State of Tennessee v. James Douglas Hamm, Jr.

07/26/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

February 27, 2018 Session

STATE OF TENNESSEE v. JAMES DOUGLAS HAMM, JR.

Appeal from the Criminal Court for Sullivan County

No. S63930 Lisa D. Rice, Judge

No. E2016-02265-CCA-R3-CD

The defendant, James Douglas Hamm, Jr., appeals his Sullivan County Criminal Court

jury convictions of vehicular homicide by intoxication, leaving the scene of an accident

involving a death, reckless endangerment, driving under the influence, failure to exercise

due care, and running a red light, challenging the trial court’s denial of both his motion to

dismiss based upon the failure to preserve certain evidence and his motion for a mistrial

premised on juror bias. In addition, the defendant claims that the prosecutor’s closing

argument was improper and that the evidence was insufficient to support his convictions

of vehicular homicide and reckless endangerment. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA

MCGEE OGLE and D. KELLY THOMAS, JR., JJ., joined.

Troy L. Bowlin, II, Morristown, Tennessee (on appeal and at trial); and Randall Reagan,

Morristown, Tennessee (at trial), for the appellant, James Douglas Hamm, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant

Attorney General; Barry P. Staubus, District Attorney General; and Lesley Tiller and

Kent Chitwood, Assistant District Attorneys General, for the appellee, State of

Tennessee.

OPINION

In November 2014, the Sullivan County Grand Jury charged the defendant

with vehicular homicide by intoxication, leaving the scene of an accident involving death,

two counts of reckless endangerment, failure to exercise due care, and running a red light;

the defendant was also charged with alternative counts of driving under the influence:

driving under the influence of an intoxicant, driving with a blood alcohol concentration of

.08 percent or more, and driving with a blood alcohol concentration of .20 percent or

more. The trial court conducted a jury trial in February 2016.

The State’s proof at trial showed that on the evening of June 23, 2014,

Glenn and Kathy McClure were seated at a table by the front window of Raphael’s

Restaurant in Kingsport when they noticed a white GMC Yukon park directly in front of

the restaurant. The McClures noticed that the driver of the vehicle, later identified as the

defendant, was having difficulty walking and was “hanging on to the car” as he made his

way toward the Colonial Heights Package Store, which was located next door to the

restaurant. The McClures also observed the defendant’s tripping over the curb before

entering the store.

The defendant purchased a bottle of vodka at 7:50 p.m. The McClures

again observed the defendant unsteadily return to his vehicle, bumping into the vehicle

and struggling to open the driver’s side door. After staring blankly for a short time, the

defendant eventually started the vehicle after fumbling with the gearshift a few times.

Mrs. McClure remarked to her husband that she “‘sure hope[s] he’s able to put it in

reverse and not forward.’” The defendant then placed the vehicle in drive and lurched

forward, jumping the curb and striking the front of the building which housed the

restaurant. The defendant, who was separated from the McClures’ table by only the

length of his vehicle’s hood and the restaurant’s front pane of glass, briefly made eye

contact with Mr. McClure before reversing the vehicle several feet, fumbling with the

gearshift, and again driving forward. On this second occasion, the vehicle jumped the

curb and struck an elevated exterior ashtray before hitting the restaurant more forcefully

and causing the glass windows to rattle. Restaurant patrons began screaming, and Mrs.

McClure called 9-1-1 as Mr. McClure made his way to the parking lot to confront the

defendant. Tonya Drecol, who had just finished dining at Raphael’s with her family and

who was seated in her vehicle in front of the restaurant, also observed the defendant

strike the building with his vehicle. Ms. Drecol got out of her vehicle and, using her

cellular telephone, photographed the defendant’s license plate.

Mr. McClure approached the driver’s side of the vehicle and spoke to the

defendant through the open window, informing the defendant that he was “‘in no shape to

drive’” and asking the defendant to give him his keys and park the vehicle. After

mumbling something to Mr. McClure, the defendant “took off.” Mr. McClure yelled at

Ms. Drecol to “‘[g]et out of the way, here he comes,’” as the defendant “swooped to the

back.” Ms. Drecol moved out of the way just before the defendant drove through the spot

where she had been standing. The defendant jumped another curb before running a red

light as he made a right turn on Fort Henry Drive. Mr. McClure observed the defendant’s

vehicle fishtail as he pulled out in front of another vehicle. Mr. McClure also noticed the

defendant’s driver’s side rearview mirror, which had been broken and was being held

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together by two large rubber bands. Joseph Way, the Package Store clerk who sold the

defendant the bottle of vodka, ran outside after hearing the defendant’s vehicle hit the

building, and Mr. Way witnessed the defendant “recklessly . . . fleeing out of . . . [the]

parking lot” and “saw him kind of pull out in front of somebody that was oncoming

traffic” without yielding to the traffic light.

Through the testimony of Brian West, a records custodian with Redflex

Traffic Systems, the State introduced into evidence photographs of the defendant’s

vehicle entering the intersection of Fort Henry Drive and Lebanon Road on a red light

with the passenger side tires over the right fog line. The State also introduced into

evidence a Redflex photograph taken minutes later showing the defendant’s vehicle

crossing through the intersection of Fort Henry Drive and Moreland Drive at 7:55:49

p.m.

Between 7:50 and 8:00 p.m. on June 23, Hoyt Denton parked his truck just

north of Moreland Drive near a bridge on Fort Henry Drive that spanned railroad tracks.

Mr. Denton and his passenger, the victim Michael Locke, were placing political

campaign signs in the area. While Mr. Denton walked to an adjacent hillside to place

signs on a metal fence post, the victim got out of the vehicle and was standing on the

pedestrian area of the bridge while talking on his cellular telephone to Mark Vance about

the placement of the signs. Phyllis Cooper, who was approaching the bridge, noticed a

man standing on the bridge “very close to the guardrail” and looking over the side of the

bridge. Mrs. Cooper suddenly saw “a flash of white” as a vehicle “drifted over the line”

and the man’s body was “propelled over the rail like a swan dive.”

