author: WILLIAM M. BARKER, J.,

text:
    EASTMAN CHEMICAL COMPANY v. Ruth E. JOHNSON, Commissioner of Revenue, State of Tennessee.
    Supreme Court of Tennessee, at Nashville.
    Oct. 7, 2004 Session.
    Nov. 24, 2004.

      Brett R. Carter, Charles A. Trost and Michael G. Stewart, Nashville, Tennessee, for the appellant, Eastman Chemical Company.

      Paul G. Summers, Attorney General and Reporter; Joseph F. Whalen, Associate Solicitor General; and Charles L. Lewis, Deputy Attorney General, for the appellee, Ruth E. Johnson, Commissioner of Revenue, State of Tennessee.
    Jay Stapp, Nashville, Tennessee, for the Amicus Curiae, Bridgestone/Firestone North American Tire, LLC.
    M. Kimberly Stagg, Smyrna, Tennessee, for the Amicus Curiae, Nissan North America, Inc.
    Carl E. Hartley and John M. Phillips, Chattanooga, Tennessee, and Sandi L. Pack, Nashville, Tennessee, for the Amicus Curiae, Tennessee Chamber of Commerce & Industry.
   OPINION

WILLIAM M. BARKER, J.,

delivered the opinion of the court, in which

FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON and JANICE M. HOLDER, JJ„ and ALLEN WALLACE, Sr.J., joined.

The sole issue in this case is whether certain chemical catalysts used by Eastman Chemical Company fall within the industrial machinery exemption to the Tennessee sales and use tax statute, Tennessee Code Annotated sections 67-6-101 et seq. (2003). The trial court granted summary judgment in favor of the taxpayer. The Court of Appeals reversed, dismissing the taxpayer’s complaint seeking refunds for 1995, 1996 and 1997 based on the Court of Appeals’ determination that the chemical catalysts used by the taxpayer did not come within the definition of “industrial machinery” in Tennessee Code Annotated section 67-6-102(13)(A) (1998). We reverse the Court of Appeals and reinstate the decision of the trial court granting summary judgment in favor of the taxpayer.

FACTUAL BACKGROUND

Eastman Chemical Company (“Eastman”) is a Delaware corporation with its principal place of business in Kingsport, Tennessee. It manufactures various types of chemicals and plastics. Eastman regularly uses three types of catalysts in its manufacturing processes — “fixed-bed” catalysts, “batch” catalysts, and cobalt hydrate. The catalysts used by Eastman are essential to the production of Eastman’s chemical products, and the vertical tubes, reaction chambers, vessels and other items of equipment used by Eastman in the production process are specifically designed to work in conjunction with the catalysts.

From January 1995 through December 1997, Eastman paid the State of Tennessee $1,254,976.48 in use tax for the various catalysts used during that period. On January 1, 1998, Eastman ceased paying use tax on the catalysts used in its manufacturing processes because it decided that they were exempt from taxation either as industrial materials or as industrial machinery. On December 29, 1998, Eastman filed a claim with the Tennessee Department of Revenue (“Department”) seeking a refund for the tax years of 1995, 1996 and 1997, asserting that it erroneously paid use tax on the catalysts. The Department denied Eastman’s claimed exemptions.

Eastman filed a complaint in Chancery Court against the Commissioner of Revenue, pursuant to Tennessee Code Annotated section 67-l-1802(c)(l) (2003), seeking a refund of $1,254,976.48 for tax years 1995, 1996 and 1997. Eastman alleged that the catalysts were exempt from the use tax as industrial machinery, as defined in Tennessee Code Annotated section 67-6-102(13)(A) (1998). Eastman amended its complaint to allege in the alternative that the cobalt hydrate catalysts were exempt as industrial materials.

Eastman filed a motion for summary judgment, which was granted by the trial court on June 29, 2002. The trial court relied upon AFG Indus. Inc. v. Cardwell, 835 S.W.2d 583 (Tenn.1992), to determine that the catalysts used by Eastman were industrial machinery as defined by the statute and therefore exempt from use tax. The Commissioner appealed.

The Court of Appeals reversed the trial court and dismissed Eastman’s entire complaint against the Department. The Court of Appeals found that the exemption for industrial machinery in Tennessee Code Annotated section 67-6-102(13)(A) (1998) cannot be extended to include the catalysts Eastman uses in its manufacturing process.

ANALYSIS

Issues of statutory construction are questions of law that this Court reviews de novo without any presumption of correctness. Bryant v. Genco Stamping & Mfg. Co., 33 S.W.3d 761, 765 (Tenn.2000); Freeman v. Marco Transp. Co., 27 S.W.3d 909, 911 (Tenn.2000).

Our duty in construing statutes is to ascertain and give effect to the intention and purpose of the legislature. See Lipscomb v. Doe, 32 S.W.3d 840, 844 (Tenn.2000); Freeman, 27 S.W.3d at 911. ‘Legislative intent is to be ascertained whenever possible from the natural and ordinary meaning of the language used, without forced or subtle construction that would limit or extend the meaning of the language.’” Lipscomb, 32 S.W.3d at 844 (quoting Hawks v. City of Westmoreland, 960 S.W.2d 10, 16 (Tenn.1997)).

When the statutory language is clear and unambiguous, we must apply its plain meaning in its normal and accepted use, without a forced interpretation that would limit or expand the statute’s application. See id.; Carson Creek Vacation Resorts, Inc. v. State Dep’t of Revenue, 865 S.W.2d 1, 2 (Tenn.1993). Where an ambiguity exists, we must look to the entire statutory scheme and elsewhere to ascertain the legislative intent and purpose. State v. Walls, 62 S.W.3d 119, 121 (Tenn.2001); Freeman, 27 S.W.3d at 911. The statute must be construed in its entirety, and it should be assumed that the legislature used each word purposely and that those words convey some intent and have a meaning and a purpose. Tennessee Growers, Inc. v. King, 682 S.W.2d 203, 205 (Tenn.1984). The background, purpose, and general circumstances under which words are used in a statute must be considered, and it is improper to take a word or a few words from its context and, with them isolated, attempt to determine their meaning. First Nat’l Bank of Memphis v. McCanless, 186 Tenn. 1, 207 S.W.2d 1007, 1009-10 (1948).

In addition to general principles of statutory construction, we must also consider the rules of construction specifically applicable to tax statutes. Statutes imposing a tax are to be construed strictly against the taxing authority. See Covington Pike Toyota, Inc. v. Cardwell, 829 S.W.2d 132, 135 (Tenn.1992). However, statutes granting exemptions from taxation are construed strictly against the taxpayer. Tibbals Flooring Co. v. Huddleston, 891 S.W.2d 196, 198 (Tenn.1994); Covington Pike Toyota, 829 S.W.2d at 135.

The Exemption of Eastman’s Catalysts Under Tennessee Code Annotated section 67-6-102(18)(A) (1998).

Pursuant to Tennessee Code Annotated section 67-6-206(a) (2003), industrial machinery is exempt from sales and use taxes. Prior to 1984, industrial machinery was defined as:

Machinery, including repair parts and any necessary repair or taxable installation labor therefor, which is directly and primarily utilized in fabricating or processing tangible personal property for resale ... where the use of such machinery or equipment is by one who engages in such fabrication or processing as his principal business either within or without this state.

Tenn.Code Ann. § 67-6-102(8) (1983). An amendment in 1984 expanded the definition of industrial machinery to read:

Machinery, apparatus and equipment with all associated parts, appurtenances and accessories, including hydraulic fluids, lubricating oils, and greases necessary for operation and maintenance, repair parts and any necessary repair or taxable installation labor therefor, which is necessary to, and primarily for, the fabrication or processing of tangible personal property for resale and consumption off the premises, ... where the use of such machinery, equipment or facilities is by one who engages in such fabrication or processing as one’s principal business....

Tenn.Code Ann. § 67-6-102(13) (1998).

There is no dispute that the catalysts are necessary to and primarily for the fabrication or processing of tangible personal property for resale or consumption and that Eastman is a manufacturer. The only issue in dispute is whether the catalysts used by Eastman are “[m]achinery, apparatus and equipment with all associated parts, appurtenances and accessories.” Tenn.Code Ann. § 67-6-102(13)(A) (1998).

