         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs April 29, 2009

     STATE OF TENNESSEE v. EVERETT DANIEL MEADOR, III
                   Appeal from the Criminal Court for Washington County
                             No. 33802 Lynn W. Brown, Judge



                   No. E2008-01710-CCA-R3-CD - Filed December 11, 2009



After a jury trial, the Defendant, Everett Daniel Meador, III, was convicted of driving under the
influence (DUI), first offense, a Class A misdemeanor. The Defendant appeals, contending that
because the arresting officers lacked probable cause to arrest him, the trial court erred in denying his
motion to suppress the evidence resulting from his arrest. The Defendant also contends that the trial
court improperly denied his motion for a mistrial, which was based upon the results of his
breathalyzer test, that were submitted to the jury after the trial court ruled that the results were
inadmissible. After determining that a mistrial should have been declared, we reverse the judgment
of the trial court, and we remand the case for a new trial.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and
NORMA MCGEE OGLE, J., joined.

Dan R. Smith, Johnson City, Tennessee, for the appellant, Everett Daniel Meador, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;
Anthony Wade Clark, District Attorney General; and Robin C. Ray, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

        The record reflects that in January 2008, the Defendant filed a motion to suppress the results
of the breath test which was administered following his arrest for driving under the influence. The
Defendant argued both that the police lacked probable cause to arrest him and that, pursuant to a
since-repealed provision of Tennessee Code Annotated section 55-10-406(a)(1),1 the test results were
inadmissible because the police administered the test more than two hours after the Defendant’s
initial detention.

        At the hearing on the motion, Officer Nicholas Anderson with the Johnson City Police
Department testified that at 6:14 the morning of January 20, 2007, he arrived on the scene of a
single-car accident. Officer Anderson saw a white Ford truck in the front yard of a residence.
Through the truck’s open driver-side door, Officer Anderson saw the Defendant slumped over the
truck’s steering wheel. The officer said that the Defendant appeared to be “unconscious, or passed
out,” and that it took him a while to awaken the Defendant. The officer shook the Defendant and
shouted at him without success, but the Defendant awoke after the officer rubbed his knuckles across
the Defendant’s chest. The Defendant told the officer that he was going to his home in Gray.
Officer Anderson “got [the Defendant] out of [his] vehicle and placed him in [the] back seat” of the
police cruiser while the officer filled out paperwork. The officer said he put the Defendant into the
police car because it was cold outside and he wanted the Defendant to stay warm.

         Officer Anderson said that he did not administer any field sobriety tests to the Defendant
because his shift was ending. Therefore, after placing the Defendant in his car at approximately 6:20
a.m., he “called for a relief officer.” Officer Anderson explained that “a typical wreck takes an hour
to work” and that he would not receive overtime pay if he worked past the 7:00 a.m. end of his shift.
He said that the Defendant called his girlfriend while they were waiting for the relief officer and that
the relief officer arrived shortly after the shift ended. Officer Anderson acknowledged that allowing
someone to use a phone while in police custody went against departmental policy.

         On cross-examination, Officer Anderson acknowledged that at a preliminary hearing he had
testified that when he approached the Defendant, he smelled the odor of alcoholic beverages. He
denied testifying at the preliminary hearing that he had administered field sobriety tests to the
Defendant, and he acknowledged that the Defendant was not free to leave once he was placed in the
police cruiser.

        Officer Michael Howard testified that he was the officer dispatched to the accident scene to
relieve Officer Anderson. When Officer Howard arrived on the scene, he saw the Defendant’s truck
“wrecked against a tree in the front yard of a residential house,” with the Defendant sitting in the
back of Officer Anderson’s police cruiser. Officer Howard said that when he opened the police car’s
rear passenger door, he smelled “what appeared to be an odor of alcoholic beverage.” He took the
Defendant to a nearby school to conduct field sobriety tests on the defendant. Officer Howard said
that the Defendant “appeared to be having some problems [completing the tests]. I noticed a little
swaying . . . when he was doing the one legged stand.” After the Defendant consented to a breath
test, the officer took the Defendant to the Johnson City Police Department’s detention center.


         1
            “For the results of such test or tests to be admissible as evidence [in DUI cases], it must first be established
that all tests administered were administered to the person within two (2) hours following such person’s arrest or
initial detention.” Tenn. Code Ann. § 55-10-406(a)(1) (Supp. 2006) (repealed 2009).

