                                                                                          11/20/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 July 17, 2018 Session

                STATE OF TENNESSEE v. ADAM LEE IPOCK

                 Appeal from the Circuit Court for Fentress County
                    No. 2016-CR-105      Shayne Sexton, Judge


                            No. M2017-01374-CCA-R3-CD


The defendant, Adam Lee Ipock, appeals his Fentress County Circuit Court jury
convictions of vehicular assault, driving under the influence (“DUI”), and simple
possession of methadone, claiming that he is entitled to a new trial because the trial court
erred by permitting the State to question him about the facts underlying his prior
convictions and that the charges of vehicular assault and DUI must be dismissed because
the State relied on a blood toxicology report obtained in violation of his right to due
process. The prosecutor improperly inquired into the facts underlying the defendant’s
prior convictions, and the error was not harmless when viewed in light of the evidence of
the defendant’s guilt of vehicular assault and DUI. In consequence, we affirm the
defendant’s conviction of simple possession but reverse the convictions of vehicular
assault and DUI and remand those charges for a new trial.

Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed in Part; Reversed and
                               Remanded in Part

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and ROBERT H. MONTGOMERY, JR., J., joined.

Evan M. Wright (on appeal), and Harold Deaton (at trial), Jamestown, Tennessee, for the
appellant, Adam Lee Ipock.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Jared Effler, District Attorney General; and Phillip Kazee and Tessa
Lunceford, Assistant District Attorneys General, for the appellee, State of Tennessee.
                                       OPINION

              Following a vehicle accident that caused the victim, Lonnie J. Cooper, to
suffer serious bodily injuries, the Fentress County Grand Jury charged the defendant with
one count of vehicular assault by intoxication; one count of DUI; one count of possession
of methadone, a Schedule II controlled substance; and one count of possession of
clonazepam, a Schedule IV controlled substance. Prior to trial, the State dismissed the
count charging possession of clonazepam, and the case proceeded to trial on the
remaining charges in March 2017.

                At trial, Phyllis Ferrara testified that she and a friend were driving on
highway 154 in Jamestown on June 20, 2016, when they came upon a vehicle accident
involving a Dodge pickup truck being driven by the defendant and a vehicle being driven
by the victim. The defendant was outside of the truck, but the victim was pinned inside
his vehicle. Ms. Ferrara said that the victim was covered in blood and that the flesh of
the victim’s arm “was pretty wide open.” Ms. Ferrara telephoned 9-1-1 while her friend
went to offer assistance. Ms. Ferrara then saw the defendant lean into the driver’s side
window of his truck, “grab[] something,” and then “walk[] across the street and kind of
toss[] it into the bushes.” The defendant then asked Ms. Ferrara if he could borrow her
cellular telephone to call his father or grandfather. She described the defendant as “very
upset” at that point.

             After the defendant finished his call, Ms. Ferrara used her telephone to call
the victim’s daughter. When the police arrived, Ms. Ferrara told an officer that the
defendant “pulled something out of the truck and he threw it in the bushes over there, you
might want to check.” She and her friend then left the scene.

               Fentress County Sheriff’s Office (“FCSO”) Investigator Brandon Cooper
testified that he responded to a call “of a[n] accident with injuries and also . . .
information that there was possibly some narcotics or substances hid in the wood line
there close to the scene.” When he arrived at the scene, Investigator Cooper began
looking in a briar patch approximately 100 feet from the crash scene. Within three to five
minutes, he located “a bottle that contained” methadone. Investigator Cooper showed the
bottle to the defendant “and asked him if they were his. He stated, yes. And I asked him
why they were where they were at and he said that he had panicked and had . . . put them
there.”

               Tennessee Highway Patrol (“THP”) Trooper Jamie Stephens testified that
he was dispatched to investigate an accident near the intersection of Highway 52 and
Highway 154, also known as West Cove Road, in Fentress County. He said that when he
arrived, the two vehicles were facing in opposite directions, and the victim’s vehicle was
                                           -2-
in the ditch. The defendant was “sitting close to a mailbox on a . . . culvert for a
driveway,” and the victim had already been transported to the hospital. Both vehicles
bore damage to the left side, and the driver’s side door of the victim’s truck, a GMC
Canyon pickup truck, “was kind of peeled apart, as you would say, the skin was peeled
off the door.” “[T]he left front wheel of [the defendant’s] truck was turned sideways and
the tire was busted off the vehicle.” Trooper Stephens recalled that “the gouge marks
which are caused from the frame of the vehicles when . . . they make contact were
completely in the northbound lane,” which led Trooper Stephens to conclude that the
defendant’s “vehicle was on the wrong side of the road” when the accident occurred.

               At some point, the defendant “brought a chair and was sitting behind a
minivan in a driveway that was nearby,” which Trooper Stephens thought was odd,
saying, “Normally, very seldom[], have I seen anybody sitting in a chair at an accident
scene.” Upon speaking with the defendant, Trooper Stephens observed that the
defendant’s “eyes were bloodshot,” “his speech was slow and slurred,” and “he appeared
to be under the influence of something.” Trooper Stephens did not attempt to conduct
field sobriety tests because the terrain near the accident scene was not conducive to doing
so. The defendant told Trooper Stephens that he had taken his prescription medication
earlier that morning. Because he believed the defendant to be under the influence,
Trooper Stephens asked the defendant to submit to a blood test, and the defendant agreed.
He recalled that when he transported the defendant from the scene, the defendant was
having difficulty remaining alert.

