                                                                                          10/03/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 April 24, 2018 Session

            STATE OF TENNESSEE v. JOHN PALLADIN GIBSON

                  Appeal from the Criminal Court for Knox County
                       No. 105492 Steven W. Sword, Judge


                             No. E2017-01567-CCA-R3-CD


The Defendant, John Palladin Gibson, was convicted of two counts of driving under the
influence (DUI), Class A misdemeanors; two counts of fourth-offense DUI, Class E
felonies; and one count of second or subsequent offense driving on a cancelled,
suspended, or revoked license, a Class A misdemeanor. See T.C.A. §§ 55-10-401 (2013)
(amended 2015) (DUI), 55-10-402(a)(4) (2013) (amended 2014, 2015, 2016) (fourth-
offense DUI), 55-50-504 (2013) (amended 2016) (driving while privilege cancelled,
suspended, or revoked). The trial court merged the DUI convictions and sentenced the
Defendant, a career offender, to six years for DUI and eleven months, twenty-nine days
for driving on a revoked license. The sentences were imposed concurrently. On appeal,
the Defendant contends that the trial court erred in (1) admitting blood tests results
without sufficient proof of the chain of custody and (2) denying his ineffective assistance
of counsel claim related to his trial counsel’s alleged failure to review evidence with him,
causing him to reject a plea offer that he would have accepted if he had been aware of the
evidence. We reverse the DUI convictions and remand for a new trial, and we affirm the
driving on a revoked license conviction.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                    in Part, Reversed in Part; Case Remanded

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., J., joined. TIMOTHY L. EASTER, J., filed an opinion concurring in part and
dissenting in part.

Joshua Hedrick (on appeal, at sentencing hearing, and at motion for new trial), Knoxville,
Tennessee; Mark Stephens (at trial), District Public Defender; Denise Faili (at trial),
Nakeisha Jackson (at trial), and Jonathan Harwell (at trial), Assistant District Public
Defenders, for the appellant, John Palladin Gibson.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Charme P. Allen, District Attorney General; Joe Welker, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                       OPINION

        At the trial, Knox County Sheriff’s Deputy Joseph Sulewski testified that on
September 13, 2013, he was dispatched to a Pilot convenience store following a report of
an intoxicated man who had tried to use another person’s credit card. Deputy Sulewski
said that when he arrived, he saw the Defendant sitting in the driver’s seat of a blue
Chrysler Sebring with its lights illuminated. Deputy Sulewski said that the car’s engine
was running and that he smelled alcohol immediately upon approaching the Defendant.
Deputy Sulewski said that the Defendant’s speech was “slurred and mumbly” and that the
Defendant swayed and had to use the car for support. Deputy Sulewski said that the
Defendant fumbled to retrieve his driver’s license and that the Defendant tried to give
Deputy Sulewski an insurance card instead of a driver’s license. Deputy Sulewski said
that the Defendant stated he had come from Loudon County in the Defendant’s
girlfriend’s car and that his girlfriend was at home. Deputy Sulewski said the Defendant
claimed the credit card he had attempted to use belonged to his girlfriend. Deputy
Sulewski said that the Defendant stated that his driver’s license had been revoked and
that Deputy Sulewski confirmed this information by checking the status of the
Defendant’s license. A certified copy of a document stating that the Defendant’s driver’s
license had been revoked was received as an exhibit. Deputy Sulewski said that during
his encounter with the Defendant at Pilot and at UT Hospital, the Defendant drank soda
but did not drink alcohol.

        Deputy Sulewski testified that the Defendant stated he had consumed a Long
Island iced tea cocktail and three twenty-four-ounce beers. Deputy Sulewski said that the
Defendant performed poorly on walk-and-turn and one-legged-stand field sobriety tests
and that the Defendant swayed during the horizontal gaze nystagmus test. Deputy
Sulewski said that the Defendant asked if he could smoke and that Deputy Sulewski
initially said he did not care if the Defendant smoked but later asked the Defendant not to
smoke near the gas pumps. Deputy Sulewski said that after he asked the Defendant not
to smoke, the Defendant lit another cigarette and that Deputy Sulewski handcuffed the
Defendant for safety reasons because the Defendant did not follow instructions regarding
smoking. Deputy Sulewski said that he looked inside the car in which the Defendant had
been sitting but did not see any evidence of alcohol.

