STATE OF TENNESSEE v. HARLAN V. FERGUSON

05/28/2025

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

February 25, 2025 Session

STATE OF TENNESSEE v. HARLAN V. FERGUSON, ALIAS HARLEY T.

MARTIN

Appeal from the Criminal Court for Knox County

No. 108894 Bobby R. McGee, Judge 1

___________________________________

No. E2019-02224-CCA-R3-CD

___________________________________

A Knox County jury convicted Defendant, Harlan V. Ferguson, alias Harley T. Martin, of

two counts of vehicular homicide, evading arrest, reckless endangerment with a deadly

weapon, driving under the influence (“DUI”), DUI per se, and failure to drive within a

single lane of traffic. The trial court merged the vehicular homicide and DUI convictions

into one vehicular homicide conviction and imposed an effective ten-year sentence with

one year to be served in confinement followed by probation. While Defendant’s direct

appeal was pending in this court, he filed a petition for writ of error coram nobis, in which

he alleged that newly discovered evidence may have resulted in a different judgment. The

trial court denied the petition, and this court consolidated Defendant’s direct appeal of his

convictions and his appeal from the denial of coram nobis relief. On appeal, Defendant

challenges (1) the trial court’s denial of his motion to suppress his statements to law

enforcement; (2) the State’s failure to establish the chain of custody of Defendant’s blood

samples; (3) the trial court’s denial of his motion to dismiss due to the destruction of

evidence; (4) the trial court’s admission of lay testimony regarding the cause of the

victim’s injuries; (5) the trial court’s admission of Defendant’s medical records; (6) the

trial court’s exclusion of defense evidence; (7) the trial court’s failure to issue a missing

witness instruction; (8) the State’s comments during closing arguments; (9) the State’s

failure to disclose evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); and

(10) the trial court’s denial of Defendant’s petition for writ of error coram nobis.

Defendant also argues that the cumulative effect of the errors entitles him to relief. Upon

review, we affirm the judgments of the trial court.

1

Judge McGee presided over the trial, sentencing hearing, and hearing on Defendant’s motion for

new trial. Judge McGee subsequently retired, and Judge Ryan M. Spitzer presided over Defendant’s coram

nobis proceedings by interchange.

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

MATTHEW J. WILSON, J., delivered the opinion of the court, in which TIMOTHY L. EASTER,

J., and W. MARK WARD, SP. J., joined.

Eric Lutton, District Public Defender; Jonathan Harwell (on appeal and at coram nobis

hearing), Halle Hammond (on appeal), Christy Murray (at trial and coram nobis hearing),

and Kathryn Fraser and Carter Pack (at trial), Assistant District Public Defenders, for the

appellant, Harlan V. Ferguson, alias Harley T. Martin.

Jonathan Skrmetti, Attorney General and Reporter; Katherine C. Redding, Senior

Assistant Attorney General; Charme P. Allen, District Attorney General; and Heather

Good, Joe Welker, and Greg Eshbaugh, Assistant District Attorneys General, for the

appellee, State of Tennessee.

OPINION

I. Facts and Procedural History

During the evening hours of February 3, 2016, officers with the Knox County

Sheriff’s Office (“KCSO”) attempted to stop a 2012 Kia Soul that was traveling at a high

rate of speed. Before officers could catch up to the vehicle, it ran off the road and struck

a tree. The occupants of the vehicle were Defendant and the victim, Sarah Howe, both of

whom sustained multiple injuries from the crash. The victim died from her injuries. On

August 30, 2016, Defendant was charged by presentment with vehicular homicide,

vehicular homicide by intoxication, evading arrest, reckless endangerment with a deadly

weapon, DUI per se, DUI of an “intoxicant,” DUI of marijuana, DUI of an “intoxicant”

and marijuana, and the failure to drive within a single lane of traffic.

A. Trial

Defendant’s trial commenced in September 2019. During opening statements, the

State asserted that Defendant was driving under the influence and in a reckless manner,

resulting in the crash and the victim’s death. Defense counsel argued that Defendant was

not the driver and that the victim was not “fleeing from the police” but “was fleeing from

a perceived threat . . . that was generated by two officers who conducted a dangerous

pursuit on a dark, country road in unmarked vehicles.” Defense counsel also contended

that the subsequent investigation by law enforcement was inadequate.

-2-

Benjamin Sumner, Defendant’s former employer, testified that after he and

Defendant worked on February 3, 2016, they went to Mr. Sumner’s home to repair

Defendant’s Jeep but determined that they needed to order a part. They then decided to

“hang out” and drink alcohol. They began drinking between 4:30 and 5:30 p.m., and

Defendant was drinking Jack Daniel’s whiskey “out of a bottle with a chaser.” The victim

arrived between 5:30 and 6:00 p.m. in her green 2012 Kia Soul. They continued to drink,

and Mr. Sumner said that he and Defendant drank whiskey and that the victim had

“[m]aybe a couple of swigs” of whiskey. At approximately 6:30 p.m., Mr. Sumner

smelled marijuana outside of his house near his driveway, but he did not see Defendant

smoking marijuana.

Mr. Sumner testified that Defendant and the victim left in the victim’s Kia at

approximately 7:00 p.m. Mr. Sumner initially testified that Defendant was driving and

that the victim was sitting in the passenger’s seat. However, on cross-examination, Mr.

Sumner acknowledged that he based his testimony that Defendant was driving on a news

article or other information that Mr. Sumner received following the crash. Mr. Sumner

agreed that he was in the bathroom when Defendant and the victim left, that he had no

personal knowledge of who drove the vehicle, and that after using the bathroom, he

walked outside and saw the taillights of the vehicle as Defendant and the victim were

leaving.

On February 4, 2016, at approximately 5:30 a.m., Defendant called Mr. Sumner

and stated that he and the victim had sustained extensive injuries from an accident and

that the victim had died. Mr. Sumner testified that when he visited Defendant at the

hospital later that evening, Defendant stated that he “ran from the police” and “gave them

hell” and that Defendant “thought it was funny.” Mr. Sumner stated that although

Defendant did not specifically say that he was driving the vehicle, Defendant’s statements

“surely impl[y] to me that [Defendant] was driving.” Mr. Sumner acknowledged that

Defendant provided conflicting statements regarding the crash and did not appear to be

“in a straight state of mind.” Mr. Sumner stated that he spoke to Defendant following his

release from the hospital and that Defendant expressed remorse and guilt. Defendant told

Mr. Sumner, “I really screwed up. I don’t know why I did it, how it happened[.] . . . I

made a mistake and I’ve got to live with this the rest of my life.”

Danny Hickey, who lived in the area where the crash occurred, testified that while

he was on his neighbor’s front porch, he saw a vehicle go by “really fast,” followed by a

white sports utility vehicle (“SUV”) and a black Ford F-150 truck, both of which had

flashing blue lights underneath the vehicles. Mr. Hickey said that he did not hear the crash

but saw a vehicle on fire and heard people yelling for help. He ran toward the crash site,

where he observed that the vehicle had run off the road, “jumped” a driveway, struck a

mailbox, and continued through a field until it struck a tree. The SUV and the truck, both

-3-

of which were unmarked police vehicles, were parked in the road, and the blue emergency

lights under both vehicles were flashing.

Mr. Hickey stated that he reached the wrecked vehicle at the same time as two

officers who were wearing suits and ties. Mr. Hickey determined that the men were

officers within “[j]ust a few seconds.” He testified that the vehicle was on fire and that

Defendant, who he identified as the driver, was attempting to exit the vehicle on the

driver’s side. The lower half of Defendant’s body was inside the vehicle, and Defendant

was attempting to crawl out of the vehicle. Mr. Hickey did not see Defendant struggling

with an airbag. Mr. Hickey and one of the officers picked up Defendant and moved him

away from the vehicle.

Mr. Hickey testified that he walked around to the other side of the vehicle, where

he saw the victim lying on the ground next to the passenger’s side door. The victim’s eyes

were closed, and she was not making any noise. Mr. Hickey stated that the passenger’s

side door was shut and that the window was rolled up. He never saw the passenger’s side

door open while at the scene. Mr. Hickey stated that Chief David Henderson was the only

officer to whom he spoke at the scene regarding his observations and that law enforcement

officers never came to his home to obtain a statement from him.

KCSO Chief David Henderson testified that in February 2016, he was head of the

task force in the narcotics unit and assisted in traffic control when needed. He had a

police-issued, white Chevrolet Tahoe, which was unmarked and had multiple blue lights.

On February 3, 2016, at approximately 7:25 p.m., Chief Henderson was driving home and

speaking to Captain David Amburn on their cell phones regarding police pursuit of a

suspect in the area on an unrelated case when an SUV passed Chief Henderson’s SUV

traveling eastbound on Emory Road at a high rate of speed and in an area of the roadway

with a double yellow line. Chief Henderson stated that the vehicle was green and that he

believed it to be a Kia Soul, but he also acknowledged that he initially was unable to

identify the make and model of the vehicle. As the Kia passed him, he turned on his blue

lights, hoping that the Kia would slow down. When the Kia failed to do so, Chief

Henderson turned off his blue lights and “continued on to the house” in the same direction

in which the Kia was traveling.

Chief Henderson suggested to Captain Amburn that he go toward the area where

the Kia was traveling. Chief Henderson and Captain Amburn continued conversing on

their cell phones while Chief Henderson followed the Kia from a distance. Chief

Henderson explained that they communicated over their cell phones rather than over the

radio because the channel was “cleared” for those officers who were involved in the

pursuit of the other suspect in the area. Chief Henderson saw Captain Amburn’s truck

with its blue lights activated at the intersection of Brown Gap Road, Emory Road, and

-4-

Crippen Road, and Chief Henderson also reactivated the blue lights on his SUV. Captain

Amburn told Chief Henderson, “Oh, crap, he almost hit me and ran in the ditch and went

around me.” The Kia continued down Brown Gap Road.

Chief Henderson testified that Captain Amburn had positioned his truck in such a

way that Chief Henderson could not drive around it. Captain Amburn turned his truck

around in a driveway while Chief Henderson waited, and Captain Amburn, followed by

Chief Henderson, drove down the path that they believed the Kia was traveling. Chief

Henderson stated that the blue lights were activated on his SUV and Captain Amburn’s

truck, that KCSO policy requires officers to activate the blue lights on their vehicles when

engaged in a pursuit, and that he did not decide to engage in a pursuit of the Kia until the

Kia reached Brown Gap Road. Captain Amburn notified the dispatcher of the way the

Kia was being driven. Other traffic was in the area during the pursuit, and Chief

Henderson testified that although he was initially pursuing the Kia due to a traffic

violation, “when he put the public in danger, that takes it up a notch.” Chief Henderson

noted that the driver of the Kia was evading police, which is a felony, and Chief Henderson

was concerned for the safety of the officers who were investigating an unrelated incident

in the area. Chief Henderson acknowledged that according to KCSO policy, an officer

may not engage in a high-speed pursuit in an unmarked police vehicle unless the suspect

is involved in a serious felony and presents an “immediate and direct threat” to life or

property. Chief Henderson did not consider terminating the pursuit, and he “suppose[d]”

it was his responsibility to determine whether the pursuit should be discontinued. Once

Chief Henderson began following Captain Amburn, he did not see the Kia again until after

it had struck a tree.

The Kia was on fire, and its front was damaged. Chief Henderson and Captain

Amburn approached the driver’s side of the Kia, where the driver, who Chief Henderson

identified as Defendant, was struggling with the airbags and attempting to exit the Kia.

Chief Henderson “assumed” Defendant was the driver since he was attempting to exit the

driver’s side of the Kia. A neighbor also assisted them with the Kia’s occupants.

Defendant’s right leg was “mangled,” and Chief Henderson smelled alcohol when helping

to remove Defendant from the Kia. Chief Henderson also assisted with moving the victim,

who was found lying outside of the Kia. Both Defendant and the victim were transported

to a hospital.

Chief Henderson stated that he was the highest-ranking officer at the scene but that

Officer Steve Lane was placed in charge of the scene and the investigation once Officer

Lane arrived. Chief Henderson did not recall providing a formal statement or completing

any reports related to the crash. Chief Henderson and Captain Amburn discussed whether

their following the Kia could be classified as a “pursuit” given that they did not catch up

-5-

to the Kia until after it had struck a tree. Captain Amburn completed a post-pursuit report

“just to err on caution.”

Chief Henderson testified that the Kia was transported to an impound lot and that

he released the Kia to an insurance company five days after the crash. He explained that

the victim’s father requested that the Kia be released due to an outstanding debt on the

Kia. After consulting with an attorney, Chief Henderson released the Kia to the insurance

company, and the Kia was subsequently sold to an automobile parts and salvage business.

Chief Henderson did not consult with a prosecutor or the lead investigator prior to

releasing the Kia. He acknowledged that vehicles may be stored by law enforcement for

an extended period. He did not ensure that photographs were taken of the Kia during the

daytime before releasing it and did not consult anyone to determine whether the Kia had

been examined for mechanical failure. He denied releasing the Kia to hide or destroy

evidence.

Captain Amburn, a twenty-eight-year veteran of the KCSO and a lieutenant in

February 2016, testified that on the evening of February 3, 2016, numerous patrol units

were pursuing a suspect who had fled to a wooded area near the area where the crash later

occurred. Captain Amburn headed to the area in a police-issued, unmarked Ford F-150

truck to assist. The truck had emergency lights on the right side, in the grill, in the

taillights, under the tailgate, in the cab, and on the back of the cab.

Captain Amburn testified that Chief Henderson called him on his cell phone and

that while they were talking, a vehicle passed Chief Henderson at a high rate of speed.

Chief Henderson told Captain Amburn that a vehicle passed him and a group of other

vehicles at a high rate of speed on a road with a double yellow line. Captain Amburn

proceeded to the area where the vehicle was headed while continuing to talk to Chief

Henderson. Captain Amburn reached the intersection of Emory Road, Crippen Road, and

Brown Gap Road and saw a vehicle, which he later identified as a Kia, approaching the

intersection from Emory Road at a high rate of speed. Captain Amburn activated all the

blue lights on his unmarked truck and pulled into the middle of the intersection. He

observed Chief Henderson’s SUV with its blue lights activated behind the vehicle.

Captain Amburn testified that the Kia “centered up” over the double yellow line in the

road while continuing to proceed at a high rate of speed. Captain Amburn told Chief

Henderson, “Oh, crap, I think he’s going to ram me.” Captain Amburn stated that “[a]t

the last second,” the Kia “turned hard left” and went “partially in the ditch” and around

his truck. The Kia sounded to Captain Amburn as if it “bottomed out” in the ditch, but

Captain Amburn did not look in the ditch to see if the Kia lost any parts. The Kia then

continued eastbound on Brown Gap Road toward Bell Road at a high rate of speed.

-6-

Captain Amburn testified that Chief Henderson was unable to drive his large SUV

around Captain Amburn’s truck. Captain Amburn backed up in a driveway while Chief

Henderson waited, and Captain Amburn, followed by Chief Henderson, proceeded down

Brown Gap Road toward Bell Road. Captain Amburn lost sight of the Kia but believed

the Kia was headed toward an area where officers were searching for a suspect in an

unrelated case. He announced over the radio that a vehicle was fleeing toward the area

where the officers were located. Once Captain Amburn reached Bell Road, he believed

he saw the “unusual taillights” of the Kia at the end of a straightaway, and he continued

following that direction.

When Captain Amburn approached the intersection of Bell Road and Emory Road,

he saw the Kia and another car stopped at a stop sign. The Kia was on the wrong side of

the road next to the other car, and the Kia and the other car were facing the same direction.

The driver of the Kia attempted to cross the intersection through oncoming traffic. Captain

Amburn stated that before he reached the intersection, the Kia “pushed its way through”

traffic and “shot to the left and then immediately straight across Bell Road.” By the time

Captain Amburn crossed the intersection, the Kia had traveled around a bend in the road,

and due to the number of curves in the road, Captain Amburn was unable to maintain sight

of the Kia. Captain Amburn drove over a hill and saw a Jeep partially off the road and in

the grass and the taillights of the Kia up ahead. He stated that based on his experience,

the Jeep appeared to have been forced off the road. Captain Amburn was not able to get

close enough to the Kia to determine the number of occupants or the tag number.