At the same time, Mr. Denton heard a loud noise and turned to see the

victim in midair in a “jackknife position” going over the bridge while a “white blur”

traveled across the bridge. The victim fell 20 feet onto the rocks below. Mr. Denton

immediately called 9-1-1, and, in the meantime, Mrs. Cooper turned her vehicle around at

the nearby Sonic Restaurant and returned to the scene while her husband also called 9-1-

1. Mr. Vance, who had been speaking with the victim on the telephone, suddenly heard

only traffic noise. He repeated “Mike” several times, but when he did not receive a

response after 15 to 30 seconds, Mr. Vance ended the call, assuming that the victim had

walked away from the telephone to assist Mr. Denton. When Mrs. Cooper arrived at the

scene, she attempted to descend the hill to aid the victim but was unable to navigate the

steep hill. From her observation point, Mrs. Cooper ascertained that the victim was not

breathing.

Kingsport Police Department (“KPD”) Officer Billy Boyd was dispatched

to the scene of “a wreck with injuries” on the evening of June 23. Upon his arrival at the

bridge, Officer Boyd observed a shoe on the side of the road and a blue cellular telephone

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near the guardrail. KPD Officer Aaron Grimes photographed the victim’s body, which

was located partially under the bridge and was missing one shoe.

Doctor Karen Cline-Parhamovich, who performed the victim’s autopsy,

testified as an expert in the field of forensic pathology. She opined that the victim died

from blunt force trauma to the head and neck. The victim sustained a “gaping laceration”

to the top of his head which exposed his skull in addition to numerous abrasions to his

forehead. The victim’s neck was broken, and he suffered a “cluster” of contusions on the

upper left side of his chest. The victim also had an abrasion on his left shoulder and a

patterned contusion on his buttocks. The victim’s lower left leg was fractured 15 inches

above his heel, and the bone lacerated the victim’s skin. The victim had several

contusions on his left foot and ankle and numerous internal injuries, including bruised

lungs and lacerations to his lungs and spleen. Doctor Cline-Parhamovich opined that the

injury to the victim’s left leg was consistent with his having been in a standing position at

the time he was struck by the vehicle. The autopsy revealed no evidence of drugs or

alcohol in the victim’s blood or urine.

After the defendant had crossed the bridge, he continued driving north on

Fort Henry Drive. At the same time, Jonathan Womack was driving north on Fort Henry

Drive, and as he was preparing to turn right onto John B. Dennis Highway, he

encountered the defendant’s vehicle making the same turn. Mr. Womack contacted 9-1-1

and made the following report:

A Yukon, a GMC Tahoe or Blazer or something – he’s in

between Memorial Boulevard and Stone Drive on John B.

Dennis. He’s going 30 miles an hour, he’s all over the road,

he’s going very, very slow, he looks highly intoxicated. I’ve

watched him in my rearview mirror almost cause three

wrecks. . . . He’s about to – oh, God, he’s going to get hurt. .

. . [The car] is white. One of the mirrors looks like it’s

almost knocked off. He’s driving off the road again. This is

the fifth time he’s drove off the road.

Orynthia Rashad Wolfe was also driving on John B. Dennis Highway at

approximately 8:00 p.m. on June 23 and encountered the defendant’s vehicle straddling

the two lanes of the highway. Mr. Wolfe saw three vehicles swerve to avoid colliding

with the defendant’s vehicle. As Mr. Wolfe passed the defendant’s vehicle, he noticed

that the defendant’s head was bobbing up and down toward the steering wheel, causing

Mr. Wolfe to speculate that the driver was experiencing a medical emergency. Mr.

Wolfe then took the Memorial Boulevard exit, and the defendant followed him off the

exit. Mr. Womack, who was still talking to the 9-1-1 dispatcher, observed the

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defendant’s vehicle exiting the highway at Memorial Boulevard and relayed this

information to the dispatcher.

Mr. Wolfe, who had been watching the defendant’s vehicle in his rearview

mirror, saw the defendant stop the car at an angle on the exit ramp. Mr. Wolfe

immediately stopped his own vehicle and called 9-1-1. Mr. Wolfe approached the

passenger side of the defendant’s vehicle and noticed that the sideview mirror “had been

pushed in” and that the mirror “had a crack on it.” Mr. Wolfe discovered that the

defendant, who was seated in the driver’s seat of the vehicle, was unconsious.

Brent Arnold, who had just taken the Memorial Boulevard exit and passed

the defendant’s vehicle on the ramp, noticed that the defendant was “slumped over in his

seat” and appeared to be having “a medical condition or [was] passed out.” Mr. Arnold

stopped his vehicle and walked to the driver’s side of the defendant’s vehicle; Mr. Wolfe

was already standing on the passenger side and attempting to rouse the defendant. Mr.

Wolfe yelled, “‘Excuse me, sir,’” and knocked on the passenger-side of the vehicle for

several minutes, and Mr. Arnold tapped the defendant on the side to wake him. When the

defendant came to, he “started using a lot of profanity” and indicated that he required no

medical attention. The defendant asked Mr. Wolfe where he was, and Mr. Wolfe

responded that he was on the Memorial Boulevard exit ramp. The defendant “passed out

again,” and Mr. Arnold again roused him by tapping him. The men removed the keys

from the vehicle’s ignition; Mr. Arnold “could smell that he had been drinking.” The

defendant told Mr. Wolfe that he “didn’t want to go to jail,” and Mr. Wolfe assured him

that he wanted “to help him” and “try to save his life.”

