State v. Decosimo

• Decision Date: 23 August 2018
• Docket Number: No. E2017-00696-SC-R11-CD,E2017-00696-SC-R11-CD
• Citation: 555 S.W.3d 494
• Parties: STATE of Tennessee v. Rosemary L. DECOSIMO
• Court: Tennessee Supreme Court

555 S.W.3d 494

STATE of Tennessee

v.Rosemary L. DECOSIMO

No. E2017-00696-SC-R11-CD

Supreme Court of Tennessee, AT KNOXVILLE.

May 31, 2018 Session

FILED August 23, 2018

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Jonathan David Shaub, Assistant Solicitor General, for the appellant, State of Tennessee.

Jerry H. Summers, Benjamin McGowan, and Marya Schalk, Chattanooga, Tennessee, for the appellee, Rosemary L. Decosimo.

Stephen Ross Johnson, Brennan M. Wingerter, and William Gill, Knoxville, Tennessee, and Joseph S. Ozment, Memphis, Tennessee, for the amici curiae, National Association of Criminal Defense Lawyers and Tennessee Association of Criminal Defense Lawyers.

Cornelia A. Clark, J., delivered the opinion of the court, in which Jeffrey S. Bivins, C.J., and Sharon G. Lee, Holly Kirby, and Roger A. Page, JJ., joined.

Cornelia A. Clark, J.

In this appeal of a certified question of law, the defendant challenges the constitutionality of a statute that imposes a fee upon persons convicted of certain drug and alcohol offenses when forensic scientists employed by the Tennessee Bureau of Investigation ("TBI") have conducted chemical tests to determine blood alcohol or drug content. The challenged statute earmarks the fees imposed to an intoxicant testing fund, and monies within this fund do not revert to the State’s general fund but "remain available for appropriation to the [TBI] as determined by the [G]eneral [A]ssembly." Tenn. Code Ann. § 55-10-413(f)(3)(B) (2017). The defendant argues that this statutory scheme provides TBI forensic scientists with a personal and institutional financial incentive to produce blood alcohol test results that secure convictions, which, in turn, increases fees and funding for the TBI. Relying on Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) ; Ward v. Vill. of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972) ; and Connally v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977), the defendant asserts that these financial incentives create an appearance of impropriety and deprive her of the federal and state constitutional right to a fair and impartial trial. We conclude that, under both the federal and state constitutions, the standards of neutrality announced in Tumey, Ward, and Connally apply only to persons exercising judicial or quasi-judical authority and do not apply to TBI forensic scientists, who do not exercise such authority. Furthermore, even if the Tumey standards applied to TBI forensic scientists, the defendant’s constitutional claim would fail because, as salaried employees, the TBI forensic scientists have no direct, personal, substantial pecuniary interest in fees imposed pursuant to the statute, and any institutional financial interest the TBI forensic scientists may have as a result of the statute is too remote to give rise to an appearance of impropriety. We also disagree with the Court of Criminal Appeals' holding that the statute violates substantive due process by creating a situation analogous to an expert witness contingency fee arrangement. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and the judgment of the trial court is reinstated.

I. Background

This appeal involves a challenge to the constitutionality of a statute that imposes a $250 "blood alcohol or drug concentration test (BADT) fee" [hereinafter "BADT fee statute"] on every person convicted of certain statutorily specified offenses,¹ including driving under the influence, if the offender "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 the offender "has submitted to a chemical test to determine the alcohol or drug content of the blood or urine." Tenn. Code Ann. § 55-10-413(f)(1) (2017).² Clerks of "the various courts of the counties" collect BADT fees and forward them monthly to the state treasurer for deposit into "the Tennessee bureau of investigation (TBI) toxicology unit intoxicant testing fund" [hereinafter "Intoxicant Testing Fund"]. Id. § 55-10-413(f)(2), (f)(3)(A). Monies deposited in the Intoxicant Testing Fund "shall be invested pursuant to [Tennessee Code Annotated section] 9-4-603" and "shall not revert to the general fund of the [S]tate, but shall remain available for appropriation to the [TBI], as determined by the [G]eneral [A]ssembly." Id. § 55-10-413(f)(3)(B). Money in the Intoxicant Testing Fund shall be used, "to the extent permitted by federal law and regulation, to fund a forensic scientist position in each of the three (3) [TBI] 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 [TBI] to operate in a more efficient and expeditious manner." Id. § 55-10-413(f)(3)(C). Any additional available funds in the Intoxicant Testing Fund "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." Id.

