State of Tennessee v. Scott McLain

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Remanded by Supreme Court on May 22, 2012

STATE OF TENNESSEE v. SCOTT MCLAIN1

Appeal from the Criminal Court for Washington County

No. 37549 Jon Kerry Blackwood, Judge

No. E2012-01082-CCA-RM-CD - Filed February 26, 2013

The appellant, Scott McLain, pled guilty to driving under the influence (DUI) and received

a sentence of eleven months and twenty-nine days with seven days to be served in

confinement. As a condition of his plea, he reserved certified questions of law concerning

the suppression of the results of his blood alcohol test. This court affirmed the judgment of

the trial court; however, our supreme court subsequently remanded to this court for

reconsideration in light of State v. Harrison, 270 S.W.3d 21 (Tenn. 2008). Upon

reconsideration, we reverse the judgment of the trial court and remand for dismissal of the

indictment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed;

Case Remanded.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,

P.J., and D. K ELLY T HOMAS, J R., J., joined.

Steven Oberman, Sara Compher-Rice, and Ann C. Short, Knoxville, Tennessee, for the

appellant, Scott McLain.

Robert E. Cooper, Jr., Attorney General and Reporter; and John H. Bledsoe, Senior Counsel,

for the appellee, State of Tennessee.

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In the appellant’s Rule 11 application for permission to appeal to the supreme court, defense

counsel notes that “‘McLain’ is the correct spelling of [the appellant’s] name, and it is the spelling that

appears in the charging instrument. His name is misspelled ‘McClain’ in the opinion of the Tennessee Court

of Criminal Appeals on direct appeal.” Our review of the record reveals that there were two indictments

against the appellant, one using the spelling “McClain” and the other using the spelling “McLain.”

Additionally, both spellings are used in various documents throughout the record. In this opinion, we will

use the spelling “McLain.”

OPINION

I. Factual Background

In this court’s previous opinion, we summarized the proof in this case as follows:

The record reveals that at approximately 11:00 p.m. on

March 21, 2003, Edwin N. Graybeal, III, a deputy sheriff with

the Washington County Sheriff’s office, was dispatched to the

scene of a single car accident on East Mountain View Road in

Washington County. Upon Deputy Greybeal’s arrival, he

observed that the appellant’s vehicle had collided with a tree.

The appellant, the driver of the vehicle, had been removed from

the scene and taken by ambulance to Johnson City Medical

Center for treatment. Police inventoried the vehicle and

discovered, among other items, one unopened beer. Deputy

Graybeal detected an odor of alcoholic beverage in the car.

Next, Deputy Graybeal went to Johnson City Medical

Center to speak with the appellant. The appellant had been

unconscious when he arrived at the hospital, but he had regained

consciousness during treatment. While the appellant was

unconscious and during the course of his treatment, hospital

staff obtained a sample of his blood. When Deputy Graybeal

arrived at the hospital, he learned that the appellant was in the

emergency room and was “still on the back board” on which he

had been transported to the hospital. The appellant told Deputy

Graybeal that he had been alone in the vehicle when he “ran off

the road.” Additionally, the appellant admitted that he had

consumed two beers prior to the accident. When the appellant

was speaking, Deputy Graybeal detected “a strong odor of

intoxicant on his breath, and his eyes were red and glazed.”

However, Deputy Graybeal noted that the appellant’s speech

“wasn’t abnormal.” Deputy Graybeal opined that the appellant

was physically unable, due to his injuries, to perform field

sobriety tests.

Thereafter, the appellant was indicted for DUI, first

offense. See Tenn. Code Ann. § 55-10-401(a) (1998).

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Following the indictment, the State served a subpoena duces

tecum on Johnson City Medical Center for the appellant’s

medical records relating to his treatment on the night of the

accident. The records revealed that the appellant’s blood

alcohol content at the time of the accident had been .276, well

over the legal limit of .08. Id. at (a)(2). The State then

reindicted the appellant for DUI with a blood alcohol content

over .20. Id.; see also Tenn. Code Ann. § 55-10-403(a)(1)

(1998).

Subsequently, the appellant filed a motion to suppress the

medical records, contending that his right to privacy was

violated by the State’s subpoena of the medical records, the

subpoena amounted to an illegal warrantless search, and the

appellant’s due process rights were violated by allowing the

State to subpoena the records. The trial court denied the

appellant’s motion, finding that the appellant did not have

standing to challenge the subpoena as it was issued to a third

party and that the appellant’s due process rights were not

violated.

Following the trial court’s ruling, the appellant entered a

guilty plea to DUI, first offense, with a blood alcohol content

greater than .20, which offense is a Class A misdemeanor. The

appellant received a sentence of eleven months and twenty-nine

days. As a condition of his plea, the appellant reserved three

certified questions of law:

[(1)] Whether the trial court erred in denying the

[appellant’s] motion to suppress the results of a

blood test, taken for medical purposes only, on the

grounds that the State’s use of an ex parte

subpoena to obtain the records violated the

[appellant’s] constitutional right to privacy.

