         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE

                         SEPTEMBER 1998 SESSION



STATE OF TENNESSEE,                )
                                   )
            Appellee,              )    C.C.A. No. 01C01-9709-CC-00429
                                   )
vs.                                )    Williamson County

VICTOR S. KELLY, JR.,
                                   )
                                   )
                                   )
                                                   FILED
                                        Hon. Henry Denmark Bell, Judge

            Appellant.             )    (DUI)
                                                    January 19, 1999

                                                   Cecil W. Crowson
                                                  Appellate Court Clerk
FOR THE APPELLANT:                      FOR THE APPELLEE:

DAVID BRANDON                           JOHN KNOX WALKUP
Attorney at Law                         Attorney General & Reporter
211 Third Ave. North
Nashville, TN 37219                     ELIZABETH B. MARNEY
                                        Assistant Attorney General
PETER D. HEIL                           425 Fifth Ave. N., 2d Floor
Attorney at Law                         Nashville, TN 37243-0493
P.O. Box 40651
Nashville, TN 37204                     JOSEPH D. BAUGH
                                        District Attorney General

                                        LEE DRYER
                                        Asst. District Attorney General
                                        P.O. Box 937
                                        Franklin, TN 37065-0937



OPINION FILED:________________

AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE
                                      OPINION

              The defendant, Victor S. Kelly, Jr., stands convicted of driving under

the influence following a jury trial in the Williamson County Circuit Court. Kelly was

sentenced to eleven months and 29 days supervised probation, with six months

service in the county jail suspended after service of 48 hours. Terms of his

sentence include revocation of his driver's license and attendance of alcohol safety

school. He was fined $1,000. In this direct appeal, Kelly poses various challenges

to the soundness of his conviction:

       (1)    Whether there was sufficient competent proof to establish,
              beyond a reasonable doubt, that he was under the influence of
              an intoxicant at the time he was driving his motor vehicle.

       (2)    Whether the trial court adequately instructed the jury on the
              permissible inference of intoxication which may be drawn from
              blood alcohol test results.

       (3)    Whether the trial court properly determined that the state met
              its burden of establishing an unbroken chain of custody for the
              defendant's blood sample.

       (4)    Whether the trial court committed plain error by admitting
              testimony of the TBI toxicologist regarding controlled sobriety
              test studies absent the witness having any underlying
              documentation with him at trial.

Having reviewed the record, studied the briefs of the parties and heard the oral

arguments of counsel, we affirm the judgment of the trial court.



              In the early morning hours of March 21, 1996, Trooper Richard Cash

of the Tennessee Highway Patrol observed the defendant operating a motor vehicle

at an excessive rate of speed on Interstate 65 in Williamson County. Trooper Cash

clocked the defendant's speed at 90 miles per hour and initiated pursuit. After

Trooper Cash stopped the defendant, he noticed the smell of alcohol coming from

the defendant and his vehicle. The defendant was unsteady on his feet and

admitted to having a martini and two other mixed drinks in the previous hour. The

defendant performed poorly on field sobriety tests. Trooper Cash had no doubt in


                                          2
his mind that the defendant was under the influence of alcohol. At 1:30 a.m.,

Trooper Cash placed the defendant under arrest for driving under the influence.



              Trooper Cash transported the defendant to Williamson Medical

Center, and at 2:10 a.m., John Marshall Osborne, a licensed laboratory technician,

drew a blood sample from the defendant. Trooper Cash and Mr. Osborne filled out

a form entitled "Alcohol/Toxicology Request" with the defendant's name, sex, race,

date of birth, driver's license number, date and time of collection of the blood

sample. Both Trooper Cash and Mr. Osborne signed the request form. Trooper

Cash took the blood sample from Mr. Osborne and sealed it along with the request

form in a test kit, which he mailed to the Tennessee Bureau of Investigation ("TBI").



              The test kit was received at the TBI crime lab by Julie Fleak, an

evidence technician. She followed standard procedures in opening the kit, putting

identifying numbers on the sample vial, and placing the vial in a refrigerator. Ms.

Fleak noticed that the vial did not have the defendant's name written on it, so she

wrote his name on the vial. She then placed the sample in the refrigerator.