Captain Amburn continued following the same path as the Kia. He saw what

appeared to be dust in the air as he was driving toward a bend in the road. While driving

around the bend, his headlights illuminated a field where he saw pieces of a mailbox and

other debris on the ground and a set of tire marks through a muddy field leading to the

Kia, which had struck a group of trees. Captain Amburn testified that when a vehicle

brakes or loses traction, the wheels “get[] out of track,” resulting in “four sets of [tire]

marks or some derivative to it” but that the Kia left two tire tracks in the field leading to

the trees that were “perfect” and “straight.” Captain Amburn noted that the Kia had

rotated almost ninety degrees upon striking the trees and was smoking.

Captain Amburn testified that he and Chief Henderson approached the driver’s side

where the driver, who Captain Amburn identified as Defendant, was trying to exit the Kia

on that side. Captain Amburn and Chief Henderson yelled for Defendant to put his hands

up because they did not know whether he was armed. Defendant was struggling with the

front and side airbags as he attempted to exit the Kia. Captain Amburn testified that the

crash was so severe that portions of the interior on the driver’s side were pushed inward.

The firewall was crushed, the steering column had rotated upward, and the pedals and

“everything else” underneath the driver’s feet had been forced upward. Defendant’s feet

-7-

were wedged under a portion of the driver’s side interior that had been crushed. Captain

Amburn stated that Defendant sustained leg injuries that were consistent with the portions

of the Kia’s interior on the driver’s side being forced down on his legs on impact.

Captain Amburn stated that he looked inside the Kia and saw that the passenger

door was open and the front passenger seat was tilted back. While Mr. Hickey and Chief

Henderson assisted Defendant, Captain Amburn ran around the Kia and found the victim

lying next to the rear tire on the passenger’s side. The victim was conscious, and she was

lying on her back with her feet toward the rear bumper. Captain Amburn asked the victim

where she was injured, and the victim moaned and put her hand on her stomach. Captain

Amburn testified that he observed “a red line across her stomach and up toward her chest

that looked consistent with a seat belt.” He stated that based on the numerous car accident

investigations in which he had been involved during his twenty-eight years in law

enforcement, the red mark on the victim was “consistent with a seat belt and the danger

there is I’ve seen people die from spleen injuries and everything.” He noted that the red

mark was on the victim’s right side, which was the same side in which a seat belt wraps

across a front passenger. He also noted that the passenger seat was reclined, which could

explain why the red mark was higher on the victim’s body. Captain Amburn

acknowledged that he did not see the victim’s injuries at the hospital or during the autopsy

and that he did not review her medical records or autopsy photographs.

Once the fire in the Kia began to intensify, Mr. Hicks and Chief Henderson moved

Defendant, who sustained severe leg injuries, away from the Kia, and they then assisted

Captain Amburn in moving the victim. The victim was subsequently transported via

helicopter to a hospital. Captain Amburn also saw car seats in the back seat of the Kia

and attempted to open the back doors to ensure that no one else was inside. He noted that

the rear bumper was ripped off the Kia because of the crash and that after the Kia was

fully engulfed in flames, only the rear quarter panels and the hatchback area remained.

According to the post-pursuit form completed by Captain Amburn, the pursuit

ended at 7:35 p.m., which he stated was likely the time that he called for an ambulance.

At 4:30 or 5:00 a.m., Captain Amburn went to the hospital to obtain blood samples from

Defendant pursuit to a search warrant (“the legal draw”). Captain Amburn stated that he

and an evidence technician, Trina Gregory, entered Defendant’s room where Defendant

was sitting up in his bed. When Captain Amburn and Officer Gregory reached the door

sill, Defendant looked up at Captain Amburn and immediately said, “I’ve screwed up.”

Officer Gregory was wearing a uniform, and Captain Amburn had his badge and a gun

and was wearing a law enforcement-issued shirt. Captain Amburn stated that as a result,

“it was quite evident who we were.” He informed Defendant that he had a search warrant

to obtain a blood sample. Captain Amburn asked two relatives in the room with Defendant

to step outside.

-8-

Captain Amburn described Defendant as “very talkative.” Defendant said he had

“really screwed up,” and Captain Amburn responded that he believed Defendant had made

bad choices but that they “were going to work through this.” Defendant told Captain

Amburn that he would like to apologize to the two officers from whom he had fled, and

Captain Amburn stated that Defendant did not owe them an apology but that he probably

owed the victim’s family an apology. Defendant asked Captain Amburn whether the

victim had passed away, and Captain Amburn confirmed that she had. Defendant told

Captain Amburn that the victim was his girlfriend, that they had planned to marry, and

that the victim had children. Defendant talked about his relationship with the victim and

about how “he was really messed up” and said that “he didn’t really sober up enough until

around 1:30 in the morning to figure out what had happened” and that “he knew he was

going to jail for what he did.” Captain Amburn testified that Defendant never said the

victim was driving and that Defendant stated that he had “insisted” on driving. 2

Captain Amburn testified that he did not “say very much to [Defendant], did not

ask him hardly anything at all.” Captain Amburn stated that he “pretty much just nodded

and listened to what he had to say.” Defendant told him that “[y]ou and I both know I

shouldn’t have been driving.” When Captain Amburn explained the process of obtaining

his blood sample and what would be done with the sample, Defendant stated that they

“won’t find any drugs, just alcohol.” Captain Amburn stated that Defendant’s statements

implied that Defendant was the driver.

Captain Amburn testified that Defendant was “very lucid” and did not appear to

have any issues understanding what was occurring. Captain Amburn was unaware of the

medication that had been administered to Defendant until Officer Gregory requested a list

of his medications for the purposes of testing his blood. Captain Amburn learned that

Defendant had been administered fentanyl, Versed, and propofol at the hospital. Captain

Amburn did not advise Defendant of his Miranda rights and did not record Defendant’s

statements or make contemporaneous notes about the statements. Captain Amburn later

summarized Defendant’s statements in a memorandum. When Defendant made the

statements to Captain Amburn, Defendant was not under arrest or otherwise restrained

and was not told that he would be arrested. Officers were not stationed outside

Defendant’s hospital room, and Captain Amburn did not speak to hospital security.

Captain Amburn did not know when Defendant was formally charged with the offenses.

2

Captain Amburn testified that Defendant told him that the victim “had begged him not to drive,

but that he insisted.” Defense counsel objected, and the trial court sustained the objection as to what the

victim had stated.

-9-

Captain Amburn stated that it was decided that because so much time had passed

between the crash and the blood draw from Defendant pursuant to the search warrant, the

results of testing would not accurately reflect Defendant’s alcohol or drug levels at the

time of the crash. Captain Amburn procured a search warrant to obtain Defendant’s blood

samples drawn by hospital personnel as part of the hospital’s normal admittance

procedures (“the medical draw”). Captain Amburn and an evidence technician executed

the search warrant at the hospital laboratory. An employee with the laboratory provided

Defendant’s blood samples, and the evidence technician took possession of them. Captain

Amburn did not know the identity of hospital personnel who drew Defendant’s blood from

the medical draw, the tests that hospital personnel ran using the blood, where the blood

was stored in the hospital, or who had handled the blood before hospital personnel gave

the samples to law enforcement.

Captain Amburn testified that although he completed a post-pursuit form, he

questioned whether he and Chief Henderson engaged in a pursuit “due to the fact of how

far he got away from us and how little we saw him.” Captain Amburn stated that “it was

not your typical pursuit, being within five car lengths behind somebody.” He did not

consider terminating the pursuit, and he stated that he would have done so had he believed

it was too dangerous to continue. He said that crime scene officers were tasked with

securing any evidence at the scene and that the supervisor of the unit that investigated the

crash was responsible for deciding whether to complete an accident reconstruction.

Captain Amburn recalled discussing what occurred with another officer at the scene.

Dr. Christopher Lochmuller, the Chief Deputy Medical Examiner for Knox and

Anderson Counties and an expert in forensic pathology, performed the victim’s autopsy

and testified that the victim’s death was the result of multiple blunt force injuries. The

victim’s spleen, liver, and small intestine were torn, her colon was damaged, and three

ribs on her right side and two ribs on her left side were broken.

Dr. Lochmuller received information that the victim had been involved in a single-

vehicle accident and that while the vehicle was being pursued by law enforcement, the

vehicle ran off the roadway, rolled, and struck a tree. Dr. Lochmuller testified that the

information that he received regarding the circumstances of the crash changed over time,

explaining that he was told that the victim “was ejected, then they said that she wasn’t

ejected, that she was the driver, wasn’t the driver.” He stated that an investigator with the

medical examiner’s office obtained information from various sources that the victim was

believed to be the driver of the vehicle. However, other information obtained by the

investigator and other medical records listed the victim as a passenger who had been

“restrained.”

- 10 -

The victim had bruising on the right side of her neck and jaw line, under her chin,

and on both sides of her chest. She had two small abrasions on her back and an abrasion

on her abdomen that was eight inches long and one-half inch wide. The abrasion was

predominantly on the right side of her abdomen and came “just above her belly button, a

little bit to the left.” Dr. Lochmuller testified that he could not conclude definitively that

the abrasion was caused by a seat belt and that he could not reach a conclusion on whether

the victim was a passenger or the driver based on the anatomic findings. He noted that

the victim’s medical records from the emergency room reflected that hospital personnel

indicated on a sketch what they believed to be a mark caused by a seat belt on the victim’s

body. However, Dr. Lochmuller explained that the long abrasion on the right side of the

victim’s abdomen was higher than he expected it would be had it been caused by a seat

belt and that the victim’s injuries on her face, jawline, and neck were unusual locations

for a seat belt to leave a mark. He stated that had the victim’s seat been leaned back, the

seat belt could have left a mark that high on the victim’s body, but he could not “say that’s

what it is.”

The State, without objection by the defense, showed Dr. Lochmuller one page of

Defendant’s medical records, which Dr. Lochmuller identified as stating, “BAC 135,

EtOH positive.” Dr. Lochmuller explained that “EtOH” stands for ethanol alcohol, which

is contained in beer, wine, and liquor. This one page was entered as an exhibit at trial

without objection by the defense. In response to questioning by the defense, Dr.

Lochmuller testified that fentanyl is a synthetic pain killer that is “very potent,” that

propofol is a sedative used to render a patient unconscious, and that Versed is a “fast-

acting” benzodiazepine or sedative.

KCSO Detective Steve Lane, who was a patrol officer with the traffic division in

February 2016, testified that he was called to the scene. By the time he arrived, both

Defendant and the victim had been transported to the hospital, and other officers had

photographed and otherwise preserved the scene. Detective Lane noted that there were

several officers at the scene, each of whom had a different task. He stated that a lead

investigator was not called to the scene and that the senior ranking officer at the scene was

in charge. Detective Lane spoke to Captain Amburn, Chief Henderson, and a witness at

the scene, but he did not record his interactions with them or otherwise take formal

statements from them. Detective Lane completed a report and a diagram of the scene,

which was entered into evidence. He explained that an accident reconstruction was not

completed because KCSO policy did not provide for an accident reconstruction in single-

vehicle accidents when no fatalities occurred at the time of the crash. Detective Lane did

not inspect the Kia at the scene and did not collect any evidence from the Kia. He was

aware that vehicles have a “black box” that stores information, but he did not have the

black box removed from the Kia. He was unaware of whether any photographs were taken

of the Kia during the daytime.

- 11 -

On cross-examination, Detective Lane testified that he did not know whether car

keys were found at the scene or on Defendant or the victim. He identified a patient

property list that was part of Defendant’s medical records, and he acknowledged that the

list did not include any keys as being found on Defendant. Defendant requested that the

page from Defendant’s medical records be admitted into evidence, and the trial court

granted the State’s request to admit Defendant’s entire medical records under “the rule of

completeness.” Detective Lane identified a patient property list that was part of the

victim’s medical records, which noted that “keys” were found on the victim.

KCSO Officer Sandy Campbell with the forensic unit testified that she was

assigned to photograph the scene of the crash. She noted that the Kia had struck a mailbox

before striking a tree, that the Kia’s rear bumper was located near the tree line, and that

most of the debris that had broken off the Kia had fallen “forward” and was located on the

other side of the tree line. Officer Campbell stated that although the Kia was no longer

on fire by the time that she arrived at the scene, the Kia was still very hot and was smoking.

As a result, it was “uncomfortable” to approach the Kia until more time had passed, and

she was unable to inspect the Kia’s airbags and doors due to the heat. She photographed

the Kia while it was dark outside, and she did not take any photographs of the Kia during

the daytime. She did not have a mechanic examine the Kia for a mechanical failure,

explaining that such tasks were not within the purview of the forensic unit.

According to Knox County Emergency Communication, a pipe with residue was

recovered from Defendant at the hospital. Officer Campbell went to the hospital and

retrieved a “purple pinch hitter” that contained “some green leafy substance” from a

member of the hospital’s security team. Officer Campbell explained that a “pinch hitter”

is a pipe that is traditionally used to smoke marijuana.

KCSO Detective Preston Huddleston testified that on February 3, 2016, he was

dispatched to the emergency room to seek Defendant’s consent to obtain his blood.

Detective Huddleston arrived around midnight on February 4 and spoke to Defendant,

who “was alert, not really saying much but he was aware of his situation.” Detective

Huddleston asked Defendant to consent to a blood draw, but Defendant refused to consent

and refused to sign the implied consent form.

KCSO Officer Deidra Bules with the forensic unit testified that on February 4,

2016, she accompanied Captain Amburn to the hospital laboratory to collect four vials of

Defendant’s blood from the medical draw pursuant to a search warrant. Officer Bules

believed the vials were labeled and sealed. At 5:33 p.m., Officer Bules received the vials

from a technician at the hospital’s laboratory. She transported the vials from the medical

draw to the KCSO forensic laboratory, stored them in a refrigerator in a secure area, and

- 12 -

documented the items on a property receipt. She noted that the refrigerator was located

behind a door that required a thumb print and a key card to access and that removal of any

evidence from the refrigerator was required to be documented. According to the property

receipt, the vials from the medical draw were removed from the refrigerator on February

19, 2016, at 8:10 a.m. and transported to the Tennessee Bureau of Investigation (“TBI”).

According to the TBI request form, the vials from the medical draw were transported to

the TBI by Tom Finch, KCSO’s fingerprint expert who also makes “all the TBI runs.”

On cross-examination, Officer Bules testified that she did not know who drew

Defendant’s blood at the hospital during the medical draw or whether hospital personnel

tested the blood samples, added anything to the blood samples, properly stored the blood

samples, or followed proper procedures in handling the blood samples. She did not know

how long it took to transport the vials from the hospital to the KCSO forensic laboratory.

She acknowledged that she could not vouch for the integrity of the blood samples from

the medical draw.

Special Agent Michael Tiller, a forensic scientist in the toxicology department at

the TBI’s regional crime laboratory in Knoxville and an expert in the field of toxicology,

testified that he conducted toxicology testing on Defendant’s blood samples from the

medical draw. The results showed the presence of an inactive metabolite of marijuana.

Special Agent Tiller stated that the results indicated that Defendant had used marijuana

within twenty-four to forty-eight hours of the blood draw. Special Agent Tiller

acknowledged that an inactive metabolite alone will not result in impairment, that he could

not determine whether the metabolite was from hemp or marijuana, and that at the time of

the blood testing, the TBI did not have the ability to test for active THC.

According to the TBI’s internal chain of custody documents, the TBI received the

four tubes of Defendant’s blood from Tom Finch on February 19, 2016, at 10:45 a.m.

Documents indicated that the tubes had hospital labels with the name “Harlen Ferguson”

and February 3, 2016, at 20:38, indicating when the blood was drawn. Special Agent

Tiller testified that once samples are brought to the TBI laboratory, they are checked in

by an evidence technician, assigned a unique laboratory number and stored in a

refrigerator inside a vault until they are tested. The samples were first tested for alcohol

by Special Agent Jonathan Thompson, and Special Agent Tiller then conducted a

toxicology analysis.