In AFG Indus. Inc. v. Cardwell, 835 S.W.2d 583 (Tenn.1992), we were asked to interpret the definition of “industrial machinery” as amended in 1984. At issue in AFG Indus, were tin ingots purchased by the taxpayer for use in a molten tin bath as part of its glass production. During the manufacturing process, molten glass was floated on the molten tin bath, which acted as a conveying mechanism and a surface on which the glass was shaped. 835 S.W.2d at 584. The lower courts relied upon our decision in Tibbals Flooring Co. v. Olsen, 698 S.W.2d 60 (Tenn.1985) (“Tibbals I ”), in holding that the tin purchased for this process did not qualify for the industrial machinery exemption. AFG Indus., 835 S.W.2d at 585. On appeal, we reversed, explaining that the lower court’s reliance on Tibbals I failed to account for the new language added in 1984 to the industrial machinery definition. Id. We explained:

In Tibbals, this Court looked to ordinary dictionary definitions of machinery and equipment and compared the predominate characteristics of the items in issue to such definitions....
The Tibbals analysis is appropriate in this case, but, as previously indicated, the statutory definition of industrial machinery has been expanded since the tax year involved in Tibbals to include “apparatus, and equipment with all associated parts, appurtenances, and accessories.” We hold that the tin comes within this expanded definition.

Id. (Emphasis added.)

In determining what was included in this expanded definition, we looked at the plain meaning of the words used in the statute:

An apparatus is defined as the “totality of means by which a designated function is performed or a specific task executed,” The American Heritage Dictionary (1969), and as “a set of materials or equipment designed for a particular use.” Webster’s Ninth New Collegiate Dictionary (1990). It contemplates a collection of component parts “designed for a specific mechanical or chemical action or operation.” Webster’s Third New International Dictionary (1976).

Id. Applying these definitions, we found that “[t]he molten tin is an integral part of the bath” and, as such, was “both an accessory to and an associated part of the tin bath apparatus.” Id. We also noted that the tin’s “primary character in the glass making process is not changed by the fact that it is used in its liquid state.” Id.

We again applied a similar “totality of means” test in Tibbals Flooring Co. v. Huddleston, 891 S.W.2d 196 (Tenn.1994) (“Tibbals II ”). In Tibbals II, we held that a system of fans and vacuums which removed sawdust and wood shavings from a wood cutting and sanding operation and delivered them to boilers for creating steam and electricity was industrial machinery. 891 S.W.2d at 200. The Commissioner argued that this system was not industrial machinery because it only transported the wood waste to steam-generating industrial machinery rather than actually producing the steam directly. We rejected this interpretation:

The construction advanced by the Commissioner is strained and does not comport with the plain language of the statute, “read in the context of the entire statute, without any forced or subtle construction which would extend or limit its meaning.” The spoils removal and dust piping system consists of machines that, in combination with the boilers, generate and produce electricity and steam. Although the system does not actually produce electricity and steam, it consists of machines that are used to produce electricity and steam.

Id. (quoting Nat’l Gas Distrib., Inc. v. State, 804 S.W.2d 66, 67 (Tenn.1991)).

In the case under submission, the trial court found that the catalysts used by Eastman were “part of the totality of means whereby the processes are accomplished and integral to the process,” and therefore fell within the definition of industrial machinery as set forth in AFG Indus. We agree.

Tibbals II and AFG Indus, establish that all components integral to manufacturing or processing are exempt under the definition of industrial machinery, whether or not they fit the traditional concept or image of “machinery,” or the pre-1984 definition of machinery. Tibbals II, 891 S.W.2d at 200; AFG Indus., 885 S.W.2d at 585. In its manufacturing processes, Eastman uses the catalysts in conjunction with various tubes, reaction chambers, vessels and other items of equipment which cannot operate without the catalysts. Clearly, the catalysts are not part of the ingredients that go into making the products, in that the catalysts are not consumed during the process. Rather, the catalysts are reused for months or even years. Instead of being processed, the catalysts perform the processing function by triggering the chemical reactions that turn raw materials into saleable products.

The Court of Appeals held that the catalysts were not included in the exemption for industrial machinery because they could not be classified as “machinery, apparatus [or] equipment.” First, the Court of Appeals looked to the legislative history of the 1984 amendment, and found that it did not expand the definition of industrial machinery:

The 1984 addition of the words “apparatus” and “equipment” to the definition of industrial machinery in Tenn.Code Ann. § 67-6-102(a)(13)(A) does not necessarily reflect the General Assembly’s desire to broaden the existing exemption far beyond the legislator’s collective understanding of the meaning of “machinery.” While the dictionary definitions of “machinery,” ... “apparatus,” and “equipment” differ slightly, they are essentially synonymous.

However, this interpretation is contrary to our holding in AFG Indus., where we specifically found that the amendment with its additional words expanded the definition of industrial machinery. Moreover, the court’s reliance on legislative history is misplaced because in AFG Indus., we found the language of the statute to be plain and unambiguous. Compare Lipscomb, 32 S.W.3d at 844 (when the statutory language is clear and unambiguous, we apply its plain meaning in its normal and accepted use) with Walls, 62 S.W.3d at 121 (where an ambiguity exists, we look to the entire statutory scheme and elsewhere to ascertain the legislative intent and purpose).

The Court of Appeals interpreted the definition of industrial machinery as follows:

The phrase “machinery, apparatus and equipment” is broad enough to include (1) the devices conveying the materials and components from one part of the manufacturing or fabricating process to another, (2) the devices such as stamping machines, presses, caldrons, vats, vessels, or chambers where the fabricating or processing occurs, and (3) the devices used to convey the finished products to packing or storage. However, it does not include the fuel used to run the manufacturing devices, the water or other substances used to cool the manufacturing devices or materials, the building housing the manufacturing devices, or the real property on which the manufacturing facility is located. Similarly, it does not include the raw materials or components used to produce the finished items of tangible personal property.

The flaw lies more in the application of this definition to the catalysts used by Eastman than in the definition itself. Contrary to the Court of Appeals’ suggestion, the catalysts are not raw materials or ingredients used in the production of the goods. Like the tin ingots at issue in AFG Indus., the catalysts used by Eastman are components of the equipment and apparatus used in the manufacturing processes, and do not become part of the final product. The catalysts are an integral part of the totality of means whereby the manufacturing processes are accomplished.

CONCLUSION

In summary, we hold that the catalysts used by Eastman fall within the definition of industrial machinery because they are integral parts of the equipment and apparatus used by Eastman. Therefore, the Court of Appeals’ dismissal of the complaint is reversed, and the trial court’s grant of summary judgment is reinstated.

Costs of this appeal are taxed to the State of Tennessee.

      . A catalyst is a material that speeds up a chemical reaction without itself being consumed in the process. While the catalyst participates in the chemical reaction, it is unchanged when the reaction is complete.

      . “Fixed-bed” catalysts are ceramic or metallic-like pellets of varying shapes and sizes that are placed inside large vertical tubes or other vessels. These vessels have holes or screens at the top and filters at the bottom. The product ingredients are introduced into the vessel at the top and passed through the catalyst bed under the conditions necessary to produce the required product. The "fixed-bed” catalysts remain in the vessel to be reused until such time as they are contaminated or otherwise lose their ability to effectively promote the desired reaction. This period may be as short as three months or as long as thirty years.

      ."Batch” catalysts are used in closed-loop manufacturing processes in which the catalysts circulate through a system which includes a reaction chamber. In this reaction chamber, the "batch” catalysts come in contact with the product ingredients and in so doing, the catalysts promote the necessary chemical reactions. The result of the completed reaction is a "slurry" containing the chemical end product and the "batch” catalysts. This slurry is passed through a filter which separates the product from the catalysts. The catalysts continue to circulate through the system while the products are withdrawn from the reaction chamber. The life span of these catalysts ranges from seven to thirty days.

      . Cobalt hydrate is also used in a closed-loop system, although unlike the “batch” catalysts, some of the cobalt, hydrate ultimately becomes a small part of the finished product (less than 100 parts per million).

      . The definition of industrial machinery is currently codified at Tennessee Code Annotated section 67-6-102(16) (2004 Supp.). For clarity, however, we will use the same reference to the definition as was used in the court below — Tennessee Code Annotated section 67-6-102(13)(A) (1998).

      . At the time of this dispute, Tennessee's sales and use tax statutes also exempted industrial materials under Tennessee Code Annotated section 67-6-102(24)(E)(i) (1998).

      . The Department concedes that the Court of Appeals erred in dismissing the entire complaint because the issue of whether the cobalt hydrate was exempt as industrial materials was not part of the motion for summary judgment and was not ruled upon by the trial court, nor was the issue raised before the Court of Appeals. This issue is now moot, however, because we find that the cobalt hydrate, along with the other catalysts, are exempt as industrial machinery.


source: Caselaw Access Project

author: FRANK F. DROWOTA III, C. J„

license: Public Domain

text:
    STATE of Tennessee v. Benjamin DAMRON.
    Supreme Court of Tennessee, at Nashville.
    Oct. 8, 2004 Session.
    Heard at Franklin.

    Nov. 23, 2004.

      Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Elizabeth T. Ryan, Senior Counsel; Charles M. Layne, District Attorney General; and Jason M. Ponder, Assistant District Attorney General, for the appellant, State of Tennessee.
    Robert S. Peters, Winchester, Tennessee, for the appellee, Benjamin Damron.