              Special Agent John W. Harrison of the TBI, who is a toxicologist,

retrieved the sample from the refrigerator and analyzed it using a scientific

instrument used for that purpose. His analysis revealed that the blood alcohol

content was .14 grams percent of ethyl alcohol. Special Agent Harrison explained

that the TBI lab, which enjoys national accreditation, has stringent quality control

standards which yield accurate blood alcohol analysis. The lab maintains a reliable

chain of custody of an individual's blood sample.



              Special Agent Harrison opined that an average, 150-pound individual




                                         3
would need to consume four to six drinks1 within 45 minutes to an hour and a half

in order to achieve a blood alcohol content of .10 grams percent. A larger individual

would require more alcohol to achieve the same blood alcohol content.2 He further

opined that the average individual's body can rid itself of .02 grams percent of

alcoholic content from the blood in an hour.



                                           I

                First, we consider whether the evidence is sufficient to sustain the

defendant's conviction of driving under the influence. When an accused challenges

the sufficiency of the evidence, an appellate court’s 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 crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92

(1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e).

This rule applies to findings of guilt based upon direct evidence, circumstantial

evidence, or a combination of direct and circumstantial evidence. State v. Dykes,

803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).



                In determining the sufficiency of the evidence, this court should not

reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779

(Tenn. Crim. App. 1990). 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). Nor may this court substitute its inferences for those drawn by the

trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d


       1
      Special Agent Harrison identified a "drink" as twelve ounces of beer, four
ounces of wine or one ounce of 90 or 100 proof liquor.
       2
           According to Trooper Cash, the defendant weighs 185 pounds.

                                          4
856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On

the contrary, this court must afford the State of Tennessee 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. Cabbage, 571 S.W.2d at 835.



              In pertinent part, driving under the influence is committed where an

individual

       drive[s] or [is] in physical control of any automobile or other motor
       driven vehicle on any of the public roads and highways of this state,
       or on any streets or alleys, or while on the premises of any shopping
       center, trailer park or any apartment house complex, or any other
       premises which is generally frequented by the public at large, while .
       . . [u]nder the influence of any intoxicant, marijuana, narcotic drug, or
       drug producing stimulating effects on the central nervous system . .
       ..

Tenn. Code Ann. § 55-10-401 (1993) (amended 1996).



              The defendant contends the proof of his intoxication is insufficient

based upon a vigorous attack on the reliability of the blood alcohol test result. We

disagree. In the light most favorable to the state, the defendant admitted having a

martini and two other mixed drinks. He was driving at a grossly excessive rate of

speed on an interstate highway. When he was stopped by Officer Cash, he smelled

of alcohol, was unsteady on his feet and did not perform field sobriety tests

satisfactorily. The defendant was, as described by Officer Cash, "very intoxicated."

All of this evidence is strong, probative evidence of the defendant's guilt beyond a

reasonable doubt of driving under the influence. Cf., e.g., State v. Clinton Darrell

Turner, No. 03C01-9604-CC-00151, slip op. at 2-6 (Tenn. Crim. App., Knoxville,

July 9, 1997) (defendant properly convicted of DUI based upon evidence of slurred

speech, unsteady gait, bloodshot eyes, smell of alcohol, driving without headlights

at 1:30 a.m., performance on field sobriety tests, and admission of drinking). The

fact that the defendant's blood alcohol content was .14 grams percent only 40


                                          5
minutes after his arrest only further adds to the certainty of his guilt. Cf. State v.

McKinney, 605 S.W.2d 842, 846 (Tenn. Crim. App. 1980) (jury properly inferred

defendant's intoxication at time of offense from alcohol content of blood sample

drawn approximately two and one-half hours after the offense).



                                          II

              The defendant questions whether the trial court adequately instructed

the jury on the permissible inference of intoxication which may be drawn from blood

alcohol test results. The DUI statute as it existed at the time of the defendant's

crime has been a source of grief for the courts of this state. See, e.g., State v.