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Officer Howard summoned Sergeant Donna Tallmadge, an officer certified to use the department’s
breath testing machine, to administer the test. Officer Howard testified that with this machine, there
is a twenty-minute period between the time the officer “logs in” to the machine and the time the
officer administers the test. In this case, Sergeant Tallmadge logged in at 8:13 a.m. and the
defendant submitted his breath sample at 8:38 a.m. The test showed the Defendant’s blood alcohol
content to be .17% at the time he submitted his sample.

         On cross-examination, Officer Howard testified that in addition to the one-legged stand test,
he administered the horizontal gaze nystagmus test and instructed the Defendant to walk a straight
line. He said that his police cruiser’s in-car video camera recorded the tests but that “the camera was
not focused in properly. It just had the front of the car, and only some of the test showed up, and the
audio was not operating that day.” When asked whether the recording “reflects that [the Defendant]
did, in fact, do as you requested” performing the one-legged stand test, Officer Howard replied,
“based on what I saw I thought I detected a little swaying on it, but, again, the feet weren’t shown,
so, it doesn’t really show a whole lot of jerkiness in the motion of the body.”

        During cross-examination, the Defendant’s attorney asked to admit the recording of the field
sobriety tests into evidence. The trial court granted counsel’s request; however, the record reflects
that equipment to view the recording was unavailable in the courtroom during the hearing. Defense
counsel requested a continuance to acquire the equipment to play the recording in the courtroom.
The trial court denied the continuance, stating, “I think it would be your responsibility to have the
officer to bring his equipment. . . . It’s 3:30 [p.m.]. We quit at 5 o’clock. . . . We started the
hearing, request for continuance denied.”

        At the conclusion of the hearing, the trial court suppressed the results of the Defendant’s
breath test because the test was administered more than two hours after the police initially detained
the Defendant.2 However, the trial court found that the officers did have probable cause to arrest the
Defendant, so the court ruled that all other evidence related to the Defendant’s arrest was admissible.
The case then proceeded to trial.

                                                    Trial Testimony

         Martha Trevathan testified that at approximately 4:15 the morning of January 20, 2007, she
heard the noise of an engine running outside her home. She looked out the window and saw “a truck
sitting up against the curb at the empty lot next to [her] house.” Fifteen to twenty minutes later, she
went outside and saw the truck parked against the curb between her driveway and the driveway of
the house next door. When she left her house around 6:15 in the morning, the truck was still parked
against the curb, its engine running. Ms. Trevathan called 911 to report the truck; she said that she


         2
            The defendant was indicted on two counts of driving under the influence; the second count referenced the
results of the defendant’s breath test. See Tenn. Code Ann. § 55-10-401(a)(2) (2008) (criminalizing driving while “[t]he
alcohol concentration in the person’s blood or breath is eight-hundredths of one percent (.08%) or more.”). W hile no
order dismissing Count 2 of the indictment appears in the record, the record reflects that in light of the trial court’s order
suppressing the results of the breath test, Count 2 was not presented to the jury.
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could not see anyone inside the truck, although she acknowledged that she “really didn’t look that
closely because [she] was afraid of whoever was in there.”

       William Givens, who lived three houses down from Trevathan, testified that on the morning
in question, he initially saw a truck near Trevathan’s house. He said that the truck’s engine was
running and its lights were on. Some time later, his wife alerted him that the truck was in their yard.
Mr. Givens called 911; after hanging up, he went outside and saw a white truck in his yard, with the
front wheel of the truck positioned against a tree. He said that he did not see anyone inside the truck.

         Officer Anderson testified that when he arrived on the scene at approximately 6:20 that
morning, he saw the Defendant’s truck “crashed” against a “medium size[d] tree” in the front yard
of a residence; he also saw the defendant slumped over the steering wheel in the truck’s driver’s seat.
He added that the truck’s engine was running when he arrived on the scene. Officer Anderson turned
the engine off and attempted to rouse the Defendant. After shaking the Defendant’s arm failed to
produce a response, the officer rubbed his knuckles on the Defendant’s chest; this action woke the
Defendant. Officer Anderson testified that when the Defendant awoke, “[h]e was incoherent . . .
kind of dazed. He had slurred speech, and I started to smell the - - alcohol as he spoke more and
more. . . . [W]hen I came to the door you could smell alcohol, but, as he began to talk . . . the odor
got stronger and stronger.”

