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State v. Greenwood3/21/2003
At 3:34 a.m. on March 9, 2001, Highway Patrolman Richard Cash was working radar on Interstate 65 in Williamson County. He clocked the defendant traveling eighty miles per hour and stopped the vehicle. Upon approaching the defendant, Trooper Cash noticed a strong odor of alcohol. The defendant's speech was so slurred the trooper had difficulty understanding him. The defendant stated he had consumed two beers. The defendant stumbled as he was getting out of his vehicle and performed poorly on two field sobriety tests. Based upon Trooper Cash's observations, he believed that the defendant was definitely intoxicated. Trooper Cash took the defendant to the Medical Center where the defendant consented to withdrawal of his blood. The blood was drawn at approximately 4:30 a.m. and subsequently analyzed to have .12% blood alcohol content.
The defendant did not testify at trial and offered no proof. The jury convicted the defendant of DUI per se, driving while his blood alcohol content was .10% or more. See Tenn. Code Ann. § 55-10-401(a)(2) (1998). The trial court found this was the defendant's third DUI offense.
EVIDENCE OF OTHER CRIMES
The defendant contends the trial court erroneously admitted statements on the videotape of the stop indicating the defendant's vehicle would be seized. The videotape of a portion of the stop was played to the jury. The videotape contained a question by Trooper Cash asking the defendant the identity of the "lienholder" on his vehicle and a statement which mentioned a "seizure" of the vehicle. The defendant contends this conveyed to the jury that this was a second or subsequent DUI because seizure and forfeiture of the vehicle are authorized for second or subsequent offenders. See Tenn. Code Ann. § 55-10-403(k)(1) (1998). Specifically, the defendant contends this is evidence of other crimes which is prohibited by Tennessee Rule of Evidence 404(b), and the trial court erred in refusing to grant his request for a mistrial.
The determination of whether to grant a mistrial rests within the sound discretion of the trial court. State v. Smith, 871 S.W.2d 667, 672 (Tenn. 1994). The reviewing court should not overturn that decision absent an abuse of discretion. State v. Reid, 91 S.W.3d 247, 279 (Tenn. 2002). The burden of establishing the necessity for mistrial lies with the party seeking it. State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). No abstract formula should be mechanically applied in making this determination, and all circumstances should be taken into account. State v. Mounce, 859 S.W.2d 319, 322 (Tenn. 1993).
The trial court found this information was not so prejudicial as to require a mistrial. We are unable to conclude the jury would have been aware that this was a second or subsequent DUI based upon this information. The trial court did not abuse its discretion in denying the request for a mistrial. Regardless, it was harmless, especially since the defendant was convicted of DUI per se. See Tenn. R. App. P. 36(b). This issue lacks merit.
OFFICER'S OPINION TESTIMONY
The defendant contends the trial court erred in prohibiting Trooper Cash from opining that the defendant's blood alcohol content was rising at the time of the withdrawal of his blood. We disagree.
During the defendant's cross-examination of Trooper Cash, defense counsel sought to ask the trooper's opinion as to whether the defendant's blood alcohol content was rising or falling at the time of the withdrawal of his blood. Defense counsel further sought to introduce evidence of the trooper's statement at the preliminary hearing in which he stated he "assumed that it was rising because he had an op
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