016-01746-CCA-R3-CD

_____________________________

After a 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.

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

and Remanded

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which NORMA 

MCGEE OGLE and TIMOTHY L. EASTER, JJ., joined.

James A.H. Bell (at trial), Knoxville, Tennessee, and Jessica M. Van Dyke (on appeal), 

Nashville, Tennessee, for the appellant, Kevin Allen Fleming.

03/22/2018
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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.

OPINION

I. Facts

This 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. 

A. Motion to Suppress

Officers 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 accident.

At a 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.

Mr. 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. 

Mr. Tipton noted that the Defendant suffered injuries during the car accident, 
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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 the Defendant. 

During 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 vehicle collapsed.

Mr. 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.

Mr. 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.

Mr. 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.

During 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. 

Officer Joe Brown, with the THP, testified that he responded to the accident scene. 
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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.

During 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 bloodshot eyes.

Officer 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 citations.

Randy 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 morning.

Trooper 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. 
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During 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. 

Trooper 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.

Bobby 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. 

During cross-examination, Trooper Smith testified that he knew that night that 

Trooper Deadrick had requested a blood draw earlier that night from the Defendant. 

Melissa 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. 

During 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. 

During redirect examination, Ms. Fleming testified that her husband was on 

Hydrocodone for chronic back pain.
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Based upon this evidence, the trial court denied the Defendant’s motion to 

suppress. 

B. Trial

The 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. 

Mr. 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 Hydrocodone. 

Mr. Tipton identified a photograph of the truck involved in the accident, and he 

noted that the roof had been extricated off the truck.

During 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.

Joe 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 
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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 roadway.

Trooper 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. 

During 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.

Randy 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. 

Trooper 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. 
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During 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. 

Regina 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. 

At this 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. 

Agent 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. 

During 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. 

Stephanie 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 
9

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. 

During 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.

Gary 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 brokendown 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.

Mr. 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 accident.

Mr. 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.

During 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. 

James Fillers, a trooper with the THP, testified as an expert in accident 
10

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. 

During cross-examination, Trooper Fillers testified that the posted speed limit of 

the roadway was thirty-five miles per hour.

Dr. Darinka Mileusnic-Polchan, the chief medical examiner for Knox and 

Anderson Counties, testified as an expert about the deaths in this case. She said her 

office performed a full autopsy on the body of Charles Morris because his death occurred 

shortly after the accident. Her office also performed a postmortem examination, without 

a full autopsy, on the bodies of Carl Daugherty and Darrell Carroll based upon their 

relative prolonged survival period. 

Dr. Mileusnic-Polchan testified about the examination of Carl Daugherty. She 

said that his body arrived at her office three weeks after the accident. She said that her 

office received the medical records from the hospitals that treated Mr. Daugherty 

between the time of the accident and his death. Based on those records and the fact that 

his injuries were well documented during his hospitalization, a complete autopsy on the 

body of Mr. Daugherty, who died on August 13, 2014, was unnecessary. She said that 

the examination that they did perform, demonstrated some “residual trauma.” Mr. 

Daugherty suffered broken bones, pelvic fractures, femoral fractures, a ruptured 

diaphragm, bleeding internal organs, a “splenic” rupture, and lung complications from an 

extended hospitalization. He eventually died primarily of pneumonia in his injured lungs. 

These injuries were consistent with a high speed motor crash. Dr. Mileusnic-Polchan

identified photographs that her office took of Mr. Daughtery’s body. Dr. MileusnicPolchan noted that the bilateral extensive fractures to Mr. Daughtery’s pelvis were caused 

by “high velocity force.” Dr. Mileusnic-Polchan declared that Mr. Daugherty’s cause of 

death was multiple blunt force injuries from the automobile crash. 

Dr. Mileusnic-Polchan then discussed Darrell Carroll’s injuries. She said that he 

died sixteen days after the accident. In the interim between the crash and his death, UT

Medical Center treated Mr. Carroll’s injuries. Dr. Mileusnic-Polchan said her office 

accessed the medical center’s records, including Mr. Carroll’s x-rays and CT scans. Dr. 

Mileusnic-Polchan recalled that Mr. Carroll suffered extensive internal and external 

trauma, much like Mr. Daughtery. He also suffered “overwhelming” head trauma, which 

was the “main kind of mechanism” behind his death. Dr. Mileusnic-Polchan described 

the head trauma and identified photographs of Mr. Carroll’s body. 
11

Dr. Muleusnic described Mr. Morris’s injuries, saying that he died within four 

hours of the accident. She said that an autopsy was necessary because of the short period 

of time Mr. Morris survived. During her examination, she discovered that Mr. Morris 

suffered multiple face fractures, skeletal trauma, chest injuries and trauma, contusions 

and bruising on his lungs, tearing of his liver, and a spleen laceration. His main 

mechanism of death was internal bleeding in his abdomen from his liver and spleen 

injuries. Dr. Mileusnic-Polchan identified photographs of Mr. Morris’s body.

During cross-examination, Dr. Mileusnic-Polchan agreed that some of the injuries 

suffered by the three men could have been a result of being ejected from the vehicle.

Dr. Gregory James Davis, who was employed by the University of Kentucky 

College of Medicine, testified as an expert in the field of forensic chemistry and 

toxicology. He said that after a person consumed alcohol, that person would reach a peak 

of absorption in twenty to forty-five minutes. One drink would cause an average male, 

non-heavy drinker, to peak at about .02 blood alcohol content, and the average male will 

get rid of that amount of alcohol in their blood in about an hour. Dr. Davis discussed the 

formula for determining the Defendant’s blood alcohol content (“BAC”) at the time of 

the accident, extrapolating the time between the accident and the blood test.

Dr. Davis then testified that he assisted the TBI in examining the Defendant’s 

BAC. He said that the Defendant’s BAC at the time of testing, 9:45 p.m., was .07 

percent. The time of the accident was 7:15 p.m. Dr. Davis testified that, assuming that 

the Defendant’s last alcohol consumption was twenty to forty-five minutes or more 

before the collision, and his body absorbed alcohol at a standard, non-heavy drinker 

amount, his BAC at the time of the collision would have been between .108 percent and 

.12 percent. If he qualified as a heavy drinker, his BAC at the time of the accident would 

have been .145 percent to .17 percent. Dr. Davis discussed how this BAC would have 

affected the Defendant’s reaction time, concentration, and judgment. Dr. Davis agreed 

that the TBI report also showed that the Defendant had consumed cocaine at the same 

time as alcohol. Dr. Davis discussed the effects of cocaine, including that it was a 

stimulant, kept adrenalin impacting one’s nerves, and could cause aggressive and bizarre 

behavior. Dr. Davis discussed that the Defendant also had consumed Hydrocodone, and 

the effects of Hydrocodone on one’s body. 

During cross-examination, Dr. Davis testified that he and Dr. Mileusnic-Polchan

had had professional disagreements about their respective findings. Dr. Davis agreed 

that, in one case, his testimony was excluded, but he explained that it was excluded based 

upon the fact that the parties could not agree about the time that the collision occurred, 

making his testimony not relevant. Dr. Davis agreed that men of different weights would 
12

absorb alcohol at a different rate.

Bobby Smith, an officer with the Department of Safety who responded to this 

accident, testified on behalf of the Defendant that, after he went to the accident scene, he 

went to the hospital where the Defendant was being treated. He said that the Defendant’s 

injuries seemed to be severe enough that he could not be interviewed at that time. During 

cross-examination, Officer Smith testified that the Defendant was not in the “trauma bay” 

for seriously injured patients at the time that the officer arrived at the hospital but instead 

he was in a small room where he was allowed to have visitors. Officer Smith also said 

that his conversation with the Defendant would have centered around the circumstances 

of the accident and would have taken longer than asking him to submit for a blood test.

Jimmy Taylor testified that he saw the Defendant between 4:30 and 4:45 p.m. the 

day of the accident. Two other men and the Defendant’s dog accompanied the Defendant 

to the tire store where Mr. Taylor was working. The Defendant asked about a set of tires, 

and Mr. Taylor showed him some but informed him that he would not have time to 

change the tires, as the shop closed at 5:00 p.m. Mr. Taylor said that he did not smell 

alcohol on the Defendant and that the Defendant appeared sober.

During cross-examination, Mr. Taylor testified that he had known the Defendant 

for approximately two and a half years and had never known the Defendant to drink and 

drive. He said he did not think it was possible that the Defendant consumed alcohol after 

he left but before the accident. Mr. Taylor said he was surprised that the Defendant had a 

BAC of .07 at 9:45 p.m. that night and was also surprised that his blood tested positive 

for cocaine, saying that he had never known the Defendant to use drugs. 

Dustin Daugherty, the son of one of the men killed in the accident, testified that he 

saw the Defendant shortly before this accident. He said that the Defendant’s eyes did not 

appear bloodshot and that he did not smell alcohol on him. During cross-examination, 

Mr. Daugherty said he was not surprised that the Defendant, whom he had known for 

three years, had alcohol and cocaine in his system.

Jamie Lawson testified that she saw the Defendant driving his truck with three 

passengers at around 6:30 p.m. on the day of the accident. The Defendant was at her 

home talking to her husband when she came home from work. She said that none of the 

men appeared intoxicated or smelled of alcohol. Ms. Lawson said that she went upstairs 

to change her shoes, and that she heard the Defendant leave in his truck. She learned that 

there had been an accident between fifteen and twenty minutes later.

