        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                             Assigned on Briefs May 15, 2012

            STATE OF TENNESSEE v. PATRICK LYNN CRIPPEN

                Direct Appeal from the Criminal Court for Knox County
                          No. 91305     Bob R. McGee, Judge




                No. E2011-01242-CCA-R3-CD - Filed November 6, 2012


Defendant, Patrick Lynn Crippen, was indicted by the Knox County Grand Jury for driving
under the influence (DUI), violating the implied consent law, failing to provide proper
evidence of financial responsibility, and violation of state registration law. Defendant
waived his right to the appointment of counsel and subsequently filed motions to dismiss for
want of prosecution and to suppress evidence of his performance on field sobriety tests,
which were both denied by the trial court. Following a jury trial, at which Defendant
represented himself, Defendant was convicted of DUI and found in violation of the implied
consent law. The remaining charges were dismissed prior to trial. Defendant was sentenced
by the trial court to 11 months and 29 days to be served at 75 percent. Defendant appeals his
conviction pro se and asserts that: 1) he was deprived of his constitutional right to a speedy
trial; 2) the trial court erred by allowing the officer to testify about Defendant’s field sobriety
tests; 3) the trial court improperly excluded evidence that the Knoxville Police Department
unlawfully “stacked” charges against him; 4) that the State violated Brady v. Maryland, 373
U.S. 83 (1963); 5) that the jury should have been instructed as to the availability of
audio/visual equipment in the jury room; and 6) that Defendant was not properly informed
of a hearing on his motion for new trial. Finding no error, we affirm the judgments of the
trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and N ORMA M CG EE O GLE, J., joined.

Patrick Lynn Crippen, Clinton, Mississippi, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney
General; Randall E. Nichols, District Attorney General, Jamie Carter, Assistant District
Attorney General; and Sarah Winningham Keith, Assistant District Attorney General, for the
appellee, State of Tennessee.

                                        OPINION

Facts

        Ronald Gande testified that in the early morning hours of November 15, 2008, he was
working as a tow truck operator. He responded to an “out of gas” service call at a Food City
store on Western Avenue in Knoxville. When he arrived, he saw Defendant sitting in the
driver’s seat of his car, which was parked near the gas pumps. Mr. Gande testified that
Defendant’s car was “wiped out” and appeared to have been in a wreck. Defendant got out
of his vehicle and Mr. Gande approached him. Mr. Gande testified that Defendant appeared
“disoriented” and that he smelled something that he thought was alcohol. Defendant was
also “stumbling around a little bit.” Mr. Gande testified that he believed that Defendant had
been drinking, and he called the Knoxville Police Department from his tow truck.

        Officer Guy Smith, of the Knoxville Police Department, was on patrol on November
15, 2008, with Officer Brandon Shelley. They responded to a call at the Food City on
Western Avenue. Officer Smith testified that when they arrived, Defendant appeared to be
“completely disheveled.” Officer Smith testified that Defendant “smelled strongly of
alcohol,” and his speech was “slightly mumbled to slightly slurred.” Defendant’s vehicle
“was pretty badly beaten up.” Defendant agreed to perform field sobriety tests. Defendant
stated that he did not have any physical condition that would prevent him from performing
the tests. Officer Smith testified that Defendant “clearly demonstrated” several clues
indicative of impairment during the walk and turn test and the one-legged stand. Officer
Smith placed Defendant under arrest. Officer Smith testified that Defendant initially agreed
to a blood alcohol test, but later refused.

       Officer Brandon Shelley of the Knoxville Police Department testified that he was with
Officer Smith when they responded to a call about Defendant’s vehicle. Officer Shelley
observed Defendant perform the field sobriety tests and testified that Defendant performed
poorly on the tests. Officer Shelley testified that Defendant refused to submit to a blood
alcohol test after Officer Shelley advised Defendant of the implied consent form.