KPD Officer Ray McQueen was dispatched to the Memorial Boulevard exit

ramp and discovered the defendant’s parked vehicle with Mr. Arnold and Mr. Wolfe

standing on either side of the vehicle. When Officer McQueen approached, the men

standing beside the vehicle handed the defendant’s car keys to the officer, and Officer

McQueen noticed that the defendant “[a]ppeared to be a little sluggish.” Before Officer

McQueen could ask the defendant for his driver’s license, KPD Officer William Clare

arrived at approximately 8:09 p.m.

The defendant fumbled with his wallet while trying to retrieve his driver’s

license, handing Officer Clare three different credit cards before finally producing his

license. Officer Clare noticed the smell of an alcoholic beverage emanating from the

defendant and observed that the defendant was lethargic and slurring his speech. The

officers discovered an unopened bottle of vodka inside a paper bag in the defendant’s

vehicle. Officer Clare then provided the defendant with his Miranda warnings, at which

point the defendant stated three times, “‘I’m guilty. I been drinking.’”

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The defendant agreed to perform field sobriety tests but needed assistance

in getting out of his vehicle. Once outside the vehicle, the defendant required assistance

to stand and to walk. Because Officer Clare did not believe the defendant could perform

the field sobriety tests without risking injury, he placed the defendant in his patrol car and

transported the defendant to the hospital to obtain a blood sample.

Tennessee Bureau of Investigation (“TBI”) Agent Regina Aksanov

analyzed the defendant’s blood sample and determined his blood alcohol content to be

0.373. Doctor Kenneth Ferslew, who testifed as an expert in the field of forensic

toxicology, testified that a blood alcohol content of 0.3 or more is “potentially lethal,”

depending on the individual’s level of alcohol tolerance. Based on the defendant’s

weight of 185 pounds, Doctor Ferslew opined that the defendant would have consumed

between 8.65 and 8.91 ounces of pure ethanol to reach a blood alcohol content of .373.

When Officer Grimes arrived at the Memorial Boulevard exit ramp, he

examined the defendant’s vehicle. Officer Grimes noticed that the vehicle’s passenger

sideview mirror was “folded in” and that the front passenger-side tire, tire rim, and

running board were “wiped clean” of dust and dirt as though those areas had “com[e] into

contact with something.” TBI Agent Terra Asbury analyzed swabs from these areas of

the defendant’s vehicle and discovered “a limited amount of human DNA” on the

passenger-side running board swab, but the amount was insufficient to obtain a profile.

Dale Farmer, who testified as an expert witness in the field of accident

reconstruction, performed an extensive examination of the defendant’s vehicle. As part

of his examination, Mr. Farmer took detailed measurements of the defendant’s vehicle.

He determined that the base of the passenger-side mirror was approximately 47.5 inches

from the ground and that the top of the mirror was approximately 54.5 inches from the

ground. In addition, he testified that the vehicle weighed 5,746 pounds “when it c[ame]

off of the assembly line with no fluids or any occupants inside the vehicle.” Mr. Farmer

also visited the bridge on Fort Henry Drive and measured the distance between the fog

line and the concrete guardrail base, which he determined to be four feet. Measuring

from the road, the top of the guardrail was 21 inches in height, but the distance from the

concrete curb to the top of the guardrail was approximately 18 inches. Mr. Farmer

reviewed video footage from the traffic camera located at the intersection of Moreland

Drive and Fort Henry Drive and determined that the defendant was traveling 39 miles per

hour. At this speed, it would have taken the defendant approximately 18 seconds to drive

the 740 feet from the intersection to the point of impact with the victim, and from the

time the defendant left the Raphael’s parking lot, it would have taken him less than two

minutes to arrive at the point of impact on the bridge.

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With this evidence, the State rested. Following the trial court’s denial of

the defendant’s motion for judgments of acquittal and a Momon colloquy, the defendant

elected not to testify and chose to present no proof. Based on this evidence, the jury

convicted the defendant as charged on all counts. Following a sentencing hearing, the

trial court merged the alternative DUI counts and the conviction of failure to exercise due

care with the defendant’s conviction of vehicular homicide and sentenced the defendant

as a standard offender to a term of 10 years’ incarceration. In addition, the court imposed

two-year sentences for each of the defendant’s two convictions of reckless endangerment

and his one conviction of leaving the scene of an accident involving death; the second

reckless endangerment conviction was to be served concurrenly with the first, and the

first reckless endangerment conviction and the conviction for leaving the scene were to

be served consecutively to the defendant’s 10-year conviction. Finally, the court imposed

a sentence of 30 days for the defendant’s conviction of running a red light, to be served

concurrently with his 10-year conviction, for a total effective sentence of 14 years.

Following the denial of his motion for new trial, the defendant filed a

timely notice of appeal. In this appeal, the defendant contends that the trial court erred by

denying both his motion to dismiss based upon the failure to preserve certain evidence

and his motion for a mistrial premised on juror bias. The defendant also claims that the

prosecutor’s closing argument was improper and that the evidence was insufficient to

support his convictions of vehicular homicide and reckless endangerment. We will

address each issue in turn.

I. Failure to Preserve Evidence

The defendant first contends that the trial court erred by denying his motion

to dismiss due to the State’s failure to preserve certain evidence, thus violating his due

process rights. In the alternative, the defendant argues that the trial court should have

excluded all evidence and testimony which relied on the lost or destroyed evidence.

Specifically, the defendant complains that the State lost a single hair that had been

collected from the hood of the defendant’s vehicle, and the defendant sought exclusion of

testimony or evidence related to a black substance found on the victim’s sock; reference

to or photographs of the scuff marks on the defendant’s tire, tire rim, and running board;

and references to or reports of DNA samples taken from the defendant’s vehicle. The

State responds that the trial court acted within its discretion in denying the defendant’s

motion.