During cross-examination, Ms. Lawson testified that the road near her home 

where this accident occurred was a narrow, mainly one-lane road with ditches on either 
13

side. She said that she did not drive fast on the road.

Keith Delong testified that the Defendant, whom he had known for twelve years, 

was hired by his company to frame a house for him. Two of the men who died in the 

accident also worked with the Defendant. The men usually arrived at day break and left 

at around 3:30 for the day. Mr. Delong said that the Defendant always had his dog with 

him and that he had worked the day of this accident and appeared sober. 

During cross-examination, Mr. Delong agreed that he was unsure whether the 

Defendant consumed alcohol or drugs after he left the work site.

Melissa Fleming, the Defendant’s wife, testified that the two had a ten-year-old 

daughter together. Ms. Fleming taught first grade at a local elementary school, and the 

Defendant worked in construction. Ms. Fleming recalled that, a few days before this 

accident, she and the Defendant had purchased a truck from her father. The day of the 

accident, the Defendant awoke around 5:00 a.m. and took the family’s dog with him to 

work. Ms. Fleming said she spoke with the Defendant throughout the day because they 

were discussing that their daughter did not feel well and that they needed to make 

arrangements to go to her father’s house that evening or the next evening. Ms. Fleming 

said that the Defendant did not sound like he had used drugs or drank alcohol that day.

Ms. Fleming said that the men who died in the accident were like brothers to her 

husband. She worked with one of their wives, and all of their families were close. 

Ms. Fleming described the events at the hospital. She said that there was a trooper 

in the Defendant’s room when she arrived. She said that, when she approached the 

Defendant, she could not smell alcohol and smelled only blood. Ms. Fleming recalled the 

Defendant’s injuries when she saw him, saying that his eye was cut and that he was 

having trouble moving and there were cuts and glass all over him. Ms. Fleming recalled 

three troopers coming into the room later. 

During cross-examination, Ms. Fleming testified that she and the Defendant took 

their daughter to the beach a few weeks after the accident. She said that they had planned 

the trip before the accident and did not want to “lose all [their] money” by not going. She 

said, however, the Defendant was not completely well. She agreed that they went to 

Disney World during their trip. 

Ms. Fleming said that the Defendant often drank one or two beers a day but that 

she never saw him drunk. She said that she had never seen him use cocaine in their 

fourteen-year relationship. She said she was “truly surprised” by the blood test results. 

She said that when the two spoke on the phone that day, the Defendant gave no indication 
14

that he was impaired by either drugs or alcohol. 

Ms. Fleming said that when she was at the hospital with the Defendant, he was 

able to speak with her coherently from “time to time.” The Defendant told her that 

something had darted out in front of him and that he had tried to not hit it. He told her 

that his wheels went off the side of the road and then back onto the roadway and that the 

rest was a blur. Ms. Fleming agreed that she did not mention the animal during her 

testimony at the preliminary hearing. 

At this point in the bifurcated trial, the jury convicted the Defendant of one count 

of DUI and three counts of vehicular homicide.

The State then presented evidence in the second phase of the trial. Michael 

Heatherly, a trooper with the THP, testified and identified certified copies of the 

Defendant’s three prior DUI convictions. The jury deliberated again and convicted the 

Defendant of DUI, fourth offense, and three counts of aggravated vehicular homicide. 

C. Sentencing

At the sentencing hearing, the State presented a number of victim impact 

statements from the victims’ family members, some of whom asked for mercy for the 

Defendant who was their family friend. The Defendant called Bertha Hatmaker, Mr. 

Daugherty’s sister, who described their close relationship. She said that she did not 

believe that speed was a factor in the accident, opining that Mr. Daugherty would have 

spoken up if the Defendant was driving too fast. She asked that the court be lenient on 

the Defendant. Christy Carroll, Mr. Carroll’s wife, testified that the two had been 

married eighteen years at the time of his death and that they had a fourteen-year-old son 

together. She described the pain of losing her husband. Kaley Morris, Mr. Morris’s 

daughter, described the sorrow of losing her father.

Tonya Monday testified that Mr. Carroll was her full brother and that Mr. Morris 

was her half-brother. She said that she and Mr. Morris did not have a relationship. Ms. 

Monday said that she watched Mr. Carroll struggle with drugs almost his entire life. She 

said she knew that the Defendant did not intend to hurt Mr. Carroll and that Mr. Carroll 

had prior DUI convictions himself and it could have been him driving. She said that she 

had never seen Mr. Carroll wear a seat belt and had seen him refuse to wear a seat belt. 

Ms. Monday said that Mr. Carroll would have wanted the Defendant to have a short 

prison sentence so that he could be there for the Defendant’s young daughter. Ms. 

Monday said that the four men in the truck at the time of the accident were very close 

friends and that she was confident that Mr. Carroll would want the Defendant not to be 

punished for his actions that day.
15

During cross-examination, Ms. Monday agreed that not all members of her family 

shared her sentiments toward the Defendant. She said that both she and Mr. Carroll were 

aware of the Defendant’s prior criminal history. Ms. Monday said that the last time she 

saw Mr. Carroll, he told her that when he turned forty the following year he was going to 

straighten up and change his life. She told him that he may not get that chance.

James Phillips, the Defendant’s brother, testified that the Defendant had suffered a 

troubled childhood and was abused as a child both physically and verbally. The 

Defendant was forced to drink alcohol as early as eight or nine years old. Mr. Phillips 

said that he and the Defendant shared a mother but had different fathers. He described 

their mother as having “impairments” since her birth because she had been restricted of

oxygen while being born. Mr. Phillips said that the Defendant was his older brother and 

that, once Mr. Phillips was born, Mr. Phillips’s father “ostracized” the Defendant. Mr. 

Phillips said that his father spent much of his time in a bar and getting liquor and that 

they often went without heat and food. Mr. Phillips said that, as the Defendant aged, Mr. 

Phillips’s father forced him to drink alcohol, saying that it would make him stronger as a 

man. Mr. Phillips said that the boys were poor and often teased based on their socioeconomic status. He described the Defendant as often standing up for them. 

Mr. Phillips said that the boys were taken into custody when their mother was 

hospitalized because they were living in a trailer with no food or heat. He said that the 

Defendant was placed with relatives but was often homeless with no place to spend the 

night. The Defendant dropped out of school early. Mr. Phillips said that the Defendant 

got married and had two children. The marriage was “tumultuous.” His wife died and 

his son overdosed on drugs. The Defendant became estranged from his daughter. 

Mr. Phillips said that the Defendant then met his second wife, Melissa. Mr. 

Phillips said that he began seeing positive changes in his brother, based on his love and 

respect for his wife. Mr. Phillips said that the Defendant sometimes relapsed and began 

using alcohol, such as in moments of family crisis, but that he would go long periods of 

time without using alcohol. The Defendant and Melissa had a daughter together, who 

was nine or ten years old at the time of sentencing. Mr. Phillips described the Defendant 

as being careful not to drink or curse around his daughter. Mr. Phillips said that the 

Defendant had not had a DUI arrest in ten years and that he had been trying to put all of 

that behind him.

Mr. Phillips described how the Defendant built a construction company through 

force and will. He said that the Defendant’s friends who died in the accident were like 

his family. Mr. Phillips said that the Defendant repeatedly asked about the health of his 

friends after the accident and attempted to go and find them in the hospital. When he 
16

learned of their death, “he broke down.” Mr. Phillips said that he had never seen the 

Defendant so “broken” and “shattered” as after he learned the fate of his friends. The 

Defendant had, since the accident, repeatedly expressed his desire to trade places with his 

friends.

Mr. Phillips said that, after the accident, the Defendant completely turned his life 

around. He was baptized, and religion and his family became his focus. Mr. Phillips said 

the Defendant was never malicious in his wrongdoings but that his actions were a 

misguided attempt to deal with his pain. Mr. Phillips described his brother as sincere, 

honest, and giving. Mr. Phillips recounted how, after the Defendant’s arrest, men came 

and helped Mr. Phillips clean up the Defendant’s job site and tools, and each one refused 

payment, offering a story of how the Defendant had helped them when no one else 

would. Mr. Phillips asked for leniency for the Defendant. 

During cross-examination, Mr. Phillips said that, while he lived 500 miles away, 

he and the Defendant had spoken about alcohol treatment, as they both had issues with 

alcohol. Mr. Phillips agreed that the Defendant received some of his criminal convictions 

after his marriage to his second wife. He said that the Defendant was a strong man and 

was used to people coming to him for help, so he was likely to not want to seek help 

himself.

The Defendant’s pastor, David Seals, testified that he met the Defendant after the 

car accident. He said that the Defendant’s wife had attended the church on a few 

occasions but that she was not a member. Church members heard about the car accident 

while at church one day and then learned that there had been deaths. Pastor Seals said 

that, after the accident, the Defendant was invited to a men’s retreat. Pastor Seals 

arranged for the Defendant and him to share a room. The two had private conversations, 

where Pastor Seals learned that the Defendant was “brokenhearted, very remorseful of 

the things that had happened, [and] wanting very much . . . to make a difference in his life 

. . . .” 

Pastor Seals said that he and the Defendant had become close and that the 

Defendant was a “very generous” and “loving” man. He described the Defendant as an 

asset to their church. 