               Trooper Stephens recalled that shortly after he arrived at the scene of the
accident, FCSO officers gave him a prescription bottle they had located in nearby bushes.
He said that the bottle bore a label indicating that it contained the medication
“Plenazepam” prescribed to the defendant. The bottle actually contained “two different
types of pills,” and he submitted the pill that did not match the medication label to the
Tennessee Bureau of Investigation for forensic testing. That testing established that the
pill was methadone.

               During cross-examination, Trooper Stephens said that “it didn’t take long
to determine” that the defendant was under the influence and that he came to suspect that
the defendant had committed vehicular assault when he arrived at the hospital “and
determined that [the victim] had been taken to the out-of-town hospital.” Trooper
Stephens said that his investigation indicated that the defendant had applied his brakes
“right at the point of impact” and that, given the steep incline in the direction the victim
was traveling, the victim would not have had to apply his brakes “[b]ecause if you let off
the gas going up that hill, you’re gonna stop.” He stated that, at the point of impact, the
defendant was four or five feet across the centerline.

                                            -3-
             Trooper Stephens agreed that he did not observe any signs that the
defendant had consumed alcohol before the accident but reiterated that the defendant
appeared to be intoxicated. Trooper Stephens acknowledged that he did not take any sort
of measurements of the scene, explaining that he had not done so because he “was not
informed that [the victim] was actually injured to the extent that he was.” He said that he
was told only that the victim had suffered a cut to his arm. Trooper Stephens said that he
attempted to determine whether either driver had been wearing a seatbelt at the time of
the accident and that he had concluded that the defendant had not been wearing his
“because it was not locked.” Others who responded to the accident before Trooper
Stephens told him that the victim “did have [his seatbelt] on when they got to him.”

              TBI Agent and Forensic Scientist Samantha Engelhardt performed
toxicology tests on the sample of the defendant’s blood procured immediately after the
accident. Her testing established that the defendant’s blood contained clonazepam,
phentermine, and methadone. She testified that both clonazepam and methadone were
central nervous system depressants and that the combination of those two drugs “could
have additive central nervous system effects.” Phentermine is a central nervous system
stimulant. She said that the amount of each drug in the defendant’s system fell at or
below the therapeutic range, which she described as “a typical blood level we would
expect to see when someone is taking a dose that’s prescribed, a typical daily dose
prescribed by a doctor.” Agent Engelhardt testified that, even in the therapeutic range,
clonazepam and methadone could cause drowsiness, delayed reaction time, and an
inability to “perform a divided attention task” such as driving. Phentermine, she said,
could cause an inability to focus “depending on the dosage.” She stated that any of the
drugs could impair the ability to drive.

              The victim testified that on June 20, 2016, he had just begun to ascend the
steep incline on Highway 154 when he saw the defendant’s “truck coming around the
curve . . . and he was over just a little across the centerline.” He said that he “wasn’t
going very fast at all” and that he “just got over as far as [he] could.” The victim said
that the defendant’s truck “just kept getting over farther” and that, despite that the victim
had driven “over next to the ditch line as far as [he] could go,” the defendant’s truck
struck his truck head on. The victim said that he had begun to reduce his speed as soon
as he saw the defendant drifting over the centerline and that, at the time of the impact, he
was not “stopped, but . . . was real close.”

              The victim recalled that after the impact, the defendant came over to his
truck, and the victim asked him to call 9-1-1. The victim recalled that a woman arrived
shortly thereafter and told him that she had already called 9-1-1. The victim also asked
the woman to contact his daughter, and she did so. He recalled that, at that point, he
could see that he had “some bad cuts and tore places on [his] arm.” He said that he was
                                             -4-
initially transported to a local hospital but was thereafter airlifted to the University of
Tennessee Medical Center (“UTMC”) due to the severity of his injuries. The victim
testified that he remained conscious throughout the entire ordeal until he was taken into
the operating room for surgery at UTMC. He stated that he was placed on life support
from the time he went into surgery until “sometime the next day.” He then spent four or
five days in the hospital until he talked doctors into releasing him. The victim described
his injuries: “Well, to start from the top, I had two fractures in my neck, eight broke ribs,
a punctured lung, and my left arm about tore off, my left leg broke and . . . a bone in my
foot broke.”

              The parties stipulated that the victim had suffered serious bodily injuries in
the crash:

              1. Pneumothorax (collapsed lung);
              2. Cervical Transverse Process Fracture (a break of one of
              the bones in the neck);
              3. Multiple Rib Fractures;
              4. Fracture of the Thoracic Transverse Process (a bony
              protrusion from the back of a vertebrae bone in the spine);
              5. Left upper extremity complex lacerations with extensive
              tissue devitalization x 3; and
              6. Left distal tibia/fibula fracture (break of the lower leg)[.]

