         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 4, 2004

             STATE OF TENNESSEE v. WILLIAM J. PARKER, JR.

                   Direct Appeal from the Circuit Court for Warren County
                          No. M-7661    Larry B. Stanley, Jr., Judge



                    No. M2003-01423-CCA-R3-CD - Filed August 19, 2004


The Defendant, William J. Parker, Jr., was indicted for driving under the influence and driving on
a revoked license. A jury acquitted him of the DUI charge, but found him guilty of driving on a
revoked license, a Class B misdemeanor. The trial court imposed a sentence of six months, with
sixty days to be served in confinement and the balance to be served on probation. In this appeal, the
Defendant raises three issues: 1) whether the State’s failure to provide him with a copy of his driving
record constitutes a violation of his due process rights; 2) whether the trial court erred by admitting
into evidence a sworn affidavit; and 3) whether the sentence imposed by the trial court is excessive.
We conclude that the trial court erred by admitting the affidavit into evidence. Because we are
unable to conclude that the error was harmless, the judgment of the trial court is reversed and the
case remanded for a new trial.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which Jerry L. Smith, J., joined.
THOMAS T. WOODALL, J., filed a dissenting opinion.

Bernard K. Smith (at trial), McMinnville, Tennessee; Thomas F. Bloom (on appeal), Nashville,
Tennessee, for the appellant, William Parker, Jr.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
William M. Locke, District Attorney General; Dale Potter, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                             OPINION

       Officer Tony Jenkins of the McMinnville Police Department testified that, early in the
morning on March 9, 1998, he was on patrol. As he sat at a stop sign, he “heard tires squealing,”
then saw a red Mitsubishi Eclipse “going a little bit faster” than it should have been. The officer
stopped the car. He testified that, upon approaching the driver of the car, he noticed “a strong odor
of alcohol” about the driver, the Defendant, and the Defendant’s eyes were “bloodshot.” The
Defendant was unable to produce a driver’s license, but he did have a Tennessee identification card.

       The officer had the Defendant perform two field sobriety tests: the finger-to-nose test and the
walk-and-turn test. Based on the Defendant’s performance of the tests, Officer Jenkins placed him
under arrest for DUI. A female passenger was in the car with the Defendant, and the officer testified
that she was very intoxicated, so he arrested her as well. The Defendant refused to take a
breathalyzer test.

        Several witnesses, including the Defendant, testified that the Defendant’s “common law
wife” had been to a bar on the evening of March 9, 1998. The Defendant received a phone call that
his wife, who had “a past history of getting kind of violent and very ill-tempered when she drinks,”
was intoxicated and he needed to take her home. Despite the fact that he did not have a driver’s
license, the Defendant drove to the bar to pick up his wife. The Defendant testified that his wife
resisted leaving the bar, and she “slung” her drink on him.

        The Defendant admitted to driving without a driver’s license, but he maintained that his
license was “restricted,” not revoked. He also testified that he had been stopped by a police officer
prior to the incident in question, and the officer simply gave him a ticket for driving without a
license. “[W]ithin a week or two” of the instant offense, the Defendant got a new driver’s license.
Based on this evidence, the jury acquitted the Defendant of driving under the influence, but found
him guilty of driving on a revoked license.

       The first issue the Defendant raises is whether the State’s failure to provide him with a copy
of his driving record pursuant to his discovery request violates due process. Under Brady v.
Maryland, “suppression by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment.” 373 U.S. 83, 87, 83 S.
Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963). However, “[t]he evidence is material only if there is
a reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to
undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375,
3383, 87 L. Ed. 2d 481 (1985).

       Thus, a defendant must satisfy the following four prerequisites in order to demonstrate a due
process violation under Brady v. Maryland:

       1. The defendant must have requested the information (unless the evidence is
       obviously exculpatory, in which case the State is bound to release the information
       whether requested or not);
       2. The State must have suppressed the information;
       3. The information must have been favorable to the accused; and
       4. The information must have been material.



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State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). The defendant bears the burden of proving a
Brady violation by a preponderance of the evidence. See id. “The key to proving a constitutional
violation is to show that the omission is of such significance as to deny the defendant the right to a
fair trial.” Id.