During cross-examination, Pastor Seals expressed his opinion that the Defendant 

may not have had cocaine in his blood based upon a recreational use but perhaps from a 

medical use.

The parties then discussed the possible range of punishment, with the minimum 

being fifteen years and the maximum being seventy-seven years of incarceration. The 
17

State then provided the trial court with copies of eighteen prior convictions for the 

Defendant, contending that these convictions supported the application of enhancement 

factor (1), that the Defendant had a previous history of criminal convictions in addition to 

those necessary to establish his range. See T.C.A. 40-35-114(1). The State further 

contended that a second enhancement factor was applicable, namely that the Defendant 

failed to comply with the conditions of a sentence involving release into the community. 

See T.C.A. § 40-35-114(8). The State finally argued that the trial court should run the 

Defendant’s sentences consecutively based upon the Defendant’s extensive criminal 

history and because he was a dangerous offender.

The trial court sentenced the Defendant to two years for the DUI, fourth offense 

conviction and to twenty years, as a Range I offender, for each of the three aggravated 

vehicular homicide convictions. The trial court then ordered that two of the vehicular 

homicide convictions run consecutively and that the third run concurrently with the other 

sentences. It further ordered that the sentence for the DUI conviction run consecutively 

to the other sentences, for a total effective sentence of forty-two years of incarceration. 

At the motion for new trial hearing, the parties agreed that the Defendant’s DUI, fourth 

offense conviction, should merge with one of his convictions for aggravated vehicular 

homicide, reducing the Defendant’s sentence to forty years. The record does not contain 

amended judgments reflecting this finding.

II. Analysis

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 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 conviction; and (9) the cumulative errors by the 

court constitute reversible error.

A. Motion to Suppress

The Defendant contends that the trial court erred when it denied his motion to 

suppress evidence obtained as a result of hospital personnel drawing his blood. 

Specifically, he asserts that he did not and could not have consented to having his blood 

drawn because of his injuries. He further asserts that any “mandatory” blood draw 

without a warrant was unconstitutional. The State counters that the evidence supports the 
18

trial court’s finding that the Defendant consented to the blood draw.

After the motion to suppress hearing, the trial court made the following findings in 

denying the Defendant’s motion:

[T]he Court must decide whether or not the blood testing results 

could come in based on how the blood was collected. The State has offered 

evidence that the [D]efendant was exposed to medical treatment, have 

offered proof from the EMT, also law enforcement . . . officers that were in 

and around the [D]efendant at the time that the blood was collected. The 

Defense has offered a state trooper who worked at the scene of the crime 

and also the wife of the [D]efendant.

The Court’s analysis is as follows: The question in many ways is 

taken away from the implied consent issue. As I see this, the question is 

simply, . . . was the [D]efendant able to make a straight consent to the 

blood draw. The State spoke of a case that was tried in this Court that’s 

very similar in the nature of how the blood was collected, and thankfully in 

that case, the Appellate Court’s upheld what we did in this Court. The 

question . . . as I see it is, was the [D]efendant able to consent to the officer 

asking for the blood draw, and in my opinion based on the proof that I 

heard, he was. The EMT rated him a 15 out of 15. [A]nd I know this is an 

evolving issue, this . . . can take different shapes as it goes, but there was no 

proof before this Court even offered from the [D]efendant’s wife who, in 

my mind, . . . testified very candidly as to her observations of her husband. 

She also talked and . . . discounted any knowledge of what her husband 

may have said to the drawing officer. She just frankly said whatever he 

said, he said. I find that there is no credible proof that the [D]efendant was 

unable to consent to this blood draw . . . and I’m not even go[ing] to get 

into the mandatory checking. Frankly, the officer’s characterization of why 

blood was taken or any search is irrelevant if it finds its way in through 

some other exception to a search warrant rule so, . . . that is an issue that I 

am not forced to address. So I’m finding that based on the [D]efendant’s 

consent to the drawing officer, . . . [O]fficer Deadrick, [the Defendant’s 

blood] was lawfully taken and [the results of the blood test] will be 

admissible at this trial.

When this Court reviews a trial court’s ruling on a motion to suppress, 

“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and 

resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier 
19

of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The party prevailing at the 

suppression hearing is afforded the “strongest legitimate view of the evidence and all 

reasonable and legitimate inferences that may be drawn from that evidence.” State v. 

Keith, 978 S.W.2d 861, 864 (Tenn. 1998). The findings of a trial court in a suppression 

hearing are upheld unless the evidence preponderates against those findings. See id.

However, the application of the law to the facts found by the trial court is a question of 

law and is reviewed de novo. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. 

Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d 626, 629 

(Tenn. 1997).

The Fourth Amendment to the United States Constitution protects against 

unreasonable searches and seizures, and “‘article 1, section 7 [of the Tennessee 

Constitution] is identical in intent and purpose with the Fourth Amendment.’” State v. 

Downey, 945 S.W.2d 102, 106 (Tenn. 1997) (quoting Sneed v. State, 423 S.W.2d 857, 

860 (Tenn. 1968)). A blood draw conducted by law enforcement for use as evidence in a 

criminal investigation constitutes a search subject to constitutional protection. Missouri 

v. McNeely, 569 U.S. 141, 148 (2013); Schmerber v. California, 384 U.S. 757, 769-70 

(1966). “[A] warrantless search or seizure is presumed unreasonable, and evidence 

discovered as a result thereof is subject to suppression unless the State demonstrates that 

the search or seizure was conducted pursuant to one of the narrowly defined exceptions to 

the warrant requirement.” Yeargan, 958 S.W.2d at 629 (citing Coolidge v. New 

Hampshire, 403 U.S. 443, 454-55 (1971)). Evidence discovered as a result of a 

warrantless search or seizure is subject to suppression unless the State establishes that the 

search or seizure was conducted pursuant to one of the narrowly defined exceptions to the 

warrant requirement. State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000).

Consent is one of the recognized exceptions to the warrant requirement. 

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). In order to be valid, actual 

consent must be “‘unequivocal, specific, intelligently given, and uncontaminated by 

duress or coercion.’” State v. Ingram, 331 S.W.3d 746, 760 (Tenn. 2011) (quoting State 

v. Berrios, 235 S.W.3d 99, 109 (Tenn. 2007)). “Whether an individual voluntarily 

consents to a search is a question of fact to be determined from the totality of the 

circumstances.” Berrios, 235 S.W.3d at 109. “The pertinent question is . . . whether the 

[individual’s] act of consent is the product of an essentially free and unconstrained 

choice. If the [individual’s] will was overborne and his or her capacity for selfdetermination critically impaired, due process is offended.” State v. Cox, 171 S.W.3d 

174, 185 (Tenn. 2005) (citing Schneckloth, 412 U.S. at 225-26). Factors to be considered 

when evaluating the voluntariness of consent include the time and place of the encounter; 

whether the encounter was in a public or secluded place; the number of officers present; 

the degree of hostility; whether weapons were displayed; whether consent was requested; 
20

and whether the consenter initiated contact with the police. Id. The State bears the 

burden of proving that the consent was freely and voluntarily given. State v. Blackwood, 

713 S.W.2d 677, 680 (Tenn. Crim. App. 1986).

In accordance with our standard of review, we review the evidence before us by 

providing the State the strongest legitimate view of the evidence and all inferences drawn 

from the evidence. We further defer to the trial court’s factual findings. Based upon the

trial court’s ruling, it inherently found that Officer Deadrick was a credible witness. We 

disagree with the Defendant that the evidence preponderates against the trial court’s 

finding that Officer Deadrick was a credible witness. Courts of this state have repeatedly 

held that a trial court’s denial of a defendant’s motion to suppress “resolves all credibility 

issues against the defendant.” State v. O’Guinn, 709 S.W.2d 561, 565 (Tenn. 1986). 

The evidence presented regarding the suppression issue included that Mr. Tipton, 

the EMT who responded to the accident scene and attended to the Defendant’s injuries, 

found the Defendant coherent. 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. The Defendant repeatedly asked about the welfare of his dog, and the 

Defendant’s dog was in fact in the truck at the time of the accident. Mr. Tipton gave the 

Defendant a GCS score of fifteen out of fifteen. Mr. Tipton described someone who 

received a fifteen on the scale as “alert and oriented.” At the scene, Officer Brown 

approached the Defendant and asked him what had happened. The Defendant told the 

officer that he lost control of his truck as he attempted to pass a car. Officer Brown 

ended the conversation, not wanting to get in the way of medical personnel. At the 

hospital, Officer Deadrick found the Defendant in the emergency room. He spoke with 

the Defendant, who informed him that a cow had caused the accident, that he had taken 

Hydrocodone that morning, and that he had consumed “a couple” of alcoholic drinks at a 

bar before the accident. The Defendant appeared “alert” to the officer. The officer asked 

the Defendant if he would consent to a blood test, and the Defendant said yes. The 

Defendant’s wife described his state in the hospital, saying that at times he appeared lucid 

and at other times he seemed to drift out of consciousness. 

Because of the trial court’s ruling and our standard of review, to afford the 

Defendant relief on this issue, this Court would have to conclude that the trial court erred

when it accredited Officer Deadrick’s testimony that the Defendant consented to a blood 

draw. The evidence presented at the suppression hearing and the trial does not support 

that conclusion. We conclude that the evidence does not preponderate against the trial 

court’s finding that the Defendant had the capacity to consent and that he did in fact 

consent to the blood draw. This renders moot whether the State had probable cause to 
21

order the Defendant’s blood drawn.

