                                                                                          10/03/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 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



TIMOTHY L. EASTER, J., concurring in part and dissenting in part.

       I agree with the majority’s conclusion to affirm Defendant’s conviction for driving
on a cancelled, suspended, or revoked license. Additionally, I agree with the majority’s
conclusion on the ineffective assistance of counsel claim. However, I respectfully
disagree with the majority’s conclusion to reverse both DUI convictions. I am of the
opinion that the trial court did not abuse its discretion by admitting the blood-sample
evidence because there was sufficient authentication to establish a chain of custody.
Therefore, I would affirm the decision of the trial court regarding both DUI convictions.
Further, even if the trial court erred in admitting the blood-sample evidence, it was
harmless error with regard to the DUI by impairment conviction. A rational jury could
have grounded its verdict on both Deputy Sulewski’s testimony and the dashboard video
showing Defendant’s speech and performance on three field-sobriety tests. Therefore, I
would affirm the conviction for DUI by impairment on that basis as well.

        The majority correctly sets forth the State’s burden in proving the chain of custody
for tangible evidence. The State is required to “reasonably establish the identity and
integrity of the evidence”; however, “this rule does not require that the identity . . . be
proven beyond the possibility of all doubt[.]” State v. Cannon, 254 S.W.3d 287, 296
(Tenn. 2008) (citing State v. Scott, 33 S.W.3d 746, 760 (Tenn. 2000)). At trial, the State
is not required to call all of the witnesses who handled the evidence, and the State does
not have to eliminate all possibility of tampering to properly authenticate the evidence.
See id. “The purpose of the chain of custody requirement is ‘to demonstrate that there
has been no tampering, loss, substitution, or mistake with respect to the evidence.’”
Scott, 33 S.W.3d at 760 (citing State v. Braden, 867 S.W.2d 750, 759 (Tenn. Crim. App.
1993)).
       The majority relies on this Court’s opinion in State v. Reginald Coffee, which held
the chain of custody was not properly established when an envelope containing
fingerprint evidence could not be accounted for during an almost twenty-four hour
period. No. M2016-01834-CCA-R3-CD, 2017 WL 3836023, at *14 (Tenn. Crim. App.
Aug. 31, 2017), perm. app. denied (Tenn. Jan. 17, 2018). “[N]o proof was presented of
what was done with the envelope” between the time the fingerprints were collected and
the time the envelope was opened for testing, although it was clear the seal on the
envelope had been broken. Id. In Reginald Coffee, a detective who did not personally
collect the fingerprints testified to the general procedure for collecting fingerprint
evidence and placing the evidence in a secured locker. Id. at *5. The forensic scientist
who received the fingerprints “did not testify about the condition of the envelope when
she received it, whether it was properly sealed, or the latent fingerprint division’s
standard procedure for storing and testing fingerprint evidence.” Id. at *14. Evidence
showed “the envelope was split open on one side, showed multiple sets of initials, and the
[fingerprint] cards inside were initialed by [the forensic scientist] and another person,
whose initials were illegible.” Id. This Court reasoned “the absence of testimony about
standard procedures for handling, storing, and transporting fingerprint evidence makes it
‘impossible to know whether anyone tampered with the evidence, or whether anyone had
the opportunity to confuse, misplace, damage, substitute, lose, [or] replace’” the
evidence. Id. at *15 (quoting Scott, 33 S.W.3d at 761 (internal quotations omitted)). The
reasoning in Reginald Coffee seems to rely on both the absence of testimony regarding
standard procedures and the fact that the evidence envelope had clearly been unsealed
and initialed by individuals who could not be identified and did not testify at trial.