              The victim testified that, on the day of the accident, he had taken
prescription oxycodone and morphine that had been prescribed to him for pain in his
ankle, explaining that doctors planned to amputate his foot due to the condition of his
foot and ankle.

             During cross-examination, the victim said that his ankle problem stemmed
from a prior injury and that the accident at issue in this case did not contribute to the
issue. He said that, at the time of the crash, he took 30 milligrams of morphine and 15
milligrams of oxycodone every morning and evening; he took his medicine as prescribed
at approximately 5:00 a.m. on the morning of the accident.

              Doctor Glen Farr, who was certified by the court as an expert in the field of
pharmacology, testified that clonazepam is a central nervous system depressant designed
to “decrease the anxiety associated with the central nervous system” and that it is “a
fairly commonly used drug to treat anxiety and seizures.” He said that clonazepam “can
cause drowsiness, confusion, incoordination, blurred vision, memory impairment or
amnesia.” Doctor Farr explained that even at therapeutic levels, clonazepam is designed
to “caus[e] the patient to be relaxed and calm.” He said that the level of clonazepam in
                                             -5-
the defendant’s blood, despite being within the therapeutic range, would cause some
impairment “because therapeutic effects is what would cause impairment.” Doctor Farr
emphasized, however, that he could not quantify the effects of the drug on the defendant.

               Doctor Farr testified that phentermine is a central nervous system stimulant
designed to “make[] you feel too excited to eat, is basically what it does.” He said that
the amount of the drug in the defendant’s system was “less than .05 . . . micrograms per
milliliter” and that when a drug is reported at that level “[i]t could be almost zero or it
could be .049.” He said that there was no way to “make any firm conclusions about the
effects” of the phentermine in the defendant’s blood other than the fact that he had taken
the drug prior to having his blood drawn.

               Methadone, the doctor testified, is an opiate designed to relieve pain. He
said that it is “used primarily as a substitute for Heroin, Oxycodone, those kinds of
things” because “it’s easier to withdraw someone from Methadone than it is from
Oxycodone or Heroin.” He said that methadone would produce similar side effects to
clonazepam but warned that, because the amount reported in the defendant’s system was
less than .05 micrograms per milliliter, “we don’t know enough to quantify the effects.”
He added that methadone has “a very long half-life, so it could have been taken days
before, or it could have been taken just prior, and it hadn’t even reached a level.”

               Doctor Farr testified that Trooper Stephens’ observations of slurred speech,
bloodshot eyes, and lethargy would have been consistent with the ingestion of
clonazepam and methadone but not consistent with ingestion of phentermine. He agreed
that the effects of those drugs could impair someone’s ability to drive a motor vehicle.

              During cross-examination, Doctor Farr opined that the effect of the small
amount of phentermine and methadone in the defendant’s blood was “not a clinically
significant effect.” He said that the effects occasioned by the amount of clonazepam
would depend upon the dose and the regularity with which the defendant used the
medication, but he said that “there would be some impairment at that level.” He
reiterated, “As I said, he would be impaired, the degree of which I can’t quantify.”

               THP Critical Incident Response Team (“CIRT”) Sergeant John McFarland,
who was certified as an expert in accident reconstruction, testified that his team did not
respond to the active crash scene in this case but went to the location of the accident on
June 30, 2016. Trooper Stephens walked him through the scene “from one end to the
other,” and he “then photographed the scene in detail.” Then, using a piece of equipment
called “a total station,” Sergeant McFarland created a scale map of the crash scene. After
leaving the scene, he went to “a wrecker lot in Jamestown” to examine the victim’s truck.
He examined and photographed the truck and then used the total station to create “a
                                            -6-
damage profile of the vehicle.” Sergeant McFarland then traveled to a residence just
outside of Jamestown to perform the same examination of the defendant’s vehicle. He
said that he was unable to examine the interior of the defendant’s truck because it was
locked.

                Sergeant McFarland testified that, using the information gleaned during his
investigation, he concluded that the defendant’s failure to maintain his lane was the cause
of the crash and that drug use was a possible contributing factor. He said that the
defendant “crossed into the other lane . . . ultimately resulting in . . . a side-swipe
collision.” Sergeant McFarland opined that the victim bore no responsibility for the
accident, explaining that, based upon his observations, the victim “was driving at a very
low speed or almost stopped” when the defendant’s truck struck his. Sergeant McFarland
testified that the defendant’s truck was at least five feet across the centerline at the point
of impact.

              During cross-examination, Sergeant McFarland testified that he attempted
to contact the defendant by calling “the only number that” he had been given for the
defendant. He said that a man answered, “and to say the least, . . . he was disrespectful . .
. in his tone and how he” spoke to Sergeant McFarland after the sergeant identified
himself. The person said that “they’d never heard of a Mr. Ipock,” but Sergeant
McFarland “thought that was very strange” and believed the defendant to be the person to
whom he spoke.

               Darren South, who was engaged to the defendant’s mother, testified that, at
the time of the accident, the defendant had been living with him and his fiancée on West
Cove Road in Jamestown and that the truck the defendant wrecked belonged to him. He
said that although the defendant had previously had an issue with drug use, he had agreed
to loan the defendant his truck because “[h]e was doing a lot better and he was working
and trying to make money to try to better himself.” Mr. South recalled that he saw the
defendant just before the accident and that the defendant did not appear impaired to him,
saying, “If he was impaired, there was no way I’d let him leave my driveway in my
vehicle, no.” He said that the accident occurred “probably about 500 to 750 yards away”
from his residence.

