State of Tennessee v. David W. Gaddis

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

August 30, 2011 Session

STATE OF TENNESSEE v. DAVID W. GADDIS

Direct Appeal from the Criminal Court for Polk County

No. 06095 Amy Reedy, Judge

No. E2011-00003-CCA-R3-CD - Filed June 25, 2012

The defendant was convicted of second-offense driving under the influence, a Class A

misdemeanor, and driving with an expired license, a Class B misdemeanor. He was

sentenced to eleven months and twenty-nine days, suspended after seven months’

incarceration, on the second-offense DUI, and to a concurrent six months on the charge of

driving on an expired license, for a total effective sentence of eleven months and twenty-nine

days. On appeal, the defendant claims that: the evidence is insufficient to support his

convictions; the trial court erred by refusing to allow him to enter evidence pertaining to his

tumultuous relationship with a woman; the trial court erred by denying his motion to recuse;

the trial court erred by denying his motion to investigate juror dissatisfaction with the verdict;

and the sentences imposed were excessive. After carefully reviewing the record and the

arguments of the parties, we affirm the judgments of the trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,

P.J., and J AMES C URWOOD W ITT, J R., J., joined.

William J. Brown and David K. Calfee, Cleveland, Tennessee (on appeal); and Randy G.

Rogers, Athens, Tennessee (at trial), for the appellant, David W. Gaddis.

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

Robert Steven Bebb, District Attorney General; and Brooklyn Townsend and Stephen

Hatchett, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

On August 28th , 2006, the defendant was indicted on one count of second-offense

driving under the influence and one count of driving on an expired license. These charges

were the result of a police investigation into an automobile accident that occurred on March

23, 2005, in which the defendant’s car was struck by a truck at the intersection of U.S.

Highway 64 and State Route 68. The defendant was tried on June 17, 2010, at which time

the following evidence was presented:

The State’s first witness was Mr. Tony Jones, the driver of the truck that struck the

defendant’s car. Mr. Jones testified that he and his wife were driving eastbound on U.S. 64

when a car suddenly pulled out in front of them as they neared the intersection of State Route

68. Mr. Jones testified that they crashed into this vehicle. Mr. Jones testified that after the

accident, he checked to make sure his wife was uninjured, and then, about three or four

minutes later, he walked over to the other vehicle and looked inside. He saw a single

occupant, who was seated in the driver’s seat but whose body was slumped over into the

passenger’s seat. Mr. Jones testified that a police officer arrived and took control of the

scene before he could render aid. Mr. Jones testified that neither he nor his wife were

seriously injured by the accident. Following this testimony, Mr. Jones authenticated several

photographs that had been taken of the accident scene and identified his vehicle and the other

vehicle involved. These pictures were entered into evidence.

On cross-examination, Mr. Jones testified that he could not identify the defendant as

the individual he saw in the other vehicle because that individual was lying down, and as a

result, he saw only the individual’s side and back. Mr. Jones testified that the person in the

vehicle appeared to be unconscious. Mr. Jones testified that he made no attempt to awaken

the individual by shaking him or asking him questions. Mr. Jones testified that he could not

recall whether the airbags had deployed in the vehicle that he hit or whether there was any

blood in the vehicle.

The State’s next witness was Deputy Mike Mull with the Polk County Sheriff’s

Department. Deputy Mull testified that on the night of January 21, 2005, he received a 911

call informing him that there had been a wreck with injuries at the cloverleaf on U.S.

Highway 64. He testified that the accident site was located in Polk County and that he

responded to the accident scene within a minute of receiving the call.

Deputy Mull testified that when he arrived at the scene and exited his vehicle, he

could see a green Toyota Corolla sitting in the westbound lane of U.S. Highway 64 facing

east. On the opposite side of the highway (the eastbound side) he saw a Ford pickup truck.

Deputy Mull testified that there were two individuals standing outside the truck. After

informing him that they were not injured, these individuals suggested that he check on the

person inside the Toyota Corolla. Deputy Mull testified that he went to the car, looked

inside, and saw a single individual sitting in the car on the driver’s side. He testified that this

individual was slumped across the center console of the vehicle. Deputy Mull testified that

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emergency services personnel responded to the scene and removed the individual from his

vehicle. Deputy Mull testified that, after the individual was safely removed, he was finally

able to identify the vehicle’s occupant as the defendant. Deputy Mull testified that the

defendant had severe injuries and that medical personnel on the scene put him in the back of

an ambulance and called in a helicopter to fly him to the hospital.

During cross-examination, defense counsel attempted to impeach Deputy Mull’s

testimony with an EMS evacuation form that stated that the individual removed from the

vehicle had been found by the passenger door. However, Deputy Mull insisted that the

defendant’s Toyota Corolla was a small car and that he had found the defendant with his feet

in the driver’s side floorboard and his body slumped across the center console, head pointing

toward the passenger side door.

The State’s next witness was Trooper Larry Fowler with the Tennessee Highway

Patrol. Trooper Fowler testified that on January 21, 2005, he was dispatched to work a crash

involving two vehicles on U.S. Highway 64 at the intersection of State Route 68. Trooper

Fowler testified that when he arrived at the scene of the accident, the defendant had already

been transported away. Trooper Fowler testified that he interviewed Mr. and Mrs. Jones at

the scene.

Following this testimony, Trooper Fowler identified and described a diagram that he

had created of the accident. As described in his testimony, this diagram depicted the

defendant’s vehicle traveling west on U.S. Highway 64 and then attempting to cross over to

the ramp to reach State Route 68, at which time the vehicle was struck by the Jones’s truck,

which was traveling in the eastbound lane of U.S. Highway 64. Trooper Fowler testified that

the defendant’s vehicle came to rest in the westbound lane of U.S. Highway 64 and that the

Jones’s truck came to rest near the on ramp to State Route 68.