      Deputy Sulewski testified that after he arrested the Defendant, he took the
Defendant to UT Hospital for collection of a blood sample, to which the Defendant
consented. Deputy Sulewski testified that he observed the technician collect the blood
sample and place it in the Tennessee Bureau of Investigation (TBI) blood test kit. He

                                            -2-
said that he enclosed the necessary documentation and sealed and initialed the box. He
said he provided the sealed box to the Knox County Sheriff’s Forensic Department.
Regarding the Forensic Department’s disposition of the sample box, Deputy Sulewski
said, “[T]hey sent it off to the TBI, I guess.” He did not recall the name of the person in
the Forensic Department to whom he gave the box. Regarding what happened to the box
after he delivered it to the Forensic Department, he said, “I hand it to them, and it’s in
their custody. . . . I am done with it.”

       Deputy Sulewski testified that his encounter with the Defendant was recorded by
the video recorder in his police cruiser. Portions of the recording were played for the
jury. Deputy Sulewski testified that a time stamp on the recording reflected that the
events occurred about 12:50 a.m. The recording included the field sobriety tests. Deputy
Sulewski said that in a portion of the recording made after they arrived at the hospital
contained the Defendant’s statements that the Defendant might be “too drunk” and that
the Defendant did not want to fall.

       When shown a report he prepared, Deputy Sulewski agreed that he had said the
Defendant had positioned the car properly and in a way that did not obstruct traffic. He
agreed that he had described the Defendant as polite and cooperative. Deputy Sulewski
agreed that he had stated the Defendant had slurred speech and that he was not familiar
with the Defendant’s speech patterns from any prior acquaintance. Deputy Sulewski
agreed that the Defendant “almost fell onto the gas pump” during the walk-and-turn test.
Deputy Sulewski acknowledged that he did not see the Defendant driving or ask a Pilot
employee with whom he spoke about whether the employee had seen the Defendant
driving. Deputy Sulewski agreed that when he asked if the Defendant had any medical
issues that might interfere with his ability to perform the field sobriety tests, the
Defendant had stated that he suffered from seizures. Deputy Sulewski agreed that a
person with a neurological issue might not perform well on the horizontal gaze
nystagmus test.

       TBI Special Agent Forensic Scientist Stephanie Dotson, a forensic toxicology
expert, testified that she performed a blood-alcohol analysis on a sample submitted from
the Defendant. She said the sample was left in a drop box in the TBI laboratory’s secured
lobby. She said that the TBI maintained a log book signed by individuals who brought
evidence to the laboratory but that she did not check the log book for the name of the
person who brought the evidence to the laboratory in this case. She said that the box
could be accessed to deposit items but that the items could only be removed by a forensic
technician, in this case Debra White, who placed the items in a vault until they were
opened for processing. Agent Dotson said the box containing the Defendant’s blood
sample was sealed when it was received in the laboratory. She said that documentation
and two tubes of blood were received per case, that each case had a unique laboratory
number, and that a bar code sticker with the laboratory number was attached to each tube.

                                            -3-
She said that the laboratory received the sample in this case on September 19, 2013, at
4:30 p.m. She said that the sample was labeled with the Defendant’s name and that the
date of collection was September 13, 2013, at 2:05 a.m. She said the request form was
completed by Deputy Sulewski. Agent Dotson said that the documentation reflected that
Ashley Young or Yang collected the blood but that Agent Dotson had no personal
knowledge of the person who collected the blood or the person’s qualifications. She did
not know how many individuals handled the box in which the sample was stored or if the
sample was refrigerated before it reached the laboratory. She said that the tubes in the kit
contained a preservative and an anticoagulant. She said her notes did not reflect that the
sample was clotted when she received it.

       Agent Dotson testified that the blood-alcohol content of the blood submitted for
analysis in this case was 0.08 gram percent. She said that the sample was analyzed twice,
showing values of 0.0885 and 0.0873 gram percent, that the lower value was used, and
that the decimal amount was truncated to two digits. She said that alcohol is absorbed by
the body for thirty minutes to one hour until it reaches its peak level and that it was
eliminated by the body at a rate of 0.01 to 0.02 gram percent per hour. She said the rate
of absorption and elimination of alcohol varied based upon gender, weight, food eaten,
and other factors. She said that if a person did not drink for eight hours, the person’s
blood-alcohol level would decrease and that eating would slow the absorption of alcohol
but might not affect the liver’s metabolism of alcohol.