The defendant, Rosemary L. Decosimo, challenged the constitutionality of section 55-10-413(f) after her arrest in the early morning hours of August 18, 2012. She consensually provided a blood sample upon her arrest, and this blood sample was submitted to the forensic services division of the TBI for analysis. Nothing in the record reflects that the defendant had an additional blood sample procured for independent testing as permitted by statute. See Tenn. Code Ann. § 55-10-408(e) (2017) ("The person tested shall be entitled to have an additional sample of blood or urine procured and the resulting test performed by any medical laboratory of that person’s own choosing and at that person’s own expense; provided, that the medical laboratory is licensed pursuant to title 68, chapter 29.").

The TBI is comprised of three divisions—the criminal investigation division, the forensic services division, and the narcotics investigation division. Tenn. Code Ann. § 38-6-101(a)(2) (2014). The TBI’s forensic services division "consist[s] of experts in the scientific detection of crime." Tenn. Code Ann. § 38-6-103(a) (2014). These experts are salaried state employees.³ The forensic services division must "establish, authorize, approve and certify techniques, methods, procedures and instruments for the scientific examination and analysis of evidence, including blood, urine, breath or other bodily substances, and teach and certify qualifying personnel in the operation of such instruments to meet the requirements of the law for the admissibility of evidence."

Id. § 38-6-103(g). "When examinations, tests and analyses have been performed in compliance with these standards and procedures, the results shall be prima facie admissible into evidence in any judicial or quasi-judicial proceeding, subject to the rules of evidence as administered by the courts." Id.

The results of the TBI’s forensic services division’s testing of the blood sample the defendant provided showed the defendant’s blood alcohol content at 0.16%. In May 2013, the Hamilton County Grand Jury charged the defendant with five driving offenses,⁴ including driving under the influence ("DUI") with a blood alcohol content above 0.08%, which constitutes DUI per se. See Tenn. Code Ann. § 55-10-401(2) (2017).⁵

On January 31, 2014, the defendant filed a motion to dismiss, or in the alternative, to suppress the TBI’s blood alcohol test results. She challenged the constitutionality of the BADT fee statute, arguing that by conditioning imposition of the BADT fee upon conviction and earmarking the monies to the Intoxicant Testing Fund, rather than to the State’s general fund, the BADT fee statute incentivizes TBI forensic scientists to generate test results that produce convictions and BADT fees. The defendant argued that such a statutory system gives rise to an appearance of impropriety that violates her fundamental right to a fair trial guaranteed by both the Due Process Clause of the Fourteenth Amendment to the United States Constitution and article I, section 8 of the Tennessee Constitution.

Twenty-two other persons charged in Hamilton County with an offense for which a BADT fee would be assessed upon conviction also filed motions to dismiss their indictments and suppress the results of blood alcohol testing. These persons had provided either a blood or breath sample to law enforcement. Blood samples were sent to the TBI forensic services division for testing. Breath samples were tested by a model EC/IR II breath analysis machine calibrated, maintained, and certified by the TBI. These persons raised the same constitutional challenge to the BADT fee statute as the defendant.

On August 1, 2014, three judges of the criminal courts for Hamilton County held a single joint hearing on all of these motions. At this joint hearing, counsel for the defendants acknowledged that the constitutional claim involved no allegations of actual unfair or inappropriate action on the part of any TBI forensic scientist and that no evidence of that sort would be presented at the hearing. Rather, the defendants explicitly premised their constitutional challenge solely on "the appearance" of impropriety and the "potential" for abuse resulting from the BADT fee statute creating in the TBI and TBI forensic scientists a "financial interest" to obtain convictions of certain offenses and collect BADT fees.

As evidence to support this constitutional claim, the defendants introduced a transcript of the testimony that former TBI Director Mark Gwyn ("Director Gwyn") provided the General Assembly’s Senate Judiciary Committee on February 11, 2014. Director Gwyn provided the following...