      . This case was heard as part of the October 8, 2004, S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project in Franklin, Williamson County, Tennessee. This was the Court’s 31st S.C.A.L.E.S. project since the program began in October 1995. To date, over 300 schools and more than 14,000 students have participated in S.C.A.L.E.S. projects across the State.

   OPINION

FRANK F. DROWOTA III, C. J„

delivered the opinion of the court,

in which E. RILEY ANDERSON, JANICE M. HOLDER, WILLIAM M. BARKER, JJ., and ALLEN WILSON WALLACE, Sp. J., joined.

We granted the State’s application for permission to appeal to determine whether the trial court and the Court of Criminal Appeals erred by suppressing potentially incriminating statements given by the defendant during the post-instrument phase of a polygraph test. Upon due consideration, we conclude that the lower courts erred by suppressing the statements. Although polygraph test results, testimony concerning such test results, and offers or refusals to submit to polygraph tests are not admissible into evidence, voluntary statements made before, during, or after a polygraph test may be admitted into evidence, provided that the statements also are consistent with other applicable constitutional and evidentiary rules. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and this case is remanded to the trial court for further proceedings consistent with this opinion.

I. Factual and Procedural Background

The defendant, Benjamin Damron, was accused of raping a twelve-year-old girl at the Fun-Tunnel Game Room in Tullahoma where the defendant worked. Both a civil suit and a criminal investigation resulted from this allegation. Before the case was presented to the Coffee County Grand Jury, counsel for the defendant approached the district attorney general to discuss whether a criminal prosecution could be avoided. The district attorney general agreed not only to allow the defendant to submit to a polygraph test but also to consider the results of the polygraph test before presenting the case to the Grand Jury.

The polygraph test was administered at 10 a.m. on January 4, 1999, at the Tullaho-ma City Hall. Although the defendant had an attorney and had discussed the polygraph test with his attorney, the defendant attended the polygraph test without counsel. The record reflects that the polygraph test consisted of three phases, the pre-instrument phase, the instrument or machine phase, and the post-instrument phase. During the pre-instrument phase of the polygraph test, the defendant signed a document entitled “Consent to Polygraph Examination” which provided in pertinent part:

I understand that I am voluntarily consenting to this polygraph examination; that I have the right to refuse to take the examination; that I have the right to refuse to answer any questions; that I have the right to consult with an attorney before taking the examination; that any statements I make may be used against me in court; and that I may terminate the examination at any time. All test questions will be reviewed with me before the examination.
I understand that after review of the examination, I will be advised of the results and, if necessary allowed to explain any questionable responses which were evident.

The defendant also received Miranda warnings and executed a written waiver of his constitutional rights. This waiver provided:

I have read, or have had read to me, my constitutional rights. I understand what my rights are, and I am willing to make a statement and answer questions without a lawyer being present.

The examiner also reviewed with the defendant during the pre-instrument phase the questions that would be posed during the instrument phase of the test. The defendant made no incriminating statements during this portion of the polygraph test.

During the instrument phase of the polygraph test, the defendant was connected to the polygraph machine and questioned about the allegation of sexual misconduct. The defendant denied having sexual contact with the alleged victim.

After the polygraph machine had been disconnected, the post-instrument phase of the polygraph test began. The polygraph examiner advised the defendant that the polygraph test indicated the defendant had answered untruthfully three questions regarding the alleged rape. Initially, the defendant continued to deny having sexual intercourse or sexual contact with the alleged victim. The defendant then commented that if he admitted to such conduct, he would lose his job with the National Guard and his part-time job as a police officer. When the examiner stated that the alleged victim had not claimed she had been forced to engage in sexual intercourse, the defendant replied, “She was not forced.”

Thereafter, the district attorney general presented the case to the Coffee County Grand Jury, and the Grand Jury returned an indictment charging the defendant with rape of a child. Prior to trial, the defendant filed a motion to suppress his statements. In support of his motion, the defendant argued that his statements were inadmissible because they were part of the polygraph test. The defendant also argued that defense counsel and the district attorney general had agreed that statements made during the polygraph test would not be admissible.

At a hearing on the motion, defense counsel and the district attorney general testified concerning the alleged agreement. Defense counsel had spoken with the district attorney general by telephone for approximately fifteen minutes before the defendant arrived for the polygraph test. During this conversation, defense counsel confirmed that the polygraph test results would be inadmissible. Although defense counsel admitted that they did not discuss the admissibility of statements made before, during, or after the polygraph test, defense counsel maintained that he and the district attorney general had a “tacit” agreement that such statements also would be inadmissible.

Although the district attorney general recalled his telephone discussion with defense counsel concerning the inadmissibility of the polygraph test results, the district attorney general testified that he considered the discussion unnecessary because polygraph test results had never been admissible in Tennessee. As to the inadmissibility of statements by the defendant, the district attorney general denied that any agreement existed, tacit or otherwise. The district attorney general testified that he had never agreed to exclude statements made during any phase of a polygraph examination and that he did not agree to exclude such statements in this case.

The trial court found that neither defense counsel nor the district attorney general had intentionally deceived or misled the other. The trial court found instead “a lack of communication about what was expected and what the results might be” and no “clear understanding about exactly what was going to transpire” during the polygraph examination. The trial court also concluded that the defendant had not been in a “custodial” setting when he made the statements. Nonetheless, the trial court suppressed the statements commenting, “I don’t think that those responses under the circumstances are admissible.”

The State sought and obtained permission to pursue an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. In a two-to-one de-cisión, the Court of Criminal Appeals affirmed the trial court’s judgment suppressing the defendant’s statements. The majority concluded that the statements were inadmissible because the post-instrument phase interview was part of the polygraph test, explaining that “there was no separation as to mark a discrete event, other than possibly the disconnection from the machine, of the machine phase from the post-instrument phase which caused the defendant to make the inculpatory statements.” Thereafter, this Court granted the State’s application for permission to appeal. We now reverse the Court of Criminal Appeals and remand to the trial court for further proceedings.

II. Standard of Review

A trial court’s findings of fact in a suppression hearing will be upheld on appeal unless the evidence preponderates against those findings. State v. Munn, 56 S.W.3d 486, 493 (Tenn.2001). Witness credibility, the weight and value of evidence, and conflicts in the evidence are matters for the trial court to decide, with the prevailing party entitled on appeal to the strongest legitimate view of the evidence and all reasonable and legitimate inferences which may be drawn from the evidence. Id. This Court reviews de novo a trial court’s application of law to the facts. State v. Walton, 41 S.W.3d 75, 81 (Tenn.2001).

III. Admissibility of Statements

In this Court, the State contends that the lower courts erred by suppressing the defendant’s potentially incriminating statements made during the post-instrument phase of his polygraph test. The State concedes that polygraph evidence is inadmissible. The State acknowledges that polygraph evidence includes polygraph test results, testimony concerning polygraph test results, and offers or refusals to submit to polygraph tests. Nonetheless, the State contends that voluntary statements made during the course of a polygraph test should be admissible to the extent allowed by applicable constitutional and evidentiary rules. The State argues that the defendant’s statements were voluntary and were obtained consistent with the Fifth Amendment to the United States Constitution. Furthermore, the State asserts that the evidence does not preponderate against the trial court’s finding that the defense counsel and the district attorney general had not agreed to exclude such statements.

The defendant contends that the lower courts correctly suppressed the statements because defense counsel had a “tacit, absolute understanding” with the district attorney general that such statements would not be admissible. The defendant also argues that his statements are inadmissible because they were made during the post-instrument phase of the polygraph test. Finally, the defendant argues that the Court of Criminal Appeals properly applied State v. Greer, 265 Wis.2d 463, 666 N.W.2d 518 (2003), and he urges this Court to hold, consistent with Greer, that statements made during a polygraph test are inadmissible unless the statements and the polygraph test are separate and discrete events.

Tennessee courts have held repeatedly that polygraph test results, testimony concerning such results, and testimony concerning a defendant’s willingness or refusal to submit to a polygraph test are inadmissible. State v. Pierce, 138 S.W.3d 820, 826 (Tenn.2004) (citing cases). This general rule stems from relevancy and reliability concerns. Tennessee Rule of Evidence 402 provides that “[ejvidence which is not relevant is not admissible.” Because polygraph evidence is not considered reliable, it is irrelevant. Pierce, 138 S.W.3d at 826. Therefore, polygraph evidence, which includes polygraph test results, testimony concerning such results, and testimony concerning a defendant’s willingness or refusal to submit to a polygraph test, is not admissible. Id.; see also State v. Torres, 82 S.W.3d 236, 252 n. 21 (Tenn.2002); State v. Hartman, 42 S.W.3d 44, 60 (Tenn.2001); State v. Irick, 762 S.W.2d 121, 127 (Tenn.1988); Grant v. State, 213 Tenn. 440, 374 S.W.2d 391, 392 (1964); Marable v. State, 203 Tenn. 440, 313 S.W.2d 451, 458 (1958); State v. Campbell, 904 S.W.2d 608, 614-15 (Tenn.Crim.App.1995) (citing additional cases).