       Agent Dotson stated that, in her opinion, a 150-pound person who drank five
alcoholic beverages would have a blood-alcohol level less than 0.08 gram percent seven
hours later. She acknowledged that fermentation producing alcohol might occur in the
tubes in which the samples were stored if they did not contain an adequate amount of
preservative but stated this was “very, very unlikely.” She said that any rubbing alcohol,
also known as isopropyl alcohol, used in the sample collection process would not affect
the accuracy of the blood-alcohol test, which tested for and differentiated ethyl alcohol.
She acknowledged a directive on the blood-alcohol test kit which stated that a
nonalcoholic skin preparation should be used in collecting a sample and stated that this
was “just a suggestion” to ensure that no issues arose. She said that due to the
laboratory’s backlog, she analyzed the blood about two months after the sample was
collected. She said that the blood sample was destroyed on April 30, 2014.

       Agent Dotson’s report was received as an exhibit. It reflected that the Defendant’s
blood sample was received “Via: BA Kit Drop Box” from “Knox Co S.D.” by Deborah
White on September 19, 2013. It stated that the blood-alcohol content of the sample was
0.08 gram percent.

       The Defendant elected not to present evidence. The jury found the Defendant
guilty of the charged offenses of two counts of driving under the influence (DUI). See

                                            -4-
T.C.A. § 55-10-401(a)(1) (2013) (amended 2015) (driving or being in physical control of
a motor vehicle while under the influence such that the driver’s ability to safely operate a
motor vehicle is impaired), (a)(2) (driving or being in physical control of a motor vehicle
with a blood-alcohol concentration of 0.08 percent or greater) (“DUI per se”). The jury
also found the Defendant guilty of driving on a revoked license. The trial court then
conducted additional proceedings regarding the question of the Defendant’s guilt of the
remaining charges, two counts of fourth or subsequent offense DUI and one count of
second or subsequent offense driving on a suspended, cancelled, or revoked license.

        The State offered as exhibits certified copies of: (1) the Defendant’s driving
history prepared by the Tennessee Department of Safety and Homeland Security, (2) the
Defendant’s administrative motor vehicle report prepared by the Department of Safety
and Homeland Security, (3) a Davidson County General Sessions Court document
reflecting that on March 1, 2005, the court accepted the Defendant’s guilty plea to DUI
occurring on an unspecified date relative to warrant number GS192662, (4) a document
reflecting a judgment in case number 134829-09-CR-2068 for second offense DUI
occurring on August 8, 2009, and (5) documents, including a judgment, related to the
Defendant’s Loudon County conviction of “DUI – multiple offenses” occurring on
November 26, 2011.

      The jury found the Defendant guilty of both counts of fourth or subsequent offense
DUI and guilty of second or subsequent offense driving on a suspended, cancelled, or
revoked license. The trial court merged the DUI convictions and sentenced the
Defendant, a career offender, to six years for fourth or subsequent offense DUI and to
eleven months, twenty-nine days for driving on a revoked license. The sentences were
imposed concurrently.

      After the trial but before the sentencing hearing, trial counsel was permitted to
withdraw, and new counsel was appointed, who represented the Defendant at the
sentencing hearing and in the motion for a new trial proceedings. The issues raised in the
motion for a new trial included an allegation of ineffective assistance of trial counsel.

       At the hearing on the motion for a new trial, the Defendant testified that he had
received a pretrial plea offer. He said that trial counsel had explained the plea offer to
him and that they had discussed it. He agreed that the offer involved a more favorable
sentence than he faced if he were convicted at a trial. He agreed that trial counsel had
advised him not to accept the offer and that he had decided to reject the offer and go to
trial. He stated that he had wanted to see the video recording from Deputy Sulewski’s
cruiser’s recording equipment, that he did not see the recording before the trial, and that
he would have accepted the offer “in a heartbeat” if he had seen the recording before the
trial. He stated that his trial counsel told him she did not have the recording and that he
did not see it until it was shown to the jury during the trial. He said that when he saw the

                                            -5-
recording at the trial, he knew the case was lost and said he “[a]bsolutely” would have
accepted the plea offer if he had seen the recording.

       The Defendant testified that he had an attorney other than trial counsel for “the
Walmart burglary,” that the attorney in the Walmart case brought a video recording from
Walmart for him to view, and that he told this attorney he wanted to see the recording
from the DUI case. He also said he told his attorney in the present case that he wanted to
see the recording related to this case. He said the attorneys were “flip-flopping” his cases
and that “we [were] never on the same page.” The court stated that the attorney who
represented the Defendant in the Walmart case was deceased at the time of the motion for
a new trial hearing. The Defendant agreed that a different attorney had represented him
in the present case in general sessions court and that trial counsel had represented him
once the case was transferred to criminal court.