After detailing his training and experience in investigating and reconstructing

accidents, Trooper Fowler that as a result of his interviews, investigation, and study of the

physical evidence at the accident scene he had determined the defendant’s vehicle had turned

in front the Jones’ vehicle, which was traveling eastbound on U.S. Highway 64. He testified

that he had concluded from his investigation that the defendant’s vehicle was at fault for the

collision.

Trooper Fowler testified that as part of his investigation he had determined that the

green Toyota Corolla was registered to the defendant. He further testified that when he

investigated and inventoried the vehicle, he detected the smell of alcohol. Trooper Fowler

testified that based on this information he had subpoenaed the defendant’s medical records

from the hospital after the accident. The witness was then shown those records. He

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authenticated them, and they were entered into evidence. The records included the results

of a blood alcohol content (“BAC”) test that had been performed by the hospital, the results

of which would be discussed by a later witness.

During cross-examination, defense counsel questioned Trooper Fowler about an EMT

report stating that the defendant had been found by the passenger side door. Trooper Fowler

responded that this notation was not surprising because unrestrained drivers tended to move

around inside a vehicle following an impact. Trooper Fowler also testified that it was not

unusual for drivers to have injuries to various parts of their bodies when they are involved

in an accident and are not wearing a seatbelt. More specifically, Trooper Fowler testified that

it was not strange that the defendant had sustained severe injuries to the right side of his body

during an accident of this sort, because “often times when you have a direct force into a

vehicle the object or objects inside often go toward the vehicle at the time of the collision.”

Trooper Fowler testified that both airbags on the defendant’s vehicle appeared to have

deployed during the accident.

Trooper Fowler testified that during his follow-up investigation concerning the

accident, he had discovered that the defendant had suffered numerous broken bones,

undergone numerous surgeries, and had an extended period of rehabilitation. Trooper Fowler

testified that he did not charge the defendant with the offenses at issue until March 23, 2005,

in order to give the defendant time to recover. On redirect examination, Trooper Fowler

opined that in his expert opinion, in this sort of accident, both of the airbags in a vehicle

would deploy even if no passenger was present in the vehicle.

The State’s next witness was Ms. Margaret Massengill, a special agent forensic

scientist at the Tennessee Bureau of Investigation (“TBI”). Ms. Massengill was qualified as

an expert in toxicology and the effects of alcohol on the human body. Ms. Massengill

testified that she had received and reviewed a copy of the defendant’s medical records from

the hospital where he was taken on the night of the accident. Those records contained the

results of a blood alcohol content test that had been performed on the defendant. Ms.

Massengill testified that based on her study of the defendant’s medical records, it was her

expert opinion that the defendant’s blood alcohol content on the night of the accident was

somewhere between .21 and .26. She further testified that this range was considerably higher

than .08 grams per milliliter, the legal limit.

Ms. Massengill testified that over the years, numerous studies have been performed

studying the effects of driving while under the influence alcohol. She testified that the well-

known results of these studies are that alcohol consumption impairs the central nervous

system and affects an individual’s concentration, motor skills, coordination, and reaction

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time. She testified that the consumption of alcohol begins to impair the average person when

their blood alcohol content reaches .05 grams per milliliter. She testified that consuming

enough alcohol to achieve a BAC above .20 g/ml would unquestionably have a significant

affect on an individual’s central nervous system.

On cross-examination, Ms. Massengill testified that people who have a BAC of .08

g/ml can perform some simple tasks such as standing in the middle of a room without

difficulty. However, with respect to tasks requiring specific motor skills, Ms. Massengill

testified that individuals with a .08 g/ml BAC could not carry out simple functions – such as

correctly holding a pencil or driving a motor vehicle – without exhibiting pronounced signs

of impairment.

Following this testimony, Trooper Fowler returned to the stand. Trooper Fowler

testified that on the night of the accident, a deputy gave him the defendant’s driver’s license

at the scene of the wreck. He testified that he looked at the defendant’s license and

determined that it was expired. Following this testimony, the State rested.

Afterward, the defendant took the stand in his own defense. He testified that he was

sixty-one years old and had lived in the Ducktown area his entire life. The defendant

acknowledged that he was involved in an accident on January 21, 2005, but testified that he

was not alone when the accident occurred.

The defendant testified that his cousin, Carl Simons, had been acting as his designated

driver and was behind the wheel at the time of the accident. The defendant testified that he

had been in contact with his cousin several times since the accident and that his cousin had

attended at least one prior court proceeding. However, the defendant testified that he did not

know his cousin’s present whereabouts and had no current way to contact him. The

defendant testified that he believed that his cousin was in Tampa, Florida, where he moved

around frequently working odd jobs involving painting and construction. The defendant also

testified that his cousin changed phone numbers frequently and that he did not have his

current phone number.

The defendant testified that on the night of the accident, he had a run-in with a girl he

had been seeing, Connie Hope, who had caused him difficulties in the past. The defendant

testified that prior to the accident he had been out drinking at several different

establishments, including Dino’s Place and Cheer’s, before going to the Runway bar. The

defendant testified that he ran into Ms. Hope there and that he left in order to avoid her. The

defendant testified that his cousin had driven him back to his house when he suddenly saw

headlights behind them. Realizing that Ms. Hope had followed them home, he suggested to

his cousin that they go back to the Copper Hill area and get something to eat. He testified

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that his cousin agreed and that they were in the course of doing so when they arrived at the

intersection where the accident occurred.

The defendant testified that while his cousin was stopped at the intersection, he saw

Ms. Hope approaching them from behind. He testified that he could also see the headlights

of Mr. Jones’s truck approaching the intersection. The last thing that he remembered was

feeling his car hit from behind.

The defendant testified that he remembered being taken to a hospital by helicopter.

He testified that he had significant injuries, especially on the right side of his body, as a result

of the accident. He testified that these injuries included a broken neck, an injury to his right

eye, and puncture wounds to his leg and neck on the right side. He testified that he

underwent several surgeries following the accident and had several metal apparatuses put

into his neck to stabilize it. He testified that he was in the hospital for two or three weeks.