Special Agent Tiller testified that in addition to Defendant’s blood samples from

the medical draw, the TBI also received Defendant’s blood samples from the legal draw,

which were contained in tubes supplied by the TBI. He stated that compounds are pre-

added to the tubes supplied by the TBI to officers in blood draw kits to help preserve the

blood and prevent it from coagulating. Special Agent Tiller said blood that has clotted

- 13 -

into “a solid blob” can be difficult to extract from the tube and that such clotting can affect

the test results. He noted “rare instances” where bacteria are introduced in the blood

sample, and he explained that bacteria could feed on glucose and produce alcohol and that

the TBI tubes contain a compound that prevents such bacterial growth. Although he

acknowledged that “something could be introduced” into a blood sample whenever the

top of a tube is removed, “you would need also the right conditions for things to grow, so

again not being refrigerated, kept in hot places[,] and not stored properly.” He stated that

while refrigerating blood samples was “ideal,” the samples would be “okay” if they were

at room temperature “for a little while” with no preservatives in them but that “[y]ou

wouldn’t want them at like super high temperatures.”

Special Agent Tiller tested blood samples in two of the four tubes from the medical

draw. He stated that a DNA test was not performed on the samples and that the samples

were “presumed” to be Defendant’s blood because his name was on the tubes and the form

submitted by the officer to the TBI. Special Agent Tiller stated that the tubes were likely

not vacuum sealed when the TBI received them because the hospital would have tested

some of Defendant’s blood from the samples for the purpose of diagnosis and treatment.

To Special Agent Tiller’s knowledge, the samples from the medical draw did not contain

any compounds or preservatives. He did not note any issues with clotting or bacterial

growth in the blood samples from the medical draw in the case file or his report, and he

testified that he would have noted such issues had he observed them.

Special Agent Tiller testified that all the whole blood from the medical draw was

used in alcohol and toxicology testing by the TBI. He stated that most laboratories likely

would have been unable to test the small amount of serum or plasma that may have

remained from the sample. He acknowledged that the defense may have been able to

obtain independent testing of the sample if they located a laboratory that could test the

small amount of remaining serum or plasma.

Special Agent Tiller testified that he did not test Defendant’s blood samples from

the legal draw. When asked whether he had a scientific basis for failing to do so, he

explained that TBI analysts generally test blood samples collected closer to the time in

which the incident occurred. He stated that because the legal draw occurred several hours

after the crash, the blood samples from the legal draw “would not have as [much] relevant

data associated with them” as the blood samples from the medical draw. Special Agent

Tiller acknowledged that the test results of Defendant’s blood samples from the legal draw

could have shown any medication given to him at the hospital. The alcohol/toxicology

request form for Defendant’s blood samples from the legal draw stated that tests for

fentanyl, propofol, and Versed should be excluded. Special Agent Tiller testified that

fentanyl and propofol are narcotic analgesics and that propofol can be used for anesthesia

and can cause “sedation or stupor” in large doses. He stated that Versed is a central

- 14 -

nervous system depressant that hospital personnel can use to calm a patient or to help in

intubating a patient and that a larger dose of Versed can cause memory loss or render the

patient “in a state of stupor or extreme impairment.” He also stated that a combination of

Versed, propofol, and fentanyl in amounts within the therapeutic range could calm a

patient and relieve a patient’s pain and that a combination of the medication in high doses

could sedate the patient. Special Agent Tiller identified a page from Defendant’s medical

records from February 4, 2016, at 3:47 a.m., which stated that Defendant was “[a]lert and

oriented. In obvious pain. Able to answer questions appropriately.”

Special Agent Jonathan Thompson, a forensic scientist at the TBI’s regional crime

laboratory in Knoxville and an expert in the field of toxicology, testified that he conducted

alcohol testing on Defendant’s blood samples from the medical draw. He stated that the

results of testing showed .180 grams percent of ethyl alcohol in Defendant’s blood. The

blood sample was tested twice for alcohol, and the final reported result reflected the

average amount obtained from the two tests.

Special Agent Thompson tested Defendant’s blood sample from the medical draw

that was collected on February 3, 2016, rather than Defendant’s blood sample from the

legal draw that was collected on February 4. Special Agent Thompson explained that

because alcohol metabolizes in a person’s body over time, it is generally preferred to test

a person’s blood sample drawn closer to the incident to obtain a more accurate

representation of the person’s alcohol level at the time of the incident. He stated that there

was a “good possibility” that the alcohol from Defendant’s blood sample from the legal

draw taken approximately nine hours after the crash would have metabolized. He

acknowledged that someone with the TBI directed him not to test the blood sample from

the legal draw, but he stated that the determination of which sample to test is within the

forensic scientist’s discretion. He explained, “Usually we test the earlier sample because

like I said[,] it is a better representation of what occurred during the incident.”

Special Agent Thompson did not know who accessed Defendant’s blood samples

from the medical draw at the hospital or the conditions in which the samples were stored

at the hospital. He tested one tube of Defendant’s blood from the medical draw and stated

that to his knowledge, the tube did not contain any preservatives. He assumed that the

tube had been opened previously and that some of the blood had been used for testing at

the hospital. He acknowledged that any ethyl alcohol that had been converted to gas could

have escaped when the tube was opened. He also acknowledged that microbials could

enter the tube when opened and that the microbials could feed on the glucose in the blood

and produce alcohol. He stated that because the TBI received and tested the samples so

quickly, “it’s unlikely that fermentation could occur and it was not in the appropriate

conditions meaning it needed sufficient amount of heat and a sufficient amount of

microorganisms and enough [of a] food source in the blood sample to actually produce

- 15 -

enough ethanol.” Special Agent Thompson did not test for the presence of bacteria or

fungi in the samples and did not determine whether the sample had fermented. To ensure

that the testing instrument did not produce a result that was based on contamination of the

blood samples at the hospital, he ran a series of certified standards at the beginning of the

alcohol analysis and at every tenth position, and he testified that “all of [his] standards

met in the acceptable criteria.” He also conducted negative testing based on those

standards and did not observe anything “abnormal” in the blood sample.

Finally, in addition to presenting Defendant’s entire medical records as an exhibit,

the State introduced individual pages from the medical records as exhibits. One hospital

record provided, “Patient admits to EtOH tonight. Patient states he was running from the

police and had an accident. Patient states air bags did deploy. Patient states he was not

wearing his seat belt. Patient was drug out of vehicle by rescue.” Hospital records noted

that Defendant had abrasions to his face and chest, and the discharge summary stated that

Defendant sustained an injury to his right knee and fractures and other injuries to his pelvis

and right leg. A note in the records from February 4, 2016, at 4:37 a.m. stated, “The

patient was alert and oriented, in obvious pain, able to answer questions appropriately.”

A case management note entered on February 8, 2016, regarding a meeting with

Defendant stated that “patient was [the] driver in [a] motor vehicle crash in which his

fiancée with whom he lived was killed.” On this evidence, the State rested its case in

chief.

The defense presented the testimony of Margaret Massengill, a forensic technician

with the TBI’s toxicology division at the crime laboratory in Knoxville. Ms. Massengill

testified that in February 2016, she spoke to an assistant district attorney regarding

Defendant’s blood samples from the medical draw and the legal draw and that “we did

agree to only test the samples” from the medical draw. Ms. Massengill stated that “[t]here

never came a need” to test the samples from the legal draw “based on the conversation

that I had.” She noted that the samples selected for testing were those taken closer in time

to the incident and that the samples from the legal draw would have been tested if the

samples from medical draw did not include an adequate volume of blood for testing.

On September 1, 2016, Ms. Massengill destroyed Defendant’s blood samples from

the legal draw and the remaining samples from the medical draw. She stated that the

policy of the TBI laboratory in Knoxville is to destroy blood samples after approximately

six months. She explained that the laboratory receives 400 to 700 blood samples each

month and that the destruction policy is due to “a storage issue.” She stated that the district

attorney could have requested that the blood samples be preserved for a longer period but

did not do so. She did not receive a request from the defense to preserve the samples or

have them tested by another laboratory before their destruction. More than one year after

- 16 -

the samples were destroyed, a member of the defense team contacted her regarding the

availability of the samples.

The jury convicted Defendant of vehicular homicide, vehicular homicide by

intoxication, evading arrest, reckless endangerment with a deadly weapon, DUI per se,

DUI of an “intoxicant,” and the failure to drive within a single lane of traffic. The jury

acquitted Defendant of the charges of DUI of marijuana and DUI of an intoxicant and

marijuana. During a sentencing hearing on November 7, 2019, the trial court merged the

two vehicular homicide convictions and merged the DUI convictions into each other and

into the vehicular homicide conviction. The trial court imposed an effective ten-year

sentence, with one year to be served in confinement and the remainder on probation.

B. Motion for New Trial Proceedings

Defendant filed a timely motion for new trial in which he raised twenty-one issues.

Defendant alleged that the State improperly failed to disclose information regarding an

internal affairs investigation that concluded on August 20, 2019, and that resulted in

Captain Amburn’s receiving a verbal reprimand for his failure to disclose his knowledge

of an incident of police misconduct, which occurred in April 2019, and led to two other

officers being demoted and suspended for two days without pay. Defendant asserted that

defense counsel made repeated inquiries into Captain Amburn’s personnel file and that

defense counsel only learned of the investigation through local media coverage on

September 6, 2019, the same day that the jury returned its verdict against Defendant.

Defendant attached to his motion for few trial two news articles published on September

6 and October 1, 2019, regarding the incident.

During the December 12, 2019 hearing on the motion for new trial, Defendant

entered the written summary of the internal affairs interview of Captain Amburn as an

exhibit. According to the summary, the incident involved an altercation between two

officers, one of whom was trying to keep the other officer from driving a police-issued

vehicle while intoxicated. At the time, Captain Amburn was the supervisor over the

narcotics fleet vehicles, including the vehicle at issue. A KCSO employee contacted him

to locate an extra key to allow someone else to drive the vehicle. Captain Amburn

believed the employee called him again later and reported that an extra key had been

located. He was aware that because of the altercation, one of the officers was injured and

a citizen’s vehicle was damaged. Captain Amburn explained that he did not report the

incident because both he and the intoxicated officer had applied for a chief position, and

Captain Amburn did not want to appear as if he was deliberately attempting to make the

officer “look bad.”

- 17 -

At the conclusion of the hearing, the trial court denied Defendant’s motion for new

trial, concluding that he was not entitled to relief on any of the issues raised. The court

found that the incident involving Captain Amburn in 2019 was unrelated to the incident

involving Defendant in 2016 and that “there’s simply no materiality or probative value

about what happened in 2019 as it might relate to what happened in 2016.” The court

entered an order denying Defendant’s motion for new trial, and Defendant filed a timely

notice of appeal.

C. Coram Nobis Proceedings

On June 30, 2020, while the direct appeal was pending, Defendant filed a petition

for writ of error coram nobis, alleging that newly discovered evidence may have resulted

in a different judgment. Defendant asserted that on April 17, 2020, news reports emerged

that Chief Henderson was under investigation by the Federal Bureau of Investigation

(“FBI”), that FBI agents searched Chief Henderson’s home pursuant to a search warrant

on April 9, 2020, and that Chief Henderson retired from the KCSO shortly thereafter.

Defendant further asserted that the news reports indicated that Chief Henderson was

removed from his narcotics unit duties in January 2019 and was “effectively sidelined

from police work altogether” in October 2019. Defendant attached two news articles as

exhibits to the petition.

Defendant asserted that he sought information regarding Chief Henderson and

Captain Amburn prior to trial through a discovery motion and public records requests.

Defendant attached the public records requests and the prosecutor’s email in response to

the defense’s request for information from the officers’ files. Defendant also attached an

affidavit from trial counsel, stating that at the time of trial, she was unaware that Chief

Henderson was under federal investigation or that he had been subject to any internal

discipline or reduction in responsibilities due to suspicion of wrongdoing.

Defendant argued in his petition and accompanying memorandum that evidence

that Chief Henderson was under federal investigation “may have led to a different

outcome” had such evidence been presented at trial. Defendant asserted that had evidence

of the federal investigation against Chief Henderson been presented at trial, it would have

been difficult for the jury to have accepted Chief Henderson’s testimony, that “there is a

strong possibility” that the jury would have believed the defense’s challenges to the

“professionalism, motivation, and honesty of the officers,” and that such evidence “would

have at least raised a reasonable doubt in the minds of one or more jurors.” Defendant

also asserted that evidence of the federal investigation should be considered along with

evidence of Captain Amburn’s reprimand for failing to report police misconduct.

The appellate record does not include a written response by the State to Defendant’s

petition. Defendant subsequently filed a motion in this court, requesting that this court

- 18 -

stay his direct appeal proceedings pending resolution of his coram nobis petition, and this

court entered an order granting Defendant’s motion.

On February 16, 2022, a federal grand jury returned an indictment charging Chief

Henderson with conspiracy to commit federal program fraud. The indictment, a copy of

which Defendant filed in the trial court, alleged that from 2011 until approximately 2018,

Chief Henderson and other unindicted co-conspirators conspired to commit theft of

federal program funds by using the cash fund and credit card from the KCSO narcotics

unit to purchase items for the personal use of themselves and others and by directing

subordinate officers to perform construction projects of a personal nature during official

work hours.

On July 18, 2022, Defendant filed an “Additional Claim in Support of Petition for

Writ of Error Coram Nobis,” in which he alleged that additional newly discovered

evidence may have affected the result of his trial had it been presented. Defendant alleged

that in April 1997, Chief Henderson and other officers engaged in a high-speed pursuit of

Jeremy Justice, during which the officers were in an unmarked vehicle, did not activate

the blue lights or siren, and were dressed in plain clothes rather than uniforms. Mr. Justice

subsequently was acquitted of charges of resisting arrest, evading arrest, and reckless

driving that resulted from the high-speed pursuit. Mr. Justice sued Knox County due to

injuries that he sustained during his arrest and received a settlement of $380,000.

Defendant asserted that defense counsel was unaware of the information at the time of

trial and first learned of the information in May 2022, when Mr. Justice’s counsel reached

out to defense counsel upon learning of Defendant’s allegations in his coram nobis

petition. The appellate record does not include a written response by the State.

During a June 9, 2023 hearing, the trial court dismissed Defendant’s claim of coram

nobis relief with respect to the 1997 incident, finding that Defendant was not reasonably

diligent in seeking the evidence and that Defendant could have discovered the evidence

through “some simple, well-directed questions in discovery.” The court also found that

the 1997 incident “is of very little relevance to the ultimate coram nobis issue.” The court

allowed Defendant to present evidence to support his claim for coram nobis relief based

on the federal indictment against Chief Henderson. The parties stipulated that the factual

allegations in the indictment were to be accepted as true for the purposes of the hearing.

During the hearing, Captain Amburn testified regarding the April 2019 incident

that led to his receiving a verbal reprimand. He stated that he did not officially report the

incident involving the altercation between two officers but said that when questioned

during the investigation into the incident, he acknowledged knowing about the incident.

He explained that at the time, he and one of the officers involved were vying for the same

- 19 -

promotion and that he did not want it to appear as if he was attempting to “smear” the

officer’s character.

Captain Amburn testified that he was “shocked at a lot of the allegations” against

Chief Henderson in the federal indictment. Captain Amburn stated that he was never

offered use of the narcotics funds to make personal purchases and that he did not engage

in any construction projects while on duty. He was aware of some of the underlying

conduct listed in the indictment, such as the purchase of Apple products using narcotics

funds, which can be a valid use of the funds. However, he was unaware of any underlying

illegal activity related to such conduct, such as the allegations that the Apple products

purchased with narcotics funds were for personal use. He stated that had he been aware

of any illegal activity, he would have reported it.

Captain Amburn testified that he was unaware that Chief Henderson was engaging

in illegal activity or was under investigation at the time of Defendant’s crash. Captain

Amburn denied that he engaged in “untoward” behavior during the crash and resulting

investigation or that Chief Henderson instructed him to do so. Captain Amburn

maintained that he testified truthfully at trial. He stated that he was not the lead

investigative officer of the crash but that he was “the primary person as far as where I was

in position at the time of the accident.” He recalled testifying at trial that he did not believe

it was proper for him to be the lead investigative officer because he was a witness to the

crash. Captain Amburn acknowledged preparing two search warrants, but he did not know

whether Chief Henderson instructed him to do so or whether “I just inferred what I needed

to do.” Captain Amburn recalled that the decision to obtain a search warrant for

Defendant’s blood samples from the medical draw resulted from a consultation of KCSO’s

in-house legal counsel.