At the February 2016 hearing on the defendant’s motion to dismiss, TBI

Agent Asbury testified that she received swabs taken from the passenger side mirror,

running board, front wheel rim, and front tire of the defendant’s vehicle and that she

performed DNA analysis on some of those swabs. None of the swabs she tested

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contained any blood, but a swab from the running board contained “a limited amount of

human DNA.” The amount, however, was too small to obtain a DNA profile.

KPD Detective Martin Taylor testified that, on the evening of June 23,

Detective John Blessing contacted him and asked him to assist with a vehicle fatality.

Detective Taylor arrived at the John B. Dennis exit ramp approximately 30 minutes later

and photographed the defendant’s vehicle’s running boards, wheel rim, and interior.

Detective Taylor noticed a scuff mark on the passenger-side front tire and wheel rim, a

scuff mark on the passenger-side running board, and a scuff mark just below the mirror

“that was pushed in against the window on the passenger side.”

With regard to the scuff marks on the tire and the wheel rim, Detective

Taylor testified that the areas “stood out” because the tire was “completely covered in

debris, dirt, whatever, just dirty, and then these areas are actually shiny” and “down to the

original like chrome finish of the tire.” Detective Taylor also noticed “an upright mark

that would be consistent in [his] opinion of what a cigarette stand might be,” as well as a

“scuff mark . . . on the . . . passenger side right front corner” near the vehicle’s fog light.

Detective Taylor later examined the cigarette stand but saw no evidence of a “transfer

mark” from the stand to the vehicle. He noted, however, that a collision would not

always result in a transfer mark. Detective Taylor opined that “something or someone

had been struck on [the passenger side] of the car,” leaving behind a “material mark.”

Detective Taylor also photographed an “eyelash type hair” that was located

on the passenger side of the vehicle’s hood. Using tweezers, Detective Martin collected

the hair, placed it in a small evidence box, and sealed the box inside a bag. When the

district attorney’s office later contacted him and asked him to retrieve the hair to

determine if it was of a sufficient length for testing, Detective Martin unsealed the bag

and opened the box, but he was unable to find the hair. Detective Martin photographed

the process of unsealing the bag and opening the box, and he immediately notified the

district attorney’s office that the hair was missing and filed a supplemental report.

Detective Taylor confirmed that a KPD officer drove the defendant’s

vehicle from its location on the exit ramp to the KPD Justice Center basement, where the

vehicle was stored in an area only accessible by a pass key and was covered with a large

tarp secured with crime scene tape and a bungee cord. On the day prior to the motion

hearing, Detective Taylor again photographed the vehicle’s front passenger-side wheel

area and running board. Detective Taylor testified that the photograph of the running

board showed an area where paint had been scraped away for testing. Aside from the

paint scraping and the removal of the passenger-side mirror for evidence collection, the

defendant’s vehicle was in the same condition as it was when Detective Taylor

photographed it on June 23, 2014. With respect to the scuff mark on the tire, Detective

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Taylor testified that, due to lighting conditions, he could not see the scuff mark in the

photograph he had taken the day before, but he recalled that the scuff mark was visible

when he took the photograph.

TBI Agent Nelson, a forensic scientist with the Trace Evidence or

Microanalysis Unit, testified that he received the victim’s shorts, shirt, belt, underwear,

socks, and one shoe for testing, as well as a pair of wet gloves from a witness and four

paint samples collected from the defendant’s vehicle. The victim’s shirt and shorts

yielded road debris, white and yellow road paint, and broken glass particles. Agent

Nelson discovered glass particles, road debris, and “green paint type material” on the

gloves. The victim’s socks were “[f]ully covered in blood” but showed signs of road

debris. Because Agent Nelson found no paint particles on the clothing, he did not

analyze the paint samples.

Agent Nelson confirmed that he was never asked to conduct a brake dust

analysis on the victim’s clothing and that his unit had no specific procedure to perform

such an analysis. Even if he had been able to conduct such an analysis, the victim’s

blood-soaked socks would have dissolved or covered any potential brake dust particles.

KPD Officer Robert Grimes responded to the scene at the Fort Henry Drive

bridge and observed both a shoe and a cellular telephone on the side of the road. Officer

Grimes circled the location of both items with spray paint and photographed the items as

well. Officer Grimes also photographed the victim, who was lying just under the bridge

clothed in a t-shirt, shorts, socks, and one shoe.

Officer Grimes then traveled to the John B. Dennis exit ramp and

photographed the defendant’s vehicle, observing that the passenger-side mirror was

folded in and that one of the vehicle’s tires had an area that was “wiped off like it was

scrubbed up against something.” After photographing the defendant’s vehicle, Officer

Grimes drove to the hospital and photographed the victim in the morgue. Because the

victim was missing a shoe, Officer Grimes photographed, among other things, the

victim’s feet. The photograph of the victim’s right foot, which was still clad in a shoe,

showed a slightly grey discoloration on the victim’s sock. A few days later, Mr. Farmer

contacted Officer Grimes and mentioned that the discoloration on the victim’s sock

seemed consistent with the scuff mark on the defendant’s tire. It was the understanding

of Officer Grimes that the sock could not be tested for the presence of brake dust because

it was saturated with blood.

Officer Grimes confirmed that KPD Officer Jessee had driven the

defendant’s vehicle from the exit ramp to the KPD, explaining that because the vehicle

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was still operational, it did not require towing. Officer Grimes recalled that the

passenger-side mirror was still in its folded position when the vehicle arrived at the KPD.

KPD Officer Chad Jessee testified that he had been instructed to drive the

defendant’s vehicle from the exit ramp to the KPD, which was approximately four miles

away. Officer Jessee experienced no accidents or other driving incidents during the four-

mile trip, and he caused no damage to the vehicle.