He testified that he had no idea what happened to his cousin after the accident because he

was unconscious. The defendant also testified that he was unaware that his license had

expired but that he was not driving that night in any event. The defendant concluded his

direct testimony by stating that he had no idea why his cousin had abandoned him after the

accident while he was still lying in the car unconscious.

On cross-examination, the defendant testified that his cousin had never given

law-enforcement personnel a statement concerning the accident. The defendant testified that

he and his cousin were fairly close and that his cousin knew that he had been charged as a

result of the accident and was “in trouble.” The defendant conceded that five years was

ample time for his cousin to have spoken with the Polk County Sheriff’s Office concerning

the matter.

The defendant testified that his cousin did not see any blood in the vehicle on the night

of the accident and that, after the accident, his cousin went back to the defendant’s house and

waited for him to return. The defendant testified that his cousin had no reason to suspect that

he was not fine following the accident – even though he ended up spending fourteen days in

the hospital. When asked why his cousin would not have looked over at the passenger seat

to see if he was passed out or unconscious after the wreck, the defendant testified that he

“ain’t got all the answers, you know.” He went on to suggest that his cousin ran away to

escape the “crazy person” that rear-ended them. In response to additional questions from the

State, the defendant testified that he was a former bail bondsman and was at least somewhat

familiar with the criminal justice system. When asked why he had not taken advantage of

any opportunity to tell anyone in the criminal justice system that he was not driving on the

night in question, the defendant claimed that he thought no one would believe him.

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On redirect examination, the defendant testified that it had always been his position

that he was never driving the vehicle. On recross-examination, the defendant testified that

he told his attorney that he was not driving the vehicle on the night of the accident but that

he did not tell anyone else, with the possible exception of some family members. When

asked why he would let his friends and the community at large believe that he had been

driving on the night of the accident for five and a half years while the charges against him

were pending, the defendant testified that he believed that everyone already knew that he was

not the driver. The defendant further testified that “[t]oday is the first time I’ve even had the

chance to tell anything” and continued to maintain that he was telling the truth.

Following the defendant’s testimony, Richard Amick testified that he had known the

defendant for some time. Mr. Amick testified that on the night in question, shortly before

he learned that the defendant had been in an accident, he had seen the defendant outside

Cheer’s in a car that was being driven by the defendant’s nephew sometime around 6:00 or

6:30 p.m. Mr. Amick also testified that he had seen Ms. Connie Hope at the establishment

earlier in the day. On cross-examination, Mr. Amick testified that it was between 6:30 and

7:00 p.m. that he saw the defendant and that he learned that the defendant had been in an

accident around 9:00 p.m.

Following this testimony, the trial court instructed the jury, the parties made closing

arguments, and the case was submitted. The jury commenced deliberations at 3:45 p.m., and

at approximately 5:30 p.m., the jury submitted three questions to the trial judge. One of these

questions was “[i]s there a conflict if a juror states ‘if you had known David Gaddis you’d

know he always gets a designated driver.’” In the presence of the parties’ counsels, the trial

judge informed the jury that he could not answer any of their questions. At short time

afterward, the jury returned with a verdict of guilty on both counts and assessed fines.

The State’s proof at the defendant’s sentencing consisted solely of a certified copy of

a 2007 conviction for DUI in Polk County. The defendant presented the testimony of his

sister, his daughter, and his ex-wife, who generally testified that the defendant was in poor

health, that his health conditions worsened when he was in custody, that he was no longer

drinking, and that he was currently living a quiet and peaceful life.

The trial court found that a sentence of confinement was necessary to avoid

depreciating the seriousness of the offense and because measures less restrictive than

confinement had been tried without success. In addition, the trial court expressed concern

that the defendant had a serious alcohol problem – as reflected in his prior DUI convictions

and his .26 BAC on the night of the accident – about which both he and his relatives seemed

to be in denial. The trial court found that confinement would not pose an undue hardship on

the defendant in light of the fact that there had been testimony that he was physically capable

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of maintaining four gardens and, consequently, it was clear that the defendant was capable

of performing strenuous physical activity. The trial court sentenced the defendant to eleven

months and twenty nine days, suspended after seven months, on his second-offense DUI and

to a concurrent six months for driving with a suspended license.

After passing sentence, the trial court addressed defense motions to interview the

jurors and to set aside the jury’s verdict. These motions were primarily based on an affidavit

that had been filed by one of the jurors following the trial. In this affidavit, the juror stated

that he “wish[ed] to withdraw [his] guilty charge [sic] to not guilty.” The juror explained that

he was fatigued during deliberations, that the other jurors were fatigued as well, and that he

and some other jurors had consented to a guilty verdict only because they believed that the

defendant would “only be given a fine.” The juror added, “I don’t believe we were properly

instructed to understand the consequences.” Defense counsel urged that his evidence,

combined with the jury’s questions, pointed to possible extrinsic juror contact during

deliberations. The State argued that, taken together, these items showed only that one juror

may have known the defendant before the trial, and that the jury, although properly

instructed, may have made a mistaken assumption concerning the applicable law governing

the defendant’s sentencing. The State urged that Tennessee Rule of Evidence 606(b)

prohibited juror testimony absent some grounds for believing the jury had been exposed to

extraneous prejudicial information. The court took the matter under advisement.

The defendant filed a timely motion for new trial. At a hearing on September 24,

2010, and by written order on the same day, the trial court denied the defendant’s motions

for a new trial, to set aside the jury’s verdict, and for leave to allow interview of the jurors.

Concerning the latter two motions, the trial court reasoned that the affidavit filed by the juror

merely discussed various courses taken during the jury’s deliberations and did not indicate

that any extraneous prejudicial information had been brought to the jury’s attention.

Although the question posed by a juror during deliberations concerning another juror’s

statement regarding the defendant’s alleged habit of procuring a designated driver indicated

that the jury may have been considering extraneous information, the trial court concluded that

this information was beneficial, not prejudicial, to the defendant. The trial court ruled that

the evidence before it provided an insufficient basis to launch an investigation into the jury’s

deliberations. The defendant filed a timely notice of appeal on October 22, 2010.

