            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                           MAY SESSION, 1998         FILED
                                                     June 30, 1998

                                                Cecil W. Crowson
STATE OF TENNESSEE,          )
                                              Appellate Court Clerk
                             )   No. 01C01-9707-CC-00298
      Appellee               )
                             )   WILLIAMSON COUNTY
vs.                          )
                             )   Hon. Donald P. Harris, Judge
ELROY D. KAHANEK,            )
                             )   (DUI, Third Offense)
      Appellant              )



For the Appellant:               For the Appellee:

Lee Ofman                        John Knox Walkup
317 Main Street, Suite 208       Attorney General and Reporter
Franklin, TN 37064
                                 Timothy F. Behan
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493


                                 Joseph D. Baugh, Jr.
                                 District Attorney General

                                 Mark Puryear
                                 Asst. District Attorney General
                                 P. O. Box 937
                                 Franklin, TN 37065-0937




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                        OPINION



       The appellant, Elroy D. Kahanek, appeals the verdict of a Williamson County jury

finding him guilty of driving under the influence, third offense. The trial court imposed

a sentence of 11 months, 29 days, suspending all but 120 days, and assessed a fine

of $5,000. The appellant now appeals his conviction, raising the following issues:

       I. Whether the trial court erred by overruling the appellant’s motion in
       limine to exclude evidence of the horizontal gaze nystagmus test;

       II. Whether the trial court erred in restricting the appellant’s cross-
       examination of Officer Hardcastle;

       III. Whether the trial court erred in rejecting the appellant’s special jury
       instruction relating to the “odor of alcohol;”

       IV. Whether the trial court erred in instructing the jury to disregard
       portions of the appellant’s testimony; and

       V. Whether the trial court erred in commenting on the reliability of an
       intake, or, “Receiving Screen Form,” required for the processing of
       detainees prior to incarceration.



       After a review of the evidence and the applicable law, we conclude that the

appellant’s issues are without merit. The judgment of the trial court is affirmed.




                                      Background



       On March 28, 1996 at approximately 6:30 p.m., Debbie Doebler was driving

home on I-65 south in Williamson County. Ms. Doebler was following two vehicles: a

small white automobile and a tractor trailer truck. The tractor trailer was in the far right

hand lane and the white car was in the adjacent lane. Ms. Doebler observed the white

car swerve, “like it was going to hit the truck.” In response, she slowed her vehicle.

The white vehicle swerved again, and, this time, the car hit the truck, traveling across

the four southbound lanes of the interstate, bouncing off the concrete median barrier,

and traveling back across the four lanes where it came to a stop in the far right hand


                                           2
lane. Ms. Doebler, assuming that someone was injured, pulled onto the shoulder of the

interstate and called 911 on her cellular phone.



         Brentwood Police Officers Allen Hardcastle and David Graves responded to the

scene of the accident. When Officer Hardcastle arrived at the scene, he observed a

small white car sitting in the far right lane of the interstate. The vehicle had sustained

extensive damage to the right front portion and left rear portion of the vehicle. The

damage to the passenger side was consistent with those made by a tire. The vehicle’s

airbag was deployed in the wreck.



         Shortly after arriving on the scene, the officers determined that the appellant was

the driver of the white car. Upon first making contact with the appellant, Officer

Hardcastle noticed that the appellant had a strong odor of alcohol about him and that

he answered questions slowly. Also, the appellant’s eyes were bloodshot. The

appellant told Officer Hardcastle that, while he was traveling in the far right hand lane

of the interstate, the tractor trailer truck attempted to make a lane change from the

adjacent lane to the lane in which he was traveling, resulting in the accident. When

asked by the officer whether he was injured or needed to go to the hospital, the

appellant stated that he did not need any medical treatment. Officer Hardcastle did

observe a small cut on the appellant’s wrist, but no incapacitating injuries.



