State of Tennessee v. Marcus Puckett

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 21, 2014 at Knoxville

STATE OF TENNESSEE v. MARCUS PUCKETT

Appeal from the Criminal Court for Shelby County
No. 11-05251 John W. Campbell, Judge

No. W2013-02556-CCA-R3-CD - Filed November 20, 2014

The Defendant, Marcus Puckett, was convicted by a jury of driving under the influence
(“DUI”) and DUI per se. See Tenn. Code Ann. § 55-10-401. The trial court merged the two
charges, and the Defendant was sentenced to eleven months twenty-nine days, with all but
seven days suspended, to be followed by supervised probation. On appeal, the Defendant
makes the following arguments: (1) that the trial court erred in denying his motion to
suppress evidence of his blood-alcohol level based on an illegal search and seizure; (2) that
the trial court erred in concluding that the State met its burden in proving compliance with
State v. Sensing, 843 S.W.2d 412 (1992), and thus, should not have allowed the testing
officer to testify regarding the results of his breath-alcohol test; and (3) that his constitutional
rights were violated because the trial court failed to conduct a hearing pursuant to Momon
v. State, 18 S.W.3d 152 (Tenn. 1999), following his decision not to testify at trial. Following
our review, we affirm the trial court’s denial of the motion to suppress based on an illegal
search and seizure. We further hold that the trial court improperly concluded that the State
complied with the Sensing requirements, and we therefore reverse the Defendant’s
conviction and remand to the trial court for proceedings consistent with this opinion. Finally,
although we conclude that the trial court’s failure to conduct a Momon hearing was plain
error, we hold that such error does not necessitate further action from the trial court at this
time because we have ordered a new trial on other grounds.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court
Affirmed in Part; Reversed in Part; and Remanded

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and R OBERT L. H OLLOWAY, J R., JJ., joined.

Claiborne Hambrick Ferguson, Memphis, Tennessee, for the appellant, Marcus Puckett.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Michael R. McCusker, Assistant
District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

At trial, Officer Joshua Schultz testified that he was employed by the Germantown
Police Department and that in November 2010, he was assigned as a task force officer with
the Shelby County Sheriff’s Office in the Metro DUI unit. Around 3:00 a.m. on the morning
of November 28, 2010, Officer Schultz was driving north on Houston Levee Road in route
to assist with a DUI stop in the northern part of Shelby County. While he was driving, he
noticed a green Cadillac swerving in its lane, touching both lane lines, and stopping at a
green light. Based on these initial observations, Officer Schultz turned on his dashboard
camera and continued to follow and observe the vehicle. Officer Schultz watched the vehicle
slow down and proceed halfway into a left turn lane before suddenly speeding up and
continuing northbound on Houston Levee. The vehicle briefly crossed over the double
yellow lines, and Officer Schultz became concerned that the driver might be either
intoxicated or falling asleep.

Officer Schultz initiated a traffic stop. Officer Schultz approached the vehicle and
knocked on the driver’s side window, and the driver rolled down his window. At trial,
Officer Schultz identified the Defendant as the driver of the vehicle. Officer Schultz noticed
that there was glass on the dashboard, that the windshield was broken, and that there was
blood on the steering wheel and dashboard. The Defendant was not wearing a shirt, and he
was bleeding from his face. Officer Schultz could also see that there was a passenger in the
vehicle, and at that point, he requested that the Defendant step out of the vehicle.

According to Officer Schultz, he smelled a “moderate odor of an intoxicant on [the
Defendant]. . . . within the first . . . five to ten seconds of talking to [the Defendant].” He
explained that, generally, “moderate” meant that you could smell the alcohol while standing
within a few feet of a person and talking to them. At trial, Officer Schultz also recalled that
the Defendant’s eyes appeared “glassy, red-eyed, sleepy” and stated that the Defendant’s
speech was “[n]ot very coherent.”

Officer Schultz had a short conversation with the Defendant outside the vehicle and
then proceeded to handcuff the Defendant and place him in the back of his police cruiser.
Officer Schultz testified that he took these actions because he was still trying to figure out
exactly what had occurred in the car, and also because at that point he smelled alcohol and
suspected that the Defendant was under the influence of an intoxicant.

