2. EVIDENTIARY ISSUES FOR DUIs and BEYOND Steve R. Dozier October 2010

3. St. v. Brotherton 35 TAM 40-6 Tenn. Supreme Court 9/27/10 DUI stop based on faulty taillight. Defendant had taped over a break in light with red tape but officer observed “bright light” and observed weaving within lane. Court held: was basis for stop based on articulable facts—officer does not have to in fact show there was a violation of TCA 55-9-402.

4. NEW LAWS (1/1/11) DUI Offenses - As enacted, revises the substances that give rise to a DUI, so that it is unlawful to operate or be in control of a motor driven vehicle while under the influence of any intoxicant, marijuana, controlled substance, 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 himself which he would otherwise possess. - Amends TCA Title 55, Chapter 10.(HB 3280 *SB 2970 DUI Offenses - As enacted, revises provisions governing which court will make determination of violation of implied consent law; revises other provisions governing implied consent law. - Amends TCA Title 55, Chapter 10.(HB 3282 *SB 3121

5. New laws cont. Bail Bonds - As enacted, allows a court, when setting bail for a defendant arrested for certain alcohol related offenses and such defendant has prior convictions for certain alcohol related offenses or is currently already released on bail for certain alcohol related offenses, to order monitoring devices or in-patient treatment as a condition of release and requires the court to determine whether the defendant is a danger to the community prior to release. - Amends TCA Title 40

6. Public Chapter No. 921 PUBLIC ACTS, 2010 1 PUBLIC CHAPTER NO. 921 SENATE BILL NO. 2965 EFFECTIVE 1/1/11 SECTION 3. Tennessee Code Annotated, Section 55-10-403(a)(1)(A)(iii), is amended by deleting the subdivision in its entirety and substituting instead the following: (iii) In addition to the other penalties set out for a person convicted of a first offense violation of § 55-10-401, if the person applies for and the court orders the issuance of a restricted motor vehicle operator's license pursuant to subsection (d), the court shall also order the person to operate only a motor vehicle that is equipped with a functioning ignition interlock device, if at the time of the offense, the defendant: (a) Has a blood or breath alcohol concentration of fifteen hundredths of one percent (.15%) or higher; (b) Is accompanied by a person under eighteen (18) years of age; (c) Is involved in a traffic accident for which notice to law enforcement is required under § 55-10- 107, and the accident is the proximate result of the person's intoxication; or (d) Is in violation of the implied consent law under § 55-10-406, and has a conviction or juvenile delinquency adjudication for a violation that occurred within five (5) years of the instant implied consent violation, for: (A) Implied consent under § 55-10-406; (B) Underage driving while impaired under § 55-10-415; (C) The open container law under § 55-10-416; or (D) Reckless driving under § 55-10-205, if the charged offense was § 55-10-401.

7. Ignition Interlock Geographic Restrictions: As a general rule, the geographic restrictions listed in Tenn. Code Ann. § 55-10- 403(d)(1)(A)(iv) will not apply to first offenders who are utilizing an interlock device pursuant to TCA §§ 55-10- 403(a)(1)(A)(iii) or 55-10-412(b)(2). In contrast, second offenders who are utilizing the device pursuant to TCA § 55-10-403(c)(4) are subject to the geographic restrictions even if they are using an interlock device. Finally, if a court orders the use of an interlock device pursuant to TCA §§ 55-10-412(b)(1) or (m), the geographic restrictions will apply to the offender.

8. Can not control facts of case Usually have to deal with current law Can impact rulings by Court as to what evidence gets to jury Know the rules of evidence Know developing case law

9. KNOWLEDGE IS POWER Knowledge of evidentiary issues garner trust with the Judge How many of you have read the Rules of Evidence in last 6 months?

10. RELEVANCE Rule 401- Relevant evidence means any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Rule 403 – Although 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, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

11. EXAMPLES State v. Treva Green 2000 WL 1839130 (Tenn.Crim.App.) BOLO and weaving case At time of arrest and while in route to booking, Ms. Green made the statement— ”can I go home if I give you a ---- job?” Is this statement relevant? If so, “unfairly prejudicial”?

12. Rule 702--Expert State v. Baker—2009 WL 3460427 10/28/09—no need to declare witness an expert to testify about walk/turn and one leg stand field sobriety tests. (St. v. Murphy, 953 Sw2d 200 (Tenn. 1997)(HGN test)

13. “evidence is prejudicial” BUT in effect, the defendant was attempting to bribe the officer AND individuals who are intoxicated sometimes make nonsensical statements or say things that a person with a clear mind would not say---ADMISSIBLE.