Detective Lane testified that he believed Chief Henderson, as the highest-ranking

officer at the scene of Defendant’s crash, was in charge while at the scene. Detective Lane

stated that neither Chief Henderson nor Captain Amburn directed him on what steps to

take in conducting his investigation. Detective Lane also stated that his portion of the

investigation was complete once he filed his report. He assumed that the narcotics unit

oversaw the investigation since members of the unit were at the scene.

Detective Lane testified that in February 2016, he was unaware of Chief

Henderson’s engaging in any conduct that resulted in the federal indictment. Detective

Lane stated that at the time of trial, he did not know why Chief Henderson had been

transferred to administrative duty. Detective Lane said he testified truthfully at trial.

At the conclusion of the hearing, the trial court made findings denying Defendant’s

petition for a writ of error coram nobis. The court found that the federal indictment against

- 20 -

Chief Henderson was “credible new evidence,” that the parties stipulated to the allegations

included in the indictment, and that the defense was without fault in failing to discover the

evidence prior to trial. In examining whether the evidence may have affected the

judgment, the court found Captain Amburn to be “particularly credible, both based on

having looked at his trial testimony and listening to his testimony here today.” The court

categorized the newly discovered evidence as impeachment evidence and stated that even

if the jury disregarded Chief Henderson’s entire testimony based on this impeachment

evidence, Captain Amburn was an “intervening, reliable witness,” who testified regarding

his observations of the Kia both before and after the crash and Defendant’s conduct. The

court also stated that the impeachment evidence did not “spill[ ] over on to [Captain]

Amburn because [Captain] Amburn was fully credible today and was clear and adamant

about having never been asked to do anything untoward in the investigation by Chief

Henderson.” The court concluded that in light of Captain Amburn’s testimony at trial and

the other evidence establishing Defendant’s guilt, there was no reasonable basis to believe

that “the outcome would have been different” had the newly discovered evidence been

presented at trial.

On July 12, 2023, the court entered an order denying Defendant’s petition for writ

of error coram nobis in which the court repeated its findings from the evidentiary hearing.

The court noted that it had misspoken during the hearing in stating that there was no

reasonable basis to believe that the outcome “would have been different” and clarified that

its finding was that there was no reasonable basis to believe that the outcome “may have

been different” had the newly discovered evidence been presented at trial. Defendant filed

a timely notice of appeal of the denial of his petition for writ of error coram nobis.

II. Analysis

This court consolidated Defendant’s direct appeal and his appeal of the denial of

coram nobis relief. In this consolidated appeal, Defendant challenges (1) the trial court’s

denial of his motion to suppress his statements to law enforcement; (2) the State’s failure

to establish the chain of custody for Defendant’s blood samples; (3) the trial court’s denial

of his motion to dismiss due to the destruction of evidence; (4) the trial court’s admission

of lay testimony regarding the cause of the victim’s injuries; (5) the trial court’s admission

of Defendant’s medical records; (6) the trial court’s exclusion of defense evidence; (7) the

trial court’s failure to issue a missing witness instruction; (8) the State’s comments during

closing arguments; (9) the State’s failure to disclose evidence; and (10) the trial court’s

denial of Defendant’s petition for writ of error coram nobis. Defendant also argues that

the cumulative effect of the errors entitles him to relief.

- 21 -

A. Denial of Motion to Suppress Defendant’s Statements

Defendant contends that the trial court erred in denying his motion to suppress his

statements to Captain Amburn while at the hospital. He maintains that he made the

statements during a custodial interrogation without being advised of his rights in

accordance with Miranda v. Arizona, 384 U.S. 436 (1966). He also argues that the effect

of injuries sustained in the crash and the medication administered to him at the hospital

rendered his statements involuntary. Finally, he asserts that the erroneous admission of

his statements was not harmless beyond a reasonable doubt. The State responds that

Defendant was not in custody when he made the statements, that he did not make the

statements in response to an interrogation by Captain Amburn, and that his statements

were otherwise voluntary.

1. Suppression Hearing

Prior to trial, Defendant filed a motion to suppress his statements to Captain

Amburn while at the hospital. Defendant asserted that he made the statements during an

improper custodial interrogation and that Captain Amburn failed to advise him of his

rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Defendant argued that his

statements, therefore, were taken in violation of his right against self-incrimination under

the federal and state constitutions. He also asserted that the effects of the medication

administered to him at the hospital, “augmented by the injuries he suffered from the

accident, overbore [his] will to make his statements involuntary,” and, thus, his statements

were taken in violation of his due process rights under the federal and state constitutions.

The trial court held a series of hearings prior to trial addressing Defendant’s motion

to suppress his statements, as well as other motions filed by Defendant. During the

suppression hearing, Captain Amburn offered testimony regarding the circumstances

leading to the crash that was generally consistent with his trial testimony. Defendant was

transported by ambulance from the scene of the crash to the University of Tennessee

Medical Center. During the early morning hours of February 4, 2016, Detective

Huddleston requested Defendant’s consent to obtain a sample of his blood. At 12:19 a.m.,

Defendant refused consent for a blood sample and refused to sign the implied consent

form. Detective Huddleston noted that Defendant was not cooperative or talkative at that

time.

At 5:00 or 5:30 a.m. on February 4, 2016, Captain Amburn and an evidence

technician went to the hospital to obtain a blood sample from Defendant pursuant to a

search warrant. Captain Amburn testified that when he arrived, no officers were stationed

outside or inside Defendant’s hospital room, and Defendant was not handcuffed. To

Captain Amburn’s knowledge, the KCSO had not requested that hospital security place a

- 22 -

“hold” on Defendant, and Captain Amburn did not have a warrant for Defendant’s arrest.

Captain Amburn acknowledged that he believed Defendant was the driver, that Defendant

was listed as a “suspect” in the search warrant, and that, subject to the execution of the

search warrant, nothing prevented Defendant from leaving the hospital other than his

injuries.

Captain Amburn stated that Defendant’s hospital room had sliding glass doors, one

of which was open. Defendant was sitting up in his hospital bed, and two female relatives

were in the room with him. Captain Amburn was dressed in plain clothes, and the

evidence technician was wearing a “full uniform.” Captain Amburn testified that as soon

as he and the evidence technician came to the threshold of the door, Defendant said, “I

really screwed up, didn’t I?” Captain Amburn responded, “[Y]es, sir, I’m afraid you made

some bad choices tonight. And, you know, we’re just going to have to work through this.”

Although Captain Amburn believed Defendant knew he and the evidence technician were

law enforcement officers, Captain Amburn introduced himself and the evidence

technician and explained to Defendant that he had a search warrant to obtain a blood

sample. Defendant stated that they would find alcohol but not drugs in his blood. Captain

Amburn explained that he asked the two family members to wait outside to avoid making

any statements in front of them that would embarrass Defendant. Captain Amburn

testified that he did not record his conversation with Defendant because he had not

intended on asking Defendant any incriminating questions and because Defendant was not

in custody.

Captain Amburn testified that Defendant was “very polite and very talkative” and

that he appeared as if he “wanted to get something off his chest.” Defendant stated that

he wanted to apologize to the two officers from whom he had fled. Captain Amburn said

Defendant did not make the statement in response to an interrogation. As Defendant

continued discussing the events, Captain Amburn asked Defendant why he was driving in

such a manner, and Defendant responded that he “wanted to go home.”

Captain Amburn stated that within four or five minutes of his arrival, Defendant

asked him whether the victim was alive, and Captain Amburn informed him that he had

just learned of the victim’s death. Defendant discussed the victim with Captain Amburn

and stated that he and the victim were planning to marry. Captain Amburn asked

Defendant whether he and the victim had any children because he had observed car seats

in the vehicle, and Defendant stated that the victim had children. Defendant told Captain

Amburn that the victim had not wanted him to drive but that he had “insisted” and that he

knew he was going to jail. At one point, Defendant said, “I really F’d up. I didn’t realize

what was going on [till] about 1:30. I didn’t sober up [till] after 1:30 to figure out what

was going on.” Defendant also told Captain Amburn that “you and I both know I shouldn’t

have been driving that car.”

- 23 -

Captain Amburn described Defendant as “very cooperative and very talkative.”

Captain Amburn stated that Defendant was otherwise “very calm and collected” and that

Defendant “was very matter of fact, very apologetic and . . . almost seemed resolved that

he already realized what was coming down the path and that he had accepted responsibility

for it.” Captain Amburn stated that Defendant became “a little choked up” when

discussing the victim and became “agitated” when discussing his missing wallet. Captain

Amburn told Defendant that he assumed officers took his wallet to check his identification

for purposes of preparing the necessary reports. Captain Amburn assured Defendant that

he would locate his wallet and return it to him, and Captain Amburn testified that he later

located Defendant’s wallet and returned it to him in his hospital room. Captain Amburn

was aware that Defendant had “serious breakage to his lower extremities,” and when

Captain Amburn returned Defendant’s wallet to him, Defendant stated that he had

undergone multiple surgeries and would be hospitalized for a period.

Captain Amburn affirmed that Defendant did not appear “out of it,” did not lapse

in and out of consciousness, and did not appear to have any difficulty understanding his

questions. Captain Amburn said the evidence technician asked about Defendant’s

medications and listed in the toxicology request form that Defendant had been given

fentanyl, propofol, and Versed. Captain Amburn was not familiar with Versed but

acknowledged that fentanyl and propofol were narcotics. He did not seek to determine

when those medications had been administered to Defendant prior to speaking to him.

Captain Amburn testified that Defendant “was very lucid in his conversation” and did not

appear to be incapacitated because of any medication. Captain Amburn explained, “I

didn’t detect any of the things that, in my professional experience, would lead me to

believe that he was heavily—heavily medicated. He had no slurred speech; he was

articulate in what he was saying; he wasn’t searching for his words.” Captain Amburn

acknowledged that Defendant would “wince” when he moved due to his injuries.

At the conclusion of the hearing, the trial court made oral findings and denied in

part Defendant’s motion to suppress his statements to Captain Amburn. The court found

that Defendant “immediately engaged in conversation” with Captain Amburn, that “[a]t

first[,] the officer wasn’t asking him any questions,” and that Defendant’s statements

“were spontaneous and not the result of any kind of interrogation.” The court suppressed

Defendant’s statement that he had wanted to go home in response to Captain Amburn’s

question regarding why Defendant had been driving in such a manner. The court found

that Captain Amburn had asked “a question that was under circumstances in which the

officer had to know that the focus of the investigation was narrowing to [Defendant] and

he should have Mirandized him before asking any questions and he did not do that.”

- 24 -

2. Standard of Review

This court is bound by a trial court’s findings of fact in a suppression hearing unless

the evidence preponderates against such findings. State v. McKinney, 669 S.W.3d 753,

764 (Tenn. 2023); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “Questions of

credibility of the witnesses, the weight and value of the evidence, and resolution of

conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.” Odom,

928 S.W.2d at 23. “The prevailing party ‘is entitled to the strongest legitimate view of

the evidence adduced at the suppression hearing as well as all reasonable and legitimate

inferences that may be drawn from that evidence.’” McKinney, 669 S.W.3d at 764

(quoting State v. Talley, 307 S.W.3d 723, 729 (Tenn. 2010); Odom, 928 S.W.2d at 23).

This court may consider the evidence presented both at the suppression hearing and at trial

in evaluating the trial court’s ruling on a pretrial motion to suppress. McKinney, 669

S.W.3d at 764; State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998). This court reviews

“a trial court’s application of law to the facts under a de novo standard of review with no

presumption of correctness.” McKinney, 669 S.W.3d at 764 (citing State v. Echols, 382

S.W.3d 266, 277 (Tenn. 2012); State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)).

3. Failure to Advise Defendant of His Miranda Rights

The Fifth Amendment to the United States Constitution provides that “no person .

. . shall be compelled in any criminal case to be a witness against himself.” U.S. Const.

amend. V; see also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding that the Fifth

Amendment’s protection against compulsory self-incrimination is applicable to the states

through the Fourteenth Amendment). Article I, section 9 of the Tennessee Constitution

provides that “in all criminal prosecutions, the accused . . . shall not be compelled to give

evidence against himself.” “[W]hen an individual is taken into custody or otherwise

deprived of his freedom by the authorities in any significant way and is subjected to

questioning, the privilege against self-incrimination is jeopardized.” Miranda, 384 U.S.

at 478. Prior to any questioning by law enforcement, the individual must be warned that

he has the right to remain silent, that anything he says can be used against

him in a court of law, that he has the right to the presence of an attorney,

and that if he cannot afford an attorney one will be appointed for him prior

to any questioning if he so desires.

Id. These rights may be knowingly and intelligently waived. Id. “But unless and until

such warnings and waiver are demonstrated by the prosecution at trial, no evidence

obtained as a result of interrogation can be used against him.” Id.

- 25 -

Miranda warnings are required only “when a suspect is (1) in custody and (2)

subjected to questioning or its functional equivalent.” State v. Moran, 621 S.W.3d 249,

257 (Tenn. Crim. App. 2020) (citing State v. Walton, 41 S.W.3d 75, 83 (Tenn. 2001)). “In

the absence of either, Miranda requirements are not necessitated.” Id. (citing Walton, 41

S.W.3d at 83). This court has recognized that “the defendant bears the initial burden of

proving custody for the purposes of Miranda before the burden shifts to the State to prove

voluntariness of the statement.” Id. at 258.

A person is “in custody” within the meaning of Miranda if there has been “a

‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal

arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983) (quoting Oregon v. Mathiason,

429 U.S. 492, 495 (1977)); see State v. McCary, 119 S.W.3d 226, 251 (Tenn. Crim. App.

2003). Our supreme court has recognized that “in determining whether an individual is

‘in custody’ and entitled to Miranda warnings, the relevant inquiry is whether, under the

totality of the circumstances, a reasonable person in the suspect’s position would consider

himself or herself deprived of freedom of movement to a degree associated with a formal

arrest.” State v. Anderson, 937 S.W.2d 851, 852 (Tenn. 1996); see State v. Lowe, 552

S.W.3d 842, 867 (Tenn. 2018). This test is an objective assessment from the suspect’s

viewpoint, and “the unarticulated, subjective view of law enforcement officials that the

individual being questioned is or is not a suspect does not bear upon the question.”

Anderson, 937 S.W.2d at 852. Factors relevant in making an objective assessment of

whether a person was in custody at the time of questioning include:

the time and location of the interrogation; the duration and character of the

questioning; the officer’s tone of voice and general demeanor; the suspect’s

method of transportation to the place of questioning; the number of police

officers present; any limitation on movement or other form of restraint

imposed on the suspect during the interrogation; any interactions between

the officer and the suspect, including the words spoken by the officer to the

suspect, and the suspect’s verbal or nonverbal responses; the extent to which

the suspect is confronted with the law enforcement officer’s suspicions of

guilt or evidence of guilt; and finally, the extent to which the suspect is made

aware that he or she is free to refrain from answering questions or to end the

interview at will.

Id. at 855. These factors are not exclusive, and the inquiry is “very fact specific.” Id.

The State contends that the evidence failed to establish that Defendant was in

custody when he made the statements to Captain Amburn. The State argues that “[s]imply

because Defendant was confined to a hospital bed and unable to freely move about due to

his injuries does not mean that he was in custody for the purposes of Miranda” and that

- 26 -

“a reasonable person in Defendant’s position would not consider himself or herself

deprived of freedom of movement to a degree associated with a formal arrest.” Defendant

responds that the trial court “implicitly found” in ruling on the motion to suppress that he

was in custody when he made the statements and that the trial court’s ruling is supported

by the evidence.