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 Officer Schultz stated that he did not conduct any field sobriety tests because it was
very cold outside and the Defendant was not wearing a shirt. Because the Defendant had
blood on his person, Officer Schultz called an ambulance to the scene, and shortly thereafter
paramedics arrived to check on the Defendant. The paramedics attended to the Defendant
and cleaned up the blood on his face and hands, but it was determined that he did not require
further medical assistance. He was then placed back in the police cruiser.

According to Officer Schultz, he read the Defendant the implied consent law, and the
Defendant agreed to submit to a breath-alcohol test. Officer Schultz then entered the
Defendant’s information into the breathalyzer machine and began the twenty-minute
observation period.1 After the requisite observation period, the Defendant provided a breath
sample, and according to the test results, the Defendant’s blood-alcohol level was .205
percent.

Before trial, the Defendant filed a motion to suppress evidence of his breath-alcohol
test, and the trial court held a hearing on the matter on March 9, 2012.2 The Defendant
argued that the officer did not have reasonable suspicion to stop the Defendant, that he did
not have probable cause to arrest the Defendant, that he had failed to comply with the twenty-
minute observation period required by Sensing, and that the officer did not provide the
Defendant with Miranda warnings. At the hearing, Officer Schultz testified that he decided
to pull the Defendant over after following him and observing him commit multiple traffic
offenses. He further testified that he decided to place the Defendant in handcuffs in the back
of his vehicle because he “smelled a strong odor of intoxicant . . . observed [the
Defendant’s] eyes were blood shot and watery, glassy, very confused, unintelligible speech.”
Also, because of the blood on the Defendant and the broken windshield, the officer was
concerned that there might have been a domestic dispute between the Defendant and the
passenger.

According to Officer Schultz, the Defendant was under arrest at the time he was
placed in handcuffs. He testified that usually he gave Miranda rights when he handcuffed
a suspect, but that he could not recall whether he did on this particular occasion.

Regarding the twenty-minute observation period, Officer Schultz testified that he was

1
Although Officer Schultz repeatedly refers to the observation period as being twenty-one minutes long,
relevant authority refers to the period as being twenty minutes. Therefore, in the interest of consistency and
clarity, we will refer to it as the twenty-minute observation period.
2
The suppression issues were addressed by a different judge, The Honorable John T. Fowlkes, Jr. Judge
Fowlkes conducted the suppression hearing and entered the subsequent order denying the motion in part and
granting the motion in part.

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not required to “stare” at the Defendant for the entire twenty minutes and that during that
time, he “can be imputing things into the machine, or writing a note, or you know, reaching
over to grab something out of [his] bag, or something like that.” According to Officer
Schultz, it was important to engage the subject in conversation during the observation period
because it ensured that the person was “awake and talking, to know that there [was] nothing
in their mouth and it [was] just a good way to pass twenty-one minutes as well.” He stated
that he did not observe the Defendant place anything in his mouth, burp, or regurgitate.

On cross-examination, the following exchange took place between trial counsel and
Officer Schultz:

Q: In the video that you watched yesterday, you can see yourself performing,
I don’t know if it is note taking, but you’re clearly doing some paperwork
during the twenty minute observation period?

A: Yes sir.

....

Q: [W]ere you taking notes from your field notes?

A: I don’t recall exactly what I was doing, but this,3 sir, I would fill out,
because this is what I would read, this is what we read, so this is already filled
out before we read it. I fill this out and then I stop and read the rest of it sir.

Q: Okay. Then what about the back part of it, where it has where you indicate
what your observations were?

A: I don’t recall that this is what I was filling out sir. Normally, I would fill
this out after everything was done.

Q: But you just don’t remember what it is that you’re writing on and filling
out during this period?

A: No, sir.

Q: Part of your training is, you’ve been trained not to do paperwork during the

3
Although it is not apparent from this excerpt, it appears that the document Officer Schultz is referring to is
the implied consent form, which had been previously marked as Exhibit 1 at the hearing.

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 observation period?