Gregory Steele, No. 01C01-9706-CC-00218 (Tenn. Crim. App., Nashville, Apr. 7,

1998), pet. for perm. app. filed (Tenn., June 6, 1998); State v. Charles Bourgeois,

No. 01C01-9611-CR-00483 (Tenn. Crim. App., Nashville, Oct. 24, 1997); State v.

Mark Spencer King, No. 01C01-9608-CR-00343 (Tenn. Crim. App., Nashville, Sept.

18, 1997). The statute as it existed on March 21, 1996 provided a conclusive

presumption of intoxication and impairment upon a showing the blood alcohol

content was .10 percent or greater. See Amendments, Tenn. Code Ann. § 55-10-

408 (Supp. 1996). The statute in this form has been declared unconstitutional

because it created a mandatory presumption, as opposed to a permissible

inference. Mark Spencer King, slip op. at 2. During the effective period of this

version of section 55-10-408, there was understandable confusion about the proper

instruction to be given regarding the statutory presumption. See Bourgeois, slip op.

at 4-7.



              In the present case, the state during voir dire inquired of the jury,

"Does everyone agree that if the state proves beyond a reasonable doubt that this

defendant's blood alcohol content was over .10 that there is a presumption he's

under the influence? Is there anyone here who can't apply that presumption?"

                                          6
These inquiries met with objection by the defense, which was sustained by the trial

court. The trial court then explained to the jury panel that although the statute

called for a presumption to be drawn from a blood alcohol content of greater than

.10, the correct terminology was inference, not presumption. The court told the jury

panel that it would be instructed that if they found the defendant had a blood alcohol

content of more than .10, they would be able to infer impairment without further

proof, although it would be their prerogative whether to draw the inference from

such evidence.     The prosecution resumed voir dire and reaffirmed that the

defendant is presumed innocent and that the state had the burden of proving guilt.

When the defense began voir dire, counsel characterized the inference as a

rebuttable presumption. The court corrected counsel, and explained to the jury

panel that they may draw the inference of impairment based upon the blood alcohol

content. Ultimately, the trial court properly instructed the jury at the close of proof

that if it found the defendant's blood alcohol concentration was .10 or greater, it

"may" infer that the defendant was under the influence of an intoxicant and that his

ability to drive was impaired. Further, the jury was instructed that if it chose to make

the inference, the inference is not conclusive and should be considered with all the

evidence.



              The trial court correctly stated the law in its instructions, and it

adequately cured the misstatements of the state and the defense that occurred

during voir dire. See U.S. Const. amend XIV, § 1 (due process requires that state

prove every element of crime beyond a reasonable doubt); Francis v. Franklin, 471

U.S. 307, 105 S. Ct. 1965 (1985) (prosecution may not use evidentiary

presumptions which are conclusive in nature or shift the burden of proof to the

defendant); Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450 (1979); State v.

Sensing, 843 S.W.2d 412, 417 (Tenn. 1992); cf. Bourgeois, slip op. at 6-7 (outlining

proper jury instruction for offenses committed prior to 1996 amendment of § 55-10-

                                           7
408).



                                        III

             In his third issue, the defendant alleges that the state failed to meet

its burden of establishing an unbroken chain of custody for the defendant's blood

sample. The state is not required to establish the identity of a blood sample beyond

all possible doubt. State v. Ferguson, 741 S.W.2d 125, 127 (Tenn. Crim. App.

1987) (citation omitted).    Likewise, the state is not required to exclude all

possibilities of tampering. Ferguson, 741 S.W.2d at 127. Rather, the state must

show with reasonable assurance the identity of the evidence. Ferguson, 741

S.W.2d at 127. The sufficiency of proof regarding the chain of custody of physical

evidence is a matter addressed to the sound discretion of the trial court which will

not be overturned on appeal absent a clearly mistaken exercise of discretion. State

v. Baldwin, 867 S.W.2d 358, 361 (Tenn. Crim. App. 1993) (citation omitted).