The trial court did not specifically address the issue of custody in ruling on

Defendant’s suppression motion. Our supreme court has recognized that when a trial court

failed to set forth its findings of fact in ruling on a suppression motion, “we will decide

on our own where the preponderance of the evidence lies.” State v. Hicks, 55 S.W.3d 515,

521 (Tenn. 2001) (citing Fields v. State, 40 S.W.3d 450, 457 n.5 (Tenn. 2001); Ganzevoort

v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997)); see also State v. Freeland, 451 S.W.3d

791, 816 (Tenn. 2014) (deciding “where the preponderance of the evidence lies” when the

trial court failed to make specific findings of fact as to defendant’s oral motion to suppress

challenging the voluntariness of his confession); State v. Meeks, No. M2007-01600-CCA-

R3-CD, 2008 WL 2152493, at *4 (Tenn. Crim. App. May 22, 2008) (“Because the trial

court made no findings on the record concerning the custodial nature of the defendant’s

interview, we must determine where the preponderance of the evidence lies.”). However,

the trial court made findings that relate to some of the relevant factors in determining

custody, such as the character of the questioning, the interactions between Captain

Amburn and Defendant, and the extent to which Defendant was confronted with Captain

Amburn’s suspicions of guilt or evidence of guilt. See Anderson, 937 S.W.2d at 855.

Furthermore, evidence of other relevant factors, such as the location where Defendant

made the statements, his method of transportation to the location, the number of officers

present, and the restraints imposed on Defendant, were presented primarily through the

testimony of Captain Amburn, and the evidence related to these factors is largely

undisputed. Thus, we conclude that the record is sufficient to allow us to address the issue

of custody. State v. Cooper, 912 S.W.2d 756, 759 (Tenn. Crim. App. 1995) (addressing

whether the defendant’s statements were the result of custodial interrogation despite the

trial court’s failure to make findings of fact when the officer was the only witness who

testified at the suppression hearing and “the evidence is not in dispute”).

Courts from other jurisdictions have declined to find that a hospitalized defendant

questioned by police officers was in custody for purposes of Miranda when the

defendant’s “restraints” at the hospital were due to medical treatment rather than police

conduct and absent any other police conduct that would lead a reasonable person in the

defendant’s position to consider himself deprived of freedom of movement to a degree

associated with a formal arrest. See e.g., United States v. Jamison, 509 F.3d 623, 629 (4th

Cir. 2007) (differentiating between “police-imposed restraint” and restrictions “incident

to [the defendant’s] background circumstances” and concluding that the hospitalized

defendant was not in custody when the limitations on his freedom were the result of

- 27 -

medical treatment from his injuries); United States v. Martin, 781 F.2d 671, 673 (9th Cir.

1985) (rejecting the hospitalized defendant’s claim that he was in custody when

questioned by police but the police were not involved in his hospitalization did nothing to

extend the hospitalization); State v. Thomas, 843 So.2d 834, 839-40 (Ala. Crim. App.

2002) (holding that a hospitalized defendant who caused an accident that resulted in a

fatality was not in custody for purposes of Miranda when the only restraint on his freedom

of movement was due to his medical condition and treatment, he had been issued a citation

for DUI but no hold had been placed on him, and he was not charged with homicide before

or during his hospital stay); People v. Milhollin, 751 P.2d 43, 50 (Col. 1988) (noting that

“confinement to a hospital bed is insufficient alone to constitute custody”) (citation

omitted); State v. Garrison, 323 A.3d 279, 289-96 (Conn. 2024) (concluding that the

hospitalized defendant was not in custody for purposes of Miranda based on the totality

of the circumstances); People v. Vasquez, 913 N.E.2d 60, 66 (Ill. App. 2009) (recognizing

that “physical incapacity resulting from forces outside the control of law enforcement

officials does not, in our view, amount to custody”); Bowman v. Commonwealth, 686

S.W.3d 230, 241 (Ky. 2024) (noting that “the restraint giving rise to ‘custody’ must be

restraint instigated by the police, and for that reason the majority rule is that confinement

to a hospital bed does not, by itself, amount to ‘custody’ for Miranda purposes”) (citation

omitted).

“This is not to say that an individual would never be ‘in custody’ when held for

medical treatment in a hospital.” Martin, 781 F.2d at 673. Rather, “[i]f the police took a

criminal suspect to the hospital from the scene of a crime, monitored the patient’s stay,

stationed themselves outside the door, arranged an extended treatment schedule with the

doctors, or some combination of these, law enforcement restraint amounting to custody

could result.” Id.; see Mayberry v. State, 600 S.E.2d 703, 705 (Ga. App. 2004)

(concluding that a defendant who was questioned by police while at the hospital was in

custody for purposes of Miranda when he was initially surrounded by police cars at the

scene and the police handcuffed him to a gurney and accompanied him in the ambulance

and later handcuffed him to the stretcher at the hospital and restrained his legs); State v.

Grant, 939 A.2d 93, 101-03 (Me. 2008) (holding that a hospitalized defendant was in

custody when officers tased him, forcibly removed him from his truck, handcuffed him,

accompanied him to the hospital, maintained a constant presence outside his hospital

room, interrogated him multiple times, made him aware that they would return when he

refused to answer their questions, and made it clear that they were tracking his medical

condition with hospital staff).

In the present case, Defendant was not arrested or handcuffed at the scene; he was

transported to the hospital by ambulance; and the proof does not establish that an officer

accompanied Defendant to the hospital. Detective Huddleston went to the hospital more

than four hours after the crash and asked Defendant to submit a blood draw. Defendant

- 28 -

refused to consent, and Detective Huddleston promptly left. Approximately five hours

later, Captain Amburn and an evidence technician went to the hospital to execute a search

warrant for a blood draw from Defendant. The KCSO had not placed a hold on Defendant;

no officers were stationed inside or outside of Defendant’s hospital room; and Defendant

was not handcuffed. Defendant’s freedom of movement was restrained by his injuries and

the resulting necessary medical treatment, and this restraint was for medical purposes by

medical personnel rather than investigative purposes by law enforcement.

Defendant was not threatened in any way or coerced to make any statements to

Captain Amburn. The trial court found that Defendant “immediately engaged” in

conversation with Captain Amburn and gave “spontaneous” statements that were “not the

result of any kind of interrogation.” Captain Amburn explained to Defendant that he was

there to obtain a blood sample pursuant to a search warrant, and Captain Amburn never

told Defendant that he was under arrest. The trial court found that Captain Amburn asked

only one question that elicited an incriminating response. Defendant made statements

acknowledging that he had “screwed up” before Captain Amburn indicated to Defendant

that he was a suspect. Although Captain Amburn asked Defendant’s relatives to leave the

room, he explained that he did so to limit Defendant’s embarrassment. There is no

evidence that the interaction between Captain Amburn and Defendant extended beyond

the reasonable amount of time necessary to obtain a sample of Defendant’s blood. Captain

Amburn did not arrest Defendant at the hospital, and Defendant was not arrested until

several months later.

Under our supreme court’s precedent and the persuasive authority cited above, we

cannot conclude that under the totality of the circumstances, a reasonable person in

Defendant’s position would have “consider[ed] himself or herself deprived of freedom of

movement to a degree associated with a formal arrest.” Anderson, 937 S.W.2d at 852; see

State v. Fridley, 93 N.E.3d 10, 20-22 (Ohio Ct. App. 2017) (concluding that the

hospitalized defendant was not in custody when an officer questioned him while obtaining

a sample of defendant’s blood pursuant to a search warrant). Defendant failed to establish

that he was in custody when he made the statements to Captain Amburn. Thus,

Defendant’s statements were not taken in violation of Miranda and his constitutional right

against self-incrimination.

4. Voluntariness of Defendant’s Statements

Defendant asserts that the combination of the injuries that he sustained in the crash

and the medication that he received at the hospital rendered his statements to Captain

Amburn involuntary. The State responds that the evidence established that Defendant’s

statements were voluntary. We agree with the State.

- 29 -

The Fifth and Fourteenth Amendments of the United States Constitution and article

I, section 9 of the Tennessee Constitution require that a confession be voluntary before it

is admitted at trial. See Dickerson v. United States, 530 U.S. 428, 433 (2000); State v.

Davidson, 509 S.W.3d 156, 189 (Tenn. 2016); State v. Smith, 933 S.W.2d 450, 455 (Tenn.

1996). “The test of voluntariness for confessions under article I, § 9 of the Tennessee

Constitution is broader and more protective of individual rights than the test of

voluntariness under the Fifth Amendment.” Smith, 933 S.W.2d at 455. The voluntariness

test is distinct from Miranda. Dickerson, 530 U.S. at 434-35; State v. McKinney, 669

S.W.3d 753, 767 (Tenn. 2023). “Miranda asks whether a suspect received certain

warnings and knowingly and voluntarily waived certain rights, while the essential inquiry

under the voluntariness test is whether a suspect’s will was overborne so as to render the

confession a product of coercion.” State v. Climer, 400 S.W.3d 537, 568 (Tenn. 2013)

(citing Dickerson, 530 U.S. at 433-35; Smith, 933 S.W.2d at 455).

The due process voluntariness test requires consideration of “the totality of the

circumstances surrounding the giving of a confession, ‘both the characteristics of the

accused and the details of the interrogation.’” Id. (quoting Dickerson, 530 U.S. at 434).

Relevant factors include:

[T]he age of the accused; his lack of education or his intelligence level; the

extent of his previous experience with the police; the repeated and prolonged

nature of the questioning; the length of the detention of the accused before

he gave the statement in question; the lack of any advice to the accused of

his constitutional rights; whether there was an unnecessary delay in bringing

him before a magistrate before he gave the confession; whether the accused

was injured[,] intoxicated[,] or drugged, or in ill health when he gave the

statement; whether the accused was deprived of food, sleep[,] or medical

attention; whether the accused was physically abused; and whether the

suspect was threatened with abuse.

Id. (quoting State v. Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996)) (alteration in

original).

“The ingestion of drugs and alcohol does not in and of itself render any subsequent

confession involuntary.” State v. Morris, 24 S.W.3d 788, 805 (Tenn. 2000) (appendix);

see State v. Bell, 690 S.W.2d 879, 882 (Tenn. Crim. App. 1985) (providing that

“intoxication or mental unsoundness is not alone sufficient to bar the introduction of

statements made by an accused if the evidence also shows the accused was capable of

understanding his rights”). A confession should be suppressed “‘when an accused’s

faculties are so impaired that the confession cannot be considered the product of a free

mind and rational intellect.’” Morris, 24 S.W.3d at 805 (quoting State v. Robinson, 622

- 30 -

S.W.2d 62, 67 (Tenn. Crim. App. 1980)); see State v. Williams, No. W2018-00797-CCA-

R3-CD, 2019 WL 1452931, at *11 (Tenn. Crim. App. Mar. 29, 2019). The test is

“whether, at the time of the statement, the accused was capable of making a narrative of

past events or of stating his own participation in the crime.” Morris, 24 S.W.3d at 805

(citations omitted); see Williams, 2019 WL 1452931, at *11.

The States argues that “Defendant failed to show that he was so intoxicated or

impaired by his medications that his statements could not be considered the product of a

free mind and rational intellect.” However, as Defendant notes in his reply brief, the State

has the burden of establishing the voluntariness of a confession by a preponderance of the

evidence. See State v. Willis, 496 S.W.3d 693, 695 (Tenn. 2016) (citing State v. Sanders,

452 S.W.3d 300, 305 (Tenn. 2014)). The parties also note that the trial court failed to

make specific findings on the issue of voluntariness. However, neither party argues that

a remand for additional findings by the trial court is necessary, and we have recognized

that in such situations, we may decide where the preponderance of the evidence lies. See

Freeland, 451 S.W.3d at 816; Hicks, 55 S.W.3d at 521.

The proof did not demonstrate that Defendant’s facilities were so impaired that his

confession cannot be considered the product of a free mind and rational intellect. The

only witness who testified regarding Defendant’s condition when he made the statements

was Captain Amburn, who stated that Defendant “was very lucid in his conversation” and

did not appear to be incapacitated because of any medication. Captain Amburn testified,

“I didn’t detect any of the things that, in my professional experience, would leave me to

believe that he was heavily—heavily medicated. He had no slurred speech; he was

articulate in what he was saying; he wasn’t searching for his words.” The trial court found

that Defendant “immediately engaged in conversation” with Captain Amburn and offered

statements that were “spontaneous and not the result of any kind of interrogation.”

Defendant admitted that he was the driver, that he had been drinking alcohol, and that he

had fled from law enforcement. While Captain Amburn acknowledged that Defendant

“wince[d]” when he moved due to his injuries, the evidence does not demonstrate that his

injuries otherwise affected the voluntariness of his statements. Although Dr. Lochmuller

and Special Agent Tiller testified at trial regarding fentanyl, propofol, and Versed, their

testimony was limited to the general effects of the medication based on the dosage

administered and not those effects actually experienced by Defendant. Rather, the

evidence established that Defendant’s statements were voluntary, and the proof does not

preponderate against the trial court’s denial of Defendant’s motion to suppress. See

Morris, 24 S.W.3d at 805-06 (concluding that the defendant’s statements were voluntary

when the officer testified that the defendant did not appear to be under the influence of

cocaine and provided a narrative of the events and when expert testimony was limited to

the general effects of cocaine intoxication and not those effects that the defendant actually

experienced).

- 31 -

B. Chain of Custody of Blood Sample

Defendant contends that the trial court erred in admitting evidence of the blood

sample from the medical draw and the TBI’s analysis of the sample and asserts that the

State failed to establish a valid chain of custody. He maintains that the State failed to

present evidence regarding the drawing of the blood, the handling and preservation of the

sample until seized by law enforcement, and the storage of the sample after it was seized

by law enforcement and before it was transported to the TBI. The State responds that the

trial court acted within its discretion by admitting the results of the TBI’s testing of the

blood sample from the medical draw after the State established an unbroken chain of

custody. We agree with the State.

Prior to trial, Defendant filed a motion to exclude evidence regarding the TBI’s

analysis of the blood sample from the medical draw, asserting that the State could not

establish a sufficient chain of custody, and the State filed a response in opposition. The

trial court denied the motion prior to trial, noting the State’s responsibility to establish

chain of custody at trial. Defendant renewed his objection at trial, and the trial court

denied Defendant’s motion, finding that “there’s absolutely no reason to doubt the

integrity of the blood from the period of time it was in the hospital” and that Officer Bules

“did describe every step of the chain from the beginning until it got to [the] TBI.”

Tennessee Rule of Evidence 901 requires that physical evidence be authenticated

prior to its admission, and authentication requires evidence sufficient “to support a finding

by the trier of fact that the matter in question is what its proponent claims.” Tenn. R. Evid.

901(a). “[I]t is ‘well-established that as a condition precedent to the introduction of

tangible evidence, a witness must be able to identify the evidence or establish an unbroken

chain of custody.’” State v. Cannon, 254 S.W.3d 287, 296 (Tenn. 2008) (quoting State v.

Scott, 33 S.W.3d 746, 760 (Tenn. 2000)). This rule “is designed to insure ‘that there has

been no tampering, loss, substitution, or mistake with respect to the evidence.’” Id.

(quoting Scott, 33 S.W.3d at 760).

Although each link in the chain of custody “should be sufficiently established,” the

State need not prove the identity of tangible evidence “beyond all possible doubt” or

“establish facts which exclude every possibility of tampering.” Id. (citing Scott, 33

S.W.3d at 760). “An item is not necessarily precluded from admission as evidence if the

State fails to call all of the witnesses who handled the item.” Id. “[W]hen the facts and

circumstances that surround tangible evidence reasonably establish the identity and

integrity of the evidence, the trial court should admit the item into evidence.” Id. This

court reviews the trial court’s ruling regarding whether the chain of custody has been

sufficiently established for an abuse of discretion. Id. at 295.

- 32 -

The challenged blood sample in this case was not taken for the sole purpose of

forensic testing by the TBI in the investigation of a criminal offense. See State v. Singh,

684 S.W.3d 774, 784 (Tenn. Crim. App. 2023) (describing evidence sufficient to establish

proper chain of custody of a blood sample taken for purposes of forensic analysis by the

TBI in DUI cases). Rather, the blood sample was taken by hospital staff for the purposes

of diagnosis and treatment of injuries that Defendant sustained from the crash. The

hospital conducted various testing on the blood sample in preparation for Defendant’s

surgery, including a blood alcohol test, before the blood sample was provided to law

enforcement pursuant to a search warrant and transported to the TBI for forensic testing.

Defendant’s medical records reflecting the results of the blood alcohol testing by the

hospital were entered as an exhibit at trial without objection prior to and separate from the

admission of his entire medical records.