        The majority concludes that because there was no testimony to show the location
of and the condition in which the evidence was kept between Deputy Sulewski’s
delivering it to an unidentified person from the Forensics Department and the TBI
Laboratory receipt of it from the Sheriff’s Department, the State did not establish a
sufficient chain of custody. The majority infers the set of chain of evidence facts are
indistinguishable from Reginald Coffee. However, the evidence in Reginald Coffee
shows the envelope containing the fingerprints had been unsealed multiple times before
reaching the scientist for testing, and no proof was offered to show what happened during
those times. Further, the actual fingerprint card inside the evidence bag had initials on it
that the testifying witness could not identify. These are important gaps in the chain of
evidence that are not present in Defendant’s case. This Court had good reason to
question the gap in the chain of custody in Reginald Coffee because it was clear the
evidence had been unsealed and disturbed before being tested, and there was no evidence
to establish that the integrity of the sample was maintained during that period. We do not
have the same integrity issue in Defendant’s case.

      Here, Deputy Sulewski described the procedures he followed when collecting
Defendant’s blood. Deputy Sulewski retrieved the TBI blood-kit from his vehicle, took
the two test tubes out of the kit, and watched the hospital technician draw Defendant’s

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blood. Next, Deputy Sulweski placed the sealed tubes into the blood-kit box, filled out a
form with Defendant’s and Deputy Sulewski’s personal information, and sealed the
blood-kit box with the form inside. Deputy Sulewski hand delivered the evidence to an
officer with the forensics department and testified, “they bring it to the TBI, I guess.”
After evidence is delivered to the forensics department, Deputy Sulewski testified, it is
out of his control.

        After Deputy Sulewski testified, Agent Dotson, with the TBI, detailed what
happened to the blood kit once it was dropped off at the TBI. Speaking about blood-kit
evidence generally, Agent Dotson testified that officers place the blood-kit box in a blue,
mailbox-like container in the TBI’s secured lobby. The officer who drops off the blood
kit signs a log book each time he or she leaves evidence with the TBI. Once the box is in
container, the officer cannot retrieve it; only personnel from the TBI have access. A TBI
technician clears out the container at the end of each day. When the technician removes
the blood kit, the technician opens the box to ensure the forms and identifying
information match the actual blood-sample test tubes. The blood samples are then stored
in a secured vault until the technician takes them out and delivers them to the agent for
testing. If there are any contamination concerns, or if the blood is coagulated, Agent
Dotson testified that she makes a notation on her file. There were no such notations in
Defendant’s case.

       Here, Agent Dotson verified that the box was sealed when it was received by the
TBI and that the form inside matched Defendant’s identifying information on the test
tubes containing the blood sample. Agent Dotson did not physically inspect the sealed
box herself but explained that was a crucial step Debra White, the initial technician who
retrieved the blood sample, would have done when verifying that the form inside the kit
matched the identifying information on the actual sample. Ms. White placed the blood
samples in a secured vault until they were delivered to Agent Dotson for testing. Agent
Dotson did not make any notations about the blood appearing to be coagulated or in any
irregular state. No evidence was presented that the blood-sample evidence had been
opened, only that the blood-kit had been verified by Debra White for Defendant’s
information. No evidence was presented that the integrity of the blood sample had been
compromised. While the majority is correct there is no testimony regarding who dropped
the Defendant’s blood-kit off at the TBI, there is also no indication, unlike the envelope
in Reginald Coffee, that the seal on the box or the seal on the blood-samples themselves
was broken. The State was still able to sufficiently prove the identity and integrity of the
sample, and the decision of the trial court to admit the blood-sample evidence was not an
abuse of discretion.

        The majority distinguishes three different cases as further consideration for finding
the trial court in Defendant’s case abused its discretion in admitting the blood-sample
evidence. See State v. Pascasio Martinez, No. E2016-01491-CCA-R3-CD, 2017 WL
5613976 (Tenn. Crim. App. Nov. 21, 2019), perm. app. denied (Tenn. Mar 15, 2018);

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State v. Earnest Laning, No. E2011-01882-CCA-R3-CD, 2012 WL 3158782 (Tenn.
Crim. App. Aug. 6, 2012) no perm. app. filed; 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). It seems the only factual distinction between those
cases and Defendant’s case is that Deputy Sulewski did not place the sealed container in
a locked storage device before it was delivered to the TBI.