             The defendant in the case sub judice claims the state failed to offer

sufficient proof of the chain of custody of the defendant's blood sample. We are

unpersuaded. The blood sample was drawn by Laboratory Technician Osborne and

given to Trooper Cash.        Mr. Osborne and Trooper Cash filled out an

Alcohol/Toxicology Request form, then Cash mailed the sample and completed

form to the TBI lab in a kit provided for that purpose. The kit was opened by

Evidence Technician Fleak, who marked the vial of blood with the defendant's name

and identifying numbers and then placed it in a refrigerator. The sample was later

retrieved from the refrigerator by Special Agent Harrison, who analyzed the sample

for blood alcohol content using standard TBI procedures. The procedure employed

by Special Agent Harrison included measures to ensure that each test result was

properly identified as belonging to the person who gave the sample.




                                         8
               We are firmly convinced of the completeness and reliability of the

chain of custody established in this case. Accordingly, we find no merit in this

issue.3



                                         IV

               Finally, in an issue raised at oral argument but not in his brief, the

defendant claims he was denied his constitutional right to confront the witnesses

against him when the trial court admitted Special Agent Harrison's testimony

regarding controlled sobriety test studies even though Harrison did not have any

documentation regarding these studies available at trial for use in defense cross-

examination. The defendant urges us to recognize this alleged shortcoming as

plain error.



               Special Agent Harrison testified during direct examination about

controlled sobriety studies he had conducted. He explained that these studies were

conducted by giving the test subjects measured quantities of alcohol, then

observing their reactions and administering tests. These studies were conducted

on individuals of both sexes and various races and weights. The studies also varied


          3
         We are concerned, however, by the trial court's partial abdication of its
role in determining the threshold admissibility of the evidence based upon a
demonstration of a satisfactory chain of custody. The trial court admitted the
evidence but instructed the jury that it should not accredit the toxicologist's
testimony unless it found beyond a reasonable doubt that the blood sample was
taken from the defendant. The question of whether the threshold requirement of
a satisfactory chain of custody has been met is a matter for the sound discretion
of the trial court, not a question of fact for the jury. See State v. Pamela Jean
Rankins, No. 01C01-9602-CC-00052, slip op. at 6 (Tenn. Crim. App., Nashville,
Feb. 26, 1998) (trial court did not err by not giving special instruction on chain of
custody because such was an issue for sound discretion of trial court); State v.
Willie Gene Ogburn, No. 01C01-9105-CR-00150, slip op. at 5 (Tenn. Crim. App.,
Nashville, May 13, 1992). In this case, the error is harmless because the
evidence of record very clearly establishes a complete chain of custody. In the
future, however, the trial court should determine in its discretion the admissibility
of the proffered physical evidence based upon the chain of custody established
by the proof; the court should refrain from giving a special instruction delegating
this responsibility to the jury.

                                          9
by when and where they were performed and how many subjects participated. He

gave specific information about the studies, including the number of participants and

the identity of the individuals or groups involved with him in conducting the studies.



              When an expert witness testifies about matters within his expertise,

he may be required to divulge the underlying facts or data upon cross-examination.

Tenn. R. Evid. 705. Furthermore, an expert witness's credibility may be impeached

by use of published treatises, periodicals or pamphlets. Tenn. R. Evid. 618.



              In the case under consideration, the witness explained the studies in

detail.   He gave identifying information about the individuals or groups that

participated with him in conducting the studies. After explaining the procedures

employed, he testified about the conclusions he drew from the results obtained.

The defense had the opportunity to extract details about the "underlying facts or

data" on cross-examination but chose not to do so. See Tenn. R. Evid. 618. The

defense apparently sought the underlying information in written form, but there is

no indication in the record that published documentation of these studies exists.

See Tenn. R. Evid. 618, 705. Moreover, we find no indication the defense was

limited in its ability to impeach Special Agent Harrison from published treatises,

pamphlets or periodicals which supported different conclusions than those to which

he testified on direct examination. See Tenn. R. Evid. 705. Because the defense

was in no way limited in its ability to cross-examine Special Agent Harrison, the

claim that the defendant's right to confrontation was abridged must fail.



              In sum, we affirm the judgment of the trial court.



                                           ________________________________
                                           JAMES CURWOOD WITT, JR., JUDGE


                                         10
CONCUR:




_______________________________
GARY R. WADE, PRESIDING JUDGE


_______________________________
THOMAS T. WOODALL, JUDGE




                                  11