ANALYSIS

The defendant raises numerous challenges to his conviction and sentence. He claims

that the evidence is insufficient to support his convictions, that the trial court erred by

denying his motion to recuse, that the trial court erred by excluding evidence and testimony

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concerning the defendant’s difficulties with Ms. Connie Hope, that the trial court erred by

denying his motion to investigate and set aside the jury’s verdict, and that the trial court erred

by enhancing his sentence “as a result of the convictions in the present case.” After carefully

reviewing the record and the arguments of the parties, we conclude that the evidence is

sufficient to support the defendant’s convictions and discern no error in the trial court’s

sentencing and other rulings. For the reasons that follow, the judgment of the trial court is

affirmed.

I.

The defendant challenges the sufficiency of the evidence to support his convictions,

urging that the State failed to present any evidence that proved beyond a reasonable doubt

that the defendant drove the vehicle on the night of the accident. When the sufficiency of

the convicting evidence is challenged, the relevant question upon appellate review is

“whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also State v. Sisk, 343 S.W.3d

60, 65 (Tenn. 2011). A “criminal offense may be established exclusively by circumstantial

evidence,” and “the standard of review [on appeal] is the same whether the conviction is

based upon direct or circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379

(Tenn. 2011) (internal quotation omitted). The resolution of issues such as the credibility of

witnesses, the weight and value to be given the evidence, and any factual disputes is properly

the province of the trier of fact, and a guilty verdict accredits the testimony of the State’s

witnesses and resolves all evidentiary conflicts in favor of the theory of the State. See Sisk,

343 S.W.3d at 65. The defendant bears the burden of demonstrating that the evidence is

insufficient to support a conviction. Id.

The defendant in this case stands convicted of violating Tennessee Code Annotated

section 55-10-401(a), which provides:

a) It is unlawful for any person to drive or to be in physical control of any

automobile or other motor driven vehicle on any of the public roads and

highways of the state, or on any streets or alleys, or while on the premises of

any shopping center, trailer park or any apartment house complex, or any other

premises which is generally frequented by the public at large, while:

(1) Under the influence of any intoxicant, marijuana, narcotic drug, or drug

producing stimulating effects on the central nervous system; or

(2) The alcohol concentration in such person’s blood or breath is

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eight-hundredths of one percent (.08 %) or more.

T.C.A. § 55-10-401 (2005). In addition, the defendant stands convicted of driving with an

expired license in violation of a Tennessee Code Annotated 55-50-351(a),1 which provides

in pertinent part:

A person who drives a motor vehicle within the entire width between the

boundary lines of every way publicly maintained that is open to the use of the

public for purposes of vehicular travel, or the premises of any shopping center,

manufactured housing complex or apartment house complex or any other

premises frequented by the public at large at a time when the person’s

privilege to do so is cancelled, suspended, or revoked commits a Class B

misdemeanor.

T.C.A. § 55-50-504(a). The defendant argues that the prosecution failed to prove that he was

driving the vehicle on the night in question and consequently that the evidence failed to

support his conviction on either count.

Two witnesses, however, testified that the defendant was found in the driver’s seat

following the accident and that they saw no one else in the vehicle. This testimony provides

strong circumstantial evidence that the defendant was behind the wheel of the vehicle before

the accident occurred. Although the defendant gave direct testimony to the contrary, the jury

was free to discredit this testimony in favor of the circumstantial evidence, and its decision

to do so will not be revisited on appeal. See Sisk, 343 S.W.3d at 65. The remaining elements

of both statutes appear to be amply supported by other evidence that was presented at trial.

II.

The defendant claims that the trial judge erred by failing to grant his motion to recuse

because an appearance of bias was created by the “public embarrassment” to the judge

resulting from this court’s earlier admonition in a different case involving the same

defendant. Whether to “grant a motion for recusal is within the discretion of the trial judge.”

1

The State’s recitation of the specific statute prohibiting an individual from driving with an expired

license that is contained in the defendant’s indictment appears to be erroneous, and the trial court’s judgment

form fails to provide the relevant citation altogether. However, the defendant raised no objection to either

defect in the trial court, nor has he challenged either document on appeal. Consequently, any objection

concerning defects in either of these forms has been waived.

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Bean v. Bailey, 280 S.W.3d 798, 805 (Tenn. 2009). A trial judge’s decision on a recusal

motion will not be reversed on appeal absent a showing that the trial judge committed an

abuse of discretion. See id. A trial court abuses its discretion only “when the trial court has

applied an incorrect legal standard, or has reached a decision which is illogical or

unreasonable and causes an injustice to the party complaining.” State v. Ruiz, 204 S.W.3d

772, 778 (Tenn. 2006).

“A judge should grant a motion to recuse when the judge has any doubt as to his or

her ability to preside impartially in the case or when a person of ordinary prudence in the

judge’s position, knowing all of the facts known to the judge, would find a reasonable basis

for questioning the judge’s impartiality.” Smith v. State, 357 S.W.3d 322, 341 (Tenn. 2011)

(internal quotation omitted). A judge’s duty to recuse springs from a constitutional source;

Article VI, section 11 of the Tennessee Constitution provides that “[n]o Judge of the

Supreme or Inferior Courts shall preside on the trial of any cause in the event of which he

may be interested . . . .” Our state supreme court has explained that “[t]he purpose of Article

6, § 11 of our Constitution is to insure every litigant the cold neutrality of an impartial court.”

Leighton v. Henderson, 414 S.W.2d 419, 421 (Tenn. 1967). Furthermore, Tennessee

Supreme Court Rule 10, Canon 3(E)(1), states: “A judge shall disqualify himself or herself

in a proceeding in which the judge’s impartiality might reasonably be questioned, including

but not limited to instances where: (a) the judge has a personal bias or prejudice concerning

a party or a party’s lawyer. . . .”