A: No, sir.

On April 17, 2012, the trial court made an oral ruling from the bench denying the
Defendant’s motion to suppress based on the claims of an illegal search and seizure and the
Sensing violation. The trial court determined that based on the officer’s testimony and the
videotape of the Defendant’s driving, there were “sufficient articulable facts that indicate a
reasonable suspicion that driving under the influence was taking place.” In ruling that the
officer had probable cause to arrest the Defendant, the trial court focused on the officer’s
testimony that he could smell a strong odor of intoxicant. With regard to the Sensing
violation, the trial court found that the State “met . . . and really exceeded” its burden in
proving that the officer properly conducted the twenty-minute observation period. The trial
court stated that it could “view the [D]efendant the entire time” on the videotape and that
“[t]here was no way [the Defendant] put anything in his mouth.” The trial court further
found that the State had failed to carry its burden of proving that Miranda warnings were read
at the time the Defendant was handcuffed. Therefore, the trial court excluded from evidence
any statements made by the Defendant up until the time when he was provided with Miranda
warnings.

ANALYSIS

I. Motion to Suppress

A. Standard of Review

A trial court’s finding of fact on a motion to suppress are conclusive on appeal unless
the evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000).
Likewise, questions of credibility, the weight and value of the evidence, and the resolution
of conflicting evidence are matters entrusted to the trial court, and this court will not reverse
the trial court’s factual findings unless the evidence preponderates against them. Id. (citing
State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). Both proof presented at the suppression
hearing and proof presented at trial may be considered by an appellate court in deciding the
propriety of the trial court’s ruling on a motion to suppress. State v. Henning, 975 S.W.2d
290, 299 (Tenn. 1998). The evidence is to be viewed in the light most favorable to the
prevailing party on a motion to suppress with all reasonable and legitimate inferences that
may be drawn by the evidence. State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000). However,
our review of the application of the law to the facts is de novo. State v. Keith, 978 S.W.2d
861, 864 (Tenn. 1998).

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 B. Illegal Search and Seizure

On appeal, the Defendant first argues that the officer lacked reasonable suspicion that
he had committed or was about to commit a criminal offense at the time he initiated the
traffic stop. The Defendant further argues that the officer lacked probable cause to arrest him
for driving under the influence. The State responds that the Defendant committed several
traffic violations, and that these violations, coupled with the fact that it was 3:30 a.m.,
support the officer’s decision to initiate a traffic stop. Additionally, the State responds that
the officer had probable cause to believe that the Defendant was intoxicated at the time he
was placed under arrest. We agree with the State.

The Fourth Amendment to the United States Constitution and article I, section 7 of
the Tennessee Constitution protect against unreasonable searches and seizures. Any
warrantless search or seizure is presumed to be unreasonable and requires the State to prove
by a preponderance of the evidence that the search or seizure was conducted pursuant to an
exception to the warrant requirement. State v. Simpson, 968, S.W.2d 776, 780 (Tenn. 1998).
Two types of police-citizen encounters are considered seizures for constitutional analysis
purposes: “(1) the full-scale arrest, which must be supported by probable cause; [and] (2) the
brief investigatory detention, which must be supported by reasonable suspicion of wrong-
doing[.]” State v. Day, 263 S.W.3d 891, 901 (Tenn. 2008) (citations omitted).

A police officer may make an investigatory stop based upon reasonable suspicion,
supported by specific and articulable facts, that a criminal offense has been or is about to be
committed. Terry v. Ohio, 329 U.S. 1, 20-21 (1968); Binette, 33 S.W.3d at 218.
Furthermore, a police officer must have such a reasonable suspicion in order to stop a vehicle
without a warrant. State v. Randolph, 74 S.W.3d 330, 334 (Tenn. 2002). Our supreme court
has stated that “when an officer turns on [his] blue lights,” a stop has occurred. State v.
Pulley, 863 S.W.2d 29, 30 (Tenn. 1993). Reasonable suspicion is determined by an
examination of the totality of the circumstances. Binette, 33 S.W.3d at 218. Circumstances
relevant to an analysis of reasonable suspicion include “the officer’s personal objective
observations . . . [and any] [r]ational inferences and deductions that a trained officer may
draw from the facts and circumstances known to him.” State v. Yeargan, 958 S.W.2d 626,
632 (Tenn. 1997).