         First, the Defendant failed to raise the Brady issue in his motion for a new trial. Therefore,
this issue is waived. See Tenn. R. App. P. 3(e). Furthermore, this issue is without merit. In State
v. Wanda Hinson, No. M2000-02762-CCA-R3-CD, 2002 WL 31202134, at *10-11 (Tenn. Crim.
App., Nashville, Sept. 27, 2002), this Court held that the defendant was not prejudiced by the State’s
failure to provide her with the criminal records of three of the State’s witnesses. The court reasoned
that the records were public in nature; therefore they were available to the defendant upon request.
See id. at *11. “Because these arrest and conviction records were equally available to the defendant,
the harm that the Brady disclosure requirement was designed to prevent was not present in the instant
case.” Id. Likewise, in this case, the Defendant’s driving record was a public record that was
available to him upon request. See Tenn. Code Ann. § 10-7-507. As his driving record was always
available to him, the Defendant was not prejudiced by the State’s failure to provide it to him during
discovery.

         The Defendant’s next issue is whether the trial court erred by admitting into evidence the
sworn affidavit of Kenneth Birdwell, a records custodian for the Tennessee Department of Safety.
The affidavit states that the “status” of the Defendant’s driving privileges on March 9, 1998 was
“revoked.” The Defendant’s driving record was not admitted into evidence because it obtained
“objectionable material.” Defense counsel objected to the admission of the affidavit, saying,
“Technically I wouldn’t be able to cross-examine the man that says that is his driving record.” The
trial judge responded, “Okay, so your objection is hearsay?” Defense counsel replied, “My objection
would be hearsay.” The trial court admitted the affidavit of Mr. Birdwell under the public records
exception to the rule against hearsay to show that the Defendant’s license was, in fact, revoked.

        Tennessee Rule of Evidence 803(8), the public records exception, states that the following
is not excluded by the hearsay rule:

               Unless the source of information or the method or circumstances of
       preparation indicate lack of trustworthiness, records, reports, statements, or data
       compilations in any form of public offices or agencies setting forth the activities of
       the office or agency or matters observed pursuant to a duty imposed by law as to
       which matters there was a duty to report, excluding, however, matters observed by
       police officers and other law enforcement personnel.

This Court has previously held that driving records maintained by the Tennessee Department of
Safety fall within the public records hearsay exception. See generally State v. Baker, 842 S.W.2d
261, 264 (Tenn. Crim. App. 1992); State v. Donnie Ray Sisk, No. 01C01-9803-CC-00143, 1999 WL
298221, at *4-5 (Tenn. Crim. App., Nashville, May 12, 1999). However, in this case, the trial court
did not admit the Defendant’s driving record into evidence. The only evidence offered by the State


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and allowed into evidence by the trial court which indicated that the Defendant’s license was
“revoked” was the bare affidavit of Mr. Birdwell.

         Mr. Birdwell’s affidavit was hearsay because it was “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted,” specifically, that the Defendant’s license was revoked at the time of his DUI arrest. Tenn.
R. Evid. 801(c). Therefore, the affidavit was inadmissible unless it fell within a hearsay exception.
See Tenn. R. Evid. 802. We conclude that, while a defendant’s official driving record is admissible
under Tennessee Rule of Evidence 803(8), the rule does not allow for the admission into evidence
of a bare affidavit stating what the records would show. We do not believe that the rule
contemplates the admission into evidence of statements prepared solely for use in litigation. The rule
states that public records and reports are admissible when such records set forth “the activities of the
office or agency or matters observed pursuant to a duty imposed by law as to which matters there
was a duty to report . . . .” Tenn. R. Evid. 803(8). While Tennessee Code Annotated section 55-50-
204 requires the Department of Safety to maintain driving records, that section does not require
agents of the department to prepare letters or affidavits to be used in litigation. Therefore, the
affidavit of Mr. Birdwell was inadmissible hearsay, and the trial court erred by admitting it into
evidence.

       Furthermore, we conclude that the error was not harmless because it appears to have affected
the result of the trial. See Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b). Aside from Mr.
Birdwell’s affidavit, the State offered no other proof that the Defendant’s license had been revoked.
The Defendant was the only witness who testified with respect to the status of his driver’s license.
On direct examination, the Defendant’s attorney asked him, “At that time did you realize you were
on revoked status?” The Defendant answered,

               The only thing, as God is my witness, the only thing I thought I was doing
       was driving without a license. I was eligible to get them back two to three months
       prior to that. I’m guilty of procrastinating to not go back and get my license, which
       I should have done. I did immediately after that arrest. That is what I am guilty of.
       That I did not go get those license [sic]. I procrastinated and I should have done it,
       but I didn’t. They were eligible to be gotten back, I don’t even know how much, a
       month, two months, maybe even longer prior to that night. I was under the
       impression I was driving just without a license. As a matter of fact, I had been pulled
       over going to work one morning in Nashville the other side of Woodbury and he had
       told me the same thing and give me a ticket for no drivers license. He told me to get
       them. Which I again procrastinated. But that is the only thing I am guilty of, as far
       as driving goes, is driving without a license.