However, it is well established that not every appearance of bias, partiality, or

prejudice merits recusal. “To disqualify, prejudice must be of a personal character, directed

at the litigant, must stem from an extrajudicial source and result in an opinion on the merits

on some basis other than what the judge learned from . . . participation in the case.” Alley

v. State, 882 S.W.2d 810, 821 (Tenn. Crim. App. 1994) (internal quotation omitted).

Moreover, “[a]dverse rulings by a trial court are not usually sufficient grounds to establish

bias” and “[r]ulings of a trial judge, even if erroneous, numerous and continuous, do not,

without more, justify disqualification.” Id. Firm application of these principles require this

court to reject the defendant’s claim.

The defendant has failed to establish the trial judge’s bias or that any bias stems from

an extrajudicial source. According to the defendant, the source of the trial judge’s alleged

bias was an admonition contained in an opinion from this court affirming a separate DUI

conviction involving the same defendant. In that case, the defendant challenged his DUI

conviction on the grounds that the trial court had made improper comments and had failed

to properly admonish a witness for using colorful language while on the stand. In the course

of denying his claim, this court stated: “Nonetheless, we find it necessary to admonish the

trial court. A bench conference should not have been conducted without defense counsel,

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and the trial judge’s comments to defense counsel following the bench conference, regarding

his stature and girth, were inappropriate, particularly when made in front of the jury.” State

v. Gaddis, No. E2008-00812-CCA-R3-CD, 2008 Tenn. Crim. App. LEXIS 907, at *23

(Tenn. Crim. App. Nov. 20, 2008). The defendant argues that the trial court was prejudiced

against the defendant due to embarrassment resulting from this admonishment.

Any bias that might result from this court’s comments, however, would not spring

from an extrajudicial source. This court’s rulings on, and comments concerning, various

actions taken by the trial judge in the defendant’s prior case are not extrajudicial in nature.

They are part and parcel of the legal process and constitute an inherent component of the

litigation concerning the defendant’s prior case.

Moreover, the defendant has failed to establish that the trial judge held any actual bias

or prejudice against him, regardless of source. As proof of bias, the defendant complains

that the trial judge refused to sustain one of his objections at trial, imposed an excessive

sentence, and excessive pending appeal. These are simply adverse rulings, and adverse

rulings, without more, do not establish bias. Alley, 882 S.W.2d at 821. The defendant’s

claim that the trial judge erred by failing to grant his motion to recuse is denied.

III.

The defendant claims that the trial court erred by excluding as irrelevant certain

evidence pertaining to his relationship with Ms. Connie Hope, including evidence that she

had stalked and assaulted him – sometimes violently – on prior occasions. During a jury-out

hearing held midway through his direct testimony, the defendant proffered evidence

concerning a restraining order that he had taken out against Ms. Hope three days prior to the

accident. The defendant also testified that he had experienced numerous difficulties trying

to keep Ms. Hope away from him. He testified that the Polk County Sheriff’s Office had

once been called to his house because of a disturbance that Ms. Hope was causing on his

property and that they had escorted her away after the incident. The defendant testified that

Ms. Hope had been charged for assaulting him and for violating court orders by approaching

him at various locations. The defendant testified that Ms. Hope had stabbed him with a knife

on at least one occasion. The defendant testified that his problems with Ms. Hope continued

after the accident. He testified that his family took out a restraining order against Ms. Hope

while he was in the hospital and that additional warrants had been issued against Ms. Hope

since the accident.

During and following this proffer, the defendant argued that his testimony on these

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topics (as well as supporting documentation) should be admissible as relevant for purposes

of showing that Ms. Hope was out of control and capable of causing the accident. The State

initially informed the trial court that it had no objection to this evidence being presented to

the jury, but it later reversed its position. The trial court ruled that the proffered evidence

concerned a collateral domestic dispute between two people, had nothing to do with the case,

and would be excluded.

Decisions concerning the relevance of evidence proffered for admission at trial are

entrusted to the discretion of the trial court. See State v. Robinson, 146 S.W.3d 469, 490

(Tenn. 2004). A trial court’s exercise of discretion will not be reversed on appeal unless the

court “applied an incorrect legal standard, or reached a decision which is against logic or

reasoning that caused an injustice to the party complaining.” Id. (quoting State v. Shuck, 953

S.W.2d 662, 669 (Tenn. 1997)). The defendant has failed to establish that the trial court

abused its discretion by refusing to admit the evidence at issue.

All relevant evidence is generally admissible unless a particular constitutional

provision, statute, or rule excludes it. Tenn. R. Evid. 402. However, “[e]vidence which is

not relevant is not admissible.” Id. Evidence is not relevant unless it has “any tendency to

make the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. Under

these standards, the trial court did not reach an illogical conclusion when it decided that the

evidence proffered by the defendant concerning Ms. Hope was irrelevant with respect to the

particular charges against him.

The defendant argues that the excluded evidence “was critical to the defense, as it

corroborated the difficulties [the defendant] had been having with Ms. Hope and supported

his statements that she had been a contributing factor to the accident in question.” However,

the defendant was not charged with causing an accident. None of the charges against the

defendant depend on his having contributed to an accident in any way. The defendant was

charged with driving while under the influence and with driving on an expired license. The

accident and its cause are of no legal significance; the only significance of the accident itself

was that the defendant was found behind the wheel by law enforcement personnel afterward.

Even if evidence existed that would conclusively prove that Ms. Hope had rammed the

defendant’s stationary car into oncoming traffic on the night in question and that she was the

sole cause of the accident, this evidence would not render it any more or less likely that the

defendant was behind the wheel of his vehicle when it was struck; render it any more or less

likely that he had been drinking; or render it any more or less likely that his license was

expired at the time. Consequently, the defendant’s claim that the trial court erred by

excluding his proffered testimony and evidence relating to Ms. Hope is denied.

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IV.

In his appellate brief, the defendant claims that “[t]he trial court erred when it denied

defense counsel’s motion to investigate jury dissatisfaction and reaction to the verdict

reported in this cause.” However, we can discern no error in the trial court’s ruling with

respect to any such motion filed by the defendant.