              Mr. South testified that someone telephoned him to let him know that the
defendant had been in an accident and that he immediately went to the scene. He said
that when he arrived, the defendant “was stunned. He was sitting in the ditch line. He
was just crying.” Mr. South said that he did not observe any signs that the defendant was
impaired at that time.



                                             -7-
              During cross-examination, Mr. South again acknowledged the defendant’s
prior issue with drug use and agreed that he and the defendant’s mother had supported the
defendant during that time.

              The defendant testified that, at the time of the accident, he had been taking
clonazepam for approximately six months “[f]or panic attacks” and that he had been
taking “Xanax and other drugs for the last 12 to 15 year[s].” The defendant said that he
had prescriptions for clonazepam and phentermine but did not have a prescription for
methadone, which he had obtained from a friend. The defendant said that he had taken
the clonazepam sometime between 8:00 and 10:00 p.m. the previous evening.

              Asked to describe how the accident occurred, the defendant testified:

              I was going to get a Pepsi and I’d pulled out of the driveway
              and went, I guess, what they said south on West Cove road
              there, over towards the bluff. And as I shifted into third gear,
              I had my cell phone plugged in, the charger sitting on my
              console, and when I shifted into third gear, it jerked my cell
              phone cord and throwed my phone into the floorboard. And
              as I leaned over . . . I started going into the other lane. As I
              grabbed my phone and come up, the only thing I saw was Mr.
              Cooper, like that, and that’s it. And that’s – I mean, I’d
              already hit him.

              The defendant said that he was “absolutely not” impaired at the time of the
accident and attributed Trooper Stephens’ description of his having bloodshot eyes and
slurred speech to the impact of the airbag, saying, “Getting hit in the face with an airbag’s
a pretty good lick.” He explained that the impact of the airbag “busted [his] dentures,”
which impacted his ability to enunciate. The defendant added that he had “been crying
from arguing with” Mr. South about the damage to the truck.

               The defendant admitted that he put his medication bottle in the bushes and
said that he did so because he knew that he did not have a prescription for the methadone
and “panicked.” The defendant did not deny causing the accident but denied having been
impaired by drugs.

             During cross-examination, the defendant acknowledged having previously
suffered from an opiate addiction but said that he had stopped using illegal drugs in
January 2016. The defendant insisted that he told Trooper Stephens that the accident
happened when he reached for his cellular telephone.

                                             -8-
              The defendant admitted having pleaded guilty to theft of property valued at
more than $1,000 and aggravated burglary for breaking into his grandparent’s home and
stealing from them.

              The defendant’s mother, Carol Ann Crabtree, testified that prior to
becoming disabled, she worked as a nurse. Ms. Crabtree said that the defendant had
struggled with drug addiction for more than 10 years and that, using her experience as a
nurse and her general familiarity with the defendant, she had developed the ability to
determine when the defendant was under the influence of drugs. Ms. Crabtree testified
that the defendant began “getting some help from mental health” for his drug addiction in
January or February of 2016. She recalled that, as part of his treatment plan, the
defendant had been prescribed clonazepam, Seroquel, and Neurontin. She said that she
maintained control of the defendant’s prescription medications by locking them in a safe.
She said that she provided the defendant with three clonazepam pills for the day. On the
day of the crash, Ms. Crabtree “put three pills in his bottle and left them in [the] sitting
room where he knew they was at, because everything else was locked up.” When she
returned from work at approximately 12:30 p.m., the defendant asked if he could use Mr.
South’s truck to go buy a Pepsi. At that point, the defendant “still had his medicine with
him. He hadn’t taken it.” She insisted that the defendant was not impaired at that time.

               Ms. Crabtree testified that as a young nurse, she “came upon a young man
that had . . . been hit by a drunk driver and [she] had to be with him when he died.”
Additionally, her brother was struck and killed by a drunk driver while “sitting on a
motorcycle at the side of the road.” Because of these experiences, she said, she would
not have allowed the defendant to drive a vehicle if she thought he was impaired,
explaining, “I wouldn’t have let him, never. Not only for the person that he could have
killed, but he could have killed hisself. I would never have let him done it. No.”

              During cross-examination, Ms. Crabtree said that she locked the
defendant’s medication up because he asked her to do so. She said that she did not give
him any medications other than the clonazepam, Seroquel, and Neurontin. Ms. Crabtree
said that she was aware that the defendant had taken phentermine previously and that she
did not control his access to that medication.

              Based upon this evidence, the jury convicted the defendant of one count of
vehicular assault, one count of DUI, and one count of possession of a Schedule II
controlled substance. The trial court merged the DUI conviction into the conviction of
vehicular assault, a Class D felony, and imposed a Range II sentence of eight years’
incarceration. The trial court imposed a sentence of 11 months and 29 days for the
defendant’s conviction of simple possession of a Schedule II drug. The court ordered the

                                            -9-
sentences to be served concurrently to each other but consecutively to the four-year
effective sentence imposed in an unrelated case.

