         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                      June 2, 2004 Session

                STATE OF TENNESSEE v. DANNY JOE WRIGHT

                   Direct Appeal from the Circuit Court for Tipton County
                            No. 4337    Joseph H. Walker, Judge



                    No. W2003-01025-CCA-R3-CD - Filed August 12, 2004


The Defendant, Danny Joe Wright, was convicted of driving under the influence second offense and
violating the open container law. He was also found to have violated the implied consent law. In
this direct appeal, he argues that the trial court improperly limited his cross-examination of the
arresting officer and that the trial court erred by refusing to admit the testimony of an expert witness
in field sobriety testing. We affirm the judgments of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which DAVID G. HAYES and ROBERT W.
WEDEMEYER, JJ., joined.

Paul E. Lewis, Millington, Tennessee, for the appellant, Danny Joe Wright.

Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General;
Elizabeth Rice, District Attorney General; and James Walter Freeland, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION


         Late in the evening on February 2, 2001, Deputy Steven Browder of the Tipton County
Sheriff’s Office was on patrol. At approximately 11:45 p.m., Deputy Browder observed a late-model
Chevrolet truck, driven by the Defendant, weaving as it traveled along the road. Deputy Browder
testified that the vehicle crossed the center line “three or four times.” Because the vehicle “veered
from his lane,” Deputy Browder initiated a traffic stop of the vehicle. The deputy testified that the
Defendant “smelled . . . like he had been drinking.” He had the Defendant get out of the truck, and
he asked him whether he had been drinking. The Defendant told him that “he had been drinking
earlier.” Also, the Defendant’s speech was slurred. Based on his observations, Deputy Browder
requested the Defendant to perform a series of field sobriety tests, including the one-legged stand,
the finger-to-nose test, and the walk-and-turn test. First, the deputy instructed and demonstrated for
the Defendant how he was to perform the one-legged stand. The Defendant told the deputy that he
could not perform that particular test. Next, Deputy Browder explained and demonstrated for the
Defendant how to perform the finger-to-nose test. The deputy testified that the Defendant failed the
test because he was unable to touch his finger to his nose with either hand. Finally, the deputy
explained and demonstrated how to perform the walk-and-turn test. According to the deputy, the
Defendant did not pass the test because he failed to touch his heel to his toe, he “wobbled,” and he
had to raise his hands for balance. Based on the officer’s observations, including the Defendant’s
performance on these tests, Deputy Browder arrested the Defendant for driving under the influence
of an intoxicant. The Defendant refused to submit to a blood test that would detect alcohol or drugs
in his system. Deputy Browder also testified that he located an empty beer bottle in the front of the
Defendant’s vehicle, as well as a forty-ounce bottle of beer that was “about half full.”

        On cross-examination, Deputy Browder testified that he was trained to administer field
sobriety tests at the Shelby County Training Academy. The Defendant’s attorney sought to further
cross-examine the deputy by utilizing a copy of the “Shelby County Metro DUI Field Sobriety Test
Manual.” However, the trial court refused to allow defense counsel to cross-examine Deputy
Browder using the manual.1

         The Defendant also sought to introduce the expert testimony of Williams Mitchell Taylor,
a field sobriety instructor who was certified by the National Highway Traffic and Safety
Administration. During the Defendant’s offer of proof, Mr. Taylor testified that field sobriety tests
indicate whether a driver has a blood alcohol level of .10 or greater. They are not designed to
indicate whether a particular driver is “impaired.” When an officer observes a subject perform one
of the three most reliable tests, which include the horizontal gaze nystagmus test, the walk-and-turn,
and the one-legged stand,2 he or she should note the number of indicators that the subject has a blood
alcohol level over .10. The officer should then “score” the test to determine whether an arrest should
be made. Mr. Taylor explained that each test has a set of predetermined “clues” to which officers
should pay attention. For example, on the walk-and-turn test, the only prescribed “clues” relate to
how the subjects place their feet as they walk and whether they raise their arms more than six inches.
Mr. Taylor testified that if any of the procedures are compromised - if the officer does not score the
test correctly, if the officer uses less-than-reliable tests, if the officer looks for clues other than those
which are predetermined - then the reliability of the tests is compromised or even invalidated.




         1
            The “manual” referred to by defense counsel was marked as an exhibit for identification purposes only. The
trial court did not allow the witness to identify the document or state whether he had ever seen it before. The document
is not contained in the record on appeal.

         2
           Mr. Taylor stated that the finger-to-nose test is not one of the recognized “standardized” tests because it has
less than a fifty percent accuracy rate. By way of comparison, the accuracy rate for the horizontal gaze nystagmus test
is seventy-seven percent, for the walk-and-turn test is sixty-eight percent, and for the one-legged stand is sixty-five
percent.