We note that when hospital staff obtain blood samples from a patient for purposes

of diagnosis and treatment and test those samples to determine the patient’s blood alcohol

level, the medical records documenting the testing and the results are admissible under the

business records exception to the hearsay rule set forth in Tennessee Rule of Evidence

803(6). See State v. Goldston, 29 S.W.3d 537, 540-42 (Tenn. Crim. App. 1999); see also

State v. Asbury, No. E2008-01641-CCA-R3-CD, 2010 WL 1741365, at *9 (Tenn. Crim.

App. Apr. 30, 2010); State v. Warlick, No. M2005-01477-CCA-R3-CD, 2007 WL

1439648, at *7 (Tenn. Crim. App. May 17, 2007). “Hospital records kept daily for

medical purposes and not prepared for the purpose of litigation are typically deemed

reliable,” Goldston, 29 S.W.3d at 542, and “the trustworthiness of the medical record is

presumed,” Warlick, 2007 WL 1439648, at *6. The State is not required to present

additional witnesses regarding the drawing and storing of the blood sample to admit the

medical records. See Asbury, 2010 WL 1741365, at *9 (rejecting the defendant’s claim

that medical records reflecting the results of blood alcohol testing conducted by the

hospital for medical purposes lack sufficient trustworthiness to satisfy Rule 803(6) due to

the State’s failure to present testimony regarding how and why the tests were conducted).

Because the State need not establish the chain of custody of blood samples taken

at a hospital for medical purposes to admit medical records reflecting the results of blood

alcohol testing conducted by hospital personnel due to the reliability of the records, we

question the necessity of requiring the State to establish the chain of custody of blood

samples while in the hospital’s custody prior to their transfer to the custody of law

enforcement for forensic analysis by the TBI. As noted by the State in its brief, the

hospital had a “vested interest in ensuring that the blood labeled with Defendant’s name

belonged to Defendant” because the hospital drew the blood for the purpose of conducting

testing and screening in advance of Defendant’s major surgery. The crucial life and death

decisions by hospital personnel are dependent upon the proper obtaining, handling, and

- 33 -

preserving of blood samples. Under such circumstances, we conclude the presentation of

evidence to establish the chain of custody of blood samples while under the custody and

care of the hospital was not necessary to preclude the possibility of tampering, loss,

substitution, or mistake.

Regardless, even assuming the State is required to establish the integrity of the

blood samples while in the hospital’s custody, we conclude that the State presented

sufficient evidence establishing the chain of custody of the blood samples. According to

Defendant’s medical records, he arrived at the emergency department on February 3,

2016, at 8:32 p.m. and was evaluated by a doctor, who ordered “Type & Screen for

possible transfusion.” Hospital personnel drew Defendant’s blood at 20:38 hours, or 8:38

p.m. Dr. Christy Lawson issued an order to screen Defendant’s blood, and following a

blood screen, hospital personnel noted that Defendant had a “BAC 135; EtOH positive.”

On February 4, at approximately 5:33 p.m., Captain Amburn and Officer Bules executed

a search warrant for Defendant’s medical blood samples. They went to the hospital’s

laboratory, provided a technician with a copy of the search warrant, and received four

vials of blood from the technician. The vials were labeled with the name, “Harlen

Ferguson,” the same spelling of Defendant’s name included in his medical records. The

label also included the date and time of February 3 at 8:38 p.m., the same date and time

of the drawing of Defendant’s blood that was listed in his medical records.

Officer Bules took possession of the blood samples, transported them to the

evidence room at the KCSO, and placed them in a refrigerator at the forensic laboratory.

The refrigerator was located behind a door that was only accessible with a thumbprint and

a key card. Any removal of evidence from the register had to be recorded in an evidence

log. According to the evidence log, the vials of Defendant’s blood remained in the

refrigerator until February 19, 2016, when Tom Finch, an employee with the KCSO,

removed the vials from the laboratory refrigerator and transported them to the TBI for

analysis.

Defendant characterizes the period between Officer Bules’s placing the vials of

blood in the refrigerator and Mr. Finch’s removing them from the refrigerator and

transporting them to the TBI as a “gap” in the chain of custody. Defendant relies on this

court’s opinion in State v. Gibson, when we held that the State failed to establish the chain

of custody of a blood sample when the deputy delivered the sample to an unidentified

person in the forensic department of the sheriff’s office and no one from the forensic

department testified regarding what he or she did with the sample after receiving it. State

v. Gibson, No. E2017-01567-CCA-R3-CD, 2018 WL 4811086, at *6-7 (Tenn. Crim. App.

Oct. 3, 2018). This court reasoned that “the State failed to offer any evidence about the

whereabouts and security of the Defendant’s blood sample from the time [the deputy] gave

it to the Forensic Department until it was received in the TBI Laboratory’s evidence drop

- 34 -

box six days later.” Id. at *8. We noted that the State also failed to present any evidence

regarding “the sheriff’s department’s usual procedures for storing, securing, and

transporting evidence.” Id. In the present case, however, Officer Bules testified that she

stored Defendant’s blood samples in the forensic department’s refrigerator located in a

secured area in the KCSO. According to the evidence log, the vials remained inside the

refrigerator until Mr. Finch removed them and transported them to the TBI. The KCSO’s

waiting fifteen days to transport the vials to the TBI did not create a “gap” in the chain of

custody.

The State also presented sufficient evidence establishing the identity and integrity

of the blood samples. The blood vials were labeled with Defendant’s name as spelled in

his medical records and the same date and time listed in his medical records as when the

blood was drawn, evidencing that the vials contained Defendant’s blood. Defendant’s

medical records included the screens and tests that hospital personnel conducted using

Defendant’s blood samples and the results of the screens and tests. Captain Amburn and

Officer Bules went to the hospital laboratory to obtain the blood samples pursuant to a

search warrant and retrieved the vials from a technician in the laboratory, evidencing that

the vials had been stored in the hospital laboratory. Officer Bules then stored the vials in

the laboratory refrigerator in a secured area at the KCSO until the vials were transported

to the TBI for analysis.

Special Agents Tiller and Thompson testified extensively regarding the condition

of the blood samples when they received them and the dangers that result from

contaminating and failing to properly store the samples. Special Agent Tiller stated that

he did not note any issues with clotting or bacterial growth in the blood samples. Special

Agent Tiller likewise stated that he did not observe anything “abnormal” in the blood

samples and that he took precautions to ensure that the testing instrument did not produce

a result that was based on any contamination of the blood samples.

We conclude that this proof was sufficient to ensure that “‘there has been no

tampering, loss, substitution, or mistake’” with respect to the blood samples from the

medical draw. Cannon, 254 S.W.3d at 296 (quoting Scott, 33 S.W.3d at 760). The trial

court did not abuse its discretion in admitting the results of the TBI’s analysis of

Defendant’s blood samples from the medical draw.

Furthermore, we conclude that any error in admitting the evidence was harmless.

See Tenn. R. App. P. 36(b) (“A final judgment from which relief is available and otherwise

appropriate shall not be set aside unless, considering the whole record, error involving a

substantial right more probably than not affected the judgment or would result in prejudice

to the judicial process.”); see also Cannon, 254 S.W.3d at 298-99 (applying a harmless

error analysis under Rule 36(b) in determining the effect of the erroneous admission of

- 35 -

evidence due to the State’s failure to establish a sufficient chain of custody). In addition

to the results of the TBI’s analysis of the blood samples, the State also presented

Defendant’s medical records, documenting the result of the hospital’s blood alcohol

testing of the blood samples as “BAC 135, EtOH positive.” This medical record was

entered as an exhibit without objection by Defendant prior to and apart from the entry of

the entire set of Defendant’s medical records. Other evidence of Defendant’s intoxication

that was presented at trial included Mr. Sumner’s testimony regarding Defendant’s alcohol

consumption prior to the crash, the reckless way Defendant drove the vehicle, and his

statements following the crash regarding his alcohol consumption and intoxication. In

light of the other evidence of Defendant’s intoxication presented at trial, we cannot

conclude that any error in the admission of the result of the TBI’s analysis of the blood

samples “more probably than not affected the judgment” or “result[ed] in prejudice to the

judicial process.” Tenn. R. App. P. 36(b). Defendant is not entitled to relief on this issue. 3

C. Failure to Preserve Evidence

Defendant asserts the State failed to preserve his blood samples from the medical

draw and the legal draw and the vehicle involved in the crash in violation of State v.

Ferguson, 2 S.W.3d 912 (Tenn. 1999), and that the trial court, therefore, erred in denying

his motion to dismiss. Defendant argues that due to the destruction of the blood samples,

he was denied the opportunity to have the blood samples independently tested to

corroborate or contradict the results of the TBI’s analysis. He further argues that due to

the State’s failure to retain the vehicle involved in the crash, he was denied the opportunity

to inspect the vehicle. He maintains that the photographs of the vehicle taken by the

KCSO were an insufficient substitute because the photographs were of poor quality and

did not include “crucial aspects” of the vehicle, including the condition of the passenger

door and the vehicle’s interior. Finally, Defendant asserts that the trial court improperly

blamed him for failing to request access to the vehicle and the blood samples in a timely

manner when the evidence was destroyed prior to his arrest and the appointment of

counsel. The State responds that Defendant failed to establish that his trial was

fundamentally unfair without the evidence, and the State asserts that the trial court

3

Defendant argues in a footnote in his brief that because the State did not present the hospital

personnel who drew his blood and handled his blood samples as witnesses at trial, he was “thus convicted

on the basis of evidence introduced against him without any opportunity to confront the unknown people

who generated that evidence.” Defendant, however, has waived this issue by failing to cite any authority

to support his claim. See Tenn. R. App. P. 27(a)(7)(A) (requiring an appellant to support issues raised on

appeal with “the contentions of the appellant with respect to the issues presented, and the reasons therefor,

including the reasons why the contentions require appellate relief, with citations to the authorities and

appropriate references to the record”); Tenn. Ct. Crim. App. R. 10(b) (providing that issues raised by an

appellant that “are not supported by argument, citation to authorities, or appropriate references to the

record will be treated as waived”).

- 36 -

properly concluded that a jury instruction was the appropriate remedy for the missing

evidence.

1. Pretrial and Trial Proceedings

Prior to trial, Defendant filed a motion to dismiss the vehicular homicide charges

in the presentment due to the State’s failure to preserve the vehicle involved in the crash

in violation of Ferguson. Defendant alleged that the KCSO released the vehicle to the

insurance company shortly after the crash and that the vehicle was subsequently sold and

destroyed. He maintained that the State had a duty to preserve the evidence and that

defense access to view and inspect the vehicle and the event data recorder (“EDR”) or

“black box” was required under Tennessee Rule of Criminal Procedure 16. He further

maintained that inspection of the vehicle was necessary for preparation of the defense

regarding the issues relating to the nature and cause of the crash and the proximate cause

of the victim’s death. Defendant asserted that the evidence could not be recreated and that

no comparable substitute evidence existed. Defendant also filed a motion to dismiss the

presentment due to the State’s failure to preserve the blood samples, asserting that the

blood samples contained material evidence that directly related to the elements of the

charged offense and that could provide evidence to impeach the TBI’s analysts who tested

the samples and that no comparable substitute evidence existed.

During a pretrial hearing, Captain Amburn testified regarding the vehicle’s

condition following the crash. He stated that the force of the impact was so great that the

engine was shoved against the firewall, moving the dashboard and the pedals and that the

steering column rotated to such a degree that the steering wheel was facing the vehicle’s

roof. Captain Amburn recalled looking inside the vehicle before it became fully engulfed

in flames and observing beer cans, but he did not collect the beer cans and was unaware

of whether an investigator later did so. He said that Defendant’s airbag was deployed on

the driver’s side and that he believed the victim’s airbag on the passenger’s side also had

deployed. Captain Amburn noted that the front passenger seat was “partially reclined.”

Captain Amburn did not inspect the vehicle after it was towed and explained, “There was

nothing left of it, basically.” The parties stipulated that at the request of the KCSO, the

vehicle was towed from the scene by Cedar Bluff Towing, that Chief Henderson released

all holds on the vehicle on February 8, 2016, and that the vehicle was claimed by Insurance

Auto Auctions on February 16, 2016.

Officer Campbell testified that she took approximately 161 photographs of the

scene on the night of the crash. She was unable to enter the vehicle because it was still

“very hot” due to the fire. She photographed the debris from the vehicle, the vehicle’s

exterior, and the vehicle’s interior to the extent that she could do so. She acknowledged

that the area was dark, and she did not recall whether there was any lighting in the area or

- 37 -

whether the officers set up temporary lighting while investigating the crash. She did not

recall inspecting the vehicle’s windows, doors, or airbags, and she did not photograph the

vehicle once it was towed from the scene. She photographed the roadway but did not

otherwise document its condition.

At the pretrial hearing, Defendant presented the testimony of James Alan Parham,

a civil engineer who specializes in traffic accident reconstruction, and the trial court

accepted Mr. Parham as an expert in the field. Mr. Parham reviewed the accident report,

photographs of the scene, the transcript of the 911 call, the medical examiner’s report,

documents from Insurance Auto Auctions regarding the vehicle, chain of custody forms,

the search warrant affidavit, subpoenas, and “other legal documents.”

Mr. Parham noted that an accident reconstruction was not performed in the case.

He testified regarding the importance of maintaining and preserving evidence at the scene

of a vehicle crash. He stated that an investigator should have examined, documented, and

photographed the roadway alignment, the grade of the roadway, the cross slope, the

banking of the curve, the vehicle’s path as it left the roadway, ground conditions, the tree

that the vehicle struck, and the vehicle’s final resting position. Mr. Parham acknowledged

that investigators photographed the marks where the vehicle left the roadway, the

“furrows” or grooves in the ground made by the tires once the vehicle left the roadway,

and the path of the vehicle to the site of the crash. He did not see any measurements of

the marks and “furrows.”

Mr. Parham testified that law enforcement failed to preserve the vehicle, obtain the

EDR data from the vehicle, or conduct a detailed assessment of the vehicle. He stated that

this assessment should have included photographing and documenting the overall

dimensions of the vehicle, the damage to the vehicle, the seat belt latch plates to determine

whether the seat belts were used, any airbag deployment, the speedometer, the positions

of the seats, and the size, tread, depth, and conditions of the tires. Mr. Parham stated that

the photographs taken by officers were dark, that no photographs of the vehicle were taken

during the daylight hours, and that he did not “really see” any photographs of the vehicle’s

interior taken by law enforcement “other than just standing back a little bit and you can

kind of see in there.” He stated that officers failed to take detailed photographs of the

steering wheel, dash, airbags, or any remains of the seat belts. He also was unable to

determine whether the vehicle’s windows were up or down based on the evidence

provided by the State. He stated that had the State preserved the vehicle, he would have

been able to inspect the vehicle’s interior, including the steering wheel, dashboard,

airbags, and seat belts. He noted that it was not unusual for vehicles involved in crashes

to be preserved for long periods of time.

- 38 -

Mr. Parham testified that the data from the vehicle’s EDR could have included the

vehicle’s speed, the position of the throttle, the accelerator and brake activity, any seat

belt usage, any activation of steering control, the degree to which the steering wheel was

turned, the engine RPMs, the crash pulse, and the direction of the force involved in the

crash. He concluded that based on his training and experience, EDR data was available

for 2010, 2011, and 2012 Kia Souls. He identified a document that noted the lack of tools

for downloading and accurately interpreting data from an EDR in Kia vehicles produced

prior to September 1, 2012. Mr. Parham stated that he had performed several accident

reconstructions where the vehicle had caught fire and that he had been able to obtain the

EDR and the recorded data from some, but not all, of the burned vehicles. He did not

know whether the data from the EDR in the vehicle survived the fire but believed “it’s got

a high probability it would have.”

Captain Amburn’s testimony regarding the collection of Defendant’s blood

samples from the legal draw and the medical draw pursuant to search warrants was

consistent with his trial testimony. The State also presented the testimony of the TBI

forensic scientists who received and analyzed the blood samples.