              The defendant filed a timely but unsuccessful motion for new trial followed
by a timely notice of appeal. In this appeal, the defendant contends that the “State
poisoned the jury” by impermissibly inquiring into the details of the defendant’s prior
convictions during its cross-examination of him and by emphasizing those details during
its closing argument. The defendant also claims entitlement to a new trial on grounds
that the State used blood test results obtained via a process recently declared
unconstitutional by this court. We consider each claim in turn.

                                 I. Defendant’s Prior Convictions

               The defendant first asserts that the State impermissibly inquired into the
facts underlying his prior convictions in violation of established principles of law and his
right to a fair trial. Initially, the State contends that the defendant has waived plenary
consideration of the issue of the admission of the underlying facts of his prior convictions
because he failed to lodge a contemporaneous objection to the challenged statements
during trial. The defendant asserts that he properly preserved the issue by filing a motion
in limine regarding the use of his prior convictions and that the filing of that motion
obviated the necessity of a contemporaneous objection. In the alternative, the defendant
asserts that this court should review the issue for plain error.

               “[W]he[n] the record on a pretrial suppression motion or on a motion in
limine clearly presents an evidentiary question and whe[n] the trial judge has clearly and
definitively ruled” on the motion, an objection when the challenged evidence is offered at
trial is unnecessary to preserve the issue for appellate review. State v. McGhee, 746
S.W.2d 460, 462 (Tenn. 1988); see also State v. Alder, 71 S.W.3d 299, 302 (Tenn. Crim.
App. 2001). When, however, “issues are only tentatively suggested or the record only
partially and incompletely developed in connection with a motion in limine,” the failure
to lodge an objection during trial carries with it the risk that the issue has not been
properly preserved. McGhee, 746 S.W.2d at 462.

              In this case, the defendant filed two motions in limine related to the use of
his prior criminal record, one citing Tennessee Rule of Evidence 609 and one citing
Tennessee Rule of Evidence 404(b).1 In both, the defendant asked the court to exclude

1
         Neither party has suggested that the facts underlying the defendant’s convictions would have
been admissible pursuant to Tennessee Rule of Evidence 608(b). Although that rule generally allows the
State to impeach a criminal defendant’s credibility via inquiry into specific instances of past conduct that
could be classified as criminal offenses, the rule remains that “acts that were a criminal offense and were
the object of a criminal conviction must be introduced pursuant to Rule 609 rather than Rule 608. Rule
                                                   -10-
“any and all prior convictions of the defendant as being irrelevant to this case, and the
probative value is substantially outweighed by the danger of unfair prejudice.” Neither
motion specifically asked the trial court to rule on the admissibility of the facts
underlying the defendant’s prior convictions. At the hearing on the defendant’s motions,
the State indicated that it did not intend to offer the defendant’s prior convictions as part
of its case in chief but did intend to utilize the defendant’s prior convictions of
aggravated burglary and theft to impeach the defendant should he elect to testify. Neither
party indicated any intention to inquire into the specific facts underlying either
conviction. The trial court found both convictions to be admissible to impeach the
defendant.

            At trial, during the cross-examination of the defendant,2 the following
exchange occurred:

                        Q.     Okay. Well, let me ask you a question. I think
                 that you were found guilty of theft over a thousand dollars
                 and convicted of that from stealing from your grandmother,
                 correct?
                        A.     I pled guilty to that, yes.
                        Q.     You pled guilty to stealing over a thousand
                 dollars from your grandmother, correct?
                        A.     Yes, sir.

609 covers criminal convictions for impeachment.” Cohen, et. al., Tennessee Law of Evidence § 6.08[4]
(6th ed. 2011); see also, e.g., State v. Shayne Thomas Hudson, No. M2013-02714-CCA-R3-CD, slip op.
at 8 (Tenn. Crim. App. Nov. 21, 2014) (“We note that the language of Rule 608(b) specifically excludes
criminal convictions, stating that the admissibility of such convictions is governed by Rule 609.”).
Moreover, the State did not comply with the notice requirement in that rule. See Tenn. R. Evid. 608(b)(3)
(“If the witness to be impeached is the accused in a criminal prosecution, the State must give the accused
reasonable written notice of the impeaching conduct before trial, and the court upon request must
determine that the conduct’s probative value on credibility outweighs its unfair prejudicial effect on the
substantive issues. The court may rule on the admissibility of such proof prior to the trial but in any event
shall rule prior to the testimony of the accused. If the court makes a final determination that such proof is
admissible for impeachment purposes, the accused need not actually testify at the trial to later challenge
the propriety of the determination.”).
2
         In addition to the improper references to the facts underlying the defendant’s prior convictions,
the prosecutor’s cross-examination of the defendant and the other defense witnesses might best be
described as intemperate. At one point, the prosecutor asked Ms. Crabtree, “Are you seriously testifying
to this, ma’am?” During the cross-examination of Mr. South, the prosecutor asked, “So, [the defendant]
was a grown man, but he wasn’t working, he was mooching off of you all?” When confronting the
defendant about the absence of a cellular telephone listed on the inventory search of the truck he was
driving, the prosecutor asked, “Where is the cell phone, sir? It’s a fictitious defense to this crime; isn’t it,
sir?” It is improper for the prosecutor to use “insinuations and misstatements” or to engage in “bullying
and arguing with witnesses.” Berger v. United States, 295 U.S. 78, 85 (1935).
                                                     -11-
                     Q.     You also pled – which – and you also pled
              guilty to breaking in your grandmother’s home to steal that
              money, correct?
                     A.     (No audible response)
                     Q.     Did you plead guilty to that? Were you
              convicted, sir?
                     A.     Of what charge?
                     Q.     Of aggravated burglary?
                     A.     Yes.
                     Q.     Of the home of J.D. and Phyllis Ipock?
                     A.     Yes.
                     Q.     And who is that to you?
                     A.     My grandparents.
                     Q.     And so, we should believe somebody who
              breaks in his – his grandparents’ home and steals money from
              them?
                     A.     Unfortunately, a drug addict has a lot of
              negative effects.