Although Tennessee courts have often considered the admissibility of polygraph evidence, nearly forty years have passed since Tennessee courts have considered the admissibility of statements made during polygraph tests. In State ex rel. Weston v. Henderson, 220 Tenn. 1, 413 S.W.2d 674 (1967), Weston submitted voluntarily to a polygraph test concerning the robbery and murder of a taxi cab driver. Weston was cleared of any crime involving the taxi driver, but during the course of the polygraph test, Weston was questioned about other unrelated crimes, confessed to those crimes, and was convicted based upon this confession. In a habeas corpus proceeding, Weston challenged his convictions, arguing that the confession upon which they were based had been illegally obtained through the use of a polygraph test. In analyzing Weston’s claim, this Court recited the “well established” general rule that “the use of a lie detector in the process of interrogation does not render a subsequent confession involuntary or inadmissible.” Id. at 675. Ultimately this Court rejected Weston’s claim, stating:

Petitioner does not claim the results of this polygraph test were introduced in evidence against him nor that his confession was other than freely and voluntarily given; but that, in some manner, this test coerced him into giving the confession. It may well be the results of the test, which must have been apparent to petitioner, influenced him to give the confession; but, since the results of such tests are not admissible in evidence, then what the officers might have found or learned from the test would not amount to inducing or coercing petitioner to sign a confession.

Id.

The “well established rule” referenced in Weston permitting the introduction of voluntary statements made during a polygraph test remains the majority rule in the United States. Statements are not inadmissible merely because they were made during the course of a polygraph examination. Joel E. Smith, Annotation, Admissibility in Evidence of Confession made by Accused in Anticipation of, During, or Following Polygraph Examination, 89 A.L.R.3d 230, § 2[a] (1979 & 2004 Supp.) (collecting cases). A defendant’s challenge to the admissibility of a statement made during a polygraph test will be unsuccessful unless the defendant can show that the statement was involuntary. Id. Voluntary statements made during the course of a polygraph test are admissible so long as they are consistent with other applicable constitutional and evidentiary rules. Id.

Valid reasons support admitting into evidence voluntary statements made during the course of a polygraph test. As the United States Supreme Court has recognized, “admissions of guilt by wrongdoers, if not coerced, are inherently desirable.” Oregon v. Elstad, 470 U.S. 298, 305, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). Furthermore, the fact that a polygraph test is not sufficiently reliable to warrant admission of its results does not undermine the reliability of voluntary statements made by a defendant during a polygraph test. People v. Ray, 431 Mich. 260, 430 N.W.2d 626, 628 (1988). Indeed, as the Michigan Supreme Court correctly explained:

The reliability of statements made during a polygraph examination does not depend on the validity of the polygraph test or the examiner’s skill in conducting the test or interpreting its results, nor does the use of such statements improperly denigrate effective cross-examination. [A] statement may be rehable and voluntary even though it was made during the course of a polygraph examination.

Id. at 629. The Montana Supreme Court similarly explained that equating test results with statements made during the polygraph test is a mistake because “[t]he results of a polygraph examination involve the test-giver’s evaluation of responses” while “[statements involve direct responses to questioning and not the evaluation of the credibility in responding.” State v. Smith, 220 Mont. 364, 715 P.2d 1301, 1310 (1986). The rationale and policies supporting exclusion of polygraph evidence do not support exclusion of voluntary, non-coerced statements made during a polygraph test. Consistent with Weston and the overwhelming majority of jurisdictions that have considered this issue, we hold that statements made during the course of a polygraph test are not excludable per se as evidence at trial. Current procedures for testing the voluntariness of such statements are adequate to insure that an unreliable statement or a statement obtained without a knowing and intelligent waiver of a defendant’s rights will not be admissible at trial. If a statement is voluntary and consistent with other applicable constitutional and evidentiary rules, the statement can be introduced into evidence. In so holding, we reject the analysis of State v. Greer, 265 Wis.2d 463, 666 N.W.2d 518 (2003), which was adopted by the Court of Criminal Appeals. Under the analysis of Greer, an otherwise voluntary statement would be inadmissible unless the statement was separate and discrete from the polygraph test. For the reasons previously explained, by definition, voluntary statements are separate and discrete from polygraph tests. In our view, voluntariness is the proper test for determining the admissibility of such statements.

Returning to the facts of this case, we conclude that the lower courts erred by granting the defendant’s motion to suppress. The pertinent question for a court determining voluntariness is whether, considering the totality of the circumstances, the statement resulted from coercion and overreaching by law enforcement officers sufficient to overcome the defendant’s free wih. State v. Smith, 933 S.W.2d 450, 455-56 (Tenn.1996); State v. Kelly, 603 S.W.2d 726, 728 (Tenn.1980). The record in this case contains no evidence of coercion or overreaching. The defendant signed a consent form prior to submitting to the polygraph test. This form advised the defendant in clear and succinct language that any statements he made could be used against him in court, that he would be provided the results of the polygraph test, and that he would be allowed to explain any questionable responses. In addition, the polygraph examiner provided the defendant Miranda warnings, and the defendant executed a written waiver of his constitutional rights.

The polygraph test was administered as it had been described in the consent form. The defendant was provided the results of the test and given an opportunity to explain. When the defendant made the statements at issue in this appeal, the polygraph examiner was not interrogating the defendant. The examiner merely was affording the defendant an opportunity to explain questionable answers. Confronting a suspect with polygraph results ordinarily is not coercive or unreasonable. Wyrick v. Fields, 459 U.S. 42, 48, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982). Doing so in this case certainly was not coercive or unreasonable because the defendant had been told before the test began that he would be advised of the results and that he would be allowed to explain questionable responses. The evidence in the record simply does not establish, nor even suggest, that the potentially incriminating statements resulted from police coercion or overreaching, rather than the defendant’s free will.

Finally, despite the defendant’s assertions, the evidence does not preponderate against the trial court’s finding that defense counsel and the district attorney general had not agreed to exclude any statements made during the course of the polygraph test. Indeed, the testimony in the record fully supports the trial court’s finding that the prosecution and the defense had no agreement as to the admissibility of statements made during the polygraph test. Accordingly, we hold that the defendant’s voluntary statements may be admitted into evidence, provided that the statements also are consistent with other applicable constitutional and evidentiary rules, even though these statements were made during the post-instrument phase of the polygraph test. The prosecution may not introduce evidence concerning the polygraph test results or evidence indicating that the defendant’s statements were provided during a polygraph test. Such evidence is inadmissible.

IY. Conclusion

Based upon the foregoing analysis, we reverse the judgments of the trial court and the Court of Criminal Appeals. This case is remanded to the trial court for further proceedings consistent with this decision. Costs of this appeal are taxed to the defendant, Benjamin Damron, for which execution may issue if necessary.

      . References in this opinion to "counsel” or to "defense counsel” refer to the attorney who initially represented the defendant and not to Mr. Peters who ultimately represented the defendant in the trial court and on appeal.

      . In Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that when an individual is taken into custody and is subjected to questioning, the individual must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.

      . The three questions to which the examiner referred and to which the defendant had responded “no” were:
      Did you have sex with [the alleged victim]? Did you have sexual intercourse with [the alleged victim] at the Fun-Tunnel?
      Did you touch [the alleged victim] with your penis?

      . The polygraph examiner did not testify at the suppression hearing, but the examiner’s report was admitted into evidence and provides in pertinent part:
      During the pre-instrument phase of the polygraph examination, DAMRON waived his right to legal counsel and provided written evidence he was undergoing the polygraph examination voluntarily. DAMRON made no statements contrary to those previously made by him.

      During the post-instrument phase of the polygraph examination DAMRON was advised of the results and initially continued to deny having sexual intercourse with [the alleged victim]. DAMRON made the statement that if he admitted to such activity, he would lose his job with the National Guard, and that he would lose his part time job as a police officer. Also, when I stated that [the alleged victim] had not said she had been forced to engage in sexual intercourse, DAMRON said "she was not forced[.]” DAMRON departed the office to meet with his legal counsel.
      The examination was terminated at 12:45 PM, on 01/04/99U

      . Tenn.Code Ann. § 39-13-522.

      . See footnote 2, supra.