In Day, the Tennessee Supreme Court explained the concept of probable cause as
follows:

“Probable cause”—the higher standard necessary to make a full-scale
arrest—means more than bare suspicion: “Probable cause exists where ‘the
facts and circumstances within [the officers’] knowledge, and of which they

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 had reasonably trustworthy information, [are] sufficient in themselves to
warrant a man of reasonable caution in the belief that’ an offense has been or
is being committed.” Brinegar v. United States, 338 U.S. 160, 175-76 (1949)
(quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). “This
determination depends upon ‘whether at that moment the facts and
circumstances within [the officers’] knowledge and of which they had
reasonably trustworthy information were sufficient to warrant a prudent man
in believing that the petitioner had committed or was committing an offense.’”
Goines v. State, 572 S.W.2d 644, 647 (Tenn. 1978) (quoting Beck v. Ohio, 379
U.S. 89, 91 (1964)).

263 S.W.3d at 902.

Viewing the evidence in the light most favorable to the State, Officer Schultz testified
that he first noticed the Defendant’s car when it stopped at a green light before proceeding
through the intersection. Officer Schultz reported that the vehicle moved back and forth
within its lane, touching the lane dividers several times, before slowing down and straddling
the white line of a turn lane. The Defendant’s vehicle then sped up and briefly crossed the
double-yellow lines. Officer Schultz testified that because it was 3:30 a.m., he was worried
that the driver was either driving under the influence or falling asleep. Based on these facts,
we conclude that the evidence does not preponderate against the trial court’s findings that
this evidence was sufficient to support a reasonable suspicion to stop the Defendant’s
vehicle.

Furthermore, Officer Schultz testified that within five to ten seconds of initially
encountering the Defendant he suspected that the Defendant was driving under the influence
of an intoxicant. Although the Defendant relies upon State v. Berrios, 235 S.W.3d 99 (Tenn.
2007), in support of his argument that he was subjected to an illegal “sit and frisk,” we agree
with the State that the facts in Berrios are “clearly distinguishable” from the present case.
In Berrios, the officer stopped the defendant for speeding, had no reason to suspect that any
other criminal activity had taken place, and admitted that he placed the defendant in his patrol
vehicle to see if he became anxious. Id. at 102. In the present case, the officer testified that
he smelled a strong odor of intoxicant almost immediately upon talking to Defendant, that
the Defendant’s eyes were glassy and blood-shot, and that his speech was slurred and
unintelligible. Such evidence does not preponderate against the trial court’s finding that the
officer had probable cause to arrest the Defendant.

C. Breath-alcohol Test as Illegal Search and Seizure

Finally, the Defendant contends that the breath-alcohol test given to him was an

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unconstitutional search and seizure. In particular, the Defendant asserts that the officer
lacked probable cause to believe evidence of his intoxication would be found if a breath-
alcohol test was conducted. The Defendant further argues that application of the exigent
circumstances exception to blood-alcohol testing should be reexamined in light of the
Supreme Court’s recent decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013). The State
responds that the officer did have probable cause to suspect that a breath-alcohol test would
result in a finding that the Defendant was intoxicated and further responds that the Defendant
consented to the test.

Initially, we note that “[t]he administration of a breath test for the detection of a
person’s blood-alcohol level is a seizure of the person and a search for evidence within the
purview of the Fourth Amendment of the United States Constitution.” State v. Humphreys,
70 S.W.3d 752, 760 (Tenn. Crim. App. 2001) (citing State v. Michael A. Janosky, No.
M1999-02574-CCA-R3-CD WL 1449367 (Tenn. Crim. App. Sept. 29, 2000)). Therefore,
any breath-alcohol test conducted without a warrant must fall under one of the exceptions to
the warrant requirement. Humphreys, 70 S.W.3d at 760.