       A video recording shows the officers pull into a gas station and park behind
Defendant’s vehicle, which was parked beside a gasoline pump. It was dark outside and
raining. Defendant’s vehicle had visible damage on the right rear side. Defendant was
standing outside his vehicle, and he spoke to the officers after they approached him. He
apparently described the accident and explained to the officers that the vehicle was out of

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gas. Defendant agreed to perform field sobriety tests, and one of the officers demonstrated
the walk and turn test to Defendant. Defendant appeared unsteady and off balance several
times during the walk and turn test, and one of the officers commented that Defendant
appeared to be taking a “leisurely stroll.” The officer demonstrating the tests had to repeat
several of the instructions to Defendant. Defendant stated that he did not “have a problem
with balance.” He stated that he was tired. Defendant was placed under arrest and
handcuffed. Defendant indicated that he was willing to submit to a blood test, and one of the
officers advised him that the results of such a test would be used against him as evidence in
the prosecution of his case. Defendant was then placed in the backseat of the patrol car.
There is some conversation between Defendant and one or both of the officers while
Defendant is in the patrol car; however, our review of the video recording taken between the
officers’ arrival at the scene and the officers’ arrival at the police station following
Defendant’s arrest does not show an implied consent form being read to or explained to
Defendant.

Analysis

Speedy Trial

      Defendant first asserts that he was denied his right to a speedy trial. The State
responds that Defendant has waived this issue by failing to present an adequate record for
review of the issue.

        Once the State initiates criminal proceedings, the right to a speedy trial is implicated
pursuant to the Sixth Amendment to the United States Constitution and to article 1, section
9 of the Tennessee Constitution. The right to a speedy trial in criminal prosecutions is also
statutory in Tennessee. Tenn. Code Ann. § 40-14-101. In Barker v. Wingo, 407 U.S. 514,
530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101 (1972), the Supreme Court identified three
interests which the right to a speedy trial was meant to protect: (1) the prevention of
oppressive pre-trial incarceration; (2) the minimization of anxiety and concern of the
accused; and (3) limiting the possible impairment of the defense. See also Doggett v. U.S.,
505 U.S. 647, 654, 112 S. Ct. 2686, 2692, 120 L. Ed. 2d 520 (1992); State v. Utley, 956
S.W.2d 489, 492 (Tenn. 1997). “Of these forms of prejudice, ‘the most serious is the last,
because the inability of a defendant adequately to prepare his case skews the fairness of the
entire system.’” Doggett, 505 U.S. at 654, 112 S. Ct. at 2692 (quoting Barker, 407 U.S., at
532, 92 S. Ct. at 2193).

       Under Barker, the following factors are considered in determining whether an
accused’s right to a speedy trial was violated: (1) the length of the delay, (2) the reasons for
the delay, (3) the assertion of the right, and (4) the prejudice to the defendant in light of the

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facts and circumstances of the particular case. Barker, 407 U.S. at 530-32, 92 S. Ct. at
2192-93; see also State v. Bishop, 493 S.W.2d 81, 84-85 (Tenn. 1973) (implicitly adopting
the Barker balancing test for our state’s constitutional and statutory right to a speedy trial).
All four factors are to be balanced in light of the facts and circumstances of the case. Barker,
407 U.S. at 533, 92 S.Ct. at 2193. This court reviews a trial court’s decision on an alleged
speedy trial violation for an abuse of discretion. State v . Hudgins, 188 S.W.3d 663, 667
(Tenn. Crim. App. 2005).

       Defendant was indicted for the offenses in this case on April 8, 2009, and his trial
began on February 23, 2011. On December 14, 2009, Defendant filed a motion to dismiss
for want of prosecution. Following a hearing on January 22, 2010, Defendant’s motion was
denied. The record before us contains a minute entry reflecting the same; however, the
record does not include a transcript of the hearing or the trial court’s written order, if any.

       On appeal, Defendant was required to prepare a record that conveyed a fair, accurate,
and complete account of what transpired with respect to those issues that are the bases of the
appeal. Tenn. R. App. P. 24(b); State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). Our
supreme court has previously explained that an appellant must provide a sufficient record on
appeal:

        When a party seeks appellate review there is a duty to prepare a record
        which conveys a fair, accurate and complete account of what transpired
        with respect to the issues forming the basis of the appeal. Where the record
        is incomplete and does not contain a transcript of the proceedings relevant
        to an issue presented for review, or portions of the record upon which the
        party relies, an appellate court is precluded from considering the issue.
        Absent the necessary relevant material in the record an appellate court
        cannot consider the merits of an issue.

