# FILED
June 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MAY 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 03C01-9611-CR-00390 Appellee, ) ) WASHINGTON COUNTY VS. ) ) HON. ARDEN L. HILL, JACKIE W. KESTNER, ) JUDGE ) Appellant. ) (DUI)

FOR THE APPELLANT : MURRAY C . GROSECLOSE, III (At Trial) 208 E. Market Street Kingsport, TN 37660-4325 JACKIE W. KESTN ER (On Appeal) 140 Alvin Street Kingsport, TN 37660 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter MICHAEL J. F

AHEY, II Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 DAVID E. CROCKETT District Attorney General KENT W. GARLAND Assistant

District Attorney

General Unicoi County Courthouse Erwin, TN 37650

OPINION FI LED:

AFFIRMED
JOE G. RILEY, JUDGE1 The arresting officer had exte

nsive training a

nd experience in D

UI detection

and field sobriet yt esting. He had n umerous certific

ations and was an i

nstructor on field

sobriety testing. We agree with the state’s observ ation that he “may be the most qualified law enforcement

officer in this state to administer a horizontal gaze test.” However, the testimony of the officer did not “explain the underlying scientific basis of the test in order for the testimonyto be meaningfu l to a jur y.” State v. Murphy , 953 S.W.2d at 202. Although the issue is close, we are constrained to agree with the state and the defendant that the testimony did not meet the Murphy

standards. 2

O P I N I O N Defendant, Jackie W. Kestner, was convicted by a W ashington County jury of driving under the i nfluence, second offense. Although the defendant liststhirteen (13) issues for o ur review, we consolidat e them into the following: 1. whether

the trial court erred i n admitting testimony of the horizontal gaze

nystagmus test; 2. whether

the arrest in g officer gave inconsis tent and prejudic ial testim ony; 3. whether

the trial cou rt made a prejudicial statement to the jury; 4. whether

defendant was improperly denied the right to make a phone call to his counsel; 5. whether

defendant was improperly denied the right to use a videotape of the arrest; 6. whether

the prosecuting attorney made improper remarks in the closing

argument; and 7. w hether defendant was denied the right to a speedy trial. Although we find that the trial court erroneously admitted testimony concerning the horiz ontal gaze nystagmus test, we find the error to be harmless. We aff irm th e judgment of the trial court.

HORIZONTAL

GAZE NYSTA

GMUS TEST

The testimony of the arr esting officer included testimony co ncerning the horizontal gaze nystagmus tes t. The state concedes

the testimony was improperly admitted under

the standar

ds of State v. Murphy , 953 S.W.2d 200 (Tenn. 1997). 1 Murphy held that tes

timony conc

erning the horizontal

gaze nys

tagmu s tes t3

constitutesscientific evidence requiring the witness to be qualified as an expert pursuantto Tenn. R. Evid. 702 and 703. In fairness to the tr ial court, we note that Murphy was not decided until after the trial of this case. Nevertheless, we examine this error to determine w hether it was prejudic

ial to the defendant. On July 20, 1993, at approx imately 12:36 a.m. the defendant w as arrested byTrooper Billy Grooms. Grooms followed the defendant forapproximately threequarters (3/4) of a mile and observed the defendan t’s vehicle go on to the road shoulder across the white

line, come

back across the center line and then straddle the center line. Upon stopping the defendant the troope r detected a strong smell of alcohol on the defendant’s breath as well as slurred s peech. Defendant’s eyes were bloodshot, and he was unsteady on his feet to the extent of stagg ering from side to side. In addit ion to the horizo ntal gaze n ystagmus t est, the office r adminis tered two (2) other field sobriety tests. The first was the one-leg stand in w

hich the defendant
was unable to follow directions. H e was only able to cou nt to four (4) rather tha n twenty-fi ve (25) with one (1) leg raised. U pon being asked to make another attempt, the defendant declined. The walk-and -turn test was also a dmi ni stered. The defendant was unable to keep his balance and stepped off the white line. In wal king away from the officer, he missed his heel-to-toe sev en (7) out of

ten (10) times and missed six (6) out of nine (9) times upon his return walk. The defendant stated on two (2) or more occasions that he “knew he had too much to drink and drive.” He refused the bl ood alcohol test and stated he wanted to talk to his attorney first. The officer was of the opinion that the defendant wasimpaired and driving under the influence of an intoxic ant. The defense proof consisted of one (1) witness who