Cecil Nunley, Sullivan County deputy coroner, transported the victim’s

body from the scene to the morgue. When the medical examiner notified Mr. Nunley that

he had ordered an autopsy on the victim, Mr. Nunley placed a toe tag on the victim’s

body. Mr. Nunley did not recall removing the victim’s sock before attaching the toe tag,

and he stated that he “would have had no reason to take [the sock] off because [he] could

have put the toe tag on it anyway.” Mr. Nunley agreed that the photograph that depicted

the victim’s body with a toe tag on his bare foot and a sock lying near the body would

have accurately depicted the state of the victim’s body when he attached the toe tag, and

he insisted that he had touched “nothing but the toe.”

Laura Parsons, forensic operations administrator and death investigator for

the William L. Jenkins Forensic Center, received the victim’s body from Mr. Nunley on

June 24. When she opened the body bag, the victim’s left sock was lying inside the bag

“touching a pool of blood,” and the victim’s bare left foot had a toe tag attached.

KPD Sergeant John Blessing testified that he interviewed witnesses at the

Colonial Package Store and investigated a claim “that the alleged vehicle had maybe hit

the building or something there.” As part of his investigation, Sergeant Blessing

collected a crushed exterior ashtray. Although the ashtray’s elevated arm was bent,

nothing indicated that any paint had transferred between the ashtray and the vehicle.

When asked what evidence he had that the defendant’s vehicle had struck the ashtray,

Sergeant Blessing responded that he was only aware of the “statements from witnesses.”

Mr. Farmer testified that he had testified in previous trials as an expert in

the field of traffic accident reconstruction and that he had received training in transfer

pattern analysis. Mr. Farmer, after examining the evidence in the defendant’s case,

concluded that brake dust had transferred from the tire rim of the defendant’s vehicle

onto the victim’s sock. Mr. Farmer stated that, in reaching this conclusion, he had

conducted no testing on the tire but that his conclusion was based on “common sense.”

Mr. Farmer explained that the stain on the victim’s sock was “similar to the dust that’s on

the wheel” and that the “pattern design on the tire in the dust area . . . was similar to the

sock that [the victim] was wearing.” Mr. Farmer testified that it was his understanding

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that the blood had soaked into the sock to such a degree that the brake dust had dissipated

and could not be tested.

Mr. Farmer opined that the “straight up and down black mark” beside the

vehicle’s fog light was caused by the defendant’s collision with the black ashtray outside

the package store, based on both witness reports and measurements of the ashtray. Mr.

Farmer also opined that the passenger-side mirror of the defendant’s vehicle struck the

interior of the victim’s right forearm. Mr. Farmer believed that, at the point of impact,

the victim was standing at an angle with his left foot extended near the road’s fog line

while holding his cellular telephone in his right hand.

At the conclusion of the hearing, the trial court ruled, with respect to the

hair on the vehicle’s hood, that the hair was not “intentionally destroyed or altered” and

that “its presence or absence would [not] tend to affect the fundamental fairness of” the

defendant’s trial because, even if the hair was of a sufficient length to allow testing, it

would not have served to exculpate the defendant. The court ruled that the State would

be held “to their representation that they’re not going to present any testimony or

evidence concerning the hair.” With respect to the black substance on the victim’s sock,

the court held that Mr. Farmer’s testimony regarding the brake dust was based on

common sense rather than scientific testing, and that, as a result, the State was prohibited

from eliciting testimony from Mr. Farmer or any other witness that the dark substance on

the victim’s sock or the pattern on the vehicle’s wheel was caused by contact of the

victim’s sock with the brake dust on the vehicle. The court further stated that, had the

sock been subject to testing, it would likely have implicated the defendant rather than

exculpated him.

Turning to the DNA samples, the court found that the swabs were

appropriately tested, that they were not destroyed or altered, and that if the DNA had

yielded results of anyone other than the victim, the evidence would have done nothing to

exculpate the defendant. Finally, with respect to the scuff marks on the tire, the rim, and

the running board, the court found that the marks were not “in any way destroyed,

altered, or changed.”

Granted it’s not the typical that I’ve seen in a situation that a

vehicle involved in a vehicular homicide is driven by an

officer to ---- four miles, based on the testimony of Officer

Jessee, to the police department from the scene of John B.

Dennis. It’s typically a ---- a flatbed or a car hauler of some

type would be used to move the vehicle.

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However, this vehicle was drivable. It was a short

distance. And it’s highly possible that hooking it to a flatbed

or a car ---- car hauler of some sort could have disturbed more

than simply driving it from the four mile distance between the

two points of interest here.

And the vehicle has been stored. Again, it’s been

vividly photographed. It’s been available to the defense since

late May for their inspection and ---- and testing if they

elected to do so. So I do not believe that either moving the

vehicle the four miles, which obviously the vehicle had to be

moved by some mechanism and gotten out of traffic and

stored properly. So I don’t believe in any way it’s been

altered, destroyed, or damaged in terms of the scuff marks,

etcetera.

In State v. Ferguson, our supreme court “explained that the loss or

destruction of potentially exculpatory evidence may violate a defendant’s right to a fair

trial.” Merriman, 410 S.W.3d 779, 784 (citing Ferguson, 2 S.W.3d 912, 915-16). The

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, Merriman, 410

S.W.3d at 784-85 (quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (holding “that

unless a criminal defendant can show bad faith on the part of the police, failure to

preserve potentially useful evidence does not constitute a denial of due process of law”)),

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,” Merriman, 410 S.W.3d at 785. The supreme

court “observed that fundamental 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. at 784-85 (citing Ferguson, 2 S.W.3d at 914, 917).

To facilitate this “balancing approach,” our supreme court ruled that the

trial court must first “determine whether the State had a duty to preserve the evidence,”

Merriman, 410 S.W.3d at 785, and observed that the State’s duty to preserve was

“limited to constitutionally material evidence,” id. The court held that 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.” Merriman, 410 S.W.3d at 785 (citing Ferguson,

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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) [t]he degree of negligence involved;

(2) [t]he significance of the destroyed evidence, considered in

light of the probative value and reliability of secondary or

substitute evidence that remains available; and

(3) [t]he sufficiency of the other evidence used at trial to

support the conviction.”

