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State v. Robinson9/19/2005
ts of his intoximeter test prior to the results being accepted into evidence. In a pretrial conference, the trial court opined that Sensing objections to the admissibility of intoximeter test results would have to be raised in a pretrial motion and not reserved until the point in the trial when the test results are offered into evidence. See State v. Sensing, 843 S.W.2d 412 (Tenn. 1992) (promulgating the proof of certain procedural requirements as a condition to admitting into evidence the results of certain intoximeter tests). In the face of this ruling, the defendant moved for and obtained a pretrial Sensing hearing. In the hearing, Officer Jason McClain testified about the intoximeter procedure, and the defendant presented no evidence in chief. The trial court overruled the Sensing motion, and the case proceeded to trial before a jury. Officer McClain was the first witness to testify. After describing the circumstances surrounding his detention and arrest of the defendant, he testified without further objection to the intoximeter procedure and the test results.
The defendant argues on appeal that the trial court erred in requiring a pretrial motion to contest the intoximeter procedure's compliance with Sensing. He relies upon State v. Cook, 9 S.W.3d 98 (Tenn. 1999), which indeed held that a defendant need not raise the Sensing objection prior to trial but may reserve the objection until the results are offered into evidence. Cook, 9 S.W.3d at 101-02. Although, on the authority of Cook, the trial court erroneously determined that the defendant must raise Sensing objections prior to trial or else suffer waiver, we nevertheless decline to reverse the defendant's convictions.
After ruling that a Sensing objection must be raised prior to trial, on the morning of trial the court afforded the defendant the opportunity to move to suppress the intoximeter test results. The defendant moved for suppression, and the court conducted a bench hearing. The state presented Officer McClain to establish compliance with Sensing. Defense counsel cross-examined him extensively. The defense offered no evidence. After the hearing, the court overruled the motion to suppress, and the jury trial commenced immediately. The first witness to testify was Officer McClain. He presented no new facts about the intoximeter procedure.
In this situation, we see no prejudice to the defendant and hold that any error in requiring a pretrial Sensing motion was harmless. See Tenn. R. App. P. 36(b). Due to Officer McClain's testifying at the opening of the trial and to the similarity of his pretrial and trial testimony, the pretrial hearing on the admissibility of the test results virtually equated to a Cook-type, in-trial hearing. The defendant had no evidence to present in the pretial hearing and had none to present a short time later when Officer McClain testified before the jury. All of his Sensing concerns emanated from Officer McClain's information, and these were apparently addressed in the pretrial hearing and ruling because no further objection was made to the introduction of the test results at trial. In this situation, we cannot see how the error prejudiced the defendant, and we regard it as harmless.
II. Destruction of Possible Exculpatory Evidence
The defendant contends that the trial court violated his right to due process by overruling a motion to dismiss the charges on the basis that the state had destroyed possible exculpatory evidence. This issue has been addressed by both the United States and Tennessee Supreme Courts.
In California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528 (1984), the United States Supreme Court considered "whether the Fourteenth Amendment . . .
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