Although the Defendant urges us to analyze his case under the exigent circumstances
exception to the warrant requirement, we find such analysis unnecessary. The Defendant
does not dispute that he provided consent to the breath-alcohol test, and, therefore, whether
exigent circumstances did or did not exist is immaterial.

Consent is a well-established exception to the warrant requirement. See Schneckloth
v. Bustamonte, 412 U.S. 218 (1973); Rippy v. State, 550 S.W.2d 636 (Tenn. 1977). “The
sufficiency of the consent depends largely upon the facts and circumstances presented by
each particular case. The burden is on the prosecution to prove that the consent was given
freely and voluntarily.” State v. Blackwood, 713 S.W.2d 677, 680 (Tenn. Crim. App. 1986).
Also relevant to this discussion is Tennessee’s implied consent law, codified at Tennessee
Code Annotated section 55-10-406(a)(1), which provides as follows:

Any person who drives a motor vehicle in this state is deemed to have given
consent to a test or tests for the purpose of determining the alcoholic content
of that person’s blood, a test or tests for the purpose of determining the drug
content of the person’s blood, or both tests.

A test conducted pursuant to Tennessee Code Annotated section 55-10-406(a)(1) requires
that the law enforcement officer have “reasonable grounds to believe the person was driving
while under the influence of alcohol.”

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 Although the Defendant argues that the officer lacked the probable cause required to
justify a breath-alcohol test under both the exigent circumstances and consent requirements,
the Defendant’s argument is misguided. As discussed above, the exigent circumstances
exception is immaterial, and the implied consent law requires only “reasonable grounds to
believe the person was driving under the influence of alcohol.” Tenn. Code. Ann. § 55-10-
406(a)(1). In the present case, the officer testified that he had multiple grounds for believing
the Defendant was intoxicated. Furthermore, the Defendant can be heard on the videotape
from the dashboard camera saying “test me; I will pass with flying colors,” and the officer
read the Defendant the implied consent form before administering the breath test. The
Defendant does not challenge the adequacy of the consent he provided. Because we
conclude that the officer did have reasonable grounds to believe the Defendant was
intoxicated, the Defendant’s argument that the breath-alcohol test constituted an illegal
search and seizure is without merit.

D. Sensing Violation

The Defendant contends that the fourth Sensing requirement was not met because
Officer Schultz was filling out paperwork during the twenty-minute observation period and
therefore failed to properly observe him. The State responds that the officer engaged the
Defendant in conversation during the entire twenty-minute period and ensured that the
Defendant did not have anything in his mouth, thus complying with Sensing.

In Sensing, our supreme court relaxed the requirements for introducing the results of
breath-alcohol tests into evidence. 843 S.W.2d 412. The court set forth new requirements
that must be followed when the State seeks to admit the results of these tests from a non-
qualified expert, such as the testing officer. The court determined that, because the reliability
of such testing had become generally accepted, there was no longer a need for a certified
operator of a breathalyzer “to know the scientific technology involved in the function of the
machine.” Id. at 416. Instead, the court held that before evidence of breath-alcohol results
are introduced, the testing officer must be able to testify:

(1) that the tests were performed in accordance with the standards and
operating procedure promulgated by the forensic services division of the
Tennessee Bureau of Investigation, (2) that he was properly certified in
accordance with those standards, (3) that the evidentiary breath testing
instrument used was certified by the forensic services division, was tested
regularly for accuracy and was working properly when the breath test was
performed, (4) that the motorist was observed for the requisite 20 minutes prior
to the test, and during this period, he did not have foreign matter in his mouth,
did not consume any alcoholic beverage, smoke, or regurgitate, (5) evidence

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 that he followed the prescribed operational procedure, [and] (6) identify the
printout record offered in evidence as the result of the test given to the person
tested.

Id.