         Based on his initial observations of the appellant, Officer Hardcastle believed

that the appellant had been driving under the influence of alcohol. He proceeded to

conduct three field sobriety tests, i.e., the Horizontal Gaze Nystagmus Test,1 the “walk

and turn” test, and the “one leg stand” test. During the”HGN” test, the appellant failed



         1
          Nystagmus means a jerking of the eyes. Horizontal gaze nystagmus refers to a jerking
of the eyes as they gaze to the side. Gaze nystagmus is observed in 50 to 60 percent of the
entire population when the eyes are deviated as far as possible to one side. As people become
intoxicated, the onset of the jerking occurs after fewer degrees o f turning, and the jerking at more
extreme angles becomes more distinct. The test is conducted by having the subject cover one
eye an d follo w an obje ct (the offic er’s f inger in this c ase ) with th e ope n eye u ntil the subj ect’s eye
is at an angle of 45° from his nose.

                                                        3
to have “smooth pursuit, his eyes pursued in one jerky motion to 45°. He had a

[di]stinct nystagmus at max[imum] deviation on both eyes. He had onset of nystagmus

prior to 45°.” Officer Hardcastle next conducted the “walk and turn” test. The appellant

was unable to complete the test as instructed; he raised his arms, swayed, and

stumbled to the left, where he was caught by Officer Graves. The appellant then

stumbled to the right, where he was caught by Officer Hardcastle. At this point, Officer

Hardcastle terminated the test for the appellant’s own safety.            The final test

administered was the “one leg stand,” which required the raising of either foot six

inches off the ground, while counting to thirty out loud. The appellant raised his arms,

swayed, and put his foot down within two seconds of picking it up. The appellant

admitted that he could not complete this test.



       Officer Hardcastle concluded that the appellant’s conduct during these tests was

consistent with his initial observations that the appellant was under the influence of

alcohol. Officer Graves confirmed Officer Hardcastle’s results of the field sobriety tests

and the appellant’s statements at the scene.         The appellant was arrested and

transported to the Williamson County Jail.



       The appellant, in his own defense, testified that, on February 12, his wife had

surgery which revealed the spread of cancer throughout her body. The doctors

informed the appellant and his wife that, without chemotherapy treatments, she had

nine months to live. The chemotherapy treatments cost approximately four to six

thousand dollars per treatment and his wife refused any treatment if their insurance

company denied coverage. On the afternoon of the accident, the appellant was notified

that his insurance would not cover his wife’s chemotherapy treatments. The appellant

testified that this news was emotionally upsetting, causing him to “cr[y] all afternoon.”




                                          4
       At 5:30 p.m., the appellant left his Nashville office and went across the street to

the Nashville Country Club “to wait for traffic to die down.” At the restaurant, the

appellant ordered a scotch and water. Shortly thereafter, a friend purchased the

appellant a second scotch and water as a belated birthday present. The appellant left

the restaurant at 6:00 p.m. and began his drive home on I-65 South. On the way home,

he called his wife from his cellular phone and asked her if she wanted him to pick up

some fast food for dinner. After ending his conversation with his wife, the appellant

threw the telephone in the passenger side seat. Realizing that he had not turned the

telephone off, he leaned over to pick the telephone up. At this point, the accident

occurred. The appellant stated that, upon impact with the truck, his airbags exploded,

causing burns and cuts on his arms. He added that the airbags caused his knees to

hit the dashboard. The appellant testified that he told Officer Hardcastle that his “knees

are killing me, I cannot perform this test.”



       Based upon this evidence, the jury returned a guilty verdict as to the offense of

driving under the influence, third offense.




                         I. Horizontal Gaze Nystagmus Test



       The appellant, relying upon an unpublished opinion of this court, i.e., State v.

Cora Murphy, No. 01C01-9412-CC-00401 (Tenn. Crim. App. at Nashville, Oct. 6, 1995),

aff’d by, 953 S.W.2d 200 (Tenn. Oct. 13, 1997), filed a motion in limine on January 9,

1997, to exclude evidence of the Horizontal Gaze Nystagmus Test as the State was

required to establish that there is general acceptance of the test in the scientific

community. The trial court denied the motion finding that the HGN test does not

constitute a scientific test. On appeal, the appellant asserts that the trial court’s ruling




                                           5
is in “error and is contrary to existing law within the court’s jurisdiction.”2                             Although

conceding the error of the trial court’s ruling, the State contends that any error in

admitting the evidence of the HGN test was harmless.