The Defendant specifically contends that, at the time of the accident, he suffered 

“severe head trauma and was bleeding profusely, even blowing blood from his airway.” 

There was some evidence that the Defendant hit his head and that he was bleeding from 

his eye and mouth areas. The testimony from the EMT and the officer at the scene, 

however, was that the Defendant was alert and oriented, knew what had happened and 

where he was located, was able to describe his activities before the accident, asked about 

his dog that was in fact with him at the time of the accident, informed responders of his 

lack of allergies and the medicines he was currently taking. The Defendant’s wife 

described him at the hospital as intermittently coherent and able to respond appropriately. 

As previously stated, the findings of a trial court in a suppression hearing are upheld 

unless the evidence preponderates against those findings. In this case, the evidence does 

not preponderate against the trial court’s finding.

B. Chain of Custody

The Defendant next contends that the trial court erred when it admitted the results 

from the blood draw because the evidence was not authenticated and because the chain of 

custody was not established. He asserts that the State did not prove that the contents of 

the blood sample were what they were purported to be because the person who drew the 

blood did not testify. The State counters that it had proved chain of custody because 

Trooper Deadrick was in the room when the blood was drawn and testified that he sealed 

the kit himself with the blood inside before delivering it to the lab. Dr. Aksanov then 

testified about the procedures her lab undertakes when receiving this type of evidence, 

thereby sufficiently establishing the chain of custody.

We review challenges to the chain of custody of evidence under the abuse of 

discretion standard. State v. Cannon, 254 S.W.3d 287, 294 (Tenn. 2008) (citing State v. 

Scott, 33 S.W.3d 746, 752 (Tenn. 2000) and State v. Beech, 744 S.W.2d 585, 587 (Tenn.

Crim. App. 1987)). Under this standard, we will not reverse unless the trial court 

“‘applied an incorrect legal standard, or reached a decision which is against logic or 

reasoning that caused an injustice to the party complaining.’” Id. (citations omitted). 

Tennessee Rule of Evidence 901(a) provides: “[t]he requirement of authentication 

or identification as a condition precedent to admissibility is satisfied by evidence 

sufficient to the court to support a finding by the trier of fact that the matter in question is 

what its proponent claims.” It is “‘well-established that as a condition precedent to the 

introduction of tangible evidence, a witness must be able to identify the evidence or 

establish an unbroken chain of custody.’” Scott, 33 S.W.3d at 760 (quoting State v. 

Holbrooks, 983 S.W.2d 697, 700 (Tenn. Crim. App. 1998)). This evidentiary rule is 
22

designed to insure “that there has been no tampering, loss, substitution, or mistake with 

respect to the evidence.” Id. (quoting State v. Braden, 867 S.W.2d 750, 759 (Tenn. Crim.

App. 1993)).

Professor Neil Cohen and his colleagues have aptly summarized the rule:

The concept of a “chain” of custody recognizes that real evidence 

may be handled by more than one person between the time it is obtained 

and the time it is either introduced into evidence or subjected to scientific 

analysis. Obviously, any of these persons might have the opportunity to 

tamper with, confuse, misplace, damage, substitute, lose and replace, or 

otherwise alter the evidence or to observe another doing so. Each person 

who has custody or control of the evidence during this time is a “link” in 

the chain of custody. In theory at least, testimony from each link is needed 

to verify the authenticity of the evidence and to show that it is what it 

purports to be. Each link in the chain testifies about when, where, and how 

possession or control of the evidence was obtained; its condition upon 

receipt; where the item was kept; how it was safeguarded, if at all; any 

changes in its condition during possession; and when, where and how it left 

the witness’s possession.

Neil P. Cohen et al., Tennessee Law of Evidence § 9.01[13][c] (5th ed. 2005) (footnotes 

omitted). 

Each link in the chain of custody “should be sufficiently established,” but the rule 

“does not require that the identity of tangible evidence be proven beyond all possible 

doubt; nor should the State be required to establish facts which exclude every possibility 

of tampering.” Cannon, 254 S.W.3d at 296 (citing Scott, 33 S.W.3d at 760). To that end, 

the State is not required “to call all of the witnesses who handled the item.” Id. Rather, 

“when the facts and circumstances that surround tangible evidence reasonably establish 

the identity and integrity of the evidence, the trial court should admit the item into 

evidence.” Id. On the other hand, if the State fails to offer sufficient proof of the chain 

of custody, the “evidence should not be admitted . . . unless both identity and integrity 

can be demonstrated by other appropriate means.” Scott, 33 S.W.3d at 760 (quoting 

Cohen et. al., Tennessee Law of Evidence § 901.12, at 624 (3d ed. 1995)).

The facts of this case are similar to three prior decisions of this court. In State v.

Earnest Laning, this court held that there was “a sufficient chain of custody to reasonably 

assure the blood sample’s identity and integrity” when the officer received the sample 

from a phlebotomist, the officer then placed the sample in a “locked evidence 

refrigerator” where it could only be removed by the evidence custodian but did not know 
23

if the sample was mailed or hand-delivered to the TBI, the testing TBI agent testified that 

the sample was retrieved from the TBI’s drop box, the TBI agent explained that the 

sample was received by an evidence technician who opened the package and “would 

have noted in the case file if someone had tampered with the box,” and the TBI agent 

testified that the blood tube was still vacuum-sealed when she opened it. State v. Earnest 

Laning, No. E2011-01882-CCA-R3-CD, 2012 WL 3158782, at *3 (Tenn. Crim. App., at 

Knoxville, Aug. 6, 2012), no Tenn. R. App. P. 11 application filed.

Likewise, in State v. Michael Joseph Arbuckle, a panel of this court held that “the 

State established the identity and integrity of the evidence through a sufficient chain of 

custody” when the officer received a blood sample from the “hospital attendant” who 

drew the defendant’s blood, the officer testified that he then placed the sample in an 

“evidence locker to be mailed to the [TBI] crime laboratory,” and the testing TBI agent 

“testified regarding the procedure for receiving and documenting blood samples and that 

any irregularities in the shipping or receiving of the sample would have been noted” in 

the TBI file. State v. Michael Joseph Arbuckle, No. M2000-02885-CCA-R3-CD, 2001 

WL 1545494, at *3 (Tenn. Crim. App., at Nashville, Dec. 5, 2001), perm. app. denied 

(Tenn. May 28, 2002).

In State v. Pascasio Martinez, this court recently held that results of blood testing 

was admissible when the State had presented evidence through the officer that he 

received the defendant’s blood sample from the phlebotomist and transported it to the 

police station where he put it in the confiscation box to be transported to the TBI. State v. 

Pascasio Martinez, No. E2016-01401-CCA-R3-CD, 2017 WL 5613976 (Tenn. Crim. 

App., at Knoxville, Nov. 21, 2017), no Tenn. R. App. P. 11 application filed. In 

Martinez, the officer testified that he locked the box and dropped the key inside the box. 

Agent Aksanov, the same TBI employee testifying in the case before us, testified that the 

TBI file noted that the defendant’s blood samples had been delivered to the TBI drop 

box. Id. at *3. She explained, as she did in this case, that an evidence technician would 

have removed the samples from the drop box, opened them, and noted in the TBI file any 

evidence of tampering. Id. There were no such notations in the TBI file, and Agent

Aksanov testified that the defendant’s blood samples appeared “well preserved” and were 

“not clotted” when she removed them. Id. This court concluded that the State 

established a sufficient chain of custody. Id.

In the case presently before us, summarizing Trooper Deadrick’s testimony during 

the suppression hearing and at trial, he said that he filled out the lab request paperwork 

with the Defendant’s identifying information. He said that lab technicians would put the 

subject’s information on the tubes containing the subject’s blood. Trooper Deadrick 

watched the phlebotomist draw the Defendant’s blood and place the tubes in the TBI 

testing kit. Trooper Deadrick sealed the kit himself and noted that the Defendant’s tubes 
24

of blood were inside the kit. He took the kit to a secure evidence locker for delivery to 

the TBI crime laboratory. Agent Aksanov described the TBI evidence drop box, saying 

that it was like a mail box in that items could be placed into it but only TBI evidence 

technicians had the keys necessary to retrieve the items. Agent Aksanov testified about 

the procedures taken by the TBI crime laboratory upon receiving blood evidence, and she 

said that the TBI evidence technician receiving the kit would document the information 

on the tubes, including the subject’s name and the number of tubes of blood, and note any 

evidence of tampering. Agent Aksanov verified that the evidence technician matched the 

information on the tubes submitted in the Defendant’s case. She said the information 

included that the specimen was collected at 9:45 p.m. She said the blood samples 

appeared in “good condition,” and there was “no clotting, it was not degraded.” Agent

Aksanov said that the information on the tube would have contained the Defendant’s 

name, and that both the evidence technician and she would have individually verified that 

information.

The Defendant relies on, State v. Michael R. Anderson, No. M2008-01230-CCAR3-CD, 2009 WL 856903 (Tenn. Crim. App., at Nashville, Mar. 31, 2009), no Tenn. R. 