Ballard, 855 S.W.2d at 560 (citations omitted). “In the absence of an adequate record on
appeal, this Court must presume that the trial court’s rulings were supported by sufficient
evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).

        Because the record before us does not contain a transcript of the hearing on
Defendant’s motion to dismiss for want of prosecution, in which he asserted his right to a
speedy trial, we are unable to consider at least two of the four Barker factors. The length of
the delay is clear from the record, and because it is longer than one year, inquiry into the
remaining factors is triggered. Barker, 407 U.S. at 530; Hudgins, 188 S.W.3d 667. As is
also reflected in the record, Defendant first asserted his constitutional right to a speedy trial
on December 14, 2009, when he filed his motion to dismiss the indictment for want of

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prosecution. The assertion of the speedy trial right is “entitled to strong evidentiary weight”
in the analysis, particularly since in some situations, prolonged delays may actually benefit
the defendant. Barker, 407 U.S. at 521, 531-32.

        Nevertheless, the absence in the record of a transcript of the hearing on Defendant’s
motion or a written order by the trial court prevents us from considering the reasons for the
delay or the prejudice, if any, to defendant. Therefore, we are unable to determine whether
the trial court abused its discretion in denying Defendant’s motion, and we must presume the
trial court acted within its discretion. Therefore, Defendant is not entitled to relief on this
issue.

Motion to Suppress

        Defendant next argues that the trial court erred by denying his motion to suppress the
officers’ testimony about the field sobriety tests given to him. Defendant asserts in his brief
that the video recording of him performing field sobriety tests should have been suppressed
because “it actually display[ed] only a stunned and injured elderly Defendant attempting to
accommodate police’s orders. . . .” Prior to trial, Defendant filed a motion to suppress any
evidence regarding the field sobriety tests because the tests

        were fatally flawed because they should never have been administered to
        Defendant at that time and place, that [the Knoxville Police Department]
        knew of options to administering these fatally flawed [field sobriety tests],
        and that production at trial of these fatally flawed [field sobriety tests], or
        any reference thereof, would be unconstitutionally prejudicial to the
        Defendant’s rights to a fair trial and to the administration of justice.

      The trial court conducted a hearing on Defendant’s motion and denied it, concluding
that Defendant’s challenge concerned the weight of the officers’ testimony and not its
admissibility.

       “‘Relevant evidence’ means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401. “Generally all relevant
evidence is admissible except as provided by . . . [the] rules [of evidence].” Tenn. R. Evid.
402. The admissibility, relevancy, and competence of evidence are matters entrusted to the
sound discretion of the trial court. With that principle in mind, we review the trial court’s
evidentiary rulings for an abuse of discretion. See State v. DuBose, 953 S.W.2d 649, 652
(Tenn. 1997); State v. Gray, 960 S.W.2d 598, 606 (Tenn. Crim. App. 1997).



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        Tennessee courts have consistently affirmed convictions over a defendant’s challenge
to a conviction based, at least in part, on a trial court’s admission of testimony about
performance of field sobriety tests by a defendant accused of driving under the influence.
(citing State v. Donte Collins, No. M2004-02564-CCA-R3-CD, 2005 WL 3369246, *5
(Tenn. Crim. App., at Nashville, Dec. 12, 2005), perm. app. denied (Tenn., May 1, 2006);
State v. Stacy R. Dowell, No. E2002-01918-CCA-R3-CD, 2003 WL 402815, *5 (Tenn. Crim.
App., at Knoxville, Feb. 24, 2003), no Rule 11 app. filed.

       This court has previously held,

        [B]ecause a driver’s objective manifestations of intoxication are always
        relevant in a driving under the influence prosecution, we agree with the long
        line of Tennessee cases holding field sobriety tests to be admissible. A
        driver’s behavior and appearance can indicate the possibility, if not the
        exact level, of the driver’s intoxication. The administration of a field
        sobriety test provides a sample of the driver’s behavior for the officer and,
        ultimately, the trier of fact to consider when determining whether the driver
        was under the influence of alcohol and, if so, to what extent.

        ....