         Initially, we note that this issue is now governed by our supreme court’s ruling

in State v. Murphy, 953 S.W.2d at 200. In State v. Murphy, the court held that the

Horizontal Gaze Nystagmus test is a scientific test. Murphy, 953 S.W.2d at 201. In

so ruling, the court stated:

         In our view, the HGN test does differ fundamentally from other field
         sobriety tests because the witness must necessarily explain the
         underlying scientific basis of the test in order for the testimony to be
         meaningful to a jury.
         ...
         And there is another distinction . . . and it concerns measurement. . . .
         [W]hen an officer testifies that the subject’s eye movement was rapid and
         very jerky at less than a 40 degree angle, that officer is testifying about
         a measurement that probably should be taken with a measuring device.
         Therefore, the accuracy of this testimony may be questionable in light of
         the officer’s non-scientific measurement of a scientifically measurable
         phenomenon.


Id. at 203.



         Since the HGN test is a scientific test, evidence resulting from the test must

satisfy the requirements of Tenn. R. Evid. 702 and 703. Id. at 203. Under these rules,

the trial court must determine whether the evidence will substantially assist the trier of

fact to determine a fact in issue and whether the facts and data underlying the evidence

indicate a lack of trustworthiness. See McDaniel v. CSX Transp., Inc., 955 S.W.2d

257, 265 (Tenn. 1997), petition for cert. filed, 66 U.S.L.W. 3605 (Mar. 9, 1998) (No. 97-

1469).         If the scientific evidence is valid, a witness qualified as an expert by

knowledge, skill, experience, training, or education may testify in the form of an opinion


         2
          We note that the appellant’s trial was conducted on February 11-12, 1997, eight months
prior to our supreme court’s ruling in Murphy, 953 S.W.2d at 200. Thus, at the time of the trial, the
issue of whethe r the HG N test wa s a scien tific test was pending before th e supre me c ourt.
Moreover, different panels of this court ha d reach ed differe nt results o n this issue . Comp are
State v. Jankowski, No. 03C01-9503-C R-00100 (Te nn. Crim. App. at Knoxville, Nov. 15, 1995),
perm. to appeal denied, (Tenn. Apr. 1, 1996) with Murphy, No. 01C 01-941 2-CC -00401 .
Acc ordin gly, the appe llant’s cont entio n tha t the tr ial cou rt faile d to fo llow pr ece den t is no t a valid
position, as there was no per se consistent precedent to follow.

                                                         6
or otherwise. Id. at 264. Moreover, the court must be assured that the opinion of the

expert witness is based on relevant scientific methods, processes, and data, and not

upon an expert’s mere speculation. Id. at 265.



       In the present case, Officer Hardcastle testified regarding the procedures

involved in the administration of the HGN test and his law enforcement training and

certification relevant to field sobriety tests. He also acknowledged the existence of other

nystagmus in the eye other than horizontal and that they could be caused by factors

other than alcohol. We cannot conclude that this testimony established Officer

Hardcastle as being qualified by his “knowledge, skill, experience, training or education”

to provide expert testimony that would “substantially assist the trier of fact [in]

understand[ing] the evidence or determin[ing] a fact in issue.” See Murphy, 953

S.W.2d at 201-202; see also State v. Grindstaff, No. 03C01-9704-CR-00139 (Tenn.

Crim. App. at Knoxville, Mar. 23, 1998). As such, the trial court should have granted

the appellant’s in limine motion.