App. P. 11 application filed. In that case, this court concluded that the results of the 

defendant’s blood draw were not admissible because the State had failed to present 

evidence that the test kit received by the TBI was the same one submitted by the officer 

and because the State failed to present evidence about how the test kit was sealed. In 

Michael R. Anderson no one testified about how the kit was sealed or whether the kit was 

sealed. Those facts are clearly distinguishable from the case herein. The Defendant takes 

issue with the fact that the trial court’s finding and the State’s brief both rely upon the 

fact that “Trooper Deadrick’s memory and testimony of that night [i]s totally credible.” 

As we noted above, credibility determinations are made by the trial court, and the trial 

court by its ruling found Trooper Deadrick credible. Trooper Deadrick said that he saw 

the phlebotomist draw the blood from the Defendant and then sealed the blood himself 

into the kit bearing the Defendant’s identification information. The fact that hospital staff 

may have also drawn blood from the passengers in the Defendant’s vehicle, none of 

whom were in the same hospital room at the time, does not call into question the 

authenticity of the Defendant’s blood evidence. Our standard of review requires us to 

defer to the trial court on issues of credibility and only overturn its rulings in the event 

that it abused its discretion, which it clearly did not in this case. 

The Defendant also contends in his brief and reply brief that the failure of the 

State to present the phlebotomist who drew the Defendant’s blood violated his rights 

pursuant to the Confrontation Clause. He asserts that, if this issue was not properly 

preserved for appeal by the failure to lodge an objection, then this Court should review 

the issue for plain error. While there is no Tennessee case directly on point, the Supreme 

Court of Delaware, addressing this issue squarely on point, held, “[t]he Sixth Amendment 
25

Confrontation Clause does not require each and every individual who possessed the 

evidence to provide live testimony in order to establish chain of custody.” Milligan v. 

State, 116 A.3d 1232, 1240 (Del. 2015). The Delaware case cites the United States 

Supreme Court’s decision in Melendez-Diaz v. Massachusetts, which provides that not 

every individual who may have relevant testimony for the purpose of establishing chain 

of custody must appear in person as part of the prosecution’s case. Melendez-Diaz v. 

Massachusetts, 551 U.S. 305, 311 n.1 (2009). We agree with the Delaware court’s 

interpretation of the United State Supreme Court’s decision. Accordingly, we conclude 

that the State established a sufficient chain of custody, that the trial court did not abuse its 

discretion in admitting the test results into evidence, and that the introduction of this 

evidence did not violate the Defendant’s right of confrontation.

C. Autopsy Photographs

The Defendant next contends that the trial court erred when it admitted the 

victims’ autopsy photographs. He asserts that the photographs were graphic and 

potentially prejudicial and that their probative value did not outweigh their prejudicial 

effect. The State counters that the photographs aided the testimony of Dr. MileusnicPolchan and that, as noted by defense counsel at trial, they were not “that bad.” 

During the trial, the Defendant objected to the admission of the autopsy 

photographs pursuant to Tennessee Rule of Evidence 403. Evidence is relevant if it has 

“any tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be without the 

evidence.” Tenn. R. Evid. 401. However, relevant evidence “may be excluded if its 

probative value is substantially outweighed by the danger of unfair prejudice, confusion 

of the issues, or misleading the jury.” Tenn. R. Evid. 403. The trial court must determine 

the relevance of the visual evidence and weigh its probative value against any undue 

prejudice. State v. Carruthers, 35 S.W.3d 516, 577 (Tenn. 2000). The term “undue 

prejudice” has been defined “an undue tendency to suggest decision on an improper 

basis, commonly, though not necessarily, an emotional one.” State v. Banks, 564 S.W.2d 

947, 950-51 (Tenn. 1978) (quoting Fed. R. Evid. 403, Advisory Comm. Notes). This 

court has also stated that “[p]rejudice becomes unfair when the primary purpose of the 

evidence at issue is to elicit emotions of ‘bias, sympathy, hatred, contempt, retribution, or 

horror.’” State v. Collins, 986 S.W.2d 13, 20 (Tenn. Crim. App. 1998) (quoting M. 

Graham, Handbook of Federal Evidence, 182-83 (2d ed. 1986)). Photographs must never 

be used “solely to inflame the jury and prejudice them against the defendant.” Banks, 

564 SW.2d at 951. Evidence which only appeals to the sympathies of the jury, conveys a 

sense of horror, or “engenders an instinct to punish” should be excluded. Collins, 986 

S.W.2d at 20.
26

In Banks, our supreme court provided the trial courts with guidance for 

determining the admissibility of relevant photographic evidence. The trial court should 

consider: the accuracy and clarity of the picture and its value as evidence; whether the 

picture depicts the body as it was found; the adequacy of testimonial evidence in relating 

the facts to the jury; and the need for the evidence to establish a prima facie case of guilt 

or to rebut the defendant’s contentions. Id. at 951. The admissibility of relevant 

photographs of victims and the crime scene is within the sound discretion of the trial 

court, and the court’s ruling on admissibility will not be disturbed on appeal absent a 

showing of an abuse of that discretion. Carruthers, 35 S.W.3d at 576-77; State v. Van 

Tran, 864 S.W.2d 465, 477 (Tenn. 1993); Banks, 564 S.W.2d at 949. As our supreme 

court stated in Carruthers, the modern trend is to vest more discretion in the trial court’s 

rulings on admissibility. 35 S.W.3d at 577 (citing Banks, 564 S.W.2d at 949).

“As a general rule, where medical testimony adequately describes the degree or 

extent of an injury, gruesome and graphic photographs should not be admitted.” Collins, 

986 S.W.2d at 21 (citing State v. Duncan, 698 S.W.2d 63, 69 (Tenn. 1985)).

Photographic evidence may be excluded when it does not add anything to the testimonial 

description of the injuries. Banks, 564 S.W.2d at 951. Autopsy photographs often fall 

into this category. Id. This is especially true when the defendant does not dispute the 

injuries to the victim or cause of death. See Banks, 564 S.W.2d at 952 (autopsy 

photographs not probative when the defendant did not dispute that the victim’s death was 

caused by multiple wounds to the face and head); Collins, 986 S.W.2d at 21 (autopsy 

photographs of a newborn not probative when the defendant did not dispute the fact that 

the baby was full-term and was born alive). If the defendant offers to stipulate to the 

facts shown in the photograph or the defendant does not dispute the testimony that the 

photographs illustrate, the more likely the prejudicial effect will substantially outweigh 

the photographs’ probative value. Banks, 562 S.W.2d at 951.

After reviewing the photographs, we note that many of them depict portions of the 

victims’ bodies, including wrist bands showing their names, ankles, and hands. The State 

offered, and the trial court entered, four total photographs of each of the three victims’ 

faces. One photograph appears to show a man in a state of rest and does not appear 

gruesome. The probative value of two of the entered photographs, however, is 

outweighed by their prejudicial effect. Not at issue in the trial was whether the victims 

died as a result of their injuries from the car accident. The Defendant did not at all 

dispute that the accident was the cause of those injuries or that he was driving the vehicle 

at the time of the accident, but he instead took issue with the evidence indicating his 

intoxication at the time of the accident. Two of the pictures show the victims’ bodies in 

various states after death, one even showing a large, covered open area on one of the 

victim’s abdomen. This photographic evidence added little if any probative value to the 

medical expert’s testimony, and it was error for the photographs to be admitted.
27

Whether the admission of the photographs constitutes reversible error requires a 

two-step analysis. First, we must determine whether the photographs were relevant to an 

issue the jury would be required to determine and whether their probative value was 

substantially outweighed by the danger of unfair prejudice. See Banks, 564 S.W.2d at

951; Collins, 986 S.W.2d at 20. Second, if the trial court abused its discretion and erred 

in admitting the photographs, we must determine whether such error was harmless. See 

Banks, 564 S.W.2d at 952-53; Collins, 986 S.W.2d at 21-22.

After reviewing the weight of the evidence against the Defendant, namely that the 

blood test to which he consented showed that he had consumed both alcohol and cocaine, 

we are convinced beyond any doubt that the jury would have rendered the same verdict 

of guilt had the photographs been excluded from the record. See State v. Young, 196 

S.W.3d 85, 106-07 (Tenn. 2006). Had, however, the question of the Defendant’s 

intoxication been less clear or the pictures more graphic, he would be entitled to a new 

trial. See State v. Curtis Scott Harper, No. E2014-01077-CCA-R3-CD, 2015 WL 

6736747, at * 16 (Tenn. Crim. App., at Knoxville, Nov. 3, 2015), no Tenn. R. App. P. 11 

application filed. The Defendant is not entitled to relief on this issue.

D. Fifth Amendment Right

The Defendant next contends that the State violated his Fifth Amendment right to 

remain silent. He asserts that, during closing argument, the State improperly stated, 

“[T]he final element, that the killing was the proximate result of the driver’s intoxication. 

That’s one story that we haven’t heard from [the Defendant].” He asserts that this was an 

improper statement regarding his right to remain silent. After the State’s comment, the 

Defendant objected. The trial court ordered that the statement be stricken from the 

record. The trial court then advised the State to “refrain” from commenting on the 

Defendant’s right to remain silent. The Defendant argues that, after this, the State also 

said during argument that there were no witnesses alive to contradict the Defendant’s 

account of the events and that the Defendant had “secured the absence of the 

eyewitnesses.” The Defendant finally takes issue with the State’s comment to the jury, 

presumably based on the testimony of the Defendant’s wife, that the Defendant went to 

Disney World shortly after this accident. The State counters that, since the Defendant 

objected at the time of argument and that the court sustained the objection and gave the 

jury a curative instruction, the Defendant is not entitled to relief. The State further 

contends that his other complaints lack merit.