Merriman, 410 S.W.3d at 785 (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.” Merriman, 410 S.W.3d at 785-86.

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. 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 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.”).

In the instant case, the single hair found on the hood of the defendant’s

vehicle was not constitutionally material evidence because, even if a DNA analysis could

have been performed on it, the results of such an analysis would never have been

exculpatory. If the hair had been proven to be that of the victim’s, such evidence would

have only served to inculpate the defendant, and if the hair had been proven to have come

from any other source, it would have proven nothing. Thus, the trial court committed no

error in determining that the State had no duty to preserve the hair.

Similarly, the black substance on the victim’s sock was not constitutionally

material evidence because it, too, would have only served to inculpate the defendant if a

brake dust analysis could have been performed on it. If such an analysis revealed the

black substance to be anything other than brake dust, it again would have proven nothing.

In a related matter, the defendant argues that the trial court improperly

permitted the State to address the similarity between the black smudge on the victim’s

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sock and the transfer pattern on the vehicle’s tire, citing the State’s reference to the black

mark on the victim’s sock during rebuttal argument. The defendant is simply incorrect.

The trial court ruled that neither Mr. Farmer nor any other witness could testify about the

black substance on the victim’s sock and the transfer pattern on the vehicle’s tire as

having been caused by brake dust since no brake dust testing was available. The court

did not prevent the State from mentioning the black mark on the sock or the scuff marks

on the vehicle, which is precisely what the prosecutor did during rebuttal argument.

With respect to the scuff marks on the vehicle’s tire, tire rim, and running

board, the trial court did not err in its determination that the marks had not been

destroyed, altered, or changed, thus removing it from the purview of Ferguson. Nothing

indicated that the vehicle was in any way damaged or altered during the four-mile drive

from the exit ramp to the police station, and the vehicle was extensively photographed.

In any event, even if the evidence on the vehicle had been altered in some way during the

four-mile drive, no lost or destroyed evidence on the vehicle would have exculpated the

defendant.

Finally, the trial court committed no error in its determination that the DNA

swabs had not been destroyed. The swabs were appropriately tested and simply yielded

no DNA evidence. Again, if the swabs had returned a DNA profile, proof that the DNA

belonged to anyone other than the victim would have been neutral at best and would have

in no way exculpated the defendant.

In short, we find no abuse of discretion in the lower court’s denial of the

defendant’s motion to dismiss.

II. Juror Bias

The defendant next contends that the trial court erred by failing to dismiss

certain jurors for cause and by failing to grant a mistrial due to juror bias. The State

responds that the trial court acted within its discretion.

During voir dire, it came to light that several potential jurors had sat on a

jury together the previous week, but nothing indicated that their prior association

impacted their impartiality. All but one of those jurors were dismissed pursuant to

peremptory challenges. Another juror, Juror Bishop, when asked if she possessed “such

strong feelings about alcohol that [she] wouldn’t be able to” impartially hear the case,

responded that the defendant’s alleged intoxication “would have bearing on how [she]

feels” because “if you’re drinking and you get in a car then you’re automatically, like

premeditated, you’re getting ready to kill someone.” Juror Bishop explained that her

belief was based on “family members that have drank before.” Juror Bishop later added

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that her husband’s aunt and uncle had been killed in a car accident caused by an

intoxicated driver and that her brother had injured his wife in a drunk-driving accident.

The defendant asked that Juror Bishop be excused for cause, and the trial court agreed to

do so.

The defendant then moved for a mistrial, or in the alternative, to strike all

members of the panel who had been present during the questioning of Juror Bishop based

on her remarks having “prejudiced the entire jury panel.” The trial court denied the

motion, concluding that Juror Bishop’s statements about the loss of and injuries to family

members as a result of drunk drivers were insufficient “to contaiminate or poison the

remaining jury panel.” The court also noted that it had excused Juror Bishop for cause.

“A court may discharge from service a grand or petit juror . . . for any other

reasonable or proper cause, to be judged by the court. That a state of mind exists on the

juror’s part that will prevent the juror from acting impartially shall constitute such cause.”

T.C.A. § 22-1-105. Accordingly, the trial court retains “wide discretion in ruling on the

qualifications of a juror,” State v. Howell, 868 S.W.2d 238, 248 (Tenn. 1993) (citing

State v. Kilburn, 782 S.W.2d 199, 203 (Tenn. Crim. App. 1989)), and the trial court’s

ruling in this regard will not be overturned absent a showing of an abuse of that

discretion, Burns v. State, 591 S.W.2d 780, 782 (Tenn. Crim. App. 1979). “[I]rrespective

of whether the trial judge should have excluded the . . . challenged jurors for cause, any

error in this regard is harmless unless the jury who heard the case was not fair and

impartial.” Howell, 868 S.W.2d at 248 (citing State v. Thompson, 768 S.W.2d 239, 246

(Tenn. 1989)). When the defendant preserves the issue by exercising all of his

peremptory challenges, “the failure to correctly exclude a juror for cause is grounds for

reversal only if . . . an incompetent juror is forced upon him.” Howell, 868 S.W.2d at 248

(citing Ross v. Oklahoma, 487 U.S. 81, 98 (1988); State v. Jones, 789 S.W.2d 545, 549

(Tenn. 1990)).

With respect to the defendant’s claim that the trial court should have

excused for cause the group of jurors who had previously sat together on an earlier jury,

the record reflects that the defendant failed to challenge those jurors for cause, and all of

the jurors at issue with the exception of Juror Croomes were dismissed pursuant to

peremptory challenges; the defendant never challenged Mr. Croomes. Thus, the issue has

been waived. See State v. Jones, 789 S.W.2d 545, 549 (Tenn. 1990) (defendant cannot

prevail on a claim that an incompetent juror was forced upon him unless he challenges

said juror for cause and exercises a peremptory challenge against that juror).