It is difficult to determine with certainty from a cold review of the record the precise

purpose of, and relief sought by, the defendant’s motion that was entitled “Motion for Leave

to Allow Interview of Jurors” requesting the court “to allow interview of jurors in this cause

to determine the validity or unanimity of the verdict returned and to determine whether the

charge given to the jury by this Honorable Court had the effect, because it did not inform the

jurors of the minimum mandatory sentences of depriving the defendant of a fair trial. . . .”

Judged solely by this language, it would appear that the defendant simply sought to speak

with jurors concerning their verdict. If so, no motion was necessary; a lawyer’s right to

converse in consensual fashion with jurors concerning their verdict following a trial is well

established and has been acknowledged by our state supreme court in the Rules of

Professional Conduct for decades. See generally Tenn. Sup. Ct. R. 8. While the precise

wording of the governing rule has changed significantly over the years, the underlying

principle has always been the same: attorneys may communicate with jurors after they have

completed their service so long as the juror is willing to speak with them; the communication

is not intended to vex, harass, embarrass or prejudice the juror; and the communication is not

otherwise prohibited by law. See, e.g., Tenn. Sup. Ct. R. 8, R P C 3.5(c) & (d) (2012); Tenn.

Sup. Ct. R. 8, R P C 3.5 (c) & (d) (2010). Although local court rules may place some

reasonable minor restrictions on the time, place, and manner of this communication, they may

not place any additional restrictions on an attorney’s right to informally interview jurors that

work to contravene the attorney’s right as established in Supreme Court Rule 8. See, e.g.,

State v. Thomas, 813 S.W.2d 395, 396-97 (Tenn. 1991) (holding unenforceable a local court

rule that prohibited communication between lawyers and former jurors without prior court

approval on grounds that the rule contravened Supreme Court Rule 8); State v. James Webb,

No. 02C01-9512-CC-00383, 1997 Tenn. Crim. App. LEXIS 188, at *36 (Tenn. Crim. App.

Feb. 27, 1997) (“[W]ithin the confines of [EC 7-29 and D.R. 7-108(d)] and Tenn. R. Evid.

606(b), the trial court may not prohibit post-trial contact between jurors and defense

counsel.”); State v. David A McCarter and Penny Lou Kennon, C.C.A. No. 1296, 1990 Tenn.

Crim. App. LEXIS 739, at *5 (Tenn. Crim. App. Nov. 1, 1990) (“The refusal of the trial

court judge to allow the attorneys to talk with citizens who sat as jurors in this case is clearly

erroneous.”). Consequently, assuming that defense counsel was not engaging in any

activities that might serve to harass, embarrass, or prejudice the former jurors, he had a right

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to attempt to speak with them and did not need to seek the trial court’s permission to do so.2

A motion for leave to informally interview jurors need only be filed if there is some

reasonable concern that “the contemplated inquiry reasonably could be considered to go

beyond that approved by the provisions of Rule 8.” Thomas, 813 S.W.2d at 397.

However, concern relating to a desire to informally interview jurors is not the

gravamen of the defendant’s claim. After reviewing the transcripts of the proceedings below

and the contents of the appellate briefs, it appears that the dispute between the parties does

not revolve around any need to “interview” the former jurors in the sense of speaking with

them off the record. Indeed, it appears from the record that either defense counsel or

someone else associated with the defense had already spoken with at least one of the

defendant’s former jurors because defense counsel produced an affidavit from that juror

seeking to change his vote at the defendant’s sentencing hearing. Thus, the dispute between

the parties appears to center around the defendant’s desire to take and present testimony from

the jurors. For example, in the court below, in response to a question from the trial court

concerning whether the defendant wished to present any witnesses concerning his pending

motion, defense counsel expressed concern that the jurors “ought to have independent

counsel before they choose to do that” and explained that he did not want to “just jerk them

up on the stand.” This discussion plainly contemplates that defense counsel sought to have

a least one former juror testify pursuant to his “Motion for Leave to Allow Interview of

Jurors.”

Moreover, on appeal, the parties’ arguments center almost entirely around the

applicability of Tennessee Rule of Evidence 606(b), which governs the taking of testimony

of former jurors, not informal interviews. More specifically, the defendant claims on appeal

that the record reflects the possible existence of extraneous information or improper

influence upon the jury and that he should have been permitted to explore this possibility

consistent with the rules of evidence. The State responds that neither (1) the jury’s questions

to the court during its deliberations nor (2) the affidavit that was subsequently filed by a juror

seeking to change his vote provide any basis for concluding that the jury may have been

2

After hearing the defendant’s argument concerning his motion for leave to interview jurors and

to set aside the verdict, the trial court stated, “Nobody in this courtroom had better be talking to this juror

again,” “[t]here shall be, and that’s a ‘shall,’ not a ‘may,’ there shall be no contact with [a specific juror] until

the conclusion of this year,” and “if there is any contact with [the specified juror] it will be a violation of the

Court’s order.” Such an order would be clearly erroneous absent some finding by the court that the lawyer

had engaged or would engage in conduct that violated the ethical constraints placed on a lawyer’s ability to

speak with former jurors by our supreme court. While the trial court stated that this juror was “still in the

pool,” and therefore could not be contacted, the court did not explain on the record how contact from defense

counsel had violated or was likely to violate Supreme Court Rule 8. Reasons that may have been self-evident

to the court below are not so evident in the appellate record.

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subject to extraneous information, and testimony by former jurors concerning other subjects

is forbidden by Rule 606(b).

Both a trial court’s denial of a motion to hold a hearing concerning a jury’s possible

exposure to extraneous information and a trial court’s decision to permit the taking of the

testimony of any or all of the former jurors at such a hearing are reviewed under an abuse of

discretion standard. See State v. King, 40 S.W.3d 442 (Tenn. 2001) (“In general, the course

and conduct of trial proceedings rests within the sound discretion of the trial court.”); State

v. Donald R. Eady, Jr., No. E2000-01152-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 928,

at *41 (Tenn. Crim. App. Dec. 4, 2001) (explaining that trial courts have “wide discretion

as to the proceedings before [them]” and that the manner in which the trial court conducted

a hearing concerning allegations of jury exposure to extraneous information “was not an

abuse of its discretion”); cf. State v. Clayton, 131 S.W.3d 475, 478-79 (Tenn. Crim. App.