        In our view, the Defendant’s argument was answered in State v. Murphy
        and its progeny. In those cases, the Tennessee Supreme Court and this
        Court held that the results of the field sobriety tests used in this case are
        indeed readily decipherable by an average juror, and, thus, require no
        additional testimony to establish the relevance of the results.

State v. Michael L. Hodges, No. M2008-00776-CCA-R3-CD, 2009 WL 2971073 at *4-5
(Tenn. Crim. App., at Nashville, Sept. 17, 2009), perm. app. denied (Tenn., March 22, 2010).

      We conclude that the trial court did not err in denying Defendant’s motion to suppress.
Defendant is not entitled to relief on this issue.

Evidence of “stacking” charges

        Defendant next argues that the trial court should have allowed him to present evidence
that the Knoxville Police Department unlawfully “stacked” charges against him. In his brief,
Defendant asserts that “KPD officers at the time of arrest of Defendant, having no actual,
sustainable bases for charges against Defendant, did deliberately unconstitutionally fabricate



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all their charges against him.” In this same argument, Defendant also asserts that he should
have been allowed to impeach the officers with their prior inconsistent statements.

        During Defendant’s cross-examination of Officer Smith, Defendant directed Officer
Smith to “read the narrative” of the affidavit of complaint in the police report. The State
objected on the basis that it was a hearsay statement. The trial court sustained the objection,
ruling that “police reports cannot come into evidence.” Defendant began reading from the
affidavit, and the State again objected. The trial court stated that “the police report itself is
inadmissible,” but the trial court told Defendant that he could ask the officer, “Did you say
this? Did you say that? Did you do this?” Defendant then asked Officer Smith whether he
charged Defendant with any offenses other than DUI and implied consent. The State
objected on the basis of relevance, and the trial court sustained the objection because the
registration and insurance charges were dismissed prior to trial.

       During Defendant’s cross-examination of Officer Shelley, he attempted to read from
the arrest warrant, and the State objected. The trial court stated,

        THE COURT:             You’re using this kind of evidence as a prior statement
                               made by the witness. You can use it to impeach his in
                               court testimony if it’s in conflict with his testimony.
                               But it’s not evidence that could be offered
                               substantively to prove a point.

        ....

        THE COURT:             It’s not – you can use it as a prior inconsistent
                               statement, it is admissible to impeach the testimony of
                               the witness if it is in conflict with his in court
                               testimony. But it is not substantive evidence of any –
                               (inaudible) – that’s the law.

        [DEFENDANT]:           Can it be introduced into evidence?

        THE COURT:             No. – (inaudible) –

        [PROSECUTOR]: And just so that we’re all clear, we’re not getting into
                      the other two charges because they’re not before the
                      Court and they’re not relevant. So if he wants to
                      question him about – my objection – let me clarify.
                      My objection partially to this document is you having

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                               him read stuff that is not before the Court. So stuff
                               about the registration and stuff about the insurance is
                               not relevant and I would ask that it be excluded on
                               that basis.

        THE COURT:             – (inaudible) – but if there’s a statement in the warrant
                               about the DUI that you believe is inconsistent with the
                               testimony he’s offered in Court, you may ask him
                               about that. But you’re bound by his answers. You
                               could simply bring it up.

        The trial court then reiterated that Defendant could not “introduce the warrant itself
as substantive evidence” and directed Defendant to “stay away from [questions about]
registration and insurance.”

        Relying on Tennessee Rule of Evidence 803(8), the State asserts that the trial court
properly excluded the affidavit of complaint because police reports are specifically excluded
from the hearsay exception. We have previously held, “[i]f offered for the truth of the matter
contained within them, police reports are hearsay and not admissible as a public record.”
State v. Michael Brady, No. M1999-02253-CCA-R3-CD, 2001 WL 30220, at *9 (Tenn.
Crim. App., at Nashville, Jan. 12, 2001), perm. app. denied (Tenn., May 14, 2001); see also
State v. Sona Marie Cauldwell, No. 03C01-9305-CR-00149, 1994 WL 111060, at *5 (Tenn.
Crim. App., at Knoxville, March 25, 1994). Therefore, the trial court’s conclusion that the
affidavit and arrest warrant were inadmissible as substantive evidence is correct, and the trial
court did not abuse its discretion in disallowing the evidence.