Furthermore, nothing indicates that Juror Croomes’s service on a prior, unrelated

criminal trial jury impacted his impartiality in the present case.

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Turning to the trial court’s denial of the defendant’s motion for mistrial or

to excuse all jurors tainted by the statements of excused Juror Bishop, we find no abuse

of discretion in the trial court’s decision to deny the motion for mistrial. “Normally, a

mistrial should be declared only if there is a manifest necessity for such action.” State v.

Saylor, 117 S.W.3d 239, 250 (Tenn. 2003) (citing State v. Millbrooks, 819 S.W.2d 441,

443 (Tenn. Crim. App. 1991). “‘In other words, a mistrial is an appropriate remedy when

a trial cannot continue, or a miscarriage of justice would result if it did.’” Saylor, 117

S.W.3d at 250 (quoting State v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000).

Here, nothing indicated a manifest necessity for the declaration of a mistrial, and the trial

court’s decision to deny the motion did not result in a miscarriage of justice. See Saylor,

117 S.W.3d at 250. Moreover, no abuse of discretion occasions the trial court’s refusal to

excuse all jurors who overheard Juror Bishop’s statements. The defendant has failed to

demonstrate that those jurors were in any way biased by Juror Bishop’s statements. This

issue avails the defendant no relief.

III. Prosecutorial Misconduct

Next, the defendant asserts that the trial court erred by denying his motion

for new trial on the basis of the prosecutor’s impermissibly commenting, during closing

argument, on the defendant’s failure to testify.

At the outset of his closing argument, the prosecutor made the following

statements:

Again, I’m going to try to make this as brief as

possible. We talked about it in opening argument. You’ve

heard all the proof. Okay, this is not proof. This is just what

I’m going to attempt to do is to summarize the proof you’ve

heard. Does everyone understand that? What you’re about to

hear from me or the defense attorney is not going to be

additional proof.

All right, now anything I might say, if I happen to say,

“I believe something,” or whatever, I attempt not to say

something. My opinion doesn’t matter. You understand only

the proof matters. Nothing I say should be construed to

comment on the defendant’s failure to testify; not what I’m

attempting to do, trying to do. I just want to make sure that’s

clear as well if I make a mistake somehow. I just want to go

back to [one] more thing from opening and then we’ll go right

into the summary. As we talked about ---

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At that point, defense counsel asked to approach the bench and objected to the

prosecutor’s commenting on the defendant’s failure to testify. The trial court noted the

objection and addressed the jury thusly:

Ladies and gentlemen, I want to remind you as I did

just momentarily ago. I want to tell you that the defense, as I

told you, is never required to put on proof or prove they’re

innocent. [The defendant] is shrouded as I told you at the

beginning of this process with the presumption of innocence

and that includes up until you go back and you begin your

deliberations and you reach a verdict. Do all of you

understand that? And any comment that is made about the

defense putting on proof or [the defendant] testifying or not

testifying is not proper. The defense is never required to put

on any proof and the defendant is never required to testify.

It’s an absolute right to invoke his Fifth Amendment privilege

and that is sacred in our Constitution and it is applicable in all

criminal cases to all defendants, both at the state and federal

level. Does everyone understand that? And the defendant’s

failure to testify or election not to testify is not to be

considered any inference of guilt or you are to draw no

conclusions from that. As I said, he has an absolute right

under the Constitution of this State and the United States to

not testify should he elect not to do so and that is all of our

rights under the Constitution. Everyone understand that? All

right.

Pursuant to the Fifth Amendment to the United States Constitution and

Article I, section 9 of the Tennessee Constitution, a criminal defendant has a fundamental

right not to testify. See State v. Jackson, 444 S.W.3d 554, 586 (Tenn. 2014). It is well-

settled that this right prohibits a prosecutor from commenting on a defendant’s decision

not to testify at trial. See Griffin v. California, 380 U.S. 609, 614-15 (1965) (“For

comment on the refusal to testify is a remnant of the ‘inquisitorial system of criminal

justice,’ . . . which the Fifth Amendment outlaws.”); State v. Hale, 672 S.W.2d 201, 203

(Tenn. 1984) (cautioning that the “subject of a defendant’s right not to testify should be

considered ‘off-limits’ to any conscientious prosecutor”).

We review the defendant’s claim of prosecutorial misconduct due to

impermissible commentary under a de novo standard of review. State v. Jackson, 444

S.W.3d at 588. We also apply a two-part test to determine “(1) whether the prosecutor’s

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manifest intent was to comment on the defendant’s right not to testify; or (2) whether the

prosecutor’s remark was of such a character that the jury would necessarily have taken it

to be a comment on the defendant’s decision not to testify.” Id.

Here, the prosecutor’s comment, while ill-advised, did not rise to the level

of a Fifth Amendment violation. The prosecutor’s single comment at the outset of his

closing argument, when viewed in context with the surrounding statements, did not

evince a “manifest intent” to comment on the defendant’s right not to testify nor was it of

“such a character” that the jury would have believed it be a comment on the defendant’s

decision not to testify; rather, the prosecutor seemed to be issuing a blanket “mea culpa”

for any future mistakes he might commit during his closing argument.

In any event, even if the isolated statement was, in fact, error, we conclude

that this non-structural constitutional error was harmless beyond a reasonable doubt. To

determine whether an error of this nature was harmless, we consider “(1) whether the

remarks were isolated or extensive; (2) whether the remarks ‘came at a critically

important juncture in the trial’; (3) the prosecutor’s verbal and physical delivery of the

remarks; (4) what curative instructions were given and when; and (5) whether the

evidence of the defendant’s guilt was otherwise overwhelming.” State v. Colvett, 481

S.W.3d 172, 208 (Tenn. Crim. App. 2014) (quoting Jackson, 444 S.W.3d at 592).