      . The defendant relies upon Hembree v. State, 546 S.W.2d 235 (Tenn.Crim.App.1976), to support his argument that statements made during polygraph tests are not admissible. The defendant points to language in Hembree which indicates that not only polygraph test results but also the circumstances surrounding polygraph tests are inadmissible. A careful reading of the case reveals that the "circumstances” to which the court in Hembree referred were offers or refusals to take polygraph tests, not statements made during polygraph tests. The defendant’s reliance upon Hembree is misplaced. Id. at 240.


author: THOMAS T. WOODALL, J.,

text:
    STATE of Tennessee v. Stevan Craig MULLEN.
    Court of Criminal Appeals of Tennessee, at Nashville.
    Feb. 3, 2004 Session.
    March 31, 2004.
    Application for Permission to Appeal Denied by Supreme Court Oct. 11, 2004.

      Mark Stewart, Winchester, Tennessee, for the appellant, Stevan Craig Mullen.
    Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney General; J. Michael Taylor, District Attorney General; and William B. Copeland, Assistant District Attorney General, for the appellee, the State of Tennessee.
   OPINION

THOMAS T. WOODALL, J.,

delivered the opinion of the court, in which

DAVID H. WELLES and JERRY L. SMITH, JJ., joined.

Defendant, Stevan Craig Mullen, was indicted by the Franklin County Grand Jury for driving with an alcohol concentration of .10 or more, in violation of Tenn. Code Ann. § 55-10-401, and for reckless driving, in violation of Tenn.Code Ann. § 55-10-205. Following a jury trial, Defendant was convicted of driving with an alcohol concentration of .10 or more and acquitted of reckless driving. Defendant was sentenced to eleven months and twenty-nine days, with all but forty-eight hours of his sentence suspended. In addition, his driver’s license was revoked for one year, and he was ordered to perform 100 hours of public service work and fined $350.00. In this appeal as of right, Defendant challenges the trial court’s denial of his motion to suppress his breathalyzer test results. After reviewing the record, we affirm the judgment of the trial court.

Deputy Todd Hindman, of the Franklin County Sheriffs Department, testified that on March 4, 2001, at around 3:30 a.m., he observed Defendant, traveling in the opposite direction on Highway 130, drive over the center line. Deputy Hindman turned around and followed Defendant. He observed Defendant cross over the center line three more times. Defendant was driving within the speed limit. Deputy Hindman turned on his blue lights and stopped Defendant. Defendant was alone inside the vehicle. As Deputy Hindman approached Defendant, he noticed an odor of alcohol. Deputy Hindman also testified that Defendant’s speech was slurred. Defendant stated that he had been drinking earlier in the evening. Deputy Hindman directed Defendant to step out of his vehicle and asked him to submit to three field sobriety tests. Deputy Hindman left the blue lights on his patrol car on while Defendant performed the tests. Defendant did not perform any of the three tests satisfactorily. Deputy Hindman first asked Defendant to do the “one-legged stand,” where a person stands with his feet together, then raises one foot and counts from 1001 to 1030. Defendant lowered his foot before counting to 1010. Next, Deputy Hindman asked Defendant to stand with his feet together, his hands at his side, tilt his head back, close his eyes, and touch the tip of each index finger to the tip of his nose. Defendant missed his nose both times. Finally, Deputy Hindman asked Defendant to walk nine steps, heel to toe, and on the ninth step, pivot and take nine steps back. There were no painted lines on the highway to use as a guide, so Defendant had to use an imaginary line. Defendant took only “a few steps,” and he did not place his feet heel to toe, stating to Deputy Hindman that he was “too drunk to do the test.” Deputy Hindman transported Defendant to the Franklin County Jail.

After Deputy Hindman arrived at the jail with Defendant, Defendant agreed to submit to a breath alcohol test. Deputy Hindman read to Defendant an implied consent form, and Defendant signed it. Deputy Hindman made a phone call. Deputy Hindman testified that he was certified to operate the intoximeter. He also testified that he observed Defendant for twenty minutes prior to administering the test. During the observation period, Defendant was seated on a bench near the entrance to the jail. Deputy Hindman stood on the opposite side of a counter facing Defendant. Deputy Hindman testified that he stood approximately twenty feet away from Defendant. He also testified that he had a direct view of Defendant for the entire twenty minutes. Deputy Hindman did not observe Defendant burp, regurgitate, or ingest anything.

Deputy Hindman testified that Defendant was seated on a bench, and he sat there for the entire twenty-minute observation period. Deputy Hindman testified that Defendant did not leave the bench to go to the bathroom during the twenty-minute observation period. Deputy Hind-man also testified that he did not do any paperwork during the twenty-minute observation period. Deputy Hindman testified that Defendant was very cooperative.

A videotape taken from inside the booking area of the Franklin County Jail showed Deputy Hindman arrived with Defendant at 4:06 a.m. Deputy Hindman testified that he made a phone call while Correctional Officer Daniel Wilcox removed Defendant’s handcuffs and searched Defendant. Deputy Hindman testified that he printed out the previous test from the intoximeter, but he did not enter any data into the intoximeter during the observational period. The videotape of Defendant lasts for approximately three minutes. The intoximeter report showed that the breath test was conducted at 4:23 a.m.

Jail Administrator Beth Rhoton, of the Franklin County Sheriff’s Department, testified that an agent from the Tennessee Bureau of Investigation calibrates and certifies the Intoximeter EC-IR at the Franklin County jail every three months. The intoximeter was last calibrated before Defendant’s arrest on February 15, 2001. The next time the intoximeter was checked after Defendant’s arrest was on May 15, 2001. Ms. Rhoton testified that the clocks in the jail and the clock on the intoximeter were not synchronized by her. The breath test showed that Defendant had a blood alcohol content of .14.

Defendant testified that he worked as an insulation supervisor and sheet metal mechanic at Palmer Heating and Air. Defendant testified that he went to a cookout with some friends and coworkers on March 3, 2001. He arrived at the cookout at around 1:00 p.m. Defendant drank three beers before eating dinner. After dinner, Defendant opened a fourth beer, but he did not finish drinking it. That evening, Defendant fell asleep while watching television at his friend’s house. Defendant had to be at work at 6:00 a.m. on the following morning. He woke up in the early morning hours of March 4, 2001, and drove home. Defendant pulled his truck over immediately when he saw blue lights. Defendant admitted to the officer that he had been drinking earlier. The officer asked for Defendant’s driver’s license and walked back to his patrol car. Defendant was nervous, and he sat in his truck and smoked a cigarette. The officer approached Defendant’s truck and asked him to step out. The officer asked Defendant how far he had gone in school, and Defendant stated that he graduated from high school. The officer then said, “I assume you know your alphabet,” and Defendant responded that he did, but that he could not say the alphabet backwards. The officer “snapped” at Defendant and said, “I didn’t ask you to say ‘em backwards.’ ” The officer asked Defendant to recite the alphabet, and Defendant did so. Defendant testified that it was dark outside and the officer’s blue lights were on. The officer’s headlights were also on, and there were “plenty of lights.” Defendant stood in front of the officer’s patrol car to perform the field sobriety tests.

Defendant testified that the officers at the jail treated him with respect and it was a “relaxed atmosphere.” Defendant testified that he did not sit on the bench for the entire period of time before taking the breath alcohol test. Defendant left the bench where he was sitting to go to the bathroom. He also “chatted” with some of the officers. Defendant discovered that the arresting officer’s name was Hindman while he was at the jail, and he was “shocked” to learn that he knew members of Deputy Hindman’s family. Defendant testified, “I said, ‘Wlio’s Hindman?’ you know just like that, and I specifically remember he was behind the counter and he stood up just like that, and he said, Well, that’s me.’ ” Defendant testified that he was not intoxicated or impaired when he drove home on the night of the incident. Defendant testified that he did not tell Deputy Hindman that he was too drunk to complete the “heel to toe” field sobriety test.

Defendant filed a motion to suppress the breath test evidence on the day of trial. The trial court ruled that the motion was not timely filed. In State v. Cook, 9 S.W.3d 98, 101 (Tenn.1999), our supreme court held that an accused’s objection to the admissibility of blood alcohol content test results on the ground that the State had not laid a proper foundation as required by State v. Sensing, 843 S.W.2d 412 (Tenn.1992), may be made during trial rather than in a pretrial motion to suppress. Therefore, the motion to suppress was timely.

Although the trial court ruled that the motion to suppress was not timely filed, it nevertheless ruled that the breath test was admissible. The trial court did not conduct a jury-out hearing, however, to determine the admissibility of the breath test results as was done by the trial court in Cook. At the close of the State’s proof, the trial court ruled, outside the presence of the jury, as follows:

Now for the record, I stated earlier the motion to suppress was not timely filed and I was going to go forward with the jury trial. I’ve heard the testimony along with the jury and I’m going to rule on the motion to suppress. I think the evidence is such that the breathalyzer, in fact, was admissible.