       Here, Deputy Sulewski hand delivered the sealed evidence box to the forensics
department, who he understood was responsible for delivering the sample to the TBI
laboratory. Agent Dotson was the next link in the chain of custody, and she testified that
the seal on the evidence was intact and that a technician, Ms. White, verified that the
information contained in the sealed box matched Defendant’s information on the actual
blood samples. Agent Dotson described the general procedure for intake, assignment,
and security of samples once they enter the TBI laboratory. The samples are dropped off
in a secured lobby, removed from the secured lobby at the end of the day, verified by
matching the identifying information to the actual sample, and then stored in a secured
vault until the sample is tested. Based on the testimony of Deputy Sulewksi and Agent
Dotson, I do not find the trial court abused its discretion in admitting the blood-sample
evidence.

        Even if the State failed to adequately establish the chain of custody regarding the
blood-sample evidence, and the DUI per se charge is reversed, the DUI by impairment
conviction should be upheld because a rational jury could have grounded its verdict on
witness testimony and video evidence. To support a conviction for DUI by impairment,
the State is required to prove Defendant was “in physical control of any automobile or
other motor driven vehicle on any of the public roads and highways of the state, . . . or
while on the premises of any shopping center . . . while . . . [u]nder the influence of any
intoxicant[.]” T.C.A. § 55-10-401(a)(1) (2015). Previously, this Court has held “that an
arresting officer’s testimony alone is sufficient to support a defendant’s conviction for
DUI.” State v. Willie R. Harris, Jr., No. M2005-00241-CCA-R3-CD, 2006 WL 407779,
at *4 (Tenn. Crim. App. Feb. 21, 2006), perm. app. denied (Tenn. Sept. 11, 2006) (citing
State v. Vassar, 870 S.W.2d 543, 544 (Tenn. Crim. App. 1993)).

        In this case, Deputy Sulewski’s testimony described Defendant’s demeanor and
appearance in detail. Deputy Sulewski smelled a strong odor of alcohol while
approaching Defendant’s car. Defendant had red, watery eyes and slurred speech. When
asked to hand Deputy Sulewski his driver’s license, Defendant attempted to give Deputy
Sulewski an insurance card. While speaking with Defendant and during the field sobriety
tests, Deputy Sulewski described Defendant as swaying back and forth, using the car for
support. Defendant admitted to drinking one Long Island Iced Tea and three 24-ounce
beers that night. Deputy Sulewski conducted field sobriety tests and identified multiple
indicators that were consistent with Defendant being intoxicated.


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        Aside from the Deputy Sulewski’s testimony, the jury viewed the dashboard
camera video from Deputy Sulewski’s vehicle. The video depicts not only Defendant’s
actions but also his speech. Jurors were able to assess whether Defendant’s speech was
slurred and whether Defendant’s actions during the one-leg balance or the walk and turn
tests indicated intoxication. On the video, Defendant does not successfully complete the
one-leg balance test and stumbles slightly during the walk and turn test. Once Deputy
Sulewski and Defendant arrive at the hospital, Defendant can be heard saying “I don’t
want to fall, I might be too drunk.” Here, jurors did not have to rely solely on Deputy
Sulewski’s testimony. Jurors could rely on the dashboard camera video to come to their
own conclusions as to Defendant’s state of impairment. Furthermore, Defendant argued
during the post-conviction hearing, and now argues on appeal, that had trial counsel
shown Defendant the video before trial, Defendant would have taken the State’s plea
offer. While I agree this argument does not meet the burden for ineffective assistance of
counsel, this argument does seem to be a concession by Defendant to the highly
inculpatory nature of the video.

       In Defendant’s case, a reasonable jury could have found Deputy Sulewski’s
testimony regarding Defendant’s slurred speech, odor of alcohol, and performance on the
field sobriety tests to be credible. A reasonable jury (and apparently Defendant) could
have found the dashboard-video evidence inculpatory and corroborative of Deputy
Sulewski’s testimony. Thus, even if the blood-sample evidence is excluded, the
conviction for DUI by impairment should be upheld based on the other available
evidence at trial. Therefore, I respectfully dissent.


                                            ____________________________________
                                            TIMOTHY L. EASTER, JUDGE




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