[(2)] Whether the trial court erred in denying the

[appellant’s] motion to suppress the results of the

blood test, taken for medical purposes only, on the

grounds that the State’s use of an ex parte

subpoena failed to comply with the statutory

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requirements of Tennessee Code Annotated

[section] 40-17-123.

[(3)] Whether the trial court erred in denying the

[appellant’s] motion to suppress the results of the

blood test, taken for medical purposes only, on the

grounds that allowing the State to obtain such

evidence offends the notions of fundamental

fairness and substantial justice in that those who

are seriously injured in automobile accidents are

afforded less protection than those who are not

injured.

State v. Scott McClain, No. E2004-01182-CCA-R3-CD, 2005 WL 1384877, at *1-2 (Tenn.

Crim. App. at Knoxville, June 13, 2005).

On appeal, this court examined the appellant’s first issue and concluded that “the

appellant’s right to privacy was not violated by the State’s issuance of a subpoena duces

tecum for the appellant’s medical records.” Id. at *3. Regarding the issue of standing, this

court concluded that “the appellant did not have standing to challenge the issuance of the

subpoena.” Id. Finally, this court concluded that the appellant waived his claim that

allowing the State to obtain his medical records violated “notions of fundamental fairness”

by failing to cite to authority. Id.

This court’s opinion was filed on June 13, 2005, and the mandate was issued on

August 24, 2005. Thereafter, the appellant filed a petition for post-conviction relief. On

December 14, 2011, a hearing was held on the petition. On February 14, 2012, the post-

conviction court issued an order, finding that when the appellant pled guilty to DUI in 2004,

he was represented by trial counsel who was subsequently disbarred in 2008 for “ethical and

professional misconduct claims.” Although the appellant had reserved and appealed certified

questions of law, trial counsel misrepresented the result of the appeal, advising the appellant

that his conviction had been dismissed and expunged. At the time the appellant learned his

appeal had been unsuccessful, the time for seeking permission to appeal this court’s decision

had expired. Moreover, the statute of limitations precluded the filing of a petition for post-

conviction relief. The direct appeal opinion was issued on June 13, 2005, and no Rule 11

application for permission to appeal was filed with our supreme court.

The post-conviction court concluded that the appellant’s due process rights would be

violated by a strict application of the post-conviction statute of limitations and that, therefore,

the limitations period should be tolled. Moreover, the court found that the appellant was

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“deprived of the right” to seek permission to appeal to the supreme court via Rule 11.

Accordingly, the post-conviction court granted the appellant a delayed appeal to file a Rule

11 application with our supreme court, staying the appellant’s post-conviction proceedings

during the pendency of the delayed appeal. The State filed a notice that it would not appeal

the post-conviction court’s decision.

On March 30, 2012, the appellant filed a Rule 11 application with our supreme court

pursuant to Tennessee Supreme Court Rule 28 § 9(D), asking that his case be remanded for

reconsideration of his certified questions in light of the court’s holding in State v. Harrison,

270 S.W.3d 21 (Tenn. 2008). Our supreme court granted the appellant’s application and

remanded to this court for reconsideration of whether the appellant had standing to challenge

the issuance of the subpoena in light of the ruling in Harrison.

II. Analysis

In Harrison, which was filed on October 21, 2008, the defendant was charged with

several sexual offenses, and defense counsel requested a forensic psychological examination.

A report of the examination revealed that Harrison was competent to stand trial and that an

insanity defense could not be supported. Defense counsel obtained funding for Dr. Dennis

Wilson, a private clinical psychologist, to provide services for Harrison. Subsequently,

Harrison filed a petition to be declared incompetent to stand trial, attaching a report from Dr.

Wilson to support that contention. Afterward, the State obtained a judicial subpoena

directing Dr. Wilson to produce records related to his evaluation of Harrison. Harrison and

Dr. Wilson moved to quash the subpoena, and the motion was denied by the trial court.

However, the trial court granted Harrison an interlocutory appeal, and this court concluded

that although the State was not authorized under Tennessee Code Annotated section 40-17-

123(a) to obtain a judicial subpoena, the State could nevertheless follow a procedure

fashioned by the court to obtain the records. See State v. Robert Jonathan Harrison, No.

W2006-00483-CCA-R9-CD, 2007 WL 906730, at *3 (Tenn. Crim. App. at Jackson, Mar. 2,

2007). Thereafter, Harrison appealed to our supreme court.

In its opinion, our supreme court stated that this court had failed to address the issue

of Harrison’s standing to quash the subpoena. Harrison, 270 S.W.3d at 26. The court noted

that a number of this court’s cases, including the appellant’s, had followed the case law

established in Sheets v. Hathcock, 528 S.W.2d 47, 51 (Tenn. Crim. App. 1975), which held

that “a person cannot challenge a subpoena issued to a third party.” Harrison, 270 S.W.3d

at 28. However, our supreme court held that rule was “much too broad” and that “[a] person

who has a personal right, privilege, or proprietary interest in materials subject to a third-party

subpoena has standing to challenge the subpoena.” Id. at 28-29. Accordingly, the court

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“expressly overrule[d] Sheets v. Hathcock and its progeny to the extent that they conflict with

[the Harrison] holding.” Id. at 29.