                                                           -2-
         The trial court ruled that the testimony of Mr. Taylor was inadmissible because the field
sobriety tests in question were not scientific tests. Therefore, Mr. Taylor’s testimony regarding the
methods and procedures to be used when administering the tests would not be helpful to the jury.
The trial court expressed its view that Mr. Taylor’s testimony would merely call Deputy Browder’s
credibility into question. Because Mr. Taylor was not at the scene when the tests were administered,
the trial court found that his testimony was not admissible.

       The jury found the Defendant guilty of DUI and violating the open container law; he was also
found to have violated the implied consent law. This appeal followed.

        The Defendant first argues that the trial court erred by not allowing him to cross-examine
Deputy Browder using “a manual for standardized field sobriety testing authored by the Shelby
County, Tennessee Metro DUI Law Enforcement Agency.”3 The Defendant first asserts that the
officer was testifying as an expert witness and that the manual qualified as a “learned treatise” which
may be used to impeach the expert witness’ credibility. See Tenn. R. Evid. 618. In the alternative,
the Defendant apparently argues that even if the officer is testifying as a lay witness, the trial court
abused its discretion by not allowing defense counsel to question him using the manual with which
he had been trained, thus violating the Defendant’s right to confront the witnesses testifying against
him. See U.S. Const. amend. VI; Tenn. Const. art. I., § 9. We must conclude that the record before
us is inadequate to allow us to properly review this issue.

        Although the manual with which defense counsel desired to cross-examine the witness was
marked as an exhibit for identification purposes only, it is not contained in the record on appeal.
Because no offer of proof was made by the Defendant following the trial court’s adverse ruling on
this evidentiary issue, the witness never identified the manual as something with which he was
familiar. Indeed, the manual referred to by defense counsel was never authenticated in any manner.
Furthermore, because there was no offer of proof on this issue, we have no way of knowing what
questions defense counsel intended to ask the witness utilizing the manual and no way of evaluating
the relevance of this line of questioning.

         It is the duty of the appellant to prepare a record that conveys a fair, accurate, and complete
account of what transpired in the trial court with respect to the issues that form the basis for the
appeal. See Tenn. R. App. P. 24(b); State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987).
When the record is incomplete and does not contain information relative to a particular issue, this
Court may not make a ruling and must presume the correctness of the trial court’s ruling. See State
v. Gibson, 973 S.W.2d 231, 244 (Tenn. Crim. App. 1997). Appellate courts may only review what
is in the record and not what might have been or should have been included. See Dearborn v. State,
575 S.W.2d 259, 264 (Tenn. 1978). Because the record before us does not allow us to properly
review this issue, we must conclude that the Defendant has not demonstrated that he is entitled to
a reversal of his conviction on this ground.


         3
         Elsewhere in his brief, the Defendant refers to the document as “a manual for field sobriety testing entitled
Standardized Field Sobriety Tests.”

                                                         -3-
         The Defendant’s second argument is that the trial court erred by refusing to admit the expert
testimony of Mr. Taylor. “If scientific, technical, or other specialized knowledge will substantially
assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or education may testify in the form of an
opinion or otherwise.” Tenn. R. Evid. 702. “The admissibility of expert testimony, the qualification
of expert witnesses, and the relevancy and competency of expert testimony are matters which rest
within the sound discretion of the trial court.” State v. Harris, 839 S.W.2d 54, 69 (Tenn. 1992).

        We conclude that the trial court did not abuse its discretion by not admitting the testimony
of Mr. Taylor. With the exception of the horizontal gaze nystagmus test, field sobriety tests are not
scientific tests requiring testimony of a qualified expert pursuant to Tennessee Rule of Evidence 702.
See State v. Murphy, 953 S.W. 2d 200, 202-03 (Tenn. 1997): State v. Gilbert, 751 S.W.2d 454, 459
(Tenn. Crim. App. 1988). Mr. Taylor was not present at the scene when Deputy Browder
administered the tests to the Defendant, so he had no personal knowledge of how the deputy
explained, demonstrated, or evaluated the tests. In addition, the Defendant has failed to show that
Mr. Taylor was knowledgeable about the training that the deputy received in field sobriety testing.
Therefore, Mr. Taylor would have been unable to say whether Deputy Browder deviated from the
procedures that he was taught at the Shelby County Training Academy. For these reasons, the trial
court did not abuse its discretion by not allowing Mr. Taylor to testify, and this issue is without
merit.4

         The judgments of the trial court are affirmed.



                                                                   ___________________________________
                                                                   DAVID H. WELLES, JUDGE




         4
           W e also note that the Defendant has failed to cite any authority in his argument of this issue in his brief, which
results in waiver of the issue. See Tenn. Ct. Crim. App. R. 10(b); Tenn. R. App. P. 27(a)(7).

                                                             -4-