        The Defendant testified that trial counsel explained the sentence and release
eligibility terms of the plea agreement and the sentence the Defendant faced if he chose
to go to trial. He said the plea offer included a sentence of four years to be served at
forty-five percent release eligibility. He said counsel told him they had a “really good
chance of winning” and advised him not to accept the offer. He said he missed an
appointment with counsel because he was in jail for the Walmart case and that she was
supposed to show him the video recording in this case while he was in jail but that she
did not. He said he wanted to see the recording before the trial. He said, as well, that he
thought he would receive another plea offer before the trial but that counsel advised him,
“You ain’t getting no more offers.” He did not recall if he knew at the time of the plea
offer that if he were convicted in the Walmart case, the sentence would have to be served
consecutively to any sentence in the present case.

       The Defendant testified that he remembered the events depicted on the recording
“real well.” He said, though, that he remembered the events after watching the recording
and that, “I didn’t remember it like I thought I did prior.” He stated that the jury had not
heard him speak previously and was unaware of his speech impediment. He said that if
he took a field sobriety test “right now completely sober,” he would probably fail, “but
not as bad as I did on that tape.” He said that he was surprised by his appearance on the
recording and that he did not recall appearing as impaired as depicted on the recording.
He said, “[I]f I was the jury on the panel, I would say I was guilty of DUI.” He said he
did not remember all of the details of the relevant events and stated that he “really didn’t
remember” going to the hospital for the collection of the blood sample. He said he
thought the blood sample had been collected at the jail.

      The Defendant testified that he was unaware before the trial that the trial court had
denied the motion to suppress. He said that when the trial began, he thought “the whole
thing was going to be threw [sic] out because . . . the blood work was lost[.]” He

                                            -6-
explained, however, that trial counsel had stated that she had filed a motion to exclude
the evidence and that she thought the motion would be granted but “never said for a fact.”

       The prosecutor and defense counsel agreed on the record that trial counsel had
died before the motion for a new trial hearing, and the trial court acknowledged the
accuracy of this fact. After receiving the proof, the trial court found that trial counsel’s
failure to show the video recording to the Defendant before the trial was deficient
performance but that the Defendant had not proven that he would have accepted the plea
offer. Thus, the court concluded that the Defendant had not established ineffective
assistance of counsel, and the court denied the motion for a new trial. This appeal
followed.

                                             I

                                 Admission of Evidence

       The Defendant contends that the trial court erred in admitting the results of the
blood-alcohol test because the State failed prove an adequate chain of custody of the
blood sample. The State counters that the trial court did not abuse its discretion. We
conclude that the State failed to show an unbroken chain of custody, that the trial court
erred in admitting the blood-alcohol evidence, and that the error was harmful as to all
counts of the indictment except the one which charged the Defendant with driving while
his privilege to do so was suspended, cancelled, or revoked.

        The record reflects that the Defendant filed a pretrial Motion to Dismiss the
Indictment for Failure to Preserve Blood Specimen or Motion to Suppress Blood
Specimen and Corresponding Toxicology Results. See T.C.A. § 55-10-408(e) (2013)
(amended 2017) (“The person tested shall be entitled to have an additional sample of
blood or urine procured and the resulting test performed by any medical laboratory of that
person’s own choosing and at that person’s own expense; provided, that the medical
laboratory is licensed pursuant to title 68, chapter 29.”). The Defendant contended that
the State had destroyed potentially exculpatory evidence and that his due process right to
a fair trial could not be ensured. The Defendant relied upon constitutional principles,
Code section 55-10-408, Brady v. Maryland, 373 U.S. 83 (1963), State v. Ferguson, 2
S.W.3d 912, 917 (Tenn. 1999) (setting forth the analytical framework for determining
whether the loss or destruction of evidence deprived a defendant of a fair trial), and State
v. Merriman, 410 S.W.3d 779 (Tenn. 2013) (applying Ferguson and clarifying the
standard of appellate review). On appeal, however, the Defendant contends that the trial
court erred in admitting the blood-alcohol content evidence at the trial based on
inadequate proof of the chain of custody. He has not raised the constitutional issue on
appeal, and our review is limited to the trial court’s evidentiary ruling regarding the
adequacy of the chain of custody.