Tennessee Rule of Evidence 104(c) provides that hearings on preliminary eviden-tiary matters may be conducted out of the hearing of the jury when the interests of justice require. Trial courts have broad discretion in determining whether to have a hearing outside the jury’s presence. See Cook, 9 S.W.3d at 102. This Court has previously concluded that a trial court should ordinarily conduct a jury-out hearing on the Sensing foundational requirements. Otherwise, a trial court might find that the Sensing requirements were not satisfied, but the jury might have heard the prejudicial testimony. State v. Donald Lee Reid, No. M2000-02026-CCA-R3-CD, 2001 WL 1028815 (Tenn.Crim.App.2001), no perm, to app. filed.

In Sensing, the supreme court established criteria for the admission into evidence of breath-alcohol tests:

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

843 S.W.2d at 416.

At trial, the State must establish by a preponderance of the evidence that these six requirements for admissibility were satisfied. State v. Edison, 9 S.W.Bd 75, 77 (Tenn.1999). On appeal, a trial court’s decision to admit a breath-alcohol test result under Sensing will be presumed correct unless the evidence preponderates otherwise. Id.

Defendant asserts that the twenty-minute observation period was not satisfied. The twenty-minute observation requirement carries with it two distinct elements. First, the officer must have observed the defendant for twenty-minutes. State v. Arnold, 80 S.W.3d 27, 29 (Tenn.Crim.App.2002). “An officer may not guess, estimate or approximate the amount of time the subject was under observation.” Second, “the State must establish that the subject did not smoke, drink, eat, chew gun, vomit, regurgitate, belch or hiccup during the twenty minutes prior to taking the test.” Id. (citations omitted). The reason for the twenty-minute observation period is to ensure that no foreign matter is present in the defendant’s mouth that could retain alcohol and potentially influence the results of the test. Sensing, 843 S.W.2d at 416.

The fourth Sensing requirement has received significant attention by the appellate courts. In State v. McCaslin, 894 S.W.2d 310 (Tenn.Crim.App.1994), the officer testified that he placed the defendant in the backseat of his patrol car and drove away from the arrest scene at 2:20 a.m. The officer testified that the drive to the police station took approximately ten minutes. The officer administered the breath-alcohol test at 2:46 a.m. Id. at 310. Although the defendant was in the officer’s presence for the entire twenty-minute period, the officer continuously observed the defendant for only sixteen minutes at the police station prior to administering the breath test. Id. at 311. This Court concluded that the officer could not adequately observe the defendant in the patrol car while driving to the police station. Id. at 312.

In State v. Deloit, 964 S.W.2d 909 (Tenn.Crim.App.1997), the officer observed the defendant for fifteen minutes while conducting field sobriety tests. The officer then watched defendant in the rearview mirror of the patrol car for an additional ten to thirteen minutes while he completed paperwork in the front seat of the patrol car. The officer admitted that he could not see the defendant while he was writing. Id. at 915. This Court held that the officer did not satisfy the twenty-minute observation period because he did not continuously observe the defendant for the requisite twenty minutes. Id. at 916.

In State v. Arnold, 80 S.W.3d 27 (Tenn.Crim.App.2002), two officers transported the defendant to the jail. Both officers sat in the front seat of the patrol car, and Defendant sat handcuffed in the backseat of the patrol car. The testing officer testified that he did not continuously observe the defendant during the drive to the jail. One of the officers testified that he took his eyes off the defendant periodically during the drive and while exiting the vehicle, but the defendant did not belch, regurgitate, or place anything in his mouth during the twenty-minutes prior to the breath alcohol test. Id. at 28. This Court held that the State failed to establish by a preponderance of the evidence that the officers complied with the fourth Sensing requirement. Distractions such as road noise and noise from the police radio and the fact that the defendant was alone in the backseat of the patrol car prevented the court from concluding that the twenty-minute observation was satisfied. Id. at 30-31.

In State v. Korsakov, 34 S.W.3d 534 (Tenn.Crim.App.2000), the officer testified that he observed the defendant from the time they arrived at the jail at 2:45 a.m. until he administered the test at 3:19 a.m. The officer stood across from the defendant and filled out paperwork during that time period. The officer testified that he would have heard or smelled anything that defendant did that could have corrupted the test results. Id. at 538. This Court held that although Sensing does not require an “unblinking gaze for twenty minutes,” “the officer must be watching the defendant rather than performing other tasks.” Id. at 541.

The rationale for the exclusion of the breath test results in McCaslin and the above cases was that the State did not establish that the officers continuously observed the defendants with their eyes and without distraction. In State v. Harold E. Fields, No. 01C01-9412-CC-00438, 1996 WL 180706 (Tenn.Crim.App.1996), no perm, to app. filed, this Court stated as follows:

That an officer remained in the room with the defendant for twenty minutes prior to testing will not satisfy the requirements of Sensing. Sensing requires the State to establish that during those twenty minutes nothing occurred which would compromise the validity of the breath alcohol test. Where an officer can testify that he or she continuously observed the test subject, with his or her eyes, for the entire twenty-minute observational period, the State will in almost all cases be able to meet this requirement of Sensing.

In the case at bar, Deputy Hindman testified that he observed Defendant in the booking area of the jail for twenty-minutes, that he had a direct view of Defendant, that Defendant remained seated on the bench in the booking area for the entire twenty-minute observation period, and that Defendant did not burp, regurgitate, or ingest anything. Deputy Hindman also testified that he timed the observation period using his own watch. The trial court clearly accredited the testimony of Deputy Hindman.

The videotape does not indicate otherwise. The videotape shows Deputy Hind-man arrive at the jail with Defendant at 4:06 a.m. Deputy Hindman and Defendant entered the booking area of the jail together, and Deputy Hindman then walked behind the counter and made a telephone call. Deputy Hindman is seen using the telephone for approximately one minute. During that time, another officer removed Defendant’s handcuffs and personal belongings and then searched Defendant. Defendant then sat on a bench at the entrance of the booking area and removed his shoes and handed them to the searching officer. The segment of the videotape that shows Defendant in the booking area of the jail ends at 4:10 a.m. While Deputy Hindman is seen performing other tasks for the three minutes that was recorded, he testified at trial that he continuously and directly observed Defendant for twenty minutes prior to administering the breath alcohol test. The videotape does not show Deputy Hindman’s observation of Defendant, which, Deputy Hindman testified, began after Deputy Hindman placed a telephone call and removed the previous intoximeter report, and after Defendant was searched and seated on the bench. Although the intoximeter report indicated that Defendant’s breath-alcohol test was conducted at 4:23 a.m., the proof in the record infers that the clocks on the intox-imeter and the videotape recorder were not synchronized.

None of the cases citing Sensing specifically addresses the issue of distance between the observing officer and the defendant. We decline to establish a bright-line rule regarding whether a distance of twenty feet between the observing officer and the defendant is insufficient to satisfy the fourth requirement of Sensing. After reviewing the facts of this case, we conclude that the State met its burden, and the trial court properly admitted into evidence the breath-alcohol test. Defendant is not entitled to relief in this appeal.

CONCLUSION

The judgment of the trial court is affirmed.


author: JOSEPH M. TIPTON, J„

text:
    Donna Jean SEXTON v. STATE of Tennessee.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    Aug. 19, 2003 Session.
    April 14, 2004.
    Application for Permission to Appeal Denied by Supreme Court Nov. 8, 2004.

      Kenneth F. Irvine, Jr., Knoxville, Tennessee, for the appellant, Donna Jean Sexton.
    Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and Kenneth Carson Baldwin, Assistant District Attorney General, for the appellee, State of Tennessee.
   OPINION

JOSEPH M. TIPTON, J„

delivered the opinion of the court, in which

JOHN EVERETT WILLIAMS and ALAN E. GLENN, JJ., joined.

The petitioner, Donna Jean Sexton, appeals from the judgment of the Carter County Circuit Court denying her post-conviction relief from her convictions for first degree murder and aggravated robbery. The petitioner contends that (1) the post-conviction court erred by concluding that her amended, comprehensive petition was invalid because it was not properly verified under oath; (2) she received the ineffective assistance of counsel because her attorneys misinformed her as to the length of her sentence for first degree murder; and (3) her nolo contendere pleas were not knowingly, intelligently, and voluntarily made because the trial court never informed her that she was waiving constitutional rights and there was an insufficient factual basis for the petitioner’s pleas. Although we conclude that the amended petition was not properly verified, we conclude the trial court correctly proceeded on all issues raised by the petitioner. We also hold that the trial court’s findings and conclusions relative to the petitioner’s claims are affirmed.

The petitioner pled nolo contendere to the charged offenses of felony murder and aggravated robbery. Pursuant to the plea agreement, the trial court sentenced the petitioner to life with the possibility of parole for the murder and eight years for the aggravated robbery, to be served concurrently in the Department of Correction (DOC).