          Officer Anderson testified that because he was aware that the accident investigation would
last “well beyond” the 7:00 a.m. ending of his shift, he called for a relief officer. While he waited
for the officer to arrive, Officer Anderson questioned the Defendant about his activities. The
Defendant told the officer that he had been to a birthday party and that he was headed home to Gray.
The Defendant said that he had been drinking at the party, although he did not tell the officer what
he consumed or how much he consumed. The officer said that because the temperature was “very
cold” that morning, he put the Defendant in the back of his police cruiser before beginning the
paperwork associated with the accident. Officer Anderson said that based on his training and
experience as a police officer, he formed the opinion that the Defendant “was too intoxicated to be
operating a vehicle.” On cross-examination, Officer Anderson admitted that he did not arrest the
Defendant and did not administer field sobriety tests to the Defendant. He said that while he did not
see the Defendant drive the car into the tree, he said that given the frost-covered ground, he could
“actually see the [truck’s tire] tracks where it went over the curb and . . . follow [them] all the way
to . . . the tree.”

       Officer Howard testified that when he arrived at the accident scene to relieve Officer
Anderson, the Defendant was still in Officer Anderson’s police cruiser. After Officer Anderson told
Officer Howard about what had happened, Officer Howard removed the Defendant from Officer
Anderson’s car and took him to his own police cruiser. Officer Howard said that when he opened
the door to Officer Anderson’s car, he smelled “a strong odor of what appeared to be alcoholic
beverages” and found that the Defendant’s speech “seemed to be a little slurred at the time.” He
added that the Defendant also appeared “slightly unsteady on his feet.” Officer Howard said that
based on these observations, coupled with his conversations with Officer Anderson and other
witnesses, he concluded before administering the field sobriety tests that the Defendant “was

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probably under the influence.”

        Officer Howard said that because the street on which the accident occurred did not provide
a smooth or level surface on which to conduct certain field sobriety tests, he took the Defendant to
a nearby elementary school to administer the tests. Officer Howard testified that during the “walk
and turn” test, “it looked like from my observation that [the Defendant] had swayed a little bit as he
walked along the . . . straight line. . . . His arms raised at one point.” On cross-examination, Officer
Howard said that the video recording of the field sobriety tests did not show the Defendant’s hand
or feet movements and also did not appear to depict the Defendant’s swaying and raising his arm,
which the officer insisted that he saw while the Defendant performed the tests. The officer
acknowledged that the Defendant was cooperative during the tests and that although the Defendant’s
speech was slurred, the officer was able to understand the Defendant when he spoke. Officer
Howard said that at one point the Defendant’s girlfriend arrived at the accident site and that she
drove the Defendant’s truck from the scene because the damage to the truck was “minor.”

        Sarah Perry, the Defendant’s fiancée, testified that she and the Defendant went to a birthday
party the night before the Defendant’s arrest. She said that the Defendant “had a few drinks with
dinner[,] maybe,” although she could not recall how many drinks he had that evening. She said that
she left the party between 1:00 and 1:30 the next morning and that a friend took her home. She
called the Defendant around 1:50 a.m. and told him that she was going to bed; he replied that he
would be home soon. When Perry awoke around 6:45 a.m., the Defendant was not home. She called
the Defendant, who explained to her what had happened. She then went to the accident scene. Perry
claimed that when she spoke to the Defendant at the scene, she could not smell any alcoholic
beverages on him.

        The jury found the Defendant guilty of driving under the influence, first offense, as charged
in the indictment. See Tenn. Code Ann. § 55-10-401(a)(1) (2008). The trial court sentenced the
Defendant to eleven months, twenty-nine days, with the sentence suspended after the service of ten
days in the county jail. The Defendant subsequently filed a timely notice of appeal.

                                             ANALYSIS

                                        I: Motion to Suppress

        The Defendant first argues that the trial court erred in concluding that the police had probable
cause to arrest him for driving under the influence. He also asserts that he was prejudiced by the trial
court’s refusal to grant a continuance during the suppression hearing so that he could acquire
equipment to play in court the video recording of the Defendant’s field sobriety tests. We disagree.

       “[A] trial court’s findings of fact in a suppression hearing will be upheld unless the evidence
preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Questions about the
“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.” Id. Both proof presented at the
suppression hearing and proof presented at trial may be considered by an appellate court in deciding
the propriety of the trial court’s ruling on a motion to suppress. State v. Henning, 975 S.W.2d 290,
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299 (Tenn. 1998); State v. Perry, 13 S.W.3d 724, 737 (Tenn. Crim. App. 1999). However, 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.” Odom, 928 S.W.2d at 23. An appellate court’s review of the trial court’s application of
law to the facts is conducted under a de novo standard of review. State v.Walton, 41 S.W.3d 75, 81
(Tenn. 2001) (citations omitted).