                                            -7-
       Tennessee Rule of Evidence 901 states that evidence must be authenticated in
order to be admissible. Evidence is authenticated by providing proof “sufficient to the
court to support a finding by the trier of fact that the matter in question is what its
proponent claims.” Tenn. R. Evid. 901(a). “[W]hen the facts and circumstances that
surround tangible evidence reasonably establish the identity and integrity of the
evidence,” it should be admitted. State v. Cannon, 254 S.W.3d 287, 296 (Tenn. 2008).
In order to prove the reliability of tangible evidence, the State must prove “an unbroken
chain of custody.” State v. Scott, 33 S.W.3d 746, 760 (Tenn. 2000) (internal citation
omitted). Relative to the State’s burden in proving the chain of custody, our supreme
court has stated the following:

       Even though each link in the chain of custody should be sufficiently
       established, this rule does not require that the identity of tangible evidence
       be proven beyond the possibility of all doubt; nor should the State be
       required to establish facts which exclude every possibility of tampering . . .
       . An item is not necessarily precluded from admission as evidence if the
       State fails to call all of the witnesses who handled the item . . . . [If] the
       State fails to offer sufficient proof of the chain of custody, the “evidence
       should not be admitted . . . unless both identity and integrity can be
       demonstrated by other appropriate means.” Scott, 33 S.W.3d at 760
       (quoting Cohen, et al., Tennessee Law of Evidence § 901.12, at 624 (3rd ed.
       1995)).

Cannon, 254 S.W.3d at 296. This court reviews chain of custody determinations for an
abuse of discretion. Id. at 295.

        The Defendant argues that the State failed to offer proof of the standard
procedures for storing evidence, of how the evidence was kept between its collection and
the time it was received at the TBI laboratory, of the integrity and condition of the box
containing the evidence when it was received at the TBI laboratory, and of the absence of
mishandling or mislabeling at the TBI laboratory. He urges this court to conclude that
the trial court erred in concluding that an adequate chain of custody was shown.

        In support of his argument, the Defendant relies upon State v. Reginald Bernard
Coffee, No. M2016-01834-CCA-R3-CD, 2017 WL 3836023, at *12-15 (Tenn. Crim.
App. Aug. 31, 2017), perm. app. denied (Tenn. Jan. 17, 2018). In that case, a detective
testified that he saw two other officers collect fingerprint evidence, but neither of the
collecting officers testified. The detective testified that all evidence was placed into an
evidence locker but did not testify regarding any logging procedure employed, nor did he
explain who had access to the locker. The expert who performed the fingerprint analysis
testified about having received the evidence in the latent fingerprint division, although an

                                            -8-
envelope containing the evidence reflected that a person other than the witness first
received the evidence in the latent fingerprint division. The State failed to present any
proof regarding the whereabouts and the security of the evidence between its collection at
7:10 a.m., an officer’s counting the fingerprint cards containing the evidence at 3:30 p.m.
that day, and receipt of the evidence in the latent fingerprint division at 5:30 a.m. the next
day. The State failed to offer proof, as well, that the evidence was properly sealed when
the expert received it for testing. The envelope containing the evidence, which was a trial
exhibit, “was split open on one side,” contained multiple sets of initials, and the cards
containing the fingerprint evidence contained the initials of the expert and the illegible
initials of another person who could not be identified other than as having possibly been
the expert’s supervisor. In “the absence of testimony about standard procedures for
handling, storing, and transporting fingerprint evidence,” this court concluded that it
could not know whether the evidence had been tampered with or whether anyone had
confused, misplaced, damaged, substituted, lost, or replaced the fingerprint cards.
Reginald Bernard Coffee, 2017 WL 3836023, at *15; see Scott, 33 S.W.3d at 761. This
court concluded that the chain of custody was not sufficiently proven and that the trial
court erred in admitting the evidence, although this court deemed the error harmless in
view of the other evidence of the Defendant’s guilt. See Reginald Bernard Coffee, 2017
WL 3836023, at *15.

       In the present case, the chain-of-custody evidence shows the following: Deputy
Sulewski took the Defendant to UT Hospital, where the blood sample was collected in
Deputy Sulewski’s presence. Deputy Sulewski sealed it in an evidence kit. Deputy
Sulewski submitted the sample to the Knox County Sheriff’s Department Forensic
Department. The TBI Laboratory received the evidence from the Knox County Sheriff’s
Department six days after its collection. When the evidence was received, it was sealed
in an evidence kit. It was stored securely by the TBI Laboratory until the kit was opened
and prepared for testing by Debra White, and it was then tested by Special Agent Dotson.