The petitioner’s convictions resulted from the killing and robbery of the victim, an employee at a convenience store in June 1993. At the plea hearing, the state presented and the defendant stipulated to the following summary of the facts surrounding the offenses:

Miss Sexton was criminally responsible as the law defines criminal responsibility for the murder of — of Mrs. Montgomery there at the market, the murder with which she’s charged. She did not, however, it’s not the state’s theory, it would not be our proof that she was the person who committed the murder; but, that— but — and that she was more than a mere person who was present. But, that she was what used to be called an aider and abetter to that murder.... But, again, she feels that it’s important, and — and we agree that she was not the person who stabbed Mrs. Montgomery, that— that caused the fatal wound upon Mrs. Montgomery. We believe that that was done by her companion in this crime Matney Putman.

At the post-conviction evidentiary hearing, the petitioner testified that she signed a statement that her attorney had prepared on her acceptance of the plea agreement, which stated that she would receive thirty years in prison when she pled nolo contendere and that anything less would be determined at the discretion of the parole board. She said she signed the statement in front of one of her attorneys, Mark Slagle, who prepared it. She said she did not learn that her sentence was sixty years until she went to prison. She said she would have gone to trial if she had known that the sentence for life in prison was sixty years. On cross-examination, she admitted that one of her reasons for not going to trial was to avoid the possibility of receiving the death penalty.

The record reflects that the petitioner had been in custody since 1991. She said that her parole eligibility date had been set for 2028, but the record reflects that sentencing credits will shorten the time.

Robert J. Jessee, co-counsel for the petitioner at the time of her plea agreement, testified that he told the petitioner that the state’s plea offer was good and that she should take it to avoid the possibility of receiving the death penalty. He said he told her that there were no assurances about when she would get out of prison. He said he explained to the petitioner that the plea agreement stipulated that she would receive a concurrent sentence for the aggravated robbery charge. He said evidence increasing the chance that the petitioner would receive the death penalty if she went to trial included the following: the victim was a young mother; the killing was brutal, almost cutting off the victim’s head; and when the petitioner’s accomplice suggested calling the rescue squad to help the victim, the petitioner had responded, “Let the bitch die.” He said that based on these facts, the jury might have imposed the death penalty if the case had gone to trial.

Mr. Slagle testified that he drafted the Acceptance of Plea Agreement that the petitioner signed and that it stated there was no guarantee the petitioner’s prison sentence would be less than thirty years. He said the petitioner gave an incriminating statement to police about her involvement in the crimes and that their defense would have been “battered woman syndrome” if they had gone to trial, although he questioned the likelihood of success. He said that the petitioner could have received the death penalty with Putman’s testimony against her but that he did not believe the probability was very high. He said he did not want to take a chance on the petitioner receiving the death penalty, especially when she had already admitted involvement in the killing. He said he told the petitioner she was gambling with her life if she rejected the state’s offer. He acknowledged that the petitioner was interested in the amount of time she would be required to spend in prison when they discussed the state’s offer of life with the possibility of parole. He said that he knew that a life sentence with the possibility of parole was sixty years. He said that in the statement of the plea agreement he drafted, he was trying to convey to the petitioner that there was no guarantee she would only serve nineteen years, the amount of time DOC personnel had previously told him people had been serving on a life sentence. He said, however, that based upon further discussions with the prosecuting attorney and DOC personnel, he told the petitioner that she could not expect to get out of prison before thirty years.

On cross-examination, Mr. Slagle testified that he wrote out the agreement between the petitioner and the state and that he had the petitioner sign it to prevent a future ineffective assistance of counsel claim. He said the provision that the petitioner would serve thirty years was based on what the DOC told him. He acknowledged, though, that conflicting language existed in the agreement because another sentence provided that the petitioner was “not guaranteed to receive any term of imprisonment less than thirty years and that any release date earlier is strictly at the discretion of the parole board and the governing powers of the State of Tennessee.” He also acknowledged that the trial court never addressed the length of a sentence for life with the possibility of parole at the plea hearing.

The transcript from the plea hearing reflects that the assistant district attorney stated that the petitioner would not be eligible for parole until she served thirty years in prison. It also reflects that the trial court informed the petitioner of her constitutional rights but did not specifically state that she was waiving them.

The trial court found that the petitioner’s amended petition was not properly verified under oath and dismissed the petition. The court, however, ruled on the petitioner’s claims in the event that the petition was found to be properly verified by this court.

Relative to the ineffective assistance of counsel, the trial court acknowledged that the petitioner’s attorneys provided her with conflicting parole eligibility information and that her original release eligibility date would have occurred after serving sixty percent of sixty years, i.e., thirty-six years. It found, though, that although the petitioner’s parole eligibility at the time of the hearing was set for 2028, her release eligibility would occur after serving twenty-five years if she obtained normal sentence reduction credits. Also, the trial court was not convinced of the truth of the petitioner’s claim that she would have gone to trial if she had known that her sentence was effectively sixty years. The trial court found that the petitioner had not been prejudiced by her attorneys’ advice and concluded that she did not receive the ineffective assistance of counsel.

Relative to the validity of the petitioner’s nolo contendere pleas, the trial court noted that the transcript of the plea hearing did not contain explicit waivers by the petitioner of her constitutional rights. However, it also noted that the petitioner was advised of all her constitutional rights as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and found that the transcript reflected that the petitioner knew she was giving up those rights by pleading nolo contendere. The trial court concluded that the transcript, trial counsel’s advising her of her alternatives, and her desire not to chance the death penalty showed that the petitioner knowingly, intelligently, and voluntarily entered her pleas. In this respect, although noting that the stipulation of facts at the plea hearing was “not a particularly clear stipulation,” it believed that the stipulation indicated criminal responsibility for the acts of another. The trial court concluded that any deficiency in the factual basis for the pleas did not render them involuntary.

I. PETITION VERIFIED UNDER OATH

The petitioner contends that the trial court erred in ruling that her comprehensive, amended petition was not valid. The record reflects that at the evidentiary hearing, the trial court told the petitioner’s counsel that the comprehensive petition filed by counsel was not verified under oath as required by law. Counsel replied that he had certified in the petition that the allegations were true and correct to the best of his knowledge and belief. However, the trial court believed the certificate to be insufficient, although it noted that the petitioner’s previous pro se amended petition remained valid because it was verified under oath. In any event, the trial court ruled on all the issues pursued by the petitioner at the evidentiary hearing.

Pursuant to the 1995 Post-Conviction Procedure Act, petitions and amendments to petitions must be verified under oath:

The petitioner shall include allegations of fact supporting each claim for relief set forth in the petition and allegations of fact explaining why each ground for relief was not previously presented in any earlier proceeding. The petition and any amended petition shall be verified under oath. Affidavits, records or other evidence available to the petitioner supporting the allegations of the petition may be attached to it.

T.C.A. § 40-30-104(e).

The petitioner relies upon dictum in Rogers Harris v. State, E1999-02056-CCA-R3-PC, Unicoi County, 2000 WL 1038121 (Tenn.Crim.App. July 28, 2000), to support her claim that counsel’s certification suffices under the verification requirement of the Post-Conviction Procedure Act. In Rogers Harris, the trial court summarily dismissed the March 1995 post-conviction petition and its amendments because they were not verified by oath or affirmation. This court and the state noted that the verification by oath requirement was not effective until May 1995 and did not apply to Harris’s case. This court held that the trial court incorrectly applied the oath requirement and remanded the case for further proceedings. However, this court then discussed the significance of counsel’s having certified that he had investigated all the facts and the allegations were true and correct to the best of his knowledge and belief. It stated that the certification satisfied the verification by oath requirement. It also stated that absent proper verification, it would be appropriate for the trial court to give the petitioner the opportunity to make a proper oath. We note as significant that the same trial court and counsel in Rogers Harris are before us in the present case.

Counsel’s certificate in the present case in the amended, comprehensive petition is as follows:

I ... do hereby certify that I have investigated all of the above facts and do hereby state the foregoing is true and correct to the best of my knowledge and belief. My investigation and research have been done in close consultation with the petitioner, Ms. Donna Sexton.
I also certify that I have thoroughly investigated the possible constitutional violations alleged by Ms. Sexton and any other possible grounds that Ms. Sexton may have for relief. I have discussed all the grounds I have discovered with Ms. Sexton. To the best of my knowledge I have raised all non-frivolous constitutional grounds warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law which Ms. Sexton has. I am aware that any ground not raised shall be forever barred by the application of T.C.A. § 40-30-206(g), or its predecessor provision, and have explained this to Ms. Sexton. This waiver provision is limited by several decisions of the Tennessee Supreme Court which have recognized a very limited exception to the rule of waiver.