       Notwithstanding the trial court’s error in admitting such testimony regarding the

HGN test, we find the court’s error, at most, harmless, as there was more than sufficient

evidence for a rational trier of fact to find the appellant guilty of driving under the

influence. Tenn. R. App. P. 36(b). See, e.g., State v. Summers, No.03C01-9606-CR-

00235 (Tenn. Crim. App. at Knoxville, Dec. 4, 1997); State v. Turner, No. 03C01-9604-

CC-00151 (Tenn. Crim. App. at Knoxville, Jul. 9, 1997). In addition to the HGN test,

Officer Hardcastle conducted the “walk and turn” test and the “one leg stand” test.

There is no doubt that neither of these tests require expert testimony. General field

sobriety tests are not “scientific tests,” and, thus, not governed by Tenn. R. Evid. 702

and 703. See Turner, No. 03C01-9604-CC-00151 (citing State v. Gilbert, 751 S.W.2d

454, 459 (Tenn. Crim. App. 1988)). The results of these two non-scientific field sobriety

tests in conjunction with the officers’ initial observations of the appellant’s demeanor,

his admission of consuming alcohol prior to driving home, and eyewitness testimony


                                          7
of the appellant’s erratic driving were properly before the jury and are sufficient

evidence from which a rational juror could infer that the appellant was under the

influence of an intoxicant, impairing his ability to operate his vehicle. This issue is

without merit.




                    II. Cross-Examination of Officer Hardcastle



       During cross-examination of Officer Hardcastle, defense counsel initiated a line

of questioning regarding the officer’s opinion of the fairness of the standardized field

sobriety tests. Defense counsel then asked Officer Hardcastle: “If you were designing

this test to cause imbalance and sway, would you have them have their feet standing

apart like this or have one foot out about six inches off the ground?” The prosecutor

objected to the question as being argumentative, stating that Officer Hardcastle had

already answered defense counsel’s questions regarding the fairness of the test. The

trial court sustained the State’s objection, finding that the question was posed as a

hypothetical, that the officer had previously stated that he did not and does not design

the test, and that the question “has nothing to do with this case.”



       “The right to cross-examination is fundamental, thus, the denial of this right to

apprise the accused a fair trial is ‘constitutional error of the first magnitude.’” State v.

Henning, No. 02C01-9504-CC-00115 (Tenn. Crim. App. at Jackson, Jan. 9, 1997),

perm. to appeal granted, (Tenn. Jul. 7, 1997) (quoting State v. Hill, 598 S.W.2d 815,

819 (Tenn. Crim. App. 1980)). Yet, the propriety, scope, manner and control of

testimony and other evidence, including the scope of cross-examination, is within the

sound discretion of the trial court, which will not be reversed absent an abuse of that

discretion. See State v. Hutchinson, 898 S.W.2d 161, 172 (Tenn. 1994), cert. denied,

516 U.S. 846, 116 S.Ct. 137 (1995); State v. Barnard, 899 S.W.2d 617, 624 (Tenn.




                                           8
Crim. App.), perm. to appeal denied, (Tenn. 1994) (citing State v. Banks, 564 S.W.2d

947, 949 (Tenn. 1978)); Tenn. R. Evid. 611.



         The scope of cross-examination extends to “any matter relevant to any issue in

the case, including credibility.” Tenn. R. Evid. 611(b). Defense counsel’s inquiry as to

the police officer’s design of a hypothetical sobriety test was irrelevant to the issue at

hand. Officer Hardcastle had, on more than one occasion, expressed his opinion as

to the fairness of the field sobriety tests conducted in the present case. Moreover,

considering Officer Hardcastle’s testimony in its totality, we cannot conclude that the

appellant was prejudiced by the court’s ruling. Accordingly, we find no abuse of

discretion by the trial court. This issue is without merit.




                        III. Jury Instruction on Odor of Alcohol



         The appellant next complains that the trial court erred by refusing his special

instruction regarding the odor of alcohol. In pertinent part, the refused instruction

reads:

         The bare fact that there was an odor of intoxicant on the Defendant’s
         person is not sufficient to support a finding that he was driving under the
         influence of an intoxicant. Newby v. State, 388 S.W.2d 136, 138 (Tenn.
         1965).