        The State did not offer any evidence to show the location of and conditions in
which the evidence was kept between Deputy Sulewski’s delivering it to an unidentified
person from the Forensics Department and the TBI Laboratory’s receipt of it from the
Sheriff’s Department. Although the State was not required to present the testimony of
every witness who handled the evidence, it is required to show the identity and integrity
of the evidence as a predicate to its admissibility. See Cannon, 254 S.W.3d at 296; Scott,
33 S.W.3d at 760. In the present case, the State failed to show an unbroken chain of
custody. Scott, 33 S.W.3d at 760. The evidence does not support the trial court’s
determination that the State established a sufficient chain of custody. We conclude that
the trial court erred in admitting the evidence.

      In reaching this conclusion, we have considered the cases cited by the State, State
v. Earnest Laning, No. E2011-01882-CCA-R3-CD, 2012 WL 3158782 (Tenn. Crim.

                                             -9-
App. Aug. 6, 2012); State v. Michael Joseph Arbuckle, No. M2000-02885-CCA-R3-CD,
2001 WL 1545494 (Tenn. Crim. App. Dec. 5, 2001), perm. app. denied (Tenn. May 28,
2002); and State v. Pascasio Martinez, No. E2016-01401-CCA-R3-CD, 2017 WL
5613976 (Tenn. Crim. App. Nov. 21, 2017), perm. app. denied (Tenn. Mar. 15, 2018).

       In Earnest Laning, the arresting officer witnessed the blood being drawn, put the
tubes containing the sample in a bag, sealed the bag, completed paperwork attendant to
the sample, placed the bag and the paperwork in a box, and sealed the box, which he
dated and initialed. The officer placed the sealed box in a locked evidence refrigerator,
and he testified that the sample could only be removed by the evidence custodian but that
he did not know whether the sample was mailed or hand-delivered to the TBI Laboratory.
A TBI agent testified about the procedures followed within the laboratory upon receipt of
the sample. The trial court held that the State established an adequate chain of custody,
and this court concluded that the trial court had not abused its discretion. Earnest
Laning, 2012 WL 3158782, at *3.

       Similarly, in Michael Joseph Arbuckle, police officers testified about the
collection of the sample and its sealing in a protective box. One of the officers testified
that he placed the box in the police evidence locker to be mailed to the TBI Laboratory.
A TBI agent testified about the laboratory’s procedures for receiving and documenting
evidence. This court held that the trial court did not abuse its discretion in determining
that the State established an adequate chain of custody and in admitting the evidence.
Michael Joseph Arbuckle, 2001 WL 1545494, at *3.

       In Pascasio Martinez, a police officer testified that a hospital phlebotomist
collected a blood sample from the defendant, attached the defendant’s identifying
information to the tubes containing the sample, sealed the tubes in a bag, placed the bag
in a box, and gave the box to another officer. The officer who received the box testified
that he took the box to the police station and placed it in a refrigerated lockbox and
placed the key to the lockbox in a location that could only be accessed by members of the
police confiscation department. This officer testified about his understanding that
samples left in the lockbox would be taken from the confiscation department to the TBI.
A TBI agent testified about the procedure followed in the laboratory relative to samples
received in the locked dropbox inside the TBI facility. Pascasio Martinez, 2017 WL
5613976, at *1-2. In considering the case before it, the Pascasio Martinez court
analogized the facts of Earnest Laning and Michael Joseph Arbuckle and distinguished
those of Reginald Bernard Coffee. The Pascasio Martinez panel noted an officer’s
testimony that the sample would have remained in the refrigerated lockbox until it was
sent to the TBI. The panel also noted the TBI agent’s testimony that if any evidence of
tampering was observed when the sample was removed from the TBI’s drop box, the file
would contain notations and that the file in the present case contained no such notations.
The Pascasio Martinez panel concluded that because the State established an adequate

                                           -10-
chain of custody, the trial court did not err in admitting the evidence. Pascasio Martinez,
2017 WL 5613976, at *3.