Both the United States Constitution and the Tennessee Constitution “guarantee 

criminal defendants the right to remain silent and the right not to testify at trial.” State v. 

Jackson, 444 S.W.3d 554, 585 (Tenn. 2014). “While closing argument is a valuable 
28

privilege that should not be unduly restricted, . . . comment upon a defendant’s exercise 

of the state and federal constitutional right not to testify should be considered off limits to 

any conscientious prosecutor.” Id. at 590 (internal citations and quotation marks 

omitted). In addition to direct comments on a defendant’s decision not to testify, 

“indirect references on the failure to testify also can violate the Fifth Amendment 

privilege.” Id. at 587 (quoting Byrd v. Collins, 209 F.3d 486, 533 (6th Cir. 2000)) 

(internal quotation marks omitted).

Closing argument is a valuable privilege that should not be unduly restricted. 

State v. Dotson, 450 S.W.3d 1, 99 (Tenn. 2014). As a result, “attorneys are given greater 

leeway in arguing their positions before the jury, and the trial court has significant 

discretion in controlling these arguments, to be reversed only upon a showing of an abuse 

of that discretion.” Id. Nevertheless, “arguments must be temperate, based upon the 

evidence introduced at trial, relevant to the issues being tried, and not otherwise improper 

under the facts or law.” State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003). 

“While closing argument is a valuable privilege that should not be unduly restricted, . . . 

comment upon a defendant’s exercise of the state and federal constitutional right not to 

testify should be considered off limits to any conscientious prosecutor.” State v. Jackson, 

444 S.W.3d 554, 590 (Tenn. 2014) (internal citations and quotation marks omitted); see 

State v. Thornton, 10 S.W.3d 229, 235 (Tenn. Crim. App. 1999) (“It is never proper for a 

prosecuting attorney to comment upon a defendant’s decision not to testify.”). Both 

direct and indirect comments on a defendant’s failure to testify can violate the Fifth 

Amendment privilege. Jackson, 444 S.W.3d at 587.

The Tennessee Supreme Court has outlined “a two-part test for ascertaining 

whether a prosecutor’s remarks amount to an improper comment on a defendant’s 

exercise of the constitutional right to remain silent and not testify.” Jackson, 444 S.W.3d 

at 587-88. Under this test, this court must consider: “(1) whether the prosecutor’s 

manifest intent was to comment on the defendant’s right not to testify; or (2) whether the 

prosecutor’s remark was of such a character that the jury would necessarily have taken it 

to be a comment on the defendant’s failure to testify.” Id. at 588. Claims of 

impermissible prosecutorial comment on a defendant’s right not to testify are reviewed de 

novo. Id. A prosecutor’s comment on a defendant’s right to remain silent is a nonstructural constitutional error, and the State has the burden of establishing that the error is 

harmless beyond a reasonable doubt. Id. at 591. When determining whether the State 

has met its burden, this court “should consider the nature and extensiveness of the 

prosecutor’s argument, the curative instructions given, if any, and the strength of the 

evidence of guilt.” Id.

In this case, we first address de novo whether the prosecutor’s remarks amount to 

an improper comment on the defendant’s exercise of the constitutional right to remain 
29

silent and not to testify. As to the first comment, the one regarding that the story of why 

he was intoxicated was the one story that the Defendant had not stated, we do not think

that the prosecutor’s “manifest intent was to comment on the defendant’s right to testify.” 

When placed in context, the State had just argued to the jury that the Defendant had 

offered multiple explanations for the cause of the crash: that a car had passed him on a 

narrow roadway, that he overcorrected, that a cow ran in front of the car, and that a dog 

caused the accident. The prosecutor then noted, however, that the Defendant had not 

offered his intoxication as an explanation for the accident, that the Defendant had given 

all of these other reasons for the accident but that the one “story” or explanation that he 

had not offered was that the accident was caused by his intoxication. We conclude that 

no curative instruction was necessary. The State was not commenting on the Defendant’s 

failure to testify, it was commenting on his explanations being based on multiple reasons 

other than his intoxication. 

As to the Defendant’s remaining contentions about the State’s argument, we 

conclude that those comments did not relate to the Defendant’s failure to testify and did 

not exceed the leeway given to attorneys during argument. Regarding the State’s 

comment “suggesting that [he] intentionally killed the victims in order to keep them from 

testifying,” our review of the transcript does not comport with the Defendant’s 

characterization. There was no evidence, and the State did not suggest, anything other 

than the victims were the Defendant’s friends and that he did not want them to die. The 

State, in its argument, asserted that those witnesses were not present to contradict the 

Defendant’s account of the accident because they were killed by his actions of driving 

while intoxicated, and that the Defendant, by his actions, “secured” their absence. We 

also do not find fault with the State arguing that it was “purely conjecture” that the blood 

samples were mixed up or its comment that the Defendant went to Disney World shortly 

after this accident. Additionally, the evidence against the Defendant was quite 

overwhelming. He was undisputedly the driver of the vehicle. His blood test showed the 

presence of Hydrocodone (as he had told police and EMT personnel), cocaine, alcohol, 

and ethylene, a substance the body produces when alcohol and cocaine are consumed 

together. 

While the comments in this case did not entitle the Defendant to relief, the 

decision in this regard was made more difficult than necessary by the prosecutor’s 

argument. We caution the State about infringing on a defendant’s Fifth Amendment 

Right in this regard. This court has recently seen an influx in cases involving improper 

closing arguments. Our expectation is that, statewide, we see a tempering of such 

arguments by prosecutors. 

E. Expert Witness Testimony
30

The Defendant asserts that the trial court erred when it found that Trooper James

Fillers was an expert witness because: (1) he was not qualified as an expert; and (2) he 

could not provide any scientific foundation for his opinion that speed was a factor in the 

accident; and further that this error was not harmless. The State counters that Trooper 

Fillers was properly qualified as an expert and that, because the Defendant did not object 

at trial to Trooper Fillers’s testimony about speed being a factor in the accident, he cannot 

now properly raise that issue on appeal.

The admissibility of expert testimony is governed by Rules 702 and 703 of the 

Tennessee Rules of Evidence. Rule 702, which addresses the need for expert testimony 

and the qualifications of the expert, provides: “If scientific, technical, or other specialized 

knowledge will substantially assist the trier of fact to understand the evidence or to 

determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, 

training, or education may testify in the form of an opinion or otherwise.” The Tennessee 

Supreme Court defined the role of trial courts in determining the admissibility of expert 

testimony:

Trial courts act as gatekeepers when it comes to the admissibility of expert 

testimony. Their role is to ensure that an expert, whether basing testimony 

upon professional studies or personal experience, employs in the courtroom 

the same level of intellectual rigor that characterizes the practice of an 

expert in the relevant field. A court must assure itself that the expert’s 

opinions are based on relevant scientific methods, processes, and data, and 

not upon an expert’s mere speculation. The court’s reliability analysis has 

four general inter-related components: (1) qualifications assessment, (2) 

analytical cohesion, (3) methodological reliability, and (4) foundational 

reliability.

State v. Scott, 275 S.W.3d 395, 401-02 (Tenn. 2009) (internal citations and quotation 

marks omitted). The witness’s necessary expertise may be acquired through formal 

education or life experiences. Neil P. Cohen et al., Tennessee Law of Evidence § 7.02[4] 

at 7-21. However, the witness must possess such superior skill, experience, training, 

education, or knowledge within the particular area that his or her degree of expertise 

exceeds the scope of common knowledge and experience possessed by the average 

person. Id. (citations omitted).

Tennessee Rule of Evidence 703 provides guidance regarding the proper bases for 

expert testimony:

The facts or data in the particular case upon which an expert bases an 

opinion or inference may be those perceived by or made known to the 
31

expert at or before the hearing. If of a type reasonably relied upon by 

experts in the particular field in forming opinions or inferences upon the 

subject, the facts or data need not be admissible in evidence. Facts or data 

that are otherwise inadmissible shall not be disclosed to the jury by the 

proponent of the opinion or inference unless the court determines that their 

probative value in assisting the jury to evaluate the expert’s opinion 

substantially outweighs their prejudicial effect. The court shall disallow 

testimony in the form of an opinion or inference if the underlying facts or 

data indicate lack of trustworthiness.

“Generally speaking, the trial court is afforded broad discretion in resolving 

questions concerning the admissibility of expert testimony; in consequence, we will not 

overturn its ruling on appeal absent a finding that it abused its discretion.” State v. 

Ferrell, 277 S.W.3d 372, 378 (Tenn. 2009) (citing State v. Copeland, 226 S.W.3d 287, 

301 (Tenn. 2007); State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993)). “A trial court 

abuses its discretion when it applies incorrect legal standards, reaches an illogical 

conclusion, bases its decision on a clearly erroneous assessment of the evidence, or 

employs reasoning that causes an injustice to the complaining party.” Scott, 275 S.W.3d 

at 404-05 (citing Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 

346, 358 (Tenn. 2008)).