2003) (holding that a trial court’s decisions concerning the method to be used for polling a

jury after announcing a verdict and for determining whether a juror has given an unequivocal

response to such a poll are reviewed under an abuse of discretion standard). The defendant

has failed to establish that the trial court abused its discretion when it failed to hold a hearing,

take testimony, or otherwise further officially investigate the defendant’s allegations.

Both the Sixth Amendment of the United States Constitution and Article I, section 9

of the Tennessee Constitution guarantee a defendant’s right to an impartial jury. An

impartial jury is one in which the jurors are “free of . . . disqualification on account of some

bias or partiality toward one side or the other of the litigation.” State v. Akins, 867 S.W.2d

350, 354 (Tenn. Crim. App. 1993) (quoting Toombs v. State, 197 Tenn. 229, 270 S.W.2d

649, 650 (Tenn. 1954)). However, “[t]he right to impeach a jury verdict is extremely

limited.” Carruthers v. State, 145 S.W.3d 85, 93 (Tenn. Crim. App. 2003). Inquiry into a

jury’s deliberative process is limited by Tennessee Rule of Evidence 606(b), which provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not

testify as to any matter or statement occurring during the course of the jury’s

deliberations or to the effect of anything upon any juror’s mind or emotions as

influencing that juror to assent to or dissent from the verdict or indictment or

concerning the juror’s mental processes, except that a juror may testify on the

question of whether extraneous prejudicial information was improperly

brought to the jury’s attention, whether any outside influence was improperly

brought to bear upon any juror, or whether the jurors agreed in advance to be

bound by a quotient or gambling verdict without further discussion; nor may

a juror’s affidavit or evidence of any statement by the juror concerning a

matter about which the juror would be precluded from testifying be received

for these purposes.

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Tenn. R. Evid. Rule 606. “The public policy considerations behind Rule 606(b) are obvious

[and] include the prevention of jury harassment, encouragement of free and open jury

deliberation, promotion of finality of verdicts, and the reduction of the incentive for jury

tampering.” Carruthers, 145 S.W.3d at 92-93. Consequently, unless the testimony would

fall within one of the three specified exceptions, “a juror is not permitted to testify about

anything occurring during deliberations, including the juror’s own internal thoughts,

motivations, or emotions.” Walsh v. State, 166 S.W.3d 641, 647 (Tenn. 2005).

The defendant carries the burden of establishing that a juror bias challenge may be

maintained and of establishing a prima facie case of bias. See State v. Robinson, 146 S.W.3d

469, 523 (Tenn. 2004); Atkins, 867 S.W.2d at 355. Here, the material produced by the

defendant was insufficient to provide a basis for bringing a juror bias claim. Using the

investigative tools available to him, the defendant produced an affidavit from a former juror

concerning the jury’s deliberations, which he claims provides a basis for suspecting that the

jury was subjected to extraneous information when it is considered in conjunction with a

question asked by the jury during its deliberations. However, neither the affidavit nor the

jury’s question, without more, provides any grounds for establishing bias.

The affidavit produced by the defendant primarily deals with a former juror’s

complaint that the defendant was punished excessively (in the juror’s view) for his crime.

The affidavit discusses the juror’s personal thoughts on the case, explains that many members

of the jury were tired during deliberations, and complains that they were given insufficient

information concerning the consequences of a conviction. The testimony contained in this

affidavit discusses the jury’s deliberative process but does not fall within any of the

exceptions provided by Rule 606(b). At heart, the juror merely claims that he was confused

by a jury instruction and erroneously believed that the defendant would receive only a fine

if convicted. There is nothing to suggest that this misunderstanding was the result of any

outside influence. Nothing in the affidavit insinuates that the jury received extraneous

prejudicial information, that any outside influence was improperly brought to bear on the

jury, or that the jurors themselves agreed to be bound in advance by a quotient.

Consequently, Rule 606(b) prohibited the trial judge from considering the affidavit as

evidence of juror bias or as a possible grounds for impeaching the jury’s verdict.

Because the trial judge was prohibited by Rule 606(b) from considering the affidavit

in its entirety, the defendant’s argument that the affidavit should be considered in the context

of the questions asked by the jury during its deliberations is also insufficient to establish a

basis for impeaching the jury’s verdict. It is true that one of the questions asked by the jury

– inquiring as to whether any bias might arise from a juror having allegedly stated “if you had

-17-

known David Gaddis you’d know he always gets a designated driver” – might imply that at

least one juror was aware of the defendant’s reputation within the community.3 However,

although notions of “extraneous information” may encompass “a juror’s personal knowledge

of the defendant’s prior criminal record or arrest,” State v. Kendrick D. Rivers, No.

W2006-01120-CCA-R3-CD, 2008 Tenn. Crim. App. LEXIS 7, at *8 (Tenn. Crim. App. Jan.

7, 2008) (citing N EIL P. C OHEN, ET AL., T ENNESSEE L AW OF E VIDENCE § 606.2 (3rd ed.

1995)), we are unwilling to extend that principle so far as to encompass a juror’s personal

knowledge of a defendant’s general reputation in the community, especially in absence of

any allegation that the juror concealed the information during voir dire. If “mere exposure

to news accounts of [an] incident [is] insufficient to establish bias,” and “jurors can have

knowledge of the facts surrounding the crime and still be qualified to sit on the jury,”State

v. Thomas D. Huskey, No. E1999-00438-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 550,

at *312-13 (Tenn. Crim. App. June 28, 2002), then a mere allegation that a juror may have

possessed prior awareness of the defendant’s general reputation in the community, without

more, is insufficient to provide a basis for maintaining a juror bias challenge.

