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State v. Norton7/20/1999
m. App., Knoxville, Mar. 23, 1998). In the present case, the other proof of driving while under the influence was cogent and consisted of two field sobriety test results, the observations of a trained officer, and the results of chemical tests. Given the overwhelming nature of the total evidence, we hold that the erroneous use of the HGN test results was harmless.
In reaching this Conclusion, we have reviewed James Dale Grindstaff, a case in which this court reversed a DUI conviction because, in part, Murphy-deficient evidence of the results of the HGN test was admitted. James Dale Grindstaff, slip op. at 7. However, in addition to the Murphy error, the trial court in James Dale Grindstaff also erroneously admitted evidence in violation of the State v. Sensing, 843 S.W.2d 412 (Tenn. 1992), requirement that a DUI arrestee must be observed for twenty minutes prior to an intoximeter test as a prerequisite for making the intoximeter test results admissible. James Dale Grindstaff, slip op. at 5-6. Even though the arresting officer testified that Grindstaff had blood-shot eyes, slurred speech, an alcohol odor, and "performed poorly on . . . two field sobriety tests besides" the HGN test, there was evidence that Grindstaff's speech impediment, a leg injury, fatigue, and limited education may have contributed to some of the field observations and test results. James Dale Grindstaff, slip op. at 6. Significantly, the officer did not observe Grindstaff's vehicle "weaving, crossing a line," or otherwise being driven erratically. Id. Given the "fairly balanced" evidence on the issue of intoxication without the HGN and intoximeter test results, this court held that the "cumulative effect" of the errors in admitting the HGN and intoximeter tests results more probably than not affected the outcome of the trial. Id.
James Dale Grindstaff is distinguishable from the present case. Here, the officer witnessed the defendant driving erratically, and the state presented substantial proof that the defendant was under the influence of prescription medications. Furthermore, we have found no other operable error which, when combined with the HGN error, would yield a cumulative effect. These factors, combined with the results of two field sobriety tests other than the HGN test and the officer's testimony about palpable indicators of intoxication observed in the defendant's behavior, support our Conclusion that the erroneous use of the HGN test results was harmless.
5. Conclusion
We conclude that no reversible error was committed below. The judgment of the trial court is affirmed.
JAMES CURWOOD WITT, JR., JUDGE
CONCUR: JOHN EVERETT WILLIAMS, JUDGE ALAN E. GLENN, JUDGE
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