observed the defendant at approximately 3:00

or 3:30 a.m. and testified the defendant “look ed perfectly fine to me.” Two (2) other witnesses, who were with the defendant at a beer tavern throwing darts just prior to the arrest, opined that the defendant w as not under the4

in fluence of an int oxicant whe n he left the beer t avern. One of these wi tnesse s noted the defendant “was throwing pretty good darts” i n the dart tournament and made “the final four.” The defendant testified he bought only fou r (4) beers over the course of the evening while at the beer tav ern and consumed abo ut thre e (3) of those beers, considering he did not drink all of the beer in each can. He denied being under the influence of an intoxicant anddenied that the officer requested him to do the oneleg sta nd. He further contended that he per formed well on the heel-to-t oe test. Moreover, he testified that he did well on the finger

to nose test, and that the officer
was untruthful in stating that this test was nev er administered. Defendant denied stating to the officer that hehad too much to drink. The essence of the defendan t’s testimo ny was that t he offi cer was unt ruthful in his test imony. This was a classic case pitting the credibility of the office ragainst th e credibility

of the defendant. The jury obviously rejected the defendant’s testimony and accredited the testimony of the officer. In conside ring the whole record, we are unable to find that the outcome of the trial w ould have been any different had the horizontal gaze nystagm us testim ony n ot been presented. This Court has found harmless error

in other cases involv

ing this issue. See State v. William F. Hegger , C.C.A. No. 01C01-9607-CR-00283, Davidson County (Tenn. Crim. App. filed March 4, 1998, at Nashville); State v. Mark Summers , C.C.A. No. 03C01-9606-C R-00235, Hamilton County (Te nn. Crim. App. filed December 4, 1997, at Knoxv ille); State v. Clinton Darrell Turner , C.C.A. No. 03C01-9604-CC-00151, Cocke County ( Tenn. Crim. App. filed July 9, 1997, at Knoxville). The error was harmless.Tenn. R. App. P. 36(b).

OFFICER’S ALLEGED PREJUDICIAL TESTIMONY

Defendant refers to numerou s instanc es in which the arres ting off icer gave inconsistent

and preju dicial testimony. In most instance s there was no objection made to the testimony. Accordingly, these are waived. See Tenn. R. App. P. 36(a).5

Furthermore, defendant failed to raise these matte rs i n the motion for new trial. This results in a waiver of all issues. See

Tenn. R. App. P. 3(e). Furthermore, our review of the record does not indicate that defendant is entitled to relief on a ny of these matters.

TRIAL COURT’S STATEMENT

Defendant complains of the tr ial court’s statement to the jur y, “I hate to inconvenience you...” Th is statement was ma de upon the trial court decidin g to
recess court for the day and bring the jury back on another day to complete the trial. The statement was not prejudicial to the defendant. This issue i s without merit.

PHONE CALL

Defendant contends he was not allowed to make a phone call to his counsel. See Tenn. Code Ann. § 40-7-106(b). This issue was

never brought before the tr ial court and was not in the motion for new trial. The issue is waived. See Tenn. R. App. P. 3(e); 36(a).

VIDEOTAPE

Defendant contends he was improperl y deprived of the vid eotape taken of his arrest. Testimony rev ealed the videotape had been erased pri or to trial. There
was no showing of any intentional misconduct on the part of the state. See Arizona
v. Youngblood , 488 U .S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); State v. Eldridge , 951 S.W.2d 775, 778 (Tenn. Crim. App . 1997). Furthermore, the i ssue was waived by the failure to object at trial and include the issue in the moti on for new trial. See

Tenn. R. App. P. 3(e); 36(a).6 CLOSING ARGUMENT

Defendant contends the prosecuting att orney made misstatements of fact in his closing argument. The st atements related to whether the defendant himself had viewed the videotapeand the refusal of the defendant to take the blo od alcohol test. In both instances the

trial court properly instructed the jury that they w ere the judges of what the testimony actua lly was. We find no prejudice to th e defendant. This issue is without meri

t.

RIG HT TO SPE EDY TRI AL

Defendant contends his jury trial, conducted almost three (3) years after his arrest, deprived him of the right to speedy tr ial. This issue was not raised before the trial court. The record is insufficient to al low an adequate revi ewof this issue. The issue is waived. See

Tenn. R. App. P. 36(a).

CONCLUSION
For the above reasons, w e affirm the judgment of the trial cour t.

__________

____________

_____ JOE G. RILEY, JUDGE CONCUR:

________________________________ JOSEPH M. TIPTON, JUDG E

________________________________ CURWOOD WITT, JUDGE