Furthermore, we agree with the trial court that the defendant would have had a

difficult time establishing prejudice given the precise content of the question posed by the

jury. To the extent that the question reveals any potential juror bias, this bias appears to have

been strongly favorable to the defendant. The fact that the defendant was convicted

nonetheless would appear to conclusively establish that any extraneous information to which

the jury might have been exposed had no effect on its verdict. The defendant’s claim is

denied.

V.

The defendant’s final claim falls under a heading stating that the “trial court erred

when it enhanced the sentence imposed on him as a result of the convictions in the present

case.” However, the text and body of the argument contained within that section make clear

that the defendant is simply challenging the sentence imposed by the trial court as excessive.

3

The implication that some juror might have known the defendant – by reputation, at least – before

the trial also raises the specter of the possibility that a juror may have concealed information during voir dire,

a fact which, if established, would raise a presumption of prejudice. Atkins, 867 S.W.2d at 355 (“When a

juror willfully conceals (or fails to disclose) information on voir dire which reflects on the juror’s lack of

impartiality, a presumption of prejudice arises.”). However, the defendant has not argued, either in this court

or the court below, that any information was improperly withheld by any juror during voir dire. Furthermore,

no transcript of the voir dire has been included in the appellate record. Consequently, any claim that the

defendant might have had to have been entitled to further investigation of the jury verdict based on this issue

has been waived. See Tenn. Ct. Crim. App. R. 10(b).

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Within that general rubric, the defendant takes particular issue with the trial court’s reliance

on a prior DUI conviction (for an act committed after the events at issue in this case) in order

to reach the conclusion that the defendant had a serious alcohol problem and that punishment

for his prior crimes had failed to provide him with sufficient incentive to acknowledge and

address this problem. However, the defendant has failed to carry his burden of

demonstrating that his sentence was improper.

The burden of demonstrating that a sentence is erroneous is placed upon the appealing

party. State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008). We review a trial court’s sentence

de novo, but with a presumption that any factual determinations made by the trial court are

correct. Id. This presumption “‘is conditioned upon the affirmative showing in the record

that the trial court considered the sentencing principles and all relevant facts and

circumstances.’” Id. at 344-45 (quoting State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)).

“If, however, the trial court applies inappropriate mitigating and/or enhancement factors or

otherwise fails to follow the Sentencing Act, the presumption of correctness fails” and we

review the defendant’s sentence using a pure de novo standard. Id. at 345.

Sentencing courts are afforded traditional flexibility and discretion when sentencing

for misdemeanors. State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999).

However, any sentence imposed by a trial court must be in accordance with the overall

principles, purpose, and goals of the Criminal Sentencing Reform Act of 1989. State v.

Palmer, 902 S.W.3d 391, 393 (Tenn. 1995). Just as with felony sentences, if a court has

“followed the appropriate statutory procedure and imposed a lawful sentence after giving due

consideration and proper weight to the factors and principles under law, and so long as the

sentencing court’s findings of facts are adequately supported by the record, then this Court

may not modify the sentence, even if actually preferring a different result.” State v.

Goodwin, 143 S.W.3d 771, 784 (Tenn. 2004).

In Tennessee Code Annotated section 55-10-403(a), the legislature proscribed specific

penalties for a defendant’s second conviction for driving under the influence:

For conviction on the second offense, there shall be imposed a fine of not less

than six hundred dollars ($600) nor more than three thousand five hundred

dollars ($3,500), and the person or persons shall be confined in the county jail

or workhouse for not less than forty-five (45) days nor more than eleven (11)

months and twenty-nine (29) days, and the court shall prohibit the convicted

person or persons from driving a vehicle in this state for a period of time of

two (2) years. Upon the conviction of a person on the second offense only, a

judge may sentence the person to participate in a court approved alcohol or

drug treatment program.

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T.C.A. § 55-10-403(a)(i)(A)(iv) (2005). When read in conjunction with section 55-10-

403(c), which provides: “All persons sentenced under subsection (a) shall, in addition to

service of at least the minimum sentence, be required to serve the difference between the

time actually served and the maximum sentence on probation,” the relevant DUI provisions

create a specific sentence for all misdemeanor DUI convictions of eleven months and twenty-

nine days, “with the only function of the trial court being to determine what period above the

minimum period of incarceration established by statute, if any, is to be suspended.” State v.

Combs, 945 S.W.2d 770, 774 (Tenn. Crim. App. 1996). “[A] DUI offender can be sentenced

to serve the entire eleven month and twenty-nine day sentence imposed as the maximum

punishment for DUI so long as the imposition of that sentence is in accordance with the

principles and purposes of the Criminal Sentencing Reform Act of 1989.” Palmer, 902

S.W.2d at 394.

The trial court ordered the defendant to serve seven months in confinement, well

above the statutory minimum of forty-five days, on the grounds that: (1) some additional

confinement was necessary to protect society from a defendant with a long criminal history,

(2) some additional confinement was necessary to avoid depreciating the seriousness of the

defendant’s offense, and (3) measures less restrictive than confinement had been tried

without success. In this regard, the trial court did not err. This was not a run-of-the-mill

DUI case. The defendant’s blood alcohol content was extremely high. Moreover, he was

involved in a serious accident that almost cost him his life and put two other lives in great

peril. Regardless of whether the defendant actually caused the accident, his drinking and

driving certainly did not reduce the degree of danger he posed to himself and others behind

the wheel. Moreover, the defendant’s criminal history includes repeated acts of driving

while intoxicated – acts occurring both before and after the accident in this case and his

resulting hospitalization. Regardless of whether the trial court was correct in concluding that

the defendant was in denial about a serious drinking problem, the trial court’s conclusions

concerning the seriousness of the defendant’s offense, the danger that he posed to society,

and his failure to respond to lesser forms of punishment is well supported by the record. The

defendant’s challenge to the trial court’s decision to order him to serve seven months of his

sentence in incarceration is therefore denied.

CONCLUSION

For the foregoing reasons, the judgments of the trial court are affirmed.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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