Ms. Margaret Massengill testified that the TBI received the blood samples taken

from both the medical draw and the legal draw. According to the submittal forms, the

medical draw occurred on February 3, 2016, at 8:38 p.m. and was received by the TBI on

February 19, and the legal draw occurred on February 4 at 4:16 a.m. and was received by

the TBI on March 1. Ms. Massengill testified that on February 8, she spoke to one of the

prosecutors regarding which of the samples to test and that they decided to test the samples

from the medical draw if the volume of blood was sufficient to allow such testing. If the

volume of blood from the medical draw was insufficient for testing, the TBI would then

test the blood from the legal draw. Ms. Massengill also testified that generally, the blood

sample taken closer in time to “the event in question” is the most “useful” sample to test

as it is a better representation of whether the person was under the influence of alcohol or

drugs at the time of the event.

The samples from the medical draw were in four tubes, the first of which had a

blue top and contained approximately one milliliter of blood, the second of which had a

purple top and contained approximately two milliliters of blood, the third of which had a

green top and contained less than one milliliter of blood, and the fourth of which was an

“SST tube” that separated the red cells from the serum and contained approximately one

milliliter of serum. Ms. Massengill used the serum from the “SST tube” to conduct

presumptive testing; Special Agent Thompson used the blood in the tube with the purple

top for an alcohol analysis; and due to the limited amount of blood available, Special

Agent Tiller used the blood from the tubes with the purple and blue tops for a drug

analysis. Ms. Massengill testified that the presumptive test required approximately 100

- 39 -

microliters of serum, that the alcohol analysis required approximately 200 microliters of

blood, and that the drug analysis required a total of approximately two and one-half to

three and one-half milliliters of blood.

Ms. Massengill was unaware of who drew the blood from the medical draw, the

storage of the blood samples in the hospital, any preservatives added to the blood, and any

testing of the blood at the hospital. She testified regarding the risks associated with the

failure to include any preservatives or other additives, and she acknowledged that the tubes

of blood from the medical draw were not vacuum sealed. She stated that if any of the

analysts had questioned the integrity of the blood samples, they would have refused to test

them. The TBI did not conduct any DNA testing of the blood samples from the medical

draw to determine whether the blood belonged to Defendant. Ms. Massengill noted that

each of the tubes were labeled with Defendant’s name and were dated February 3, 2016,

at 8:38 p.m. and that the information on the labels matched the information on the form

requesting analysis that was submitted to the TBI.

The samples from the legal draw were in two ten-microliter, gray-topped tubes,

which were the standard tubes included in the blood-alcohol kit provided by the TBI to

law enforcement officers. The tubes were vacuum sealed and contained an anticoagulant

to prevent the blood from clotting and a preservative to stop the metabolic process. Ms.

Massengill acknowledged that any Versed and fentanyl in amounts larger than therapeutic

levels that were in the blood samples would have been detected in a drug analysis.

Ms. Massengill testified that the blood samples were destroyed on September 1,

2016, in accordance with TBI policy. She explained that the destruction policy is due to

the limited space available to store blood samples for long periods of time. She stated that

the TBI can retain blood samples for a longer period if requested by the District Attorney

General’s Office or upon receipt of a court order but that she was not aware of any requests

to preserve the blood samples or to send the blood samples for independent testing prior

to their destruction. On June 1, 2017, Ms. Massengill learned that defense counsel had

contacted the TBI and requested information about the blood samples, and Ms. Massengill

notified defense counsel of their destruction.

Special Agent Thompson offered testimony regarding his alcohol analysis of the

blood sample from the medical draw that was consistent with his trial testimony. He tested

the whole blood from the tube with the purple top, and a total of 100 microliters of blood

was consumed by the testing. He did not test the blood samples from the legal draw,

explaining that the blood samples from the medical draw were taken closer to the time of

the crash and, therefore, were a better representation of Defendant’s condition at the time

of the crash.

- 40 -

Special Agent Tiller also offered testimony regarding his drug analysis of the blood

sample from the medical draw that was consistent with this trial testimony. He used the

whole blood from the tubes with the purple and blue tops to conduct his analysis, and his

analysis consumed all the blood in both tubes. He explained that the TBI uses whole blood

in its drug and alcohol testing and that literature and other references state that whole

blood is required for drug and alcohol analysis. He stated that his testing used all the

remaining whole blood in the samples from the medical draw and that there was an

insufficient amount of serum or plasma left from the samples for the TBI to conduct

further testing. Special Agent Tiller also stated that based on his knowledge of testing

used at other laboratories, he believed the amount of serum remaining was insufficient for

another laboratory to conduct a full analysis.

Special Agent Tiller did not analyze the blood samples from the legal draw. He

stated that he learned that the District Attorney General’s Office preferred that the blood

samples from the medical draw be analyzed. He explained that due to the backlog of

blood samples that required testing, the TBI did not test samples when informed that such

testing was unnecessary. Special Agent Tiller also stated that, generally, he preferred

testing blood samples taken closer to the incident in question as the samples were a more

accurate representation of the person’s condition at the time of the incident. He said that

due to the rate at which drugs and alcohol metabolize, the amount of drugs and alcohol in

a blood sample that was drawn eight hours after a crash “should be significantly lower

than what they were at the time of the crash.” He acknowledged that another laboratory

could have tested the blood sample from the legal draw for fentanyl and Versed.

During a subsequent hearing, the trial court made oral findings denying both of

Defendant’s motions to dismiss. The court found that the blood samples remained with

the TBI for six or seven months before they were destroyed pursuant to the policy of the

TBI, “which like all law enforcement agencies has only a limited amount of space for

storage.” The court stated that the samples were not destroyed “for any legal trick to take

advantage of [Defendant].” The court found that Defendant failed to take any steps to

have the samples independently tested prior to their destruction and that although the

samples were destroyed before Defendant had been appointed counsel, “that doesn’t mean

that he had no obligations to take action to try to protect himself.” The court noted that

Defendant knew that samples of his blood had been taken, that he “surely understood”

that the samples would undergo blood and alcohol analysis, and that he had the right to

ask the TBI to send the blood samples to an independent laboratory for analysis but failed

to do so prior to their destruction.

In denying Defendant’s motion to dismiss due to the State’s failure to retain the

vehicle, the trial court noted that although the vehicle was not destroyed for several

months, Defendant made no attempt to preserve or inspect the vehicle. The court also

- 41 -

noted that although Defendant had not been charged with a criminal offense when the

vehicle was destroyed, Defendant “had an obligation . . . to understand that he was in

trouble.” However, the court characterized Defendant’s failure to take any action as “a

background consideration.” Rather, the court denied the motion upon finding that

Defendant’s argument as to the exculpatory or potentially exculpatory nature of the

evidence was “based on speculation.” The court found that there was nothing in the record

supporting Defendant’s claim that inspection of the vehicle likely would have revealed a

mechanical failure, which prevented the driver from controlling the vehicle. The court

stated that although Defendant spoke to officers at the hospital, he never claimed a

mechanical failure prevented him from controlling the vehicle, which would have placed

the State on notice of Defendant’s defense and the need to retain the vehicle.

At the conclusion of the State’s proof at trial, however, the trial court ruled that a

jury instruction on the State’s duty to preserve evidence was appropriate due to the State’s

failure to preserve the vehicle. The court explained, “I think it’s fair to say that the—what

was left of the car would have had some exculpatory evidence. We just don’t know. It’s

just a completely speculative notion. But the threshold here is [to] produce at trial

evidence which may possess exculpatory value.” The court noted that although Defendant

did not complain of a mechanical failure, “if the car had been preserved and an expert did

examine it, it’s possible that something could have turned up that would be of some sort

of exculpatory [value].” The court subsequently instructed the jury:

The State has a duty to gather, preserve, and produce at trial evidence

which may possess exculpatory value. Such evidence must be of such a

nature that the defendant would be unable to obtain comparable evidence

through reasonably available means. The State has no duty to gather or

indefinitely preserve evidence considered by a qualified person to have no

exculpatory value, so that an as yet unknown defendant may later examine

the evidence.

If, after considering all of the proof, you find that the State failed to

gather or preserve evidence, the contents or qualities of which are an issue

and the production of which would more probably than not be of benefit to

the defendant, you may infer that the absent evidence would be favorable to

the defendant.

2. State v. Ferguson

In State v. Ferguson, the Tennessee Supreme Court “explained that the loss or

destruction of potentially exculpatory evidence may violate a defendant’s right to a fair

trial.” State v. Merriman, 410 S.W.3d 779, 784 (Tenn. 2013) (citing Ferguson, 2 S.W.3d

- 42 -

at 915-16). Our supreme court observed that “the due process required under the

Tennessee Constitution was broader than the due process required under the United States

Constitution” and rejected the “bad faith” analysis espoused by the United States Supreme

Court, in favor of “a balancing approach in which bad faith is but one of the factors to be

considered in determining whether the lost or destroyed evidence will deprive a defendant

of a fundamentally fair trial.” Id. at 784-85 (citing Ferguson, 2 S.W.3d at 914, 916-17

n.10). “[F]undamental fairness, as an element of due process, requires a review of the

entire record to evaluate the effect of the State’s failure to preserve evidence.” Id. (citing

Ferguson, 2 S.W.3d at 914, 917).

Under this “balancing approach,” the trial court must first “determine whether the

State had a duty to preserve the evidence.” Id. at 785. The State’s duty to preserve is

“limited to constitutionally material evidence.” Id. (citing Ferguson, 2 S.W.3d at 917).

To be “constitutionally material,” the evidence “must potentially possess exculpatory

value and be of such a nature that the defendant would be unable to obtain comparable

evidence by other reasonably available means.” Id. (citing Ferguson, 2 S.W.3d at 915,

918). “If the trial court determines that the State had a duty to preserve the evidence, the

court must determine if the State failed in its duty.” Id. (citing Ferguson, 2 S.W.3d at

917). If the trial court concludes that the State lost or destroyed evidence that it had a duty

to preserve, the trial court must then consider three factors to determine the appropriate

remedy for the State’s failure:

(1) the degree of negligence involved;

(2) the significance of the destroyed evidence, considered in light of the

probative value and reliability of secondary or substitute evidence that

remains available; and

(3) the sufficiency of the other evidence used at trial to support the

conviction.

Id. (quoting Ferguson, 2 S.W.3d at 917). “If the trial court concludes that a trial would

be fundamentally unfair without the missing evidence, the trial court may then impose an

appropriate remedy to protect the defendant’s right to a fair trial, including, but not limited

to, dismissing the charges or providing a jury instruction.” Id. at 785-86 (citing Ferguson,

2 S.W.3d at 917).

We review the trial court’s decision concerning the fundamental fairness of a trial

conducted without the missing evidence under a de novo standard of review. See id. at

791 (“Because the application of Ferguson . . . presents a constitutional issue, we will

apply a de novo standard of review to the trial court’s decision concerning the fundamental

fairness of the trial.”). The trial court’s choice of remedy, however, will not be overturned

- 43 -

on appeal absent a showing that the trial court abused its discretion. Id. at 792 (“Thus,

when the chosen remedy is consistent with the findings made by the trial court utilizing

the Ferguson considerations, we will not overrule that choice on appeal.”).

3. Blood Samples

Generally, “the State has a duty to preserve all evidence subject to discovery and

inspection under [Tennessee Rule of Criminal Procedure] 16, or other applicable law.”

Ferguson, 2 S.W.3d at 917. This court has determined that a blood sample is discoverable

under Rule 16. See State v. Blair, No. M2015-01231-CCA-R3-CD, 2016 WL 6776356,

at *5 (Tenn. Crim. App. Nov. 16, 2016). Furthermore, Tennessee Code Annotated section

55-10-408, which sets forth the testing of samples taken for the purpose of determining

alcohol and/or drug content, provides that “[t]he person tested shall be entitled to have an

additional sample of blood or urine procured and the resulting test performed by any

medical laboratory of that person’s own choosing and at that person’s own expense[.]”

Tenn. Code Ann. § 55-10-408(e). However, the State’s duty to preserve evidence under

Ferguson “is limited to constitutionally material evidence described as ‘evidence that

might be expected to play a significant role in the suspect’s defense.’” Merriman, 410

S.W.3d at 785 (quoting Ferguson, 2 S.W.3d at 917); see California v. Trombetta, 467 U.S.

479, 488 (1984). Thus, we must examine whether the blood samples potentially possessed

exculpatory value and were of such a nature that Defendant was unable to obtain

comparable evidence by other reasonably available means. See Merriman, 410 S.W.3d at

785.

The State’s duty to preserve evidence “‘does not extend to that which the State

cannot preserve,’ such as evidence that is consumed during testing or is too dangerous to

retain.” State v. Leath, 461 S.W.3d 73, 98 (Tenn. Crim. App. 2013) (quoting State v. Best,

No. E2007-00296-CCA-R3-CD, 2008 WL 4367259, at *14 (Tenn. Crim. App. Sept. 25,

2008)). Furthermore, “the State is not required to preserve samples taken for the limited

purpose of determining the defendant’s blood-alcohol level.” State v. Jordan, 325 S.W.3d

1, 82 (Tenn. 2010) (appendix) (citing Trombetta, 467 U.S. at 491). “It is common

knowledge that human blood is perishable, and specimens of blood can only be maintained

for a short period of time.” Id.

The record reflects that the TBI analysts used all the whole blood from the medical

draw in conducting their analyses, and Special Agent Tiller testified that an insufficient

amount of serum remained for analysis by an independent laboratory. Thus, the State did

not have a duty to retain the blood samples from the medical draw. The blood samples

from the legal draw taken more than eight hours after the crash were not potentially

exculpatory because the lack of drugs or alcohol in the blood samples would not have

- 44 -

negated evidence of Defendant’s intoxication at the time of the crash due to the rate at

which drugs and alcohol metabolize.

Furthermore, the blood samples were not destroyed due to negligence. Most of the

blood samples from the medical draw were consumed during testing, and the remaining

amount of the samples from the medical draw, as well as the samples from the legal draw,

were destroyed in accordance with established TBI policy. Prior to the TBI’s analysis,

the hospital tested the blood from the medical draw, and the results of the testing

established that Defendant’s blood-alcohol level was greater than the legal limit. As we

have recognized, the other evidence of Defendant’s intoxication presented at trial was

substantial. Finally, we note that Defendant questioned witnesses extensively at trial

regarding the destruction of the blood samples and the potential value of independent

testing. The trial court instructed the jury on the State’s duty to preserve evidence and the

jury’s ability to infer that the absent evidence would have been favorable to Defendant.

Although the trial court’s decision to give this instruction was based on the State’s failure

to preserve the vehicle, the language of the instruction was not limited to the State’s failure

to preserve the vehicle. Under these circumstances, we conclude that the State’s failure

to preserve the blood samples did not violate Defendant’s right to a fair trial and that the

trial court properly denied Defendant’s motion to dismiss.

4. Vehicle

The trial court declined to dismiss Defendant’s charges due to the State’s failure to

retain the vehicle for inspection by the defense. However, at the close of the State’s proof,

the trial court found that an inspection of the vehicle could have produced exculpatory

evidence and concluded that a missing evidence instruction was warranted. Although the

trial court did not expressly find that a trial without the missing evidence would be

fundamentally unfair, a missing evidence instruction is a remedy that a trial court may

impose to protect a defendant’s right to a fair trial upon making such a finding. See

Merriman, 410 S.W.3d at 785-86. Thus, we must determine whether the trial court abused

its discretion in deciding to issue a missing evidence instruction rather than dismiss the

case. See id. at 792 (recognizing that appellate courts review the trial court’s choice of

remedy for abuse of discretion).

The KCSO did not destroy or lose the vehicle but released it to the victim’s family

upon request. As noted by the trial court, Defendant’s claim regarding the probative value

of the defense’s ability to inspect the vehicle is merely speculative. See State v. Rimmer,

623 S.W.3d 235, 260 (Tenn. 2021) (noting that the defendant’s offering only speculation

as to the probative value of being able to physically inspect the vehicle used during the

commission of a murder as a factor in determining that the State’s release of the evidence

back to the owner did not violate the defendant’s due process rights). The KCSO officers

- 45 -

took numerous photographs of the burned vehicle prior to releasing it, and Defendant had

access to those photographs. To the extent that Defendant claims that the photographs

were insufficient to demonstrate the condition of the vehicle, Defendant was allowed to

explore these claims through his cross-examination of witnesses at trial. Finally, other

evidence presented at trial establishing that Defendant was the driver, that he was

intoxicated, and that his driving while intoxicated was the proximate cause of the crash

and the victim’s death was overwhelming. Based on these circumstances, we conclude

that the trial court did not abuse its discretion in issuing a missing evidence instruction

rather than dismissing the case. Defendant is not entitled to relief on this issue.