         Both the Fourth Amendment to the United States Constitution and article I, section 7 of the
Tennessee Constitution protect individuals from unreasonable searches and seizures. “The basic
constitutional rule is that a warrantless search or seizure is presumed unreasonable and any evidence
discovered is subject to suppression.” State v. Day, 263 S.W.3d 891, 901 (Tenn. 2008) (citing
Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); State v. Bridges, 963 S.W.2d 487, 490
(Tenn. 1997)). Two types of police-citizen encounters are considered seizures for constitutional
analysis purposes: “(1) the full-scale arrest, which must be supported by probable cause; [and] (2)
the brief investigatory detention, which must be supported by reasonable suspicion of wrong-
doing[.]” Day, 263 S.W.3d at 901 (citations omitted). In this case, the Defendant does not argue
that the police lacked reasonable suspicion to detain him before administering the field sobriety tests
or that the time, manner, or scope of his investigatory detention rendered his detention
constitutionally improper. The Defendant also does not argue that his arrest was illegal. See Tenn.
Code Ann. § 40-7-103(a)(6) (2006) (permitting, as relevant to this case, arrest of driver “[a]t the
scene of a traffic accident . . . when, based on personal investigation, the officer has probable cause
to believe that the [driver] has committed an offense under the provisions” of the DUI statute;
defendant in this case was not arrested at the accident scene). Instead, the Defendant argues only that
the police lacked probable cause to arrest him.

       In Day, the Tennessee Supreme Court explained the concept of probable cause as follows:

       “Probable cause”— the higher standard necessary to make a full-scale arrest—means
       more than bare suspicion: “Probable cause exists where ‘the facts and circumstances
       within [the officers’] knowledge, and of which they had reasonably trustworthy
       information, [are] sufficient in themselves to warrant a man of reasonable caution in
       the belief that’ an offense has been or is being committed.” Brinegar v. United
       States, 338 U.S. 160, 175-76 (1949) (quoting Carroll v. United States, 267 U.S. 132,
       162 (1925)). “This determination depends upon ‘whether at that moment the facts
       and circumstances within [the officers’] knowledge and of which they had reasonably
       trustworthy information were sufficient to warrant a prudent man in believing that
       the petitioner had committed or was committing an offense.’” Goines v. State, 572
       S.W.2d 644, 647 (Tenn. 1978) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).

Day, 263 S.W.3d at 902.

      In the present case, the police had probable cause to arrest the Defendant before Officer
Howard took the Defendant to the school for the field sobriety tests. Officer Anderson testified that
when he came to the accident scene, he saw the Defendant’s truck crashed against a tree in the front

                                                 -6-
yard of a house; the truck’s door was open and the engine running. The officer saw the Defendant
in the driver’s seat of his truck, slumped over the steering wheel. The Defendant did not respond
to Officer Anderson’s initial attempts to awaken him; once the Defendant awoke, the officer noted
that he had slurred speech and the odor of alcohol on his breath. Officer Howard testified that before
he conducted the field sobriety tests, the Defendant “appear[ed] to have slurred speech, was “slightly
unsteady on his feet,” and had “the strong odor of alcoholic beverages” on his person. Such evidence
does not preponderate against the trial court’s determination that the police had probable cause to
arrest the Defendant for driving under the influence.

         The Defendant also argues that the trial court erred by denying his suppression hearing
motion for a recess to procure a DVD player so that the court could view the recording of the
Defendant’s field sobriety tests. The Defendant asserts that the DVD “demonstrated a successful
completion of the tests and that any reasonable suspicion dissipated.” The State does not respond
to this argument.

         Although the Defendant should have been more diligent in ensuring that the proper
equipment for viewing the DVD was present in the courtroom at the suppression hearing, the trial
court should have granted a recess to allow the Defendant to acquire a DVD player—at the very
least, the trial court should have viewed the recording of the field sobriety tests before making its
decision. However, after viewing the recording, we conclude that the trial court’s failure to view the
DVD at the suppression hearing did not prejudice the Defendant. As Officer Howard testified at the
suppression hearing, there is no sound present on the recording, and the recording does not depict
the Defendant’s hands and feet. Although the Defendant’s “swaying,” which Officer Howard
supposedly observed during the field sobriety tests, is not readily apparent from the recording, this
fact alone does not preponderate against the other evidence supporting the trial court’s probable
cause determination. We conclude that the trial court did not err in denying in part the Defendant’s
motion to suppress.

