         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                         AT KNOXVILLE          FILED
                       MAY 1998 SESSION          June 30, 1998

                                              Cecil Crowson, Jr.
                                               Appellate C ourt Clerk
STATE OF TENNESSEE,            )
                               )    NO. 03C01-9611-CR-00390
      Appellee,                )
                               )    WASHINGTON COUNTY
VS.                            )
                               )    HON. ARDEN L. HILL,
JACKIE W. KESTNER,             )    JUDGE
                               )
      Appellant.               )    (DUI)



FOR THE APPELLANT:                  FOR THE APPELLEE:

MURRAY C. GROSECLOSE, III           JOHN KNOX WALKUP
(At Trial)                          Attorney General and Reporter
208 E. Market Street
Kingsport, TN 37660-4325            MICHAEL J. FAHEY, II
                                    Assistant Attorney General
JACKIE W. KESTNER                   Cordell Hull Building, 2nd Floor
(On Appeal)                         425 Fifth Avenue North
140 Alvin Street                    Nashville, TN 37243-0493
Kingsport, TN 37660
                                    DAVID E. CROCKETT
                                    District Attorney General

                                    KENT W. GARLAND
                                    Assistant District Attorney General
                                    Unicoi County Courthouse
                                    Erwin, TN 37650




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                       OPINION


       Defendant, Jackie W. Kestner, was convicted by a Washington County jury

of driving under the influence, second offense. Although the defendant lists thirteen

(13) issues for our review, we consolidate them into the following:

       1.      whether the trial court erred in admitting testimony of
               the horizontal gaze nystagmus test;

       2.      whether the arresting officer gave inconsistent and
               prejudicial testimony;

       3.      whether the trial court made a prejudicial statement to
               the jury;

       4.      whether defendant was improperly denied the right to
               make a phone call to his counsel;

       5.      whether defendant was improperly denied the right to
               use a videotape of the arrest;

       6.      whether the prosecuting attorney made improper
               remarks in the closing argument; and

       7.      whether defendant was denied the right to a speedy
               trial.

Although we find that the trial court erroneously admitted testimony concerning the

horizontal gaze nystagmus test, we find the error to be harmless. We affirm the

judgment of the trial court.



                      HORIZONTAL GAZE NYSTAGMUS TEST



       The testimony of the arresting officer included testimony concerning the

horizontal gaze nystagmus test. The state concedes the testimony was improperly

admitted under the standards of State v. Murphy, 953 S.W.2d 200 (Tenn. 1997). 1

Murphy held that testimony concerning the horizontal gaze nystagmus test



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          The arresting officer had extensive training and experience in DUI detection and field
sobriety testing. He had numerous certifications and was an instructor on field sobriety
testing. We agree with the state’s observation that he “may be the most qualified law
enforcement officer in this state to administer a horizontal gaze test.” However, the testimony
of the officer did not “explain the underlying scientific basis of the test in order for the
testimony to be meaningful to a jury.” State v. Murphy, 953 S.W.2d at 202. Although the
issue is close, we are constrained to agree with the state and the defendant that the testimony
did not meet the Murphy standards.

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constitutes scientific evidence requiring the witness to be qualified as an expert

pursuant to Tenn. R. Evid. 702 and 703. In fairness to the trial court, we note that

Murphy was not decided until after the trial of this case. Nevertheless, we examine

this error to determine whether it was prejudicial to the defendant.

       On July 20, 1993, at approximately 12:36 a.m. the defendant was arrested

by Trooper Billy Grooms. Grooms followed the defendant for approximately three-

quarters (3/4) of a mile and observed the defendant’s vehicle go on to the road

shoulder across the white line, come back across the center line and then straddle

the center line. Upon stopping the defendant the trooper detected a strong smell

of alcohol on the defendant’s breath as well as slurred speech. Defendant’s eyes

were bloodshot, and he was unsteady on his feet to the extent of staggering from

side to side.

       In addition to the horizontal gaze nystagmus test, the officer administered two

(2) other field sobriety tests. The first was the one-leg stand in which the defendant

was unable to follow directions. He was only able to count to four (4) rather than

twenty-five (25) with one (1) leg raised. Upon being asked to make another attempt,

the defendant declined.

       The walk-and-turn test was also administered. The defendant was unable

to keep his balance and stepped off the white line. In walking away from the officer,

he missed his heel-to-toe seven (7) out of ten (10) times and missed six (6) out of

nine (9) times upon his return walk.

       The defendant stated on two (2) or more occasions that he “knew he had too

much to drink and drive.” He refused the blood alcohol test and stated he wanted

to talk to his attorney first.