Applying these factors to the instant case, we conclude that the prosecutor’s

remarks were isolated and occurred at the outset of the prosecutor’s closing argument,

which provided the defense with an “opportunity to respond.” Jackson, 444 S.W.3d at

592. Nothing in the record indicates that the prosecutor’s delivery of the comment was

remarkable. With respect to curative measures, the trial court overruled the defendant’s

objection but gave a comprehensive instruction to the jury emphasizing the defendant’s

absolute right not to testify or put on proof and the importance of not inferring any guilt

on that basis. Finally, when weighing the prosecutor’s statement against the strength of

the case, we conclude that the evidence against the defendant, while circumstantial, was

extremely strong. Taking all of these factors together, any error occasioned by the

prosecutor’s commentary was harmless beyond a reasonable doubt.

IV. Sufficiency

Finally, the defendant claims that the evidence was insufficient to support

his convictions of vehicular homicide and reckless endangerment.

We review the defendant’s claim of insufficient evidence mindful that our

standard of review is whether, after considering the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the

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crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.

307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This

standard applies to findings of guilt based upon direct evidence, circumstantial evidence,

or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d

370, 379 (Tenn. 2011).

When examining the sufficiency of the evidence, this court should neither

re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.

Questions concerning the credibility of the witnesses, the weight and value of the

evidence, as well as all factual issues raised by the evidence are resolved by the trier of

fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must

afford the State the strongest legitimate view of the evidence contained in the record as

well as all reasonable and legitimate inferences which may be drawn from the evidence.

Id.

As alleged in this case, vehicular homicide is the “reckless killing of

another by the operation of an automobile as the proximate result of the driver’s

intoxication.” T.C.A. § 39-13-213(a)(2). Reckless endangerment occurs when a person

“recklessly engages in conduct which places or may place another person in imminent

danger of death or serious bodily injury.” T.C.A. § 39-13-103(a).

A criminal conviction may be based solely on circumstantial evidence.

Dorantes, 331 S.W.3d at 379. The appellate court will not reweigh the circumstantial

evidence used by the trier of fact in convicting the defendant, assuming that such

evidence bespeaks the guilt of the defendant in a measure that satisfies the requirement of

due process outlined in Jackson. Jackson, 443 U.S. at 319. In other words, the appellate

court must examine the evidence to ensure that any “rational trier of fact could have

found the elements of the crime beyond a reasonable doubt.” Id. That due process

determination cannot be left to the unfettered whim of the trier of fact. We have

undertaken an examination to ensure the evidence is sufficient to satisfy the constitutional

standard. See also Tenn. R. App. P. 13(e).

With respect to the vehicular homicide conviction, the defendant does not

dispute that he was intoxicated while operating a motor vehicle on the evening of June

23, but he contends that the State failed to prove that his operation of the vehicle while

intoxicated was the proximate cause of the victim’s death.

The proof adduced at trial established that the defendant, who was observed

by multiple witnesses unsteadily exiting and reentering his white GMC Yukon before

twice striking a building with his vehicle, appeared to be intoxicated as he sped away

from the Raphael’s restaurant parking lot in the direction of the Fort Henry Drive bridge

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just before 7:55 p.m. on June 23. A traffic camera captured the defendant’s vehicle

passing through the intersection of Fort Henry Drive and Moreland Drive at 7:55:49 p.m.

At the same time, the victim was observed to be standing on the Fort Henry Drive bridge

near the guardrail and talking on his cellular telephone. Mrs. Cooper, who was driving

over the bridge in the opposite lane, saw “a flash of white” as a vehicle “drifted over the

line,” and the victim’s body was “propelled over the rail like a swan dive.” The victim’s

friend, Mr. Denton, heard a loud noise and turned in time to see the victim in midair in a

“jackknife position” going over the bridge while a “white blur” traveled across the

bridge.

The defendant continued driving north on Fort Henry Drive and was soon

observed by Mr. Womack to be driving dangerously and erratically. Mr. Wolfe also

came upon the defendant’s vehicle and observed his erratic driving; Mr. Wolfe followed

the defendant when he took the Memorial Drive exit, where the defendant stopped on the

exit ramp. When Mr. Wolfe approached the defendant’s vehicle, he observed that the

passenger side mirror was folded in and that the defendant was unconscious. Both Mr.

Wolfe and Mr. Arnold, who had also stopped to assist, had difficulty rousing the

defendant. When police officers arrived at the scene, the defendant stated that he was

“guilty” and had “been drinking.” The defendant’s blood alcohol content was later

determined to be 0.373, more than four times the legal limit.

Police officers discovered that the passenger side of the defendant’s tire,

wheel rim, and running board had been “wiped clean” as though that portion of the

vehicle had come “into contact with something.” The victim, who died as a result of

blunt force trauma to the head and neck, sustained an injury to his left leg that the

pathologist opined was consistent with his having been in a standing position at the time

he was struck by a vehicle.

We hold that the evidence was legally sufficient to support the conviction

of vehicular homicide.

Turning to the defendant’s convictions of reckless endangerment, the proof

established that the defendant twice struck the Raphael’s restaurant building with his

5,746 pound vehicle, causing the patrons who were seated mere feet away to scream and

the glass separating the vehicle from the patrons to rattle. The defendant then recklessly

drove through the restaurant parking lot, nearly striking Ms. Drecol in the process.

Viewing this evidence in the light most favorable to the prosecution, we

conclude that the evidence adduced at trial sufficiently established the defendant’s

convictions of vehicular homicide and reckless endangerment. Although not raised by

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the defendant on appeal, we hold the evidence likewise supports his additional

convictions.

Conclusion

Based upon the foregoing analysis, we affirm the judgments of the trial

court.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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