                                                        II: Mistrial

         During Officer Howard’s trial testimony, the State moved to admit into evidence an “Alcohol
Influence Report” that the officer prepared concerning the Defendant’s arrest. The Defendant did
not object to this exhibit’s admission, and the trial court granted the State’s motion. During the
jury’s deliberations, it submitted two questions to the trial court. The first question read, in its
entirety, “legal limit?” and the second read, “brought into evidence do we consider it even if not
verbalized in court?” Responding to the first question, the trial court wrote, “The legal limit has no
relevance in this case.” The trial court initially stated that it did not understand the second question,
but the bailiff informed the trial court that the Alcohol Influence Report contained the results of the
Defendant’s breath test, which the trial court had excluded.3 The trial court initially stated that “if
it’s part of an exhibit then, of course, [the jury] can consider it. . . . [I]t’s too late. . . . [I]t’s your
obligation to object to evidence if it’s not being introduced properly.” Defense counsel stated the
trial court’s assessment was“fundamentally unfair to the defendant” and that counsel did not object

        3
            This exhibit is a two-page document; the results of the breath test are listed at the bottom of the second page.
                                                             -7-
to the exhibit because he relied upon the State’s attorney, who, “as an officer of the court . . . should
have clearly excluded anything relative to this court’s order” before proffering the exhibit. The
State’s attorney insisted that she did not intentionally include the breath tests results in the proffered
exhibit.

        The Defendant then moved for a mistrial, which the trial court denied. The trial court issued
the following curative instruction: “You are not to consider any part of an exhibit regarding an
intoximeter or results thereof.” On appeal, the Defendant argues that the trial court’s refusal to grant
a mistrial constituted reversible error, while the State counters that the trial court’s issuing a curative
instruction remedied any potential prejudice.

        Before addressing the trial court’s denial of the Defendant’s motion for a mistrial, we must
consider the issue of waiver. The record reflects that the document containing the blood-alcohol
level was admitted into evidence without objection. Failure to raise a contemporaneous objection
typically results in a waiver of the issue on appeal. Tenn. R. App. P. 36(a); See also State v. Smith,
24 S.W.3d 274, 280 (Tenn. 2000). Thus, the Defendant is limited to plain error review of this issue.
Tennessee Rules of Appellate Procedure 36(b) provides for plain error review as follows:

        When necessary to do substantial justice, an appellate court may consider an error that has
        affected the substantial rights of a party at any time, even though the error was not raised in
        the motion for a new trial or assigned as error on appeal.

Our supreme court has adopted the factors developed by this court to be considered when deciding
“‘whether an error constitutes “plain error’” in the absence of an objection at trial: ‘(a) the record
must clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must
have been breached; (c) a substantial right of the accused must have been adversely affected; (d) the
accused did not waive the issue for tactical reasons; and (e) consideration of the error is necessary
to do substantial justice.’” Smith, 24 S.W.3d at 282 (quoting State v. Adkisson, 899 S.W.2d 626,
641-42 (Tenn. Crim. App. 1994)). In order for this court to reverse the judgment of a trial court, the
error must be “of such a great magnitude that it probably changed the outcome of the [proceedings],”
and “recognition should be limited to errors that had an unfair prejudicial impact which undermined
the fundamental fairness of the trial.” Adkisson, 899 S.W.2d at 642.

        The record clearly established what occurred in the trial court. A clear and unequivocal rule
of law was breached when the document was entered into evidence after the trial court ruled that the
document was inadmissible. The exchange between the trial court and counsel for the Defendant
shows that the failure to object was not a tactical decision. The trial court had already determined
that the breathalyzer test results were inadmissible and had so ruled. The admission of the results
contrary to the earlier ruling violated the Defendant’s right to an impartial determination of his guilt
or innocence and consideration of the error is necessary to do substantial justice. The admission of
the suppressed evidence, a document stating that the Defendant’s blood-alcohol level was twice the
legal limit, was plain error which resulted in a manifest necessity to declare a mistrial. Accordingly,
we conclude that admission of the test results “prevent[ed] an impartial verdict from being reached.”
Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). Therefore, when the error came to

                                                   -8-
the trial court’s attention, the Defendant’s motion for a mistrial should have been granted, and the
failure to grant the motion was an abuse of the trial court’s discretion. See State v. Reid, 91 S.W.3d
247, 279 (Tenn. 2002); State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990).

                                          CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgment of the trial court
is reversed. The case is remanded for a new trial.


                                                              _______________________________
                                                              D. KELLY THOMAS, JR., JUDGE.




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