       The officer was of the opinion that the defendant was impaired and driving

under the influence of an intoxicant.

       The defense proof consisted of one (1) witness who observed the defendant

at approximately 3:00 or 3:30 a.m. and testified the defendant “looked perfectly fine

to me.” Two (2) other witnesses, who were with the defendant at a beer tavern

throwing darts just prior to the arrest, opined that the defendant was not under the



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influence of an intoxicant when he left the beer tavern. One of these witnesses

noted the defendant “was throwing pretty good darts” in the dart tournament and

made “the final four.”

       The defendant testified he bought only four (4) beers over the course of the

evening while at the beer tavern and consumed about three (3) of those beers,

considering he did not drink all of the beer in each can. He denied being under the

influence of an intoxicant and denied that the officer requested him to do the one-

leg stand. He further contended that he performed well on the heel-to-toe test.

Moreover, he testified that he did well on the finger to nose test, and that the officer

was untruthful in stating that this test was never administered. Defendant denied

stating to the officer that he had too much to drink. The essence of the defendant’s

testimony was that the officer was untruthful in his testimony.

       This was a classic case pitting the credibility of the officer against the

credibility of the defendant. The jury obviously rejected the defendant’s testimony

and accredited the testimony of the officer. In considering the whole record, we are

unable to find that the outcome of the trial would have been any different had the

horizontal gaze nystagmus testimony not been presented. This Court has found

harmless error in other cases involving this issue. See State v. William F. Hegger,

C.C.A. No. 01C01-9607-CR-00283, Davidson County (Tenn. Crim. App. filed March

4, 1998, at Nashville); State v. Mark Summers, C.C.A. No. 03C01-9606-CR-00235,

Hamilton County (Tenn. Crim. App. filed December 4, 1997, at Knoxville); State v.

Clinton Darrell Turner, C.C.A. No. 03C01-9604-CC-00151, Cocke County (Tenn.

Crim. App. filed July 9, 1997, at Knoxville).

       The error was harmless. Tenn. R. App. P. 36(b).



               OFFICER’S ALLEGED PREJUDICIAL TESTIMONY



       Defendant refers to numerous instances in which the arresting officer gave

inconsistent and prejudicial testimony. In most instances there was no objection

made to the testimony. Accordingly, these are waived. See Tenn. R. App. P. 36(a).



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Furthermore, defendant failed to raise these matters in the motion for new trial.

This results in a waiver of all issues. See Tenn. R. App. P. 3(e). Furthermore, our

review of the record does not indicate that defendant is entitled to relief on any of

these matters.



                          TRIAL COURT’S STATEMENT



       Defendant complains of the trial court’s statement to the jury, “I hate to

inconvenience you...” This statement was made upon the trial court deciding to

recess court for the day and bring the jury back on another day to complete the trial.

The statement was not prejudicial to the defendant. This issue is without merit.



                                   PHONE CALL



       Defendant contends he was not allowed to make a phone call to his counsel.

See Tenn. Code Ann. § 40-7-106(b). This issue was never brought before the trial

court and was not in the motion for new trial. The issue is waived. See Tenn. R.

App. P. 3(e); 36(a).



                                    VIDEOTAPE



       Defendant contends he was improperly deprived of the videotape taken of

his arrest. Testimony revealed the videotape had been erased prior to trial. There

was no showing of any intentional misconduct on the part of the state. See Arizona

v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); State v.

Eldridge, 951 S.W.2d 775, 778 (Tenn. Crim. App. 1997). Furthermore, the issue

was waived by the failure to object at trial and include the issue in the motion for

new trial. See Tenn. R. App. P. 3(e); 36(a).




                                          5
                               CLOSING ARGUMENT



       Defendant contends the prosecuting attorney made misstatements of fact in

his closing argument. The statements related to whether the defendant himself had

viewed the videotape and the refusal of the defendant to take the blood alcohol test.

In both instances the trial court properly instructed the jury that they were the judges

of what the testimony actually was. We find no prejudice to the defendant. This

issue is without merit.



                            RIGHT TO SPEEDY TRIAL



       Defendant contends his jury trial, conducted almost three (3) years after his

arrest, deprived him of the right to speedy trial. This issue was not raised before the

trial court. The record is insufficient to allow an adequate review of this issue. The

issue is waived. See Tenn. R. App. P. 36(a).



                                   CONCLUSION



       For the above reasons, we affirm the judgment of the trial court.




                                                   ___________________________
                                                   JOE G. RILEY, JUDGE

CONCUR:



________________________________
JOSEPH M. TIPTON, JUDGE



________________________________
CURWOOD WITT, JUDGE




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