D. Admission of Lay Witness Testimony

Defendant challenges the trial court’s decision to admit Captain Amburn’s

testimony that a red mark on the victim appeared to have been caused by the seat belt on

the passenger’s side. Defendant maintains that Captain Amburn, as a lay witness, was

permitted to describe seeing a red mark on the victim, but he was prohibited from offering

an interpretation or opinion as to the cause of the red mark. The State responds that the

trial court acted within its discretion in admitting Captain Amburn’s testimony regarding

his observation of the red mark on the victim and the apparent cause of the mark. We

agree with the State.

At trial, Captain Amburn testified that following the crash, the victim indicated that

her stomach was hurting and that he saw “a red line across her stomach area and up toward

her cheek that looked consistent with a seat belt.” Defendant objected to the testimony,

arguing that the testimony was speculative, that Captain Amburn “has not been qualified

as an expert in any field,” and that he had no medical knowledge. The trial court overruled

the objection, finding that Captain Amburn was “just expressing what it looked like.”

Captain Amburn then testified that he had worked numerous vehicle accidents during his

twenty-eight years in law enforcement and that the victim’s injury “was consistent with a

seat belt and the danger there is I’ve seen people die from spleen injuries and everything.”

He noted that the red mark was on the victim’s right side, the same side on which the

passenger’s side seat belt would go across the passenger’s body.

A non-expert witness may give testimony in the form of an opinion or inference if

it is “rationally based on the perception of the witness” and “helpful to a clear

understanding of the witness’s testimony or the determination of a fact in issue.” Tenn.

R. Evid. 701(a). Lay opinion testimony should be based on admissible facts that are in

evidence. State v. Boggs, 932 S.W.2d 467, 474 (Tenn. Crim. App. 1996). To be

admissible, lay opinion testimony should be within the range of knowledge or

understanding of ordinary laypeople. Id. A witness’s lay opinion testimony is admissible

when the jury could not readily draw its own conclusions on the issue without the

- 46 -

witness’s lay opinion or where the witness cannot effectively testify without stating the

inference or opinion. State v. Schiefelbein, 230 S.W.3d 88, 130 (Tenn. Crim. App. 2007).

“If an opinion is based upon a lay witness’s own observations, his or her conclusions

require no expertise and are within the range of common experience, the opinion is

admissible.” State v. Samuel, 243 S.W.3d 592, 603 (Tenn. Crim. App. 2007). “The

distinction between an expert and a non-expert witness is that a non-expert witness’s

testimony results from a process of reasoning familiar in everyday life and an expert’s

testimony results from a process of reasoning which can be mastered only by specialists

in the field.” State v. Brown, 836 S.W.2d 530, 549 (Tenn. 1992), superseded by statute

as stated in State v. Reynolds, 635 S.W.3d 893 (Tenn. 2021); see State v. Cook, No.

W2012-00406-CCA-R3-CD, 2013 WL 9570493, at *8 (Tenn. Crim. App. Sept. 4, 2013)

(listing examples of lay testimony). A trial court’s decision regarding the admissibility of

opinion evidence is reviewed for abuse of discretion. Schiefelbein, 230 S.W.3d at 130.

Tennessee courts have permitted lay witness testimony regarding the apparent

cause of an injury based on the injury’s appearance in a variety of circumstances. For

example, in State v. Samuel, this court upheld the admission of a police officer’s testimony

that a mark on the victim appeared “recent” and as if someone had dug a fingernail into

the victim’s skin as proper lay opinion testimony and within the common knowledge of

the general public. Samuel, 243 S.W.3d at 603 (noting also that Tennessee common law

traditionally permitted lay opinions regarding the physical condition of a witness or

another person). In State v. Brown, our supreme court upheld the admission of the

testimony of a nurse who testified as a lay witness and identified an injury as a cigarette

burn based on her observation of other such injuries on numerous occasions over six years.

Brown, 836 S.W.2d at 549. Our supreme court reasoned:

Generally, non-expert witnesses must confine their testimony to a narration

of the facts based on first-hand knowledge and avoid stating mere personal

opinions or their conclusions or opinions regarding the facts about which

they have testified. This rule preserves the province of the jury as the fact-

finding body designated to draw such conclusions as the facts warrant. An

exception to this general rule exists where testimony in an opinion form

describes the witness’s observations in the only way in which they can be

clearly described, such as testimony that a footprint in snow looked like

someone had slipped or that a substance appeared to be blood.

Id. at 550 (internal citations omitted). Our supreme court, however, also concluded that a

paramedic’s testimony that bruising around a child’s eyes was indicative of skull trauma

was improperly admitted as lay opinion testimony because the testimony called for

specialized skill or expertise. Id. at 549-50.

- 47 -

Since Brown, this court has upheld the admission of a pediatrician’s testimony that

bruises on a child looked like fingerprints and shoe prints “[b]ecause a lay witness could

have offered the same opinions without error,” and this court also upheld the admission

of a police officer’s testimony that the same marks were fingerprints. State v. Greenwood,

No. M2013-01924-CCA-R3-CD, 2014 WL 6609308, at *33-34 (Tenn. Crim. App. Nov.

21, 2014); see also State v. Bishop, No. M2015-00314-CCA-R3-CD, 2016 WL 7324307,

at *8 (Tenn. Crim. App. Dec. 16, 2016) (upholding the admission of a police officer’s

testimony that a bruise appeared to be a handprint); State v. Scott, No. W2009-00707-

CCA-R3-CD, 2011 WL 2420384, at *24 (Tenn. Crim. App. June 14, 2011) (upholding

the admission of lay testimony that an injury looked like a shoe print). Recently, this court

concluded that a trial court did not abuse its discretion in admitting lay testimony from a

police officer that the marks on a victim were not consistent with strangulation and that

the officer observed “redness” under the victim’s collarbone. State v. Cheatham, No.

E2021-01241-CCA-R3-CD, 2023 WL 3025199, at *14 (Tenn. Crim. App. Jan. 6, 2023),

perm. app. denied (Tenn. June 13, 2023). This court reasoned that the officer’s “opinion

was rationally based on her perception and helpful to the determination of a fact in issue”

and that the officer’s testimony “utilized reasoning employed in everyday life rather than

a process of reasoning familiar only by specialists in the field.” Id.

Captain Amburn testified that he had responded to numerous vehicular accidents

during his career in law enforcement and that the red mark across the victim’s stomach

and upward toward her cheek “looked consistent with a seat belt.” Captain Amburn’s

opinion was rationally based on his perception and was helpful to the determination of a

fact at issue. His testimony was based on a process of reasoning familiar with everyday

life rather than a process of reasoning mastered only by specialists in a particular field.

Accordingly, we conclude that the trial court did not abuse its discretion in admitting the

testimony. We note that the jury viewed photographs of the victim’s injuries and was able

to compare the photographs and the medical examiner’s testimony that the pattern of the

victim’s injuries was not necessarily consistent with a seat belt to Captain Amburn’s

testimony. Defendant is not entitled to relief on this issue. 4

E. Admission of Defendant’s Medical Records

Defendant maintains that the trial court erred in admitting the entire set of his

medical records totaling approximately 1,500 pages based on the rule of completeness in

Tennessee Rule of Evidence 106 after the defense introduced a portion of the records

listing the items that were in Defendant’s possession when he arrived at the hospital

4

We note that Captain Amburn also testified that Defendant’s leg injuries appeared consistent

with the damage to the vehicle’s interior on the driver’s side. Defendant did not object to this testimony

at trial and does not challenge this testimony on appeal.

- 48 -

following the crash. Defendant contends that the admission of the entire set of medical

records was not necessary to provide “context” to the portion of the records that he

introduced, to prevent the jury from being misled, or to assist the jury in understanding

the portion of the records that he introduced. The State responds that Defendant waived

plenary review of the issue by failing to object to the introduction of the records at trial

and that he failed to otherwise establish plain error in the admission of the records.

Defendant filed a reply brief, asserting that he challenged the introduction of the evidence

at trial and that even if plenary review of the issue is waived, the trial court’s admission

of the entire set of medical records was plain error.

Prior to jury selection on the first day of trial, the State announced its intention to

seek to admit the entire set of Defendant’s medical records from the hospital as business

records pursuant to Tennessee Rule of Evidence 803(6) and included the accompanying

affidavit. Defendant objected and argued that the admission of the entire set of records,

which totaled approximately 1,500 pages, “would be a waste of this Court’s time and

everyone else’s time because there’s no way that they can in a reasonable amount of time

look through [1,500] pages.” Defendant also argued that the records were not relevant

and included inadmissible hearsay. The State responded that the medical records were

admissible as business records, that the entire set of records should be admitted “for

matters of completeness,” and that the State planned to publish to the jury only those

records that the State believed to be more relevant. The trial court sustained Defendant’s

objection regarding the blanket admission of the entire set of records. The court found

that although medical records fall within the business records exception to the hearsay

rule, the court must also consider the “relevance and materiality” of the records. The court

stated that the State could seek to introduce individual pages of the records at trial, at

which time the court would rule on any objections by Defendant.

During direct examination of Dr. Lochmuller at trial, the State admitted without

objection an affidavit of the medical records custodian of Defendant’s medical records

and one page of the medical records, which stated “BAC 135; EtOH positive.” The State

then called Detective Lane as a witness, and during cross-examination, defense counsel

showed Detective Lane one page from Defendant’s medical records, which Detective

Lane stated appeared to be Defendant’s patient property list. Detective Lane testified that

the list included one cigarette, a pocketknife, and a comb but that no keys were listed.

Defendant sought to admit the document into evidence, and the State requested “the whole

records in for completeness.” The trial court replied, “Very well,” and the following

exchange occurred:

[DEFENSE COUNSEL]: They’re asking for all fifteen hundred

pages.

- 49 -

THE COURT: Well, there’s not much way around it. If they want

it in, under the rule of completeness—

[DEFENSE COUNSEL]: Okay.

THE COURT: --it goes in.

The court admitted a compact disc of the entire set of Defendant’s medical records as an

exhibit. Prior to the conclusion of its proof, the State entered individual pages from

Defendant’s medical records as a separate exhibit to allow the jury to take the pages with

them during deliberations. One page stated, “Patient admits to EtOH tonight. Patient

states he was running from the police and had an accident. Patient states air bags did

deploy. Patient states he was not wearing his seat belt. Patient was drug out of vehicle

by rescue.” Other records listed Defendant’s injuries. A note from February 4, 2016, at

4:37 a.m. stated that “[t]he patient was alert and oriented, in obvious pain, able to answer

questions appropriately.” Finally, a case management note entered on February 8, 2016,

stated, “Met with patient and his friend, Greg Webb, patient was driver in motor vehicle

crash in which his fiancée with whom he lived was killed. Patient no longer has a place

to live.”

The State asserts that Defendant failed to object at trial to the admission of the

entire set of medical records and, therefore, waived plenary view of the issue on appeal.

We conclude that defense counsel’s statements to the trial court prior to the admission of

the evidence, when viewed with defense counsel’s statements made in challenging the

same evidence prior to the trial, were sufficient to preserve a challenge to the admission

of the evidence for purposes of appeal.

Tennessee Rule of Evidence 106, often referred to as the rule of completeness,

provides:

When a writing or recorded statement or part thereof is introduced by a

party, an adverse party may require the introduction at that time of any other

part or any other writing or recorded statement which ought in fairness to be

considered contemporaneously with it.

Rule 106 is “intended to ensure that the jury can assess related information without being

misled by considering only portions of an item of evidence.” State v. McCaleb, 582

S.W.3d 179, 187 (Tenn. 2019) (citing State v. Hartman, 42 S.W.3d 44, 61 (Tenn. 2001)).

Rule 106

- 50 -

reflects a concern for fairness and is designed to let the jury assess related

information at the same time rather than piecemeal. This should help the

jury avoid being misled by hearing only partial information about a writing

or recorded statement. Moreover, it will assist the jury in assessing the

weight to be given to the written or recorded statement by permitting the

jury to consider at the same time other relevant writings and recordings.

Neil P. Cohen, et al., Tennessee Law of Evidence § 1.06[2][a] (6th ed. 2011) (footnotes

omitted); see State v. Torres, 82 S.W.3d 236, 252 (Tenn. 2002).

The controlling question under Rule 106 is “whether the jury’s accurate

understanding of the evidence already admitted requires the admission of this additional

information.” State v. Vaughn, 144 S.W.3d 391, 407 (Tenn. Crim. App. 2003). “Rule

106 addresses two concerns: (1) the misleading impression created by taking matters out

of context, and (2) the inadequacy of repair work when the admission of the disputed proof

is delayed to a point later in the trial.” Id. (internal citations omitted). The evidence

proffered under Rule 106 must be relevant and either explain or qualify the already-

admitted proof. Id. (citation omitted). Because Rule 106 is a rule of fairness, the proffered

evidence must either “(1) explain[ ] the already-admitted proof; (2) place[ ] the admitted

proof in context; (3) avoid[ ] misleading the trier of fact; or (4) ensure[ ] a fair and impartial

understanding of the already-submitted proof.” Id. (citations omitted). We review a trial

court’s determination under Rule 106 for an abuse of discretion. See State v. Keough, 18

S.W.3d 175, 183 (Tenn. 2000).

In granting the State’s request to admit all 1,500 pages of Defendant’s medical

records under the rule of completeness, the trial court commented that “there’s not much

way around it. If they want it in, under the rule of completeness . . . it goes in.” However,

when a party introduces “a writing or recorded statement or part thereof,” the adverse

party may require the production of “any other part or any other writing or recorded

statement” if the additional portion of the writing or recorded statement is relevant and

explains or qualifies the already-admitted proof. See Vaughn, 144 S.W.3d at 407. The

trial court made no findings regarding the relevancy of the 1,500 pages of medical records

or how the entire set of medical records explained or qualified the portion of the medical

records listing the items in which Defendant was in possession when he arrived at the

hospital. Accordingly, we conclude that the trial court erred in allowing the State to

introduce all 1,500 pages of Defendant’s medical records under the rule of completeness

in Tennessee Rule of Evidence 106.

However, we conclude that the error was harmless. See Tenn. R. App. P. 36(b);

see also State v. Brewer, No. W2017-01725-CCA-R3-CD, 2019 WL 1109917, at *15

(Tenn. Crim. App. Mar. 11, 2019) (reviewing the trial court’s error under Tennessee Rule

- 51 -

of Evidence 106 under the harmless standard set forth in Tennessee Rule of Appellate

Procedure 36(b)). This court has recognized that Rule 106 “is a rule of timing rather than

admissibility.” Vaughn, 144 S.W.3d at 406; see also Denton v. State, 945 S.W.2d 793,

801 (Tenn. Crim. App. 1996) (“The rule assumes that the remaining portion of the

statement would be ultimately admissible.”). We note that during the trial, the State also

sought to admit the complete set of medical records under the business records exception

to the hearsay rule pursuant to Tennessee Rule of Evidence 803(6), but the trial court

denied the State’s request. Defendant argues in his brief that “[t]he medical records would

not have been admissible in their entirety as business records, given the amount of hearsay

and double-hearsay contained within.” See State v. Rucker, 847 S.W.2d 512, 516 (Tenn.

Crim. App. 1992) (“The mere fact that documents are admissible as evidence pursuant to

Rule 803(6), Tenn. R. Evid., does not mean that every entry contained in the documents

can be admitted into evidence.”), overruled on other grounds by State v. McLeod, 937

S.W.2d 867, 870 (Tenn. 1996). Defendant asserts that the State used the erroneously

admitted evidence by pointing “to the statement in one medical record in which he

allegedly admitted that he was the driver, along with other statements that he ran from the

police and that he had consumed alcohol” and by quoting “portions of the record which

identify [Defendant] as ‘the driver’ and [the victim] as the passenger.”

The State presented overwhelming evidence at trial that Defendant was the driver

and was intoxicated at the time of

This text is long and has been trimmed here. Open the source document for the complete record.