Other than certifying the truth of the allegations to the best of counsel’s knowledge and belief, the certificate generally conforms to the certificate required of post-conviction counsel by supreme court rule. See Tenn. S.Ct. R. 28, § 6(C)(2)-(4), Appendix C.

Given the fact that a petitioner is entitled to only one post-conviction case, the purpose of the supreme court rule and appendix are obvious — they ensure that all possible claims are investigated by counsel and all arguable constitutional claims are presented to the trial court for consideration. The rule, therefore, guides counsel for the petitioner’s benefit. On the other hand, the statutory requirement that the allegations be verified under oath is intended to serve entirely different interests. Its goal is to deter or to reduce intentionally false allegations primarily made by petitioners by exposing them to aggravated perjury charges pursuant to T.C.A. § 39-16-703. The expected reduction in false claims should leave the criminal justice system with more time and resources to deal with arguably legitimate post-conviction claims.

In this regard, we respectfully disagree with the dictum in Hams relative to counsel’s certification. We conclude that the requirement under T.C.A. § 40-30-104(e) that allegations of a petition and any amendments be verified under oath is not satisfied by counsel’s certification. Whether prepared by a petitioner or by counsel, the petition and its amendments must be verified under oath.

Although the comprehensive petition in the present case was not verified under oath, we do not believe the circumstances justified limiting the petitioner’s claims. The trial court did not notify the petitioner of its concerns until the evidentiary hearing. Moreover, the trial court noted that the petitioner’s previous pleadings had been verified under oath. The trial court easily could have allowed the petitioner to verify the comprehensive petition. In any event, it took sworn testimony from the petitioner and her trial attorneys relative to the petitioner’s claims. We conclude that the circumstances justify the petitioner’s claims being heard on their merits.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

The petitioner contends that her guilty pleas resulted from the ineffective assistance of counsel because her counsel misadvised her about the length of her life sentence when they told her that she would serve thirty years. She asserts that her attorney’s advice concerning the sentence was misleading. She claims not to have understood the actual sentence being imposed and that if she had known, she would have gone to trial. The state responds that the record supports the trial court’s findings.

When a claim of ineffective assistance of counsel is made, the burden is upon the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficiency was prejudicial. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Melson, 772 S.W.2d 417, 419 n. 2 (Tenn.1989). To satisfy the requirement of prejudice when the petitioner entered guilty pleas, the petitioner must demonstrate a reasonable probability that, but for counsel’s errors, she would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); Bankston v. State, 815 S.W.2d 213, 215 (Tenn.Crim.App.1991).

In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975), our supreme court decided that attorneys should be held to the general standard of whether the services rendered were within the range of competence demanded of attorneys in criminal cases. Further, the court stated that the range of competence was to be measured by the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C.Cir.1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn.1982).

The burden was on the petitioner in the trial court to prove by clear and convincing evidence the factual allegations that would entitle her to relief. T.C.A. § 40-30 — 110(f) (2003). On appeal, we are bound by the trial court’s findings of fact unless we conclude that the evidence in the record preponderates against those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn.2001). Thus, the petitioner now has the burden of illustrating how the evidence preponderates against those findings. However, we review the court’s conclusions regarding the effectiveness of counsel de novo with no presumption of correctness because it involves a mixed question of law and fact. Id.

For parole purposes, a life sentence is computed as sixty years. See T.G.A. § 40-35-501(h)(l). At the time of the petitioner’s offenses, release eligibility for a life sentence was designated by statute to occur after serving sixty percent of the sentence, i.e., thirty-six years. See T.C.A. § 40 — 35—501(f) (Supp.1992). Also, a prisoner could earn sentence reduction credits for such things as good behavior and involvement in work, educational, and vocational programs. See, e.g., T.C.A. § 41-21-236. We note, by comparison, that beginning less than a month after the petitioner’s offenses, although the original release eligibility date remained thirty-six years, a life sentence for murder required imprisonment for at least twenty-five years regardless of the amount of earned sentence reduction credits. See T.C.A. § 40-35-501(g)(l) (Supp.1993).

Unquestionably, the advice the attorneys gave the petitioner was conflicting and somewhat incorrect. The petitioner was not advised that her statutory release eligibility would occur after serving thirty-six years. In reviewing the attorneys’ advice in this case, we are reminded of the late Justice Joe Henry’s comment that “there are few practicing attorneys, otherwise knowledgeable in criminal law, or judges at any level, who have a complete understanding of’ parole procedures and related matters. Farris v. State, 535 S.W.2d 608, 613 (Tenn.1976). However, we conclude that the petitioner was not prejudiced by the advice she received.

Initially, we note that the record reflects that all persons involved in the plea process were considering actual confinement time. At the post-conviction hearing, the petitioner was confusing the length of the sentence with the length of actual confinement. Thus, it is understandable that the trial court discredited her claim that she would not have pled guilty if she had known the sentence was effectively sixty years. As for the amount of time the petitioner was expecting to serve in confinement, the trial court computed the actual confinement to be twenty-five years, within the range that the petitioner’s counsel projected. The record does not preponderate against this finding, and we conclude that the trial court properly held that the petitioner was not prejudiced by her counsel’s advice.

III. KNOWING, VOLUNTARY, AND INTELLIGENT PLEA

The petitioner contends that the record does not demonstrate that her decision to plead nolo contendere was knowing, voluntary, and intelligent relative to her relinquishing her rights and the factual basis for pleading. We conclude that her pleas were validly entered.

First, the petitioner states that the record reflects that the trial court informed her of various rights but did not tell her that she was waiving those rights in the plea process. In Boykin, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969), the Supreme Court stated that entry of a guilty plea effectively constituted a waiver of the right against compulsory self-incrimination, the right to confront one’s accusers, and the right to trial by a jury. The Court held that a valid waiver of such rights required the intentional relinquishment or abandonment of the rights and that such a waiver may not be presumed from a silent record. 395 U.S. at 243, 89 S.Ct. at 1712.

We believe the record reflects that the petitioner knowingly relinquished her Boy-kin rights even though the trial court did not expressly determine her understanding that she was waiving those rights. The trial court explained the Boykin rights to the petitioner in terms of a trial upon a plea of not guilty. It told her that her nolo contendere plea would result in her being found guilty and would allow the prosecutor to ask her questions which shfe would be required to answer. The petitioner stated that she understood. Although such a document is not in the record, the petitioner told the court that she had read, or had had explained to her, a petition for acceptance of a plea of nolo contendere and waiver of rights and that she had understood it. She told the trial court that she had no questions regarding the petition.

Our supreme court has noted that “it is clear under federal law ‘that Boykin does not require separate enumeration of each right waived and separate waivers as to each [of the three rights].’ ” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.1993) (quoting Fontaine v. United States, 526 F.2d 514, 516 (6th Cir.1975)). In other words, no particular litany is necessary for constitutional validity. We believe that the nature of the proceeding, the exchange between the trial court and the petitioner, and the relatively beneficial plea agreement reflect the petitioner’s knowledge and understanding that her constitutional rights relative to the trial process were not to be asserted by her any further.

The petitioner asserts that an insufficient factual basis was presented at the plea hearing relative to her guilt for the offenses for which she pled nolo con-tendere. She asserts that she should be entitled to withdraw her pleas. The factual basis requirement for a guilty or nolo contendere plea primarily exists to ensure that a defendant’s plea is made with an understanding that the admitted conduct actually constitutes the offense that is charged. See McCarthy v. United States, 394 U.S. 459, 466-67, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969). In other words, the factual basis focuses upon a defendant’s understanding about the applicable law in relation to the facts being admitted. State v. Lord, 894 S.W.2d 312, 316 (Tenn.Crim.App.1994).

The prosecutor told the court that the petitioner aided and abetted in the murder of the victim at a market. He stated that she was not the person who stabbed the victim but that she was more than a mere person who was present. He stated that the stabbing was done by the petitioner’s companion, Matney Putman. We note that upon inquiry, the petitioner’s counsel advised the court that he believed the state’s proof could result in a guilty verdict for first degree murder and aggravated robbery. We believe that the record sufficiently shows a factual basis relative to the murder charge. Obviously, though, there was no mention of an aggravated robbery. However, an insufficient factual basis does not, per se, rise to the level of a constitutional violation relative to a plea being involuntary, unknowing, or not understood. See, e.g., Powers v. State, 942 S.W.2d 551, 555 (Tenn.Crim.App.1996). We note that the petitioner’s “Acceptance of Plea Agreement” reflects that she understood that she was pleading nolo con-tendere to felony murder. She did not testify at the post-conviction hearing regarding any lack of understanding that she had relative to her plea to aggravated robbery. We conclude that the record does not support a claim that the failure to establish a sufficient factual basis for a plea to aggravated robbery contributed in any way to the petitioner’s decision to plead nolo contendere.

In consideration of the foregoing and the record as a whole, the judgment of the trial court is affirmed.