Because Sensing lowered the standard for admissibility of breath-alcohol tests, our
supreme court has declined to further relax the now well-established foundational
requirements for admitting such evidence. See State v. Bobo, 909 S.W.2d 788, 790 (Tenn.
1995) (explaining that Sensing created “unambiguous threshold admissibility requirements”
for the introduction of breath-alcohol testing results from a non-expert ); see also State v.
Deloit, 964 S.W.2d 909, 914 (Tenn. Crim. App. 1997) (noting that Bobo held that “once the
state decides to proceed under Sensing, which relaxed traditional requirements of
admissibility, there can be no further relaxation of the rules”). The State carries the burden
of proving that the breath test complied with the Sensing requirements. State v. McCaslin,
894 S.W.2d 310, 312 (Tenn. Crim. App. 1994). On appeal, there is a presumption that the
trial court’s determination of the Sensing requirements is correct unless the evidence
preponderates otherwise. State v. Edison, 9 S.W.3d 75, 78 (Tenn. 1999).

The fourth Sensing requirement requires the State to prove two distinct elements: (1)
that the defendant was observed for twenty minutes and (2) that the defendant did not have
foreign matter in his mouth, did not consume any alcoholic beverage, smoke, or regurgitate.
843 S.W.2d at 416 (emphasis added). This court has previously held that while “an
unblinking gaze for twenty minutes is not required. . . . the officer must be watching the
defendant rather than performing other tasks.” State v. Korsakov, 34 S.W.3d 534, 540
(Tenn. Crim. App. 2000). In Korsakov, the officer administering the breath-alcohol test
filled out paperwork during the observation period. Id. at 539. The officer testified that,
while standing across a counter from the defendant, he was able to observe the defendant
through his peripheral vision, and also “affirmed that the defendant did not eat, drink, smoke,
vomit, or belch during this time.” Id. The court determined that although the officer was
confident that he would have heard or smelled any of the activities that might have affected
the results of the breath test, this “belief” did not satisfy the prerequisite that the defendant
be observed for twenty minutes. Id. at 541.

In Deloit, this court held that the results of a breath-alcohol test were not admissible
where the officer observed the defendant in his rear view mirror while he filled out
paperwork. 964 S.W.2d at 916. Likewise, in State v. Sean E. Miller, because the officer
admitted that he was completing paperwork and talking to other officers during the
observation period, the court held that he could not conclusively verify that the defendant did
not burp, belch, regurgitate, or put anything in his mouth. No. W2001-02045-CCA-R3-CD,

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2002 WL 1483197, at *1 (Tenn. Crim. App. Feb. 15, 2002). The court stated that although
there was a videotape of the defendant while he was in the backseat of the patrol car, his face
was not observable for the entire twenty-minute period. Id. at *3 n.1. Therefore, although
“an appellate court’s standard of review is de novo with no presumption of correctness where
evidence does not involve issues of credibility,” the court could not make an independent
determination that the fourth Sensing requirement had been met. Id. (citing Binette, 22
S.W.3d at 217).

In its brief, the State relies upon State v. Stanley E. Chatman, No. M2002-02418-
CCA-R3-CD, 2003 WL 22999438 (Tenn. Crim. App. Dec. 23, 2003), to support the
proposition that an officer may look away from the defendant “for a second” to check his
watch without invalidating the entire observation period. However, Chatman is readily
distinguishable from the case at hand. In Chatman, the officer testified that he observed the
defendant “face to face” for over twenty minutes and “glanced at his stopwatch” once or
twice during the observation period. Id. at *4. He further testified that he did not fill out any
paperwork or make any radio calls during this time. Id. Initially, in the present case, it is
important to note that the Defendant was in the backseat of the patrol car; hence,the officer
was not observing the Defendant face to face at any time. In fact, by his own admission, the
officer filled out paperwork during the observation period. Additionally, a careful review
of the videotape shows that at various times during the observation period, the officer accepts
a clipboard from someone outside his patrol car, which he writes on and then hands back,
takes a piece of paper from someone outside the patrol car, which he appears to place on his
clipboard, and briefly converses with someone outside the patrol car. We fail to see how
these actions are analogous to a mere “glance” at one’s stopwatch.

