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State v. Robinson9/19/2005
On the morning of November 11, 2001, Officer Jason McClain of the Kingsport Police Department observed the defendant driving a maroon Nissan. Officer McClain was familiar with the defendant and the status of his driving privileges. Thus, Officer McClain followed the defendant until he parked at a nearby apartment complex. He then asked the defendant to exit his vehicle. At this time, Officer McClain observed that the defendant's speech was slurred, that his eyes were red and bloodshot and that " e had some upper body sway about his person."
Officer McClain then asked the defendant to perform two field sobriety tests. The defendant was asked "to say his ABCs starting with the letter E and stopping with the letter X . . . ." The defendant was also required to do "the finger count, one, two, three, four, four, three, two, one." Officer McClain reported that the defendant was unable to perform these tests. Based on these results, he opined that the defendant was under the influence of alcohol and arrested him for this offense, as well as for driving on a revoked license.
At the Kingsport Police Department, Officer McClain administered a breath test to the defendant. By stipulation, both parties agreed that Officer McClain was certified to operate the intoximeter, which was tested and working properly. Officer McClain testified that he closely observed the defendant for 20 minutes before asking him to blow into the intoximeter machine. The results of the test, registering a blood alcohol level of 0.10 percent, were admitted into evidence.
The state also introduced certified copies of the defendant's driving record to show that the defendant's license was revoked on November 11, 2002. However, the state failed to preserve and produce video footage taken at the jail by VHS cameras that continuously ran in the booking area. Officer McClain confirmed that because the defendant agreed to take the intoximeter test, the tape was put back in the rotation and recorded over. At most, the recording was available for only three to four days.
Although the defendant moved to dismiss on grounds of destruction of exculpatory evidence, the court overruled this motion after determining that the destruction of the tape was not willful. The trial court did, however, find that an exculpatory evidence instruction was proper. After being charged by the trial court, the jury deliberated and returned a verdict of guilty as to driving under the influence , third offense, and driving on a revoked license, second or subsequent offense.
At the sentencing hearing, the defendant offered information about his poor health conditions and his prior service in the United States military. Additionally, the trial court considered a pre- sentence report, as well as the defendant's prior convictions, including three prior driving on a revoked driver's license convictions, two prior DUI convictions, and one theft under $500 conviction in Tennessee. Also, the defendant was convicted of driving on a suspended license in Texas. After considering the pre-sentence hearing report and the defendant's multiple convictions, the trial court sentenced the defendant to 11 months and 29 days for each offense, stating that the defendant was eligible for release after 75 percent service. The court ordered that the sentence for driving on a revoked license be suspended upon service of the sentence for driving under the influence . The court also imposed a $1,000 fine for each offense. All forms of alternative sentencing were denied, as was the defendant's motion for new trial.
I. Motion in Limine
Before trial, the defendant moved to preclude the state from referring to the resul
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