The trial court refused the appellant’s request, finding that the instruction was “covered

by [the] charge that requires [a] finding of impairment.” The court determined that:

         This request may be confusing in that jurors may infer the court is stating
         odor of alcohol is in the Court’s opinion the only evidence indicating that
         the defendant was under the influence.


         Where the charge, as given, fully and fairly states the law applicable to the case,

it is not error to refuse a special request. State v. Bush, 942 S.W.2d 489, 523 (Tenn.

1997), cert. denied, --U.S. --, 118 S.Ct. 376 (1997); State v. Taylor, 771 S.W.2d 387,

398 (Tenn. 1989), cert. denied, 497 U.S. 1031, 110 S.Ct. 3291 (1990). We find that


                                            9
the jury instructions provided by the trial court adequately covered the applicable law

on this subject. This issue is without merit.




                       IV. Cross-Examination of the Appellant



       On cross-examination of the appellant, the prosecuting attorney asked the

appellant if there was any person at the Nashville Country Club who knew him and

would those people have been able to testify as to the appellant’s sobriety. The

appellant responded that, if he had been intoxicated, those people would not have let

him drive and someone would have taken him home or he would have called a

limousine service to take him home. The prosecutor then requested a jury-out during

which he asked the court to instruct the jury to disregard the appellant’s statement,

since the prosecutor was not able to introduce evidence of the appellant’s two prior

convictions for driving under the influence. The trial court ruled that the appellant’s

statement was unresponsive to the question asked by the prosecutor and was

volunteered by the appellant. The jury was then instructed to disregard the appellant’s

statements. The appellant contests the court’s ruling arguing that the court’s instruction

to the jury “was a comment on the evidence which is disallowed in Tennessee, Hooper

v. State, 325 S.W.2d 561 (Tenn. 1959), and, further, that instruction cast doubt on the

Defendant’s credibility, thereby denying the Defendant his due process right to a fair

trial under the Tennessee and United States Constitutions.”



       Contrary to the appellant’s assertions, we agree with the State that there is no

evidence that the trial court commented upon the evidence. Rather, the trial court only

instructed the jury to disregard the appellant’s statement as it was unresponsive to the

prosecutor’s “yes or no” question. As stated previously, the scope and control of the

examination of witnesses rests within the sound discretion of the trial court; and this

court will not interfere with the exercise of this discretion unless it clearly appears upon


                                          10
the face of the record that the trial court abused its discretion when ruling. See

Hutchinson, 898 S.W.2d at 172; Barnard, 899 S.W.2d at 624. We fail to find that the

trial court abused its discretion in instructing the jury to disregard the appellant’s

extemporaneous testimony. This issue is without merit.




      V. Trial Court’s Comment Upon Reliability of Receiving Screen Form



        In his final issue, the appellant complains that the trial court made improper

comments to the jury regarding the reliability of the intake or receiving screen form,3

which is required for the processing of a detainee. This form was introduced into

evidence by the defense through the custodian of records at the Williamson County

Jail. Initially, we agree with the State that the appellant has waived this issue for failure

to cite to that which he complains of. Tenn. R. App. P. 27(a)(7). This court will not

speculate as to the alleged errors of the trial court. Notwithstanding waiver of this

issue, this court fails to find that the trial court made any improper comments to the jury

regarding the form’s reliability. Indeed, the video tape transcript of the trial indicates

that any comments made by the trial court were made during a jury out hearing.

Accordingly, there is no merit to this issue.




                                             Conclusion



        After a review of the record before us, we affirm the judgment of conviction

entered by the Williamson County Circuit Court.




        3
            The Receiving Screen Form, generated at the time the appellant was initially booked at
the jail, indicated that the appellant did not appear to be intoxicated. However, testimony indicated
that the “no” response to this question was computer generated, and, must be manually changed
to indicate an affirmative response. As such, the responses on the screening form were subject
to human error.

                                                11
                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:




____________________________________
GARY R. WADE, Presiding Judge



____________________________________
JERRY L. SMITH, Judge




                               12