The question before us first is whether the trial court abused its discretion when it 

qualified Trooper Fillers as an expert in accident reconstruction. According to the 

testimony, Trooper Fillers had attended a basic crash investigation course, an advanced 

crash school and reconstruction school, and an advance forensic mapping and 

diagramming school. The trooper articulated the principles with regard to accident 

reconstruction that he learned in each of these schools, and he said that he had performed 

reconstruction analysis on at least eighty cases. He had previously been admitted as an 

expert in other counties and had testified as an expert in a civil case. Accordingly, we 

conclude that the trial court did not abuse its discretion when it admitted Trooper Fillers 

as an expert.

The true crux of the Defendant’s argument on appeal is that Trooper Fillers did not 

have a scientific basis to support his testimony that speed was a factor in the accident. 

The State counters that the Defendant did not object on these grounds below, thereby 

precluding Trooper Fillers from supporting his opinion with scientific data. The 

following occurred at trial:

[Question by the State]: Trooper, based on the roadway evidence, the 

damage to the tree, to the vehicle, the distance that this vehicle traveled, in 

your experience in reconstruction crashes such as this, did you believe that 
32

speed was a factor?

[Answer by Trooper Fillers]: Yes.

[Objection by Defense Counsel]: Your Honor, I object to that. That’s not 

the opinion yesterday.

[Ruling by the trial court]: Overruled. You may cross-examine.

The Defendant’s objection was clearly based upon the fact that Trooper Fillers’s 

testimony was different from the prior day. The objection did not present any indication 

that the Defendant did not think that there was an adequate scientific basis or foundation

for the trooper’s testimony. The Defendant also did not raise this issue in his motion for 

new trial. The Defendant in his reply brief points out that, during the jury-out hearing to 

determine whether Trooper Fillers was an expert, defense counsel questioned Trooper 

Fillers about “how he reached opinions in accident reconstruction.” This, however, does 

not amount to an objection that Trooper Fillers did not have an adequate scientific 

foundation for his opinion in this case.

We agree with the State that the Defendant has waived review of whether the trial 

court abused its discretion when it determined that Trooper Fillers had an adequate 

scientific foundation for his testimony. This is true because he did not object to the 

foundation, providing the trial court the opportunity to request and hear the trooper’s 

scientific foundation. Rule 36(a) states that appellate relief is typically not available 

when a party has “failed to take whatever action was reasonably available to prevent or 

nullify the harmful effect of any error.” Tenn. R. App. P. 36(a); see also State v. Sims, 45 

S.W.3d 1, 16 (Tenn. 2001). A defendant must assert a contemporaneous objection to the 

expert’s testimony if the State has failed to lay a proper foundation for it. See State v. 

James Thomas Manning, No. M2004-03035-CCA-R3-CD, 2006 WL 163636, at *3 

(Tenn. Crim. App., at Nashville, Jan. 24, 2006), perm. app. denied (May 1, 2006).

Accordingly, we conclude that the Defendant failed to preserve this issue by not 

contemporaneously objecting to Trooper Fillers’s testimony on the grounds that it was 

not supported by a scientific foundation. As such, he is not entitled to relief on this issue.

F. Dr. Davis’s Report

The Defendant contends that the trial court erred when it admitted the written 

report of expert Dr. Davis as substantive evidence because the report contained hearsay, 

violating the Defendant’s right to confrontation. The Defendant asserts that the report 

contained several testimonial statements about which Dr. Davis did not testify. The State 
33

counters that the Defendant failed to object to the report on these grounds until he filed 

his motion for new trial, thereby waiving the issue. Further, the State asserts that any 

error was ultimately harmless. 

The record evinces that, at trial, the Defendant objected to the introduction of Dr. 

Davis’s report as substantive evidence because it was cumulative to Dr. Davis’s trial 

testimony. The Defendant did not contend that it contained hearsay or violated his right 

to confront Dr. Davis, who did in fact testify at trial. The Defendant for the first time in 

his motion for a new trial raised the Confrontation Clause issue. 

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at 

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. 

R. Evid. 801(c). “Hearsay is not admissible except as provided by these rules or 

otherwise by law.” Tenn. R. Evid. 802. Tennessee Rules of Evidence 803 and 804 

provide exceptions to the general rule of inadmissibility of hearsay.

The Confrontation Clause of the Sixth Amendment to the United States 

Constitution and article I, section 9 of the Tennessee Constitution prohibits the admission 

of testimonial hearsay unless the witness “was unavailable to testify, and the defendant 

had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 

36, 54 (2004). The Confrontation Clause applies only to testimonial statements. Davis v. 

Washington, 547 U.S. 813, 821 (2006); State v. Franklin, 308 S.W.3d 799, 810 (Tenn.

2010).

A testimonial statement “is typically ‘[a] solemn declaration or affirmation made 

for the purpose of establishing or proving some fact.’” Crawford, 541 U.S. at 51 

(quoting 2 N. Webster, An American Dictionary of the English Language (1828)). 

Testimonial statements include “‘statements that were made under circumstances which 

would lead an objective witness reasonably to believe that the statement would be 

available for use at a later trial.’” Id. at 52 (quoting Brief for National Association of 

Criminal Defense Lawyers, et al. as Amicus Curie 3).

We first agree with the State that the Defendant has waived this issue for review 

by not objecting on these grounds during the trial. Tenn. R. App. P. 36(a). By not 

presenting his objection to the trial court, he necessarily prohibited the trial court from 

ruling on his objection on the ground that he now alleges. Tenn. R. Evid. 103(a)(1).

We further note that Dr. Davis testified during the trial, and his report was largely 

cumulative to his trial testimony, save a few additional statements. The Defendant had 

the opportunity to cross-examine Dr. Davis about the report and any statements contained 

in the report. In State v. Dotson, 450 S.W.3d 1, 73-74 (Tenn. 2014), the Tennessee 
34

Supreme Court held:

In [California v. Green, 399 U.S. 149, 162 (1970)] the Supreme Court 

overruled California decisions and held that “where the declarant is not 

absent, but is present to testify and to submit to cross-examination, our 

cases, if anything, support the conclusion that the admission of [the] out-ofcourt statements does not create a confrontation problem.” . . . . Thus, 

under both Green and Crawford, when a declarant appears for crossexamination at trial, “the Confrontation Clause places no constraints at all 

on the use of [the declarant’s] prior testimonial statements.” Crawford, 541 

U.S. at 59 n. 9, 124 S.Ct. 1354; see also People v. Argomaniz-Ramirez, 102 

P.3d 1015, 1018. (“Because the hearsay declarants will testify at trial and 

will be subject to cross-examination, admission of their out-of-court 

statements does not violate the Confrontation Clause”); Clark v. State, 808 

N.E.2d 1183, 1189 n. 2 (Ind. 2004) (stating that the Supreme Court 

expressly noted in Green that, “where the declarant is not absent, but is 

present to testify and to submit to cross-examination, our cases, if anything, 

support the conclusion that the admission of his out-of-court statements 

does not create a confrontation problem”); State v. Gorman, 854 A.2d 

1164, 1178 (Me. 2004) (stating that, according to Crawford, the 

Confrontation Clause was satisfied when the defendant “was given the 

opportunity to examine and cross-examine his mother before the jury 

regarding what she did and did not recall and the reasons for her failure of 

recollection”); Cooley v. State, 157 Md. App. 101, 849 A.2d 1026, 1031 

(2004) (holding that “Crawford did not overrule the unbroken line of cases 

holding that the Confrontation Clause does not operate to exclude pretrial 

statements made by a witness who actually testifies at trial”); State v. Tate, 

682 N.W.2d 169, 176 n. 1 (Minn. Ct. App. 2004) (stating that because the 

declarant testified at trial and was subject to cross-examination, the 

Confrontation Clause did not apply to invalidate the hearsay exception); 

State v. Carothers, 692 N.W.2d 544, 547-49 (S.D. 2005); Crawford v. 

State, 139 S.W.3d 462, 464 (Tex. App. 2004) (stating that “[a] careful 

reading of the Crawford opinion reveals that its holding applies only when 

the extrajudicial testimonial statements of a witness who does not testify at 

trial are sought to be admitted”).

The Confrontation Clause bars the admission of evidence when a defendant did not have 

the right to confront the declarant. This clause, therefore, was not violated because the 

Defendant was afforded the right and opportunity to confront and cross-examine Dr. 

Davis during the trial. The Defendant is not entitled to relief on this issue.
35

G. Sentencing

The Defendant contends that the trial court erred when it sentenced him because it 

sentenced him to consecutive sentences, which created an excessive sentence. The State 

counters that the Defendant’s sentence is within range and that his partially consecutive 

sentence was consistent with the purposes and principles of sentencing.

At the sentencing hearing, the parties discussed the possible range of punishment, 

with the minimum being fifteen years and the maximum being seventy-seven years of 

incarceration. The State then provided the trial court with copies of eighteen prior 

convictions for the Defendant. The trial court found that these supported the application 

of enhancement factor (1), that the Defendant had a previous history of criminal 

convictions in addition to those necessary to establish his range. See T.C.A. § 40-35-

114(1). The trial court also found that the Defendant had failed to comply with the 

conditions of a sentence involving release into the community based upon his receiving 

his third DUI conviction while on Community Corrections. See T.C.A. § 40-35-114(9). 