The defendant did not lodge a contemporaneous objection, but the trial court provided the
following instruction to the jury:

                     If from the evidence presented you find that the
              defendant has been convicted of prior crimes, you can
              consider such only for the purpose of its effect, if any, on his
              credibility as a witness. It cannot be considered by you as
              evidence of his guilt of the offense for which he is now on
              trial.

             The State again referenced the defendant’s prior convictions in its closing
argument, noting, at the outset of the discussion of the defendant’s testimony that he is a
convicted felon. Then, in rebuttal, the prosecutor specifically referred to the facts
underlying the defendant’s prior convictions and asked the jury to consider those facts
when assessing the defendant’s credibility:

                     And one of the things that you get to consider as a jury
              when you weigh the testimony of the defendant is the fact that
              he was recently convicted of two felonies. The first felony
              being aggravated burglary where the defendant broke in to his
              grandparents’ home to obtain goods, possession or money.

                                            -12-
            And the second felony that he was convicted of was theft over
            $1,000 where he stole $1,450 in cash from his grandparents.

                   Now, is this the testimony that we think is credible? I
            suggest to you, no. I suggest to you that Adam Ipock, and I
            take no pleasure in telling you this, is a drug addict, a
            continuing drug addict, and a thief. And he is not to be
            believed. His testimony is not credible and you should not
            rely on that.

             Tennessee Rule of Evidence 609 governs the use of prior convictions to
impeach the accused in a criminal trial:

            (a) General Rule. For the purpose of attacking the credibility
            of a witness, evidence that the witness has been convicted of
            a crime may be admitted if the following procedures and
            conditions are satisfied:

            (1) The witness must be asked about the conviction on cross-
            examination. If the witness denies having been convicted, the
            conviction may be established by public record. If the
            witness denies being the person named in the public record,
            identity may be established by other evidence.

            (2) The crime must be punishable by death or imprisonment
            in excess of one year under the law under which the witness
            was convicted or, if not so punishable, the crime must have
            involved dishonesty or false statement.

            (3) If the witness to be impeached is the accused in a criminal
            prosecution, the State must give the accused reasonable
            written notice of the impeaching conviction before trial, and
            the court upon request must determine that the conviction's
            probative value on credibility outweighs its unfair prejudicial
            effect on the substantive issues. The court may rule on the
            admissibility of such proof prior to the trial but in any event
            shall rule prior to the testimony of the accused. If the court
            makes a final determination that such proof is admissible for
            impeachment purposes, the accused need not actually testify
            at the trial to later challenge the propriety of the
            determination.
                                         -13-
Tenn. R. Evid. 609. It is well settled and oft repeated that the inquiry into an accused’s
prior convictions “must be limited to the fact of a former conviction and of what crime,
with the object only of affecting the credibility of the witness, not prejudicing the minds
of the jury as to the guilt of the defendant witness of the crime for which he is on trial.”
Hendricks v. State, 39 S.W.2d 580, 581 (Tenn. 1931). Our supreme court reiterated this
rule in State v. Morgan, stating that “[i]f it is determined that the prior crime is within the
admissible category, the inquiry in the presence of the jury,” is strictly limited to the fact
of the conviction. State v. Morgan, 541 S.W.2d 385, 389 (Tenn. 1976) (citing Hendricks,
39 S.W.2d at 581); see also Cohen, et al., Tennessee Law of Evidence § 6.09[11][f] (6th
ed. 2011) (stating that “[i]f a criminal conviction is used to impeach under Rule 609,
counsel can ask about the date and fact of the conviction and the nature of the crime, but
is precluded from inquiring about details of the offense”); see also, e.g., State v. Glenn
McPherson, No. 104, 1990 WL 4636, at *2 (Tenn. Crim. App., Knoxville, Jan. 26, 1990)
(“The clear purpose of Rule 609 and Morgan is to eliminate (ideally), or to reduce
(realistically), the chance that a juror will consider the prior conviction as evidence of
defendant’s guilt in the case on trial. Ancillary to that purpose, Rule 609 and Morgan
operate to prevent the jury from exposure to the details of the prior crime.”). Following
the adoption of Rule 609, our supreme court again emphasized that “‘evidence’ of a prior
conviction admissible under Rule 609(a) is limited to the fact of a former conviction and
the crime that was committed.” State v. Taylor, 993 S.W.2d 33, 34 (Tenn. 1999).