Thereafter his lawyer asked him, “Had you known that you had been on a revoked status or had not
had that temporary driver’s license, would you have driven that night?” The Defendant responded,
“No, sir. I would not have.” After the Defendant testified that the police videotape would show that
he was not under the influence at the time of his arrest, his lawyer said, “You could still make a good


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argument about the license though, you realize that?” The Defendant replied, “Yes, sir. That one
is my fault. The license one, I admit. I just did not know that it stayed that status. I thought it was
just a no driver’s license.” Again, his defense counsel inquired, “Did you know that you were still
on revoked status, or supposedly were on revoked?” The Defendant answered, “No. At that time
I thought it was a no driver’s license. That’s what I thought, I was on no driver’s license.” The
Defendant further testified that he had no intention to drive on a revoked driver’s license.

       On cross-examination, the attorney for the State asked the Defendant, “But I thought you told
[defense counsel] that you knew that you were driving on no driver’s license, but didn’t realize it was
revoked?” The Defendant replied, “That’s exactly what I’m saying. That’s what I’ve said numerous
times here. I thought I was driving on no driver’s license. At the time I got pulled over, I thought
I was on no driver’s license.” The prosecutor then asked, “When was your license revoked?” The
Defendant responded, “I’m not sure, sir.”

        At no time during his testimony did the Defendant admit that he was, in fact, driving on a
revoked driver’s license. He said that he did not think that his license was revoked; rather, he
thought he was driving without a license.1 The State bore the burden of proving beyond a reasonable
doubt that the Defendant’s license was revoked at the time of his arrest. Without the inadmissible
affidavit, we must conclude that the evidence with respect to the charge of driving on a revoked
license was insufficient to support a conviction. Therefore, we are unable to conclude that the trial
judge’s error in admitting the affidavit was harmless. Accordingly, we reverse the Defendant’s
conviction and remand the case for a new trial.2

         Although we conclude that the Defendant is entitled to relief based on his second issue, we
will briefly address his final contention, which is that the trial court imposed an excessive sentence.
Driving on a revoked license is a Class B misdemeanor, punishable “by confinement for not less than
two (2) days nor more than six (6) months.” Tenn. Code Ann. § 55-50-504(a)(1). The trial court
ordered the Defendant to serve sixty days in jail, with the balance of his six-month sentence to be
served on probation. The Defendant argues that, based on the existence of eight mitigating factors,
the trial court should have ordered him to serve only two days in confinement.

         The Defendant’s argument is without merit for two reasons. First, the technical record
reflects that the Defendant submitted only two “catch-all” mitigating factors to be considered by the
trial court in sentencing, rather than the eight he proposes in his brief. See Tenn. Code Ann. § 40-35-
113(13). Second, the record reflects that the trial judge scheduled a sentencing hearing for January
22, 2003. However, the record does not contain a transcript of the sentencing hearing, which is


         1
          W e note that the jury credited the Defendant’s testimony with respect to whether he was driving under the
influence and found him not guilty of that charge.

         2
           The Defendant also vaguely notes that the admission of the bare affidavit implicates his Sixth Amendment right
to confront witnesses against him. However, as we have determined that the affidavit constituted inadmissible hearsay
and that the trial court’s error in admitting it into evidence warrants a reversal, we need not consider the Defendant’s
constitutional argument.

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necessary for a meaningful review of the trial court’s sentencing decision. It is the defendant’s duty
to ensure that the appellate record contains all of the evidence relevant to the issues which are the
basis of the appeal. See Tenn. R. App. P. 24(b). In the absence of an adequate record on appeal, this
Court must presume the trial court’s rulings were supported by the evidence. See State v. Gibson,
973 S.W.2d 231, 244 (Tenn. Crim. App. 1997); State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim.
App. 1991). Furthermore, the presentence report reflects that the Defendant has an extensive
criminal history, with many driving offenses including convictions for driving under the influence
and driving on a revoked license. Therefore, this issue is without merit.

       The judgment of the trial court is reversed and the case remanded for a new trial.



                                                       ___________________________________
                                                       DAVID H. WELLES, JUDGE




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