14. RULE 801 DEFINITIONS A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person if it is intended by the person as an assertion. A “declarant” is a person who makes a statement “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.

15. 3 PREREQUISITE QUESTIONS Is it an assertion? – Imperative (order), exclamatory, interrogatory, declarative (asserts) Was it made out of Court? – Declarant can be same as witness on stand Is it offered for the truth of the matter asserted? (most difficult) – What is it being offered for?

16. HEARSAY MISPERCEPTIONS “But the defendant was present” “They were asking her questions”

17. RULE 802 – HEARSAY RULE Hearsay is not admissible except as provided by these rules or otherwise by law. State v. Brown, 29 S.W.3d 427 (Tenn. 2000) “critical to the defense”—6 th Amendment

18. TRE 803(26) 7/1/09 (26) Prior Inconsistent Statements of a Testifying Witness.-A statement otherwise admissible under Rule 613(b) if all of the following conditions are satisfied: (A) The declarant must testify at the trial or hearing and be subject to cross-examination concerning the statement. (B) The statement must be an audio or video recorded statement, a written statement signed by the witness, or a statement given under oath. (C) The judge must conduct a hearing outside the presence of the jury to determine by a preponderance of the evidence that the prior statement was made under circumstances indicating trustworthiness.

19. St. v. Danny Troutman 2008 Tenn.Crim.App Lexis 899 Application of TRE 902 (self- authentication) 4 th offense DUI State introduced court records of prior convictions through signed/stamped documents. Facsimile of signature/no raised seal/no seal at all

20. COURT held: TRE 902 can include a stamped signature Notary public mark does not have to be raised TRE 902(1) requires document be “under seal” REVERSED – DUI 1 st imposed.

21. St. v. Wilson 35 TAM 37-25 7/26/10 Field sobriety tests were not recorded due to mechanical malfunction of recording equipment. Deputy believed stop was being recorded. No duty on state to make sure equipment records ALL of stop—no Ferguson violation.

22. State v. King 2010 WL 1172209 3/26/10 Murder 1 st case 3 victims shot Box of evidence containing fibers, latent prints and photographs thrown away by janitor in police department’s office thinking it was trash. (evidence from car of 1 of victims taken to body shop at defendant’s direction to be destroyed) No Ferguson violation—exculpatory value of evidence is questionable. No gross negligence and overly proof of guilt.

23. Chapman v. Lewis 2010 WL 2943266 (7/28/10) 8 day medical malpractice case Trial court granted new trial due to defendant doctor’s trial counsel using PowerPoint in closing argument and displaying expert testimony on screen w/no notice to opposing counsel. Use of PowerPoint in closing argument to display testimony from witnesses---OK—trial court REVERSED.

24. CRAWFORD V. WASHINGTON, 124 S.Ct 1354 (2004) First, that we apply the Confrontation Clause only to testimonial statements, leaving the remainder to regulation by hearsay law … Second, that we impose an absolute bar to statements that are testimonial, absent a prior opportunity to cross-examine… Where testimonial statements are involved, we do not think the Framers meant to leave Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of “reliability”.

25. CRAWFORD V. WASHINGTON, cont’d. Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross- examination. We leave for another day to spell out a comprehensive definition of “testimonial”. Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.

26. What is testimonial? Those pre-trial statements the declarant “would reasonably expect to be used prosecutorially” Or stated another way, “would an objective witness reasonably believe the statement would be used at a later time in court proceedings”

27. TENNESSEE CASES SINCE CRAWFORD

28. State v. Anderson, 2005 WL 171441 (Tenn. Crim. App. January 27, 2005) Excited Utterance – “large man just kicked in door of business and is still inside” Quote p. 25

29. State v. Howard, 2004 WL 2715346 (Tenn. Crim. App. November 18, 2004) Co-defendant’s statement thru police when police confronted the defendant. Held: No relevant purpose to read into record what co-defendant said even though it was offered to show defendant’s reaction. Even though Crawford was violated, harmless error because defendant called co-defendant and got favorable testimony.

30. State v. Summers, 2004 WL 2070880 (Tenn. Crim. App. September 15, 2004) Victim testified at the juvenile transfer hearing and at the trial was unable to be found. “Defendant had a similar motive and opportunity in juvenile court proceeding to develop victim’s testimony through cross examination” T.R.E. 804 Held - Admissible

31. State v. Robinson, 146 S.W.3d 469 (Tenn. 2004) Defendant waived objection under T.R.E 803 or Crawford when he brought up photo line-up identification