               Although the defendant should have objected when the prosecutor asked
the defendant about the facts of his prior convictions and again when the prosecutor
referenced those facts during his closing argument, we are unwilling to find waiver in this
case. The defendant moved to exclude the convictions prior to trial, and the trial court
ruled that the convictions would be admissible. Because the rule prohibiting inquiry into
the facts underlying an accused’s prior convictions is so well settled, the defendant could
not have anticipated when filing his motions in limine that the prosecutor would make
such an inquiry. Moreover, even if the defendant waived the issue by failing to lodge
objections during trial, we conclude that the error qualifies as plain.

               Whether properly assigned or not, this court may, “[w]hen necessary to do
substantial justice, . . . consider an error that has affected the substantial rights of a party
at any time, even though the error was not raised in the motion for a new trial,” Tenn. R.
App. P. 36(b). This court will grant relief for plain error pursuant to Rule 36(b) only
when:

              “(1) the record clearly establishes what occurred in the trial
              court; (2) the error breached a clear and unequivocal rule of
              law; (3) the error adversely affected a substantial right of the
                                             -14-
              complaining party; (4) the error was not waived for tactical
              purposes; and (5) substantial justice is at stake.”

State v. Cooper, 321 S.W.3d 501, 506 (Tenn. 2010) (quoting State v. Hatcher, 310
S.W.3d 788, 808 (Tenn. 2010)).

              Here, the record clearly establishes what happened in the trial court and that
a clear and unequivocal rule of law was breached. The defendant moved the trial court to
rule on the admissibility of his prior convictions prior to trial, and the trial court ruled that
the defendant’s previous convictions of theft and burglary would be admissible should
the defendant choose to testify. This ruling was correct. During trial, however, the
prosecutor violated long-standing precedent by inquiring into the facts underlying those
convictions. See, e.g., State v. Blevins, 968 S.W.2d 888, 894 (Tenn. Crim. App. 1997)
(“[T]o the extent that the question was for the purpose of eliciting underlying facts of the
former convictions, it was improper.”).

               The record contains no suggestion that the defendant’s failure to object was
for tactical purposes.

              The record establishes that a substantial right of the defendant, namely his
right to testify on his own behalf and have his credibility judged pursuant to the
established rules of evidence, was adversely affected.

               Finally, because the error cannot be classified as harmless, substantial
justice is at stake. To evaluate the harmful effect of the error in this case, we must
“consider the ‘theory of the defense in order to determine whether the erroneous
impeachment would have had an impact on the result of the trial.’” State v. Lankford,
298 S.W.3d 176, 182-83 (Tenn. Crim. App. 2008) (quoting State v. Thompson, 36
S.W.3d 102, 112 (Tenn. Crim. App. 2000) (citation omitted by Lankford) (internal
quotation marks omitted)). The defendant admitted that he caused the accident but
attributed the accident to his attempting to retrieve his cellular telephone from the floor.
He also admitted having ingested clonazepam on the night before the accident, but he
denied having been impaired at the time of the accident. The proof of the defendant’s
impairment, though sufficient to support his convictions when viewed under the
appropriate standard of review, was not overwhelming. TBI testing established the
presence of three drugs in the defendant’s system, but the State’s own expert testified that
the amount of methadone and phentermine in the defendant’s blood was “clinically”
insignificant. Additionally, the amount of clonazepam in the defendant’s blood was
within the therapeutic range. Under these circumstances, the defendant’s credibility was



                                              -15-
of paramount importance in this case.3 Indeed, the State itself repeatedly emphasized the
importance of credibility. In consequence, the prosecutor’s error in this case, as
indicated, cannot be classified as harmless. See State v. Mixon, 983 S.W.2d 661, 675
(Tenn. 1999) (“Unlike other situations in which the improper use of an impeaching
conviction has been held to constitute harmless error, the evidence of guilt in this case is
not overwhelming and the State emphasized the conviction to the jurors when urging
them to find the defendant guilty.”). Accordingly, we reverse the defendant’s convictions
of vehicular assault and DUI and remand those counts for a new trial.4

                                 II. Impact of State v. Decosimo

              The defendant next contends that the State committed plain error by relying
on a blood toxicology report obtained via a statute deemed unconstitutional by this court.
In State v. Rosemary Decosimo, this court examined the fee system in Code section 55-
10-413(f)5 and concluded that it violated principles of due process. State v. Rosemary
3
       Code section 55-10-401, as applicable to this case, provides:

               It is unlawful for any person to drive or to be in physical control of any
               automobile or other motor driven vehicle on any of the public roads and
               highways of the state . . . while:

               (1) Under the influence of any . . . controlled substance, controlled
               substance analogue, drug, substance affecting the central nervous system,
               or combination thereof that impairs the driver’s ability to safely operate a
               motor vehicle by depriving the driver of the clearness of mind and
               control of oneself that the driver would otherwise possess[.]