        Regarding Defendant’s contention that he was improperly denied the right to impeach
the officers’ testimony with the evidence, this issue is without merit. The record clearly
shows that the trial court ruled that Defendant could cross-examine the officers about any
inconsistent statements contained in the documents. Evidence contained in the reports that
Defendant was also charged with violations of the financial responsibility and registration
laws was not relevant under Tennessee Rules of Evidence 401 and 402 because those charges
were dismissed prior to trial. There is also nothing in the record to support Defendant’s
allegation that the officers lacked any bases for the charges for which Defendant was tried
or that the officers “fabricated” all charges against him. Defendant is not entitled to relief
on this issue.




                                              -8-
Alleged Brady Violations

       Defendant next contends that the State failed to provide him with discoverable
information prior to trial. Defendant submits that he properly requested discovery from the
State pursuant to Tennessee Rule of Criminal Procedure 16. Included in the record on appeal
is “Defendant’s Request for Disclosure of Evidence,” presumably served on the Assistant
District Attorney General prior to trial. Nevertheless, Defendant has not identified on appeal
any evidence, exculpatory or otherwise, that the State failed to disclose.

       Defendant acknowledges in his brief that he obtained documents pertinent to his case
from the Knoxville Police Department; in fact, as has already been addressed in this opinion,
Defendant attempted to introduce as exhibits the affidavit of complaint and arrest warrant.
Moreover, as the State points out in its brief, all three of the State’s witnesses were identified
on the indictment.

        When a defendant claims on appeal that discoverable evidence was not disclosed prior
to trial as required by Tennessee Rule of Criminal Procedure 16, “the burden rests on the
defense to show the degree to which the impediments to discovery hindered trial preparation
and defense at trial.” State v. Brown, 836 S.W.2d 530, 548 (Tenn. 1992). Whether a
defendant has been prejudiced by the State’s failure to disclose information is a significant
factor in determining an appropriate remedy. State v. Smith, 926 S.W.2d 267, 270 (Tenn.
Crim. App. 1995).

       Defendant has identified no discoverable information that he should have been
provided by the State, and Defendant has not demonstrated how he was prejudiced by the
State’s alleged failure to respond to his discovery request. Defendant is not entitled to relief
on this issue.

Audio/video equipment in the jury room

        Defendant asserts that, “for the jury to evaluate Defendant’s rightful line of defense,
it was matter-of-fact essential that there be audio/visual instruments offered and available,
or at least included in their charge for their routine review, either in the jury room, or for the
jury to return to the courtroom to view/listen to the KPD video.” Defendant argues that
because his defense was based primarily upon the discrepancies in the officers’ testimony
and the video, the trial court’s failure to instruct the jury as to the availability of audio/visual
equipment deprived him of his right to a fair trial.




                                                -9-
       The State responds that Defendant has waived this issue by failing to make such a
request at trial, and by failing to cite any authority in support of his argument on appeal. “A
party may not raise an issue for the first time in the appellate court.” State v. Turner, 919
S.W.2d 346, 356-57 (Tenn. Crim. App. 1995); see also Tenn. Ct. Crim. App. R. 10(b).

        There is no indication in the record that Defendant requested from the trial court that
the jury be instructed as to the availability of audio/visual equipment or that such equipment
be provided in the jury room. Furthermore, as the State notes in its brief, the video recording
of the incident was presented to the jury in open court. Therefore, there is nothing to suggest
that Defendant was prejudiced by the trial court’s failure to give such an instruction.
Defendant is not entitled to relief on this issue.

Motion for New Trial

        Finally, Defendant contends that the trial court erred by not properly informing him
of the hearing on his motion for new trial. We are unable to review this issue because
Defendant has failed to include in the record a transcript of the hearing on his motion for new
trial or his sentencing hearing, at which Defendant states his motion for new trial was also
addressed. In his brief, Defendant asserts that the motion for new trial hearing was
“convoluted” and “void of accepted legal standards.” However, there is nothing in the record
to indicate the manner or time by which Defendant was notified of the hearing. Defendant
is not entitled to relief on this issue.

                                      CONCLUSION

       The judgments of the trial court are affirmed.


                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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