In denying the motion to suppress, the trial court relied heavily upon its own review
of the videotape in determining that the Defendant did not burp, belch, regurgitate, or place
anything in his mouth. The trial court noted that the officer was in close proximity to the
Defendant the entire time and agreed with the State that “[one-hundred] percent watching of
the defendant is not required.” We acknowledge that during the time period when the
Defendant’s face is viewable on the videotape, he does not appear to engage in any
prohibited activities. We further acknowledge that it would have been nearly impossible for
him to place anything in his mouth because he was handcuffed the entire time. However, the
Defendant’s face, and in particular his mouth, is not visible during the entire twenty-minute
period. At several points throughout the videotape, the Defendant’s face and mouth are
obstructed by what appears to be the keyboard for the Intoximeter. Burping, belching, and
regurgitating can occur in a matter of seconds, and “while ‘often a belch or regurgitation will
produce a noise capable of being heard by another person, this is not always the case.’”
Korsakov, 34 S.W.3d at 541 (quoting State v. Harold E. Fields, No. 01C01-9412-CC-00438,
1996 WL 180706, at *3 (Tenn. Crim. App. Apr. 12, 1996). Our own review of the videotape,

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taken together with the officer’s testimony that he did paperwork during the observation
period, leads us to conclude that the evidence preponderates against the trial court’s finding
that the officer complied with the requisite twenty-minute observation period. Therefore, we
hold that the trial court erred in admitting the breath-alcohol test results into evidence.

The results of the breath-alcohol test were the only evidence establishing DUI per se
and were the only scientific evidence offered by the State in support of the DUI charge.
Although the officer testified that the Defendant drove somewhat erratically, smelled of
alcohol, and appeared intoxicated, we cannot say that without admission of the .20 breath-
alcohol test results, the jury would have found that the Defendant was guilty beyond a
reasonable doubt. See Miller, 2002 WL1483197, at *3. Because we conclude that the
admission of the test results was not harmless error, we reverse and remand for a new trial.

II. Momon Violation

Finally, the Defendant contends that the trial court erred in failing to conduct a
Momon hearing in violation of his fundamental constitutional rights. The State responds that
the Defendant has waived review of this issue because he failed to raise the issue in his
motion for a new trial.

Tennessee Rule of Appellate Procedure 3(e) states that “in all cases tried by a jury,
no issue presented for review shall be predicated upon error in the admission or exclusion
of evidence . . . unless the same was specifically stated in a motion for a new trial; otherwise
such issues will be treated as waived.” However, this court has previously held that “the
failure to conduct a hearing pursuant to Momon to determine whether the [d]efendant did
personally waive his right to testify was plain error.” State v. Roger Page, No. W2003-
01342-CCA-R3-CD, 2004 WL 3352994, at *16 (Aug. 26, 2004 Tenn. Crim. App.) (citing
State v. Posey, 99 S.W.3d 141, 148 (Tenn. Crim. App. 2002)). Therefore, the fact that the
Defendant failed to raise this issue in his motion for a new trial does not preclude review of
the issue for purposes of determining the presence of plain error. See Tenn. R. Crim. P.
32(b).

In Momon, our supreme court recognized that “the right of a criminal defendant to
testify in his or her own behalf is a fundamental constitutional right.” 18 S.W.3d at 161. The
court also recognized the ability of a defendant to waive this right. Accordingly, the court
established a procedure for questioning the defendant regarding this decision at his trial
designed to “protect the fundamental right of the accused to testify in a criminal trial and to
ensure that any waiver of that right was personal, knowing, and voluntary.” State v.
Copeland, 226 S.W.3d 287, 304 (Tenn. 2007).

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 In the present case, the record is devoid of any evidence that the trial court followed
the waiver procedure set forth in Momon. Usually, the proper remedy for such a complete
failure would be to “remand the case to the trial court for a determination of whether the
defendant personally waived his right to testify.” Page, 2004 WL 3352994, at *16 (citing
Posey, 99 S.W.3d at 149). However, because we have already concluded that the
Defendant’s case should be reversed and remanded based on the Sensing issue, it is
unnecessary to remand the case to the trial court for determination of whether the Defendant
properly waived his right to testify. Instead, we impress upon the trial court the importance
of conducting a Momon hearing should the Defendant again decide not to testify.

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgment of the
trial court is reversed.

_________________________________
D. KELLY THOMAS, JR., JUDGE

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