T.C.A. § 55-10-401(1).
4
        Our ruling does not impact the defendant’s conviction of simple possession because the proof of
that offense was overwhelming. The record establishes that the defendant had methadone in his
possession, and he candidly admitted that he possessed methadone that he had obtained from a friend.
5
       At the time of the offense and forensic testing in this case, Code section 55-10-413(f) provided:

               In addition to all other fines, fees, costs and punishments now prescribed
               by law, including the fee imposed pursuant to subsection (d), a blood
               alcohol or drug concentration test (BADT) fee in the amount of two
               hundred fifty dollars ($250) shall be assessed upon a conviction for a
               violation of § 39-13-106, § 39-13-213(a)(2), § 39-13-218, § 39-17-418,
               § 55-10-205 or § 55-10-401, for each offender who has taken a breath
               alcohol test on an evidential breath testing unit provided, maintained and
               administered by a law enforcement agency for the purpose of
               determining the breath alcohol content or has submitted to a chemical
               test to determine the alcohol or drug content of the blood or urine.
                                                  -16-
Decosimo, No. E2017-00696-CCA-R3-CD, slip op. at 27 (Tenn. Crim. App., Knoxville,
Feb. 6, 2018), overruled by State v. Decosimo, __ S.W.3d __, No. E2017-00696-SC-R11-
CD (Tenn. Aug. 23, 2018). We held that even though TBI forensic scientists did not
qualify as judicial or quasi-judicial officers under the test originally established in Tumey
v. Ohio, 273 U.S. 510, 522 (1927), see Rosemary Decosimo, slip op. at 22, an “inherent
conflict” existed “between the requirement that a forensic scientist be neutral and
objective and Code section 55-10-413, which deposits the monies received from”
forensic blood testing for the presence of drugs and alcohol “directly to the TBI, rather
than the State general fund.” Id., slip op. at 23. We observed that Code section 55-10-
413(f) “create[d] a mechanism whereby the TBI forensic scientists have a pecuniary
interest in BADT fees in the form of continued employment, salaries, equipment, and


               (2) The fee authorized in subdivision (f)(1) shall be collected by the
               clerks of the various courts of the counties and forwarded to the state
               treasurer on a monthly basis for deposit in the Tennessee bureau of
               investigation (TBI) toxicology unit intoxicant testing fund created as
               provided in subdivision (f)(3), and designated for exclusive use by the
               TBI for the purposes set out in subdivision (f)(3).

               (3) There is created a fund within the treasury of the state, to be known
               as the TBI toxicology unit intoxicant testing fund.

                   (A) Moneys shall be deposited to the fund pursuant to
                   subdivision (f)(2), and as may be otherwise provided by law, and
                   shall be invested pursuant to § 9-4-603. Moneys in the fund
                   shall not revert to the general fund of the state, but shall remain
                   available for appropriation to the Tennessee bureau of
                   investigation, as determined by the general assembly.

                   (B) Moneys in the TBI toxicology unit intoxicant testing fund
                   and available federal funds, to the extent permitted by federal
                   law and regulation, shall be used to fund a forensic scientist
                   position in each of the three (3) bureau crime laboratories, to
                   employ forensic scientists to fill these positions, and to purchase
                   equipment and supplies, pay for the education, training and
                   scientific development of employees, or for any other purpose so
                   as to allow the bureau to operate in a more efficient and
                   expeditious manner. To the extent that additional funds are
                   available, these funds shall be used to employ personnel,
                   purchase equipment and supplies, pay for the education, training
                   and scientific development of employees, or for any other
                   purpose so as to allow the bureau to operate in a more efficient
                   and expeditious manner.


Tenn. Code Ann. § 55-10-413(f).
                                                  -17-
training within the TBI,” and that this mechanism “calls into question the trustworthiness
of the TBI forensic scientists’ test results.” Id., slip op. at 28.

               Recently, however, our supreme court overturned the ruling of this court,
holding that the Code section 55-10-413(f) fee system did not deprive “the defendant of
due process guaranteed by both the federal and the state constitutions.” Decosimo, __
S.W.3d at __, slip op. at 26. The high court agreed with this court that “TBI forensic
scientists do not exercise judicial or quasi-judicial functions,” id. __ S.W.3d at __, slip
op. at 19, but it concluded, contrary to the conclusions of this court, that the “fee statute
does not provide TBI forensic scientists with either a direct, personal, substantial
pecuniary interest or a sufficiently substantial institutional financial incentive that
qualifies as a possible temptation to any reasonable forensic scientist to falsify or alter
test results to produce more convictions” and “does not create a situation comparable to
an expert witness contingency fee arrangement,” id., __ S.W.3d at __, slip op. at 26.

              Given the supreme court’s decision in Decosimo, the defendant can neither
prevail upon the merits of his claim nor establish entitlement to plain error review in this
case.

                                        Conclusion

               The prosecutor erred by inquiring into the facts underlying the defendant’s
prior convictions and then compounded the error by utilizing those facts during closing
argument. Because the error cannot be classified as harmless as to the defendant’s
convictions of vehicular assault and DUI, we reverse those convictions and remand them
for a new trial. We affirm the defendant’s conviction of simple possession.

                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




                                            -18-