        Returning to the case at bar, we reiterate that the State failed to offer any evidence
about the whereabouts and security of the Defendant’s blood sample from the time
Deputy Sulewski gave it to the Forensic Department until it was received in the TBI
Laboratory’s evidence drop box six days later. Unlike Earnest Laning and Michael
Joseph Arbuckle, but like Reginald Bernard Coffee, the State did not offer evidence of
the sheriff’s department’s usual procedures for storing, securing, and transporting
evidence. Thus, we reject any persuasive value the State assigns to the decisions cited in
its brief.

       The question which remains is whether the Defendant is entitled to relief as a
result of the error. The convictions of DUI per se and fourth-offense DUI based upon a
per se violation both rely upon the blood-alcohol test results as the essential proof
regarding intoxication. See T.C.A. §§ 55-10-401(a)(2) (2013) (amended 2015), 55-10-
402(a)(4) (2013) (amended 2014, 2015, 2016). The erroneously admitted blood-alcohol
concentration evidence was essential to the State’s case on these counts. Regarding the
DUI and fourth-offense DUI convictions based upon impairment, we note that the
evidence of the Defendant’s intoxication, aside from the blood-alcohol content evidence,
included Deputy Sulewski’s testimony about his encounter with the Defendant and the
video recording of the Defendant’s demeanor and performance on the field sobriety tests.
We note that although the video recording is probative of the question of impairment, it is
not dispositive. The record reflects that the jury was instructed that it could infer from
proof of a blood-alcohol test result of 0.08 percent or more that the Defendant’s ability to
drive was impaired to a sufficient extent to constitute a violation of the DUI law. See id.
§ 55-10-411(a) (2013) (amended 2016). Given the significance of the blood-alcohol
content evidence and the less-than-dispositive nature of the video evidence, we cannot
conclude that the trial court’s erroneous admission of the blood-alcohol evidence was
harmless as to the counts which charged DUI by impairment and fourth-offense DUI by
impairment. We conclude that we must reverse both counts of DUI and both counts of
fourth-offense DUI and remand for a new trial.

       As we stated in footnote 1, the Defendant has not challenged the trial court’s
ruling on his motion to suppress the blood-alcohol content evidence, and our ruling is
based solely upon his challenge to the court’s evidentiary ruling at the trial. As such, our
decision does not preclude the State from offering the blood-alcohol content evidence at a
new trial, provided a proper chain of custody and other evidentiary prerequisites are
shown.

       Finally, we turn to the Defendant’s driving on a cancelled, suspended, or revoked
license conviction. Proof of impairment due to intoxication is not an element of this

                                            -11-
offense. Id. § 55-50-504 (2013) (amended 2016). As to this count, the trial court’s
erroneous admission of the blood-alcohol content evidence was harmless.

                                             II

                            Ineffective Assistance of Counsel

       The Defendant contends that he received the ineffective assistance of counsel
because trial counsel failed to review the video recording with the Defendant before the
trial. The State responds that the trial court did not err in denying relief because the
Defendant failed to establish his claim by clear and convincing evidence. We agree with
the State.

       Typically, ineffective assistance of counsel claims are raised in a post-conviction
case following the conclusion of the conviction proceedings. See T.C.A. §§ 40-30-101 to
-122 (2012 and Supp. 2017) (Post-Conviction Procedure Act). Occasionally, these
claims are raised at the motion for new trial and in the appeal of the conviction
proceedings, although this practice is “fraught with peril.” See State v. Anderson, 835
S.W.2d 600, 607 (Tenn. Crim. App. 1992) (quoting State v. Jimmy L. Sluder, No. 1236,
1990 WL 26552, at *7 (Tenn. Crim. App. Mar. 14, 1990), perm. app. denied (Tenn. July
16, 1990)). In the present case, the Defendant raised the issue, through newly appointed
counsel, at the motion for a new trial, and the matter was fully litigated. At the hearing,
newly appointed defense counsel acknowledged the general practice of raising ineffective
assistance of counsel claims in post-conviction proceedings and stated that relief was
“better sooner rather than later.”

       To establish that a defendant received the ineffective assistance of counsel in
violation of the Sixth Amendment, a defendant has the burden of proving that (1)
counsel’s performance was deficient and (2) the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell,
506 U.S. 364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland
standard to an accused’s right to counsel under article I, section 9 of the Tennessee
Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       A defendant must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a defendant must show that “the advice given, or the services
rendered . . . are [not] within the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at
690. The trial court must determine if these acts or omissions, viewed in light of all of

                                           -12-
the circumstances, fell “outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690. A defendant “is not entitled to the benefit of hindsight, may
not second-guess a reasonably based trial strategy by his counsel, and cannot criticize a
sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 2008). This
deference, however, only applies “if the choices are informed . . . based upon adequate
preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). To
establish the prejudice prong, a defendant must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.