The trial court then sentenced the Defendant to two years for the DUI, fourth offense 

conviction and to twenty years, as a Range I offender, for each of the three aggravated 

vehicular homicide convictions. The trial court then, based upon the Defendant’s 

extensive criminal activity, ordered that two of the aggravated vehicular homicide 

convictions run consecutively and that the third run concurrently with the other 

sentences. It further ordered that the sentence for the DUI conviction run consecutively 

to the other sentences, for a total effective sentence of forty-two years of incarceration. 

The trial court later merged the DUI conviction with one of the aggravated vehicular 

homicide convictions for a total effective sentence of forty years of incarceration. 

In State v. Bise, 380 S.W.3d 682 (Tenn. 2012) the Tennessee Supreme Court 

reviewed changes in sentencing law and the impact on appellate review of sentencing 

decisions. The Tennessee Supreme Court announced that “sentences imposed by the trial 

court within the appropriate statutory range are to be reviewed under an abuse of 

discretion standard with a ‘presumption of reasonableness.’” A finding of abuse of 

discretion “‘reflects that the trial court’s logic and reasoning was improper when viewed 

in light of the factual circumstances and relevant legal principles involved in a particular 

case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 

S.W.3d 235, 242 (Tenn. 1999)). To find an abuse of discretion, the record must be void 

of any substantial evidence that would support the trial court’s decision. Id. at 554-55; 

State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 

(Tenn. Crim. App. 1980). The reviewing court should uphold the sentence “so long as it 

is within the appropriate range and the record demonstrates that the sentence is otherwise 

in compliance with the purposes and principles listed by statute.” Bise, 380 S.W.3d at 

709-10. So long as the trial court sentences within the appropriate range and properly 
36

applies the purposes and principles of the Sentencing Act, its decision will be granted a 

presumption of reasonableness. Id. at 707.

In determining the proper sentence, the trial court must consider: (1) the evidence, 

if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the 

principles of sentencing and arguments as to sentencing alternatives; (4) the nature and 

characteristics of the criminal conduct involved; (5) evidence and information offered by 

the parties on the mitigating and enhancement factors set out in Tennessee Code 

Annotated sections 40-35-113 and -114; (6) any statistical information provided by the 

administrative office of the courts as to sentencing practices for similar offenses in 

Tennessee; and (7) any statement the defendant made in the defendant’s own behalf 

about sentencing. See T.C.A. § 40-35-210 (2014); State v. Taylor, 63 S.W.3d 400, 411 

(Tenn. Crim. App. 2001). The trial court must also consider the potential or lack of 

potential for rehabilitation or treatment of the defendant in determining the sentence 

alternative or length of a term to be imposed. T.C.A. § 40-35-103 (2014).

The Defendant contends that the trial court improperly relied upon his failure to 

get alcohol treatment as a basis for his consecutive sentencing. Based upon our review, 

however, we conclude that the Defendant in this case has not met the burden of 

demonstrating that his sentence is improper. The trial court sentenced the Defendant to a 

within range, actually a midrange, sentence. The trial court filed a detailed findings of 

facts to support the Defendant’s sentence, and it stated that it had considered the purposes 

and principles of the Sentencing Act. The Defendant is not entitled to relief.

H. Sufficiency of Evidence

The Defendant contends that the evidence is insufficient to sustain his convictions

because the “quantities of drugs and alcohol did not prove beyond a reasonable doubt that 

the cause of the accident was intoxication.” The State counters that the Defendant’s 

argument relies upon credibility determinations, which should not be revisited on appeal. 

It contends the evidence is sufficient to support the Defendant’s convictions.

When an accused challenges the sufficiency of the evidence, this Court’s standard 

of review is whether, after considering the evidence in the light most favorable to the 

State, “any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. 

App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 

91 S.W.3d 247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon 

direct evidence, circumstantial evidence, or a combination of both direct and 

circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.

1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the 
37

absence of direct evidence, a criminal offense may be established exclusively by 

circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury 

decides the weight to be given to circumstantial evidence, and ‘[t]he inferences to be 

drawn from such evidence, and the extent to which the circumstances are consistent with 

guilt and inconsistent with innocence, are questions primarily for the jury.’” State v. 

Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457 

(Tenn. 1958)). “The standard of review [for sufficiency of the evidence] ‘is the same 

whether the conviction is based upon direct or circumstantial evidence.’” State v. 

Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 

275 (Tenn. 2009)). 

In determining the sufficiency of the evidence, this Court should not re-weigh or 

reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 

1990). Nor may this Court substitute its inferences for those drawn by the trier of fact 

from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v. 

State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of 

witnesses, the weight and value to be given the evidence, as well as all factual issues 

raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 

659 (Tenn. 1997). “A guilty verdict by the jury, approved by the trial judge, accredits the 

testimony of the witnesses for the State and resolves all conflicts in favor of the theory of 

the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The Tennessee Supreme 

Court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the 

jury see the witnesses face to face, hear their testimony and observe their 

demeanor on the stand. Thus the trial judge and jury are the primary 

instrumentality of justice to determine the weight and credibility to be 

given to the testimony of witnesses. In the trial forum alone is there human 

atmosphere and the totality of the evidence cannot be reproduced with a 

written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 

523, 527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest 

legitimate view of the evidence’” contained in the record, as well as “‘all reasonable and 

legitimate inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at 

775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of 

guilt against a defendant removes the presumption of innocence and raises a presumption 

of guilt, the convicted criminal defendant bears the burden of showing that the evidence 

was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 

557-58 (Tenn. 2000) (citations omitted).
38

The Defendant asserts that the evidence was insufficient as a matter of law to 

sustain his conviction of the Class A felony aggravated vehicular homicide. “Vehicular 

homicide is the reckless killing of another by the operation of an automobile, . . . as the 

proximate result of: . . . The driver’s intoxication, as set forth in § 55-10-401.” T.C.A. § 

39-13-213(a)(2). As relevant herein, “[t]he driver’s intoxication, as set forth in § 55-10-

401,” includes his operation of a vehicle:

[u]nder the influence of any intoxicant, marijuana, controlled 

substance, controlled substance analogue, drug, substance affecting the 

central nervous system, or combination thereof that impairs the driver’s 

ability to safely operate a motor vehicle by depriving the driver of the 

clearness of mind and control of oneself that the driver would otherwise 

possess . . . . 

T.C.A. § 55-10-401(1) (2014). As applicable in Defendant’s case, aggravated vehicular

homicide is defined as a vehicular homicide, as defined in § 39-13-213(a)(2), where: “(1) 

The defendant has two (2) or more prior convictions for: (A) Driving under the influence 

of an intoxicant; . . . .” T.C.A. § 39-13-218(a)(1)(A). 

In this case, the evidence viewed in the light most favorable to the State proves 

that the Defendant consumed Hydrocodone, as prescribed, the morning of the accident. 

At some point before the accident, he consumed both alcohol (he had a .07 BAC) and 

cocaine, as revealed by his blood test showing positive for both of those substances and a 

third substance, cocaethylene, which is produced by simultaneously ingesting alcohol and 

cocaine. The Defendant then drove his vehicle. A witness heard a vehicle under “hard 

acceleration” before hearing the impact. He went to the scene where he saw that there 

was likely nothing that he could do to help based upon the extensive damage. Multiple 

witnesses described the roadway where the accident occurred as “horribly narrow.” 

Trooper Fillers testified that based upon his experience, speed was a factor in the accident

and the Defendant was the driver of the vehicle. This evidence supports the jury’s 

finding the Defendant guilty of three counts of vehicular homicide and DUI. During the 

second phase of a bifurcated trial, the State offered evidence that the Defendant had three 

prior DUI convictions, supporting his conviction for DUI, fourth offense, and aggravated 

vehicular homicide. The Defendant is not entitled to relief on this issue.

I. Cumulative Error

The Defendant finally contends that the cumulative errors by the trial court 

constitute reversible error. Our supreme court has stated:

The United States Constitution protects a criminal defendant’s right 
39

to a fair trial; it does not guarantee him or her a perfect trial. We have 

reached the same conclusion with regard to the Constitution of Tennessee. 

It is the protection of the right to a fair trial that drives the existence of and 

application of the cumulative error doctrine in the context of criminal 

proceedings. However, circumstances warranting the application of the 

cumulative error doctrine to reverse a conviction or sentence remain rare. 

The cumulative error doctrine is a judicial recognition that there may 

be multiple errors committed in trial proceedings, each of which in isolation 

constitutes mere harmless error, but which when aggregated, have a 

cumulative effect on the proceedings so great as to require reversal in order 

to preserve a defendant’s right to a fair trial. To warrant assessment under 

the cumulative error doctrine, there must have been more than one actual 

error committed in the trial proceedings. 

State v. Hester, 324 S.W.3d 1, 76-77 (Tenn. 2010) (citations omitted).

After review, we conclude that there was not more than one actual error 

committed in the trial proceedings and that the Defendant was not denied a fair trial. He 

is not entitled to relief on this issue.

III. Conclusion

In accordance with the foregoing reasoning and authorities, we affirm the 

judgments of the trial court. We remand the case for entry of a judgments showing that 

the DUI, fourth offense conviction, is merged with one of the aggravated vehicular 

homicide convictions.

_________________________________

ROBERT W. WEDEMEYER, JUDGE