The only issue raised by the appellant that is affected by Harrison is whether the trial

court erroneously denied the appellant’s motion to suppress the blood test results because the

State failed to comply with the statutory requirements of Tennessee Code Annotated section

40-17-123. As we stated earlier, this court previously concluded that “the appellant did not

have standing to challenge the issuance of the subpoena.” McClain, No. E2004-01182-CCA-

R3-CD, 2005 WL 1384877, at *3. However, the Harrison court held that “[a] person has

standing to challenge a subpoena issued to a third party, as long as that person asserts a

personal right, privilege, or proprietary interest in the materials being sought by the

subpoena.” 270 S.W.3d at 29. Based upon Harrison, we must conclude that the appellant

clearly has a personal interest in the blood taken from him and the results of testing

performed on that blood. Therefore, we conclude that the appellant had standing to challenge

the subpoena. Nevertheless, that conclusion does not complete our analysis. The Harrison

court cautioned that “concluding that a person has standing to challenge a subpoena issued

to a third party does not mean that the party’s challenge will ultimately be successful. That

decision will ultimately be made based on the substantive merits of the challenge to the

subpoena.” Id.

At a hearing prior to the guilty pleas, the State acknowledged that a clerk, not a judge,

signed the subpoena for the medical records. Therefore, the State maintained that “we should

re-subpoena the records according to the statute if it wasn’t done correctly the first time.”

The appellant responded, “If that’s what they want to do, that’s – that’s fine.” The trial court

said, “All right. General, go ahead, prepare a subpoena duces tecum, proper affidavit; and

– and if it states probable cause the court will issue it.” However, a second subpoena was

never prepared for the trial court’s review.

In its brief for the first appeal, the State contended “that the subpoena issued in this

case, as well as the underlying affidavit, complies with all of the [statutory] requirements .

. . , with the exception that it was signed by a deputy clerk rather than a judge.” The

appellant essentially agreed but argued that the State’s failure to comply with the statutory

requirements even after the trial court offered to review, and potentially sign, an affidavit and

subpoena duces tecum should result in suppression of the records. We note that other rules

explicitly authorize a clerk to sign a subpoena. See Tenn. R. Crim. P. 17(a) (providing that

“[a] subpoena shall be issued by a clerk or other authorized court officer”); see also Tenn.

R. Crim. P. 4(c)(1)(A) (providing that if an affidavit contains probable cause that an offense

has been committed, a magistrate or clerk may issue an arrest warrant); Tenn. R. Crim. P. 3

(providing that an affidavit of complaint may be made before a magistrate or a neutral and

detached court clerk). However, Tennessee Code Annotated section 40-17-123(d)(1)

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specifically provides that when a law enforcement officer has reason to believe that a

criminal offense has been or is being committed and that requiring the production of

documents or information is necessary to aid in the investigation and prosecution of the

offender(s), the officer shall prepare an affidavit and submit it to a “judge of a court of

record or a general sessions judge” who may then grant the subpoena in whole or in part.

(Emphasis added). We conclude Tennessee Code Annotated section 40-17-123 means that

only a judge may issue a subpoena under that statute. See Carter v. Bell, 279 S.W.3d 560,

564 (Tenn. 2009) (stating that “[w]hen statutory language is clear and unambiguous, we must

apply its plain meaning in its normal and accepted use . . . without reference to the broader

statutory intent, legislative history, or other sources”).

Based upon the foregoing, we are compelled to agree with the appellant that, despite

ample opportunity to cure the defect, the State failed to comply with the requirements of

Tennessee Code Annotated section 40-17-123.

Next, we examine the effect of this error. When a DUI conviction can be supported

by evidence independent of inadmissible blood or breath test results, then the admissibility

of such test results are not dispositive of the case. State v. Gregory W. Gurley, No.

W2001-02253-CCA-R3-CD, 2002 WL 1841754, at *3 (Tenn. Crim. App. at Jackson, Aug.

6, 2002). However, the State dismissed the indictment charging the appellant with DUI and

proceeded with an indictment charging the appellant with DUI per se. Generally, in the event

of a DUI per se conviction, the admissibility of the blood or breath test evidence determining

the percentage of alcohol in the blood is dispositive of the case. Gurley, No.

W2001-02253-CCA-R3-CD, 2002 WL 1841754, at *3; see also Cook, No. M2002-02460-

CCA-R3-CD, 2004 WL 2827007, at *3 n.2; State v. Terry A. Hawkins, No. M2002-01819-

CCA-R3-CD, 2004 WL 735028, at *3 n.1 (Tenn. Crim. App. at Nashville, Apr. 6, 2004).

Notably, the trial court stated, and the State agreed, that “if the evidence obtained as a result

of that subpoena is suppressed, then [the State] has no case.” Therefore, we are constrained

to conclude that the subpoena should have been quashed and that the indictment should have

been dismissed. See Harrison, 270 S.W.3d at 22.

III. Conclusion

In sum, we conclude that the subpoena duces tecum was not properly issued.

Accordingly, we must remand to the trial court for reversal of the appellant’s conviction and

dismissal of the indictment.

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NORMA McGEE OGLE, JUDGE

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