       A trial court’s findings of fact relative to an ineffective assistance of counsel claim
are binding on appeal, and this court must defer to them “unless the evidence in the
record preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578
(Tenn. 1997); see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A trial court’s
application of law to its factual findings is subject to a de novo standard of review
without a presumption of correctness. Fields, 40 S.W.3d at 457-58.

        The Defendant testified that he asked trial counsel to show him the video
recording but that he never saw it until the trial. The trial judge accepted this aspect of
the Defendant’s testimony, observing, “I have no reason to disbelieve [the Defendant]
that [trial counsel] didn’t show him the video prior to the trial.” The court found that this
failure constituted deficient performance.

       In considering whether the Defendant established prejudice as a result of trial
counsel’s inaction, the trial judge did not credit the Defendant’s testimony that he would
have pleaded guilty if he had been aware of the contents of the video recording. The
judge explained his reasoning as follows:

       Where I think the defense has failed is in showing that he would have, in
       fact, accepted the plea offer.

                I know [the Defendant] says now that he would have, but during the
       trial if the video was played, he did not—or at least his lawyer never asked
       to go back and revisit the plea offer after seeing that. He didn’t say
       anything to her or at least he didn’t testify that he said anything to her about
       that.

              In addition, reviewing my notes of the record, which are not as
       complete as a transcript, but I take pretty good notes during a trial,
       indicated that the video was not that impactful. In fact, [trial counsel] used

                                            -13-
       the video to assist [the Defendant] in his defense. She pointed out on cross-
       examination of the officer [who] did the field sobriety tests all the things
       that [the Defendant] did right on the video. And my notes indicated that it
       was not such a clearcut [case] where he’s falling down drunk like a lot of
       folks do, and in fact, the video was used in his defense to show, well, he
       actually is staying on a straight line when he was walking.

              In addition to that, we have the blood alcohol content, which, as [the
       prosecutor] points out, wasn’t part of the—wasn’t really affected by the
       video, and so [the Defendant] knew what the blood alcohol content was on
       there, and you know, I’ve seen cases where—where the blood alcohol
       content has been higher and people are still found not guilty, and—and you
       know, quite frankly, a lot of that is how they look on the tape.

              In his particular case, I don’t think it was so egregious that—that
       [the Defendant] looked so intoxicated that that really played as big a role as
       the blood alcohol content, and [trial counsel] did, in fact, tell him what the
       potential punishment was that he’d be facing should he to go trial, and so I
       think that the decision not to go to trial was [the Defendant’s].

              I think [trial counsel] presented him [with] all the possibilities. I
       think that she was well prepared for the trial and—and put on a good
       defense for him, and I—when it comes down to it, I just—I think
       hindsight’s 20/20. I think [the Defendant] thinks now had he seen it, it
       would have made a difference, but I don’t think the proof supports that. I
       don’t think even if she’d shown him the video that—that he would have
       taken the plea offer.

        Thus, the court found that the Defendant failed to establish prejudice and was not
entitled to relief on his ineffective assistance of counsel claim.

        Upon review, we conclude that the evidence does not preponderate against the
trial court’s factual finding that trial counsel did not show the recording to the Defendant
before the trial. The record supports its determination that counsel performed deficiently
in failing to review the video recording with the Defendant before the trial. The video
recording was a significant component of the State’s proof, and the State and the defense
were at odds during the trial regarding the import of its contents to their respective cases.

        Likewise, the evidence supports the trial court’s factual finding that the Defendant
would not have pleaded guilty if he had known of the recording’s contents before the
trial. The court rejected the Defendant’s testimony in this regard, citing several factors it
considered. Without a factual determination that the Defendant would have pleaded

                                            -14-
guilty if he had seen the recording, the Defendant cannot establish prejudice. The record
supports the trial court’s determination that the Defendant did not show prejudice as a
result of counsel’s inaction. The trial court did not err in denying the Defendant’s
ineffective assistance of counsel claim.

        In consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed in part and reversed in part. The case is remanded to the trial
court for further proceedings consistent with this opinion.



                                           _____________________________________
                                            ROBERT H. MONTGOMERY, JR., JUDGE




                                          -15-
