LUNA v. STATE

LUNA v. STATE
1971 OK CR 263
481 P.2d 814
Case Number: A-14900
Decided: 07/22/1971
Oklahoma Court of Criminal Appeals

An appeal from the District Court of Pittsburg County; Robert J. Bell, Judge.

Plaintiff in error, James W. Luna, was found guilty by the jury for the offense of first degree manslaughter, and was sentenced to serve seven years under the direction and control of the State Department of Corrections at the state penitentiary, and appeals. Judgment and sentence affirmed.

Paul McKinney and Shelton Skinner, Shawnee, for plaintiff in error.

G.T. Blankenship, Atty. Gen., John C. Howard, Asst. Atty. Gen., for defendant in error.

BRETT, Presiding Judge.

¶1 This is an appeal from a conviction for the offense of First Degree Manslaughter; plaintiff in error, James W. Luna, was found guilty by a jury, which assessed his punishment at seven years under the direction and control of the Department of Corrections, at the state penitentiary. Plaintiff in error will hereafter be referred to as defendant, as he appeared in the trial court.

¶2 The facts briefly stated reveal that on December 21, 1967, defendant was driving his 1951 GMC, one and one-half ton truck along East Polk Street in McAlester, Oklahoma, when he collided with a 1965 Volkswagen being driven by Mrs. Margie F. Weidner, thereby causing the death of Mrs. Weidner. The state alleged that defendant was driving under the influence of intoxicating liquor, when his truck struck the deceased's vehicle to the left of the center of the street, and completely demolished the small vehicle.

¶4 In his appeal defendant offers numerous assignments of error, but argues only one proposition in his brief which contends that it was error to admit the results of the alcoholic blood test, because the blood sample was taken without defendant's consent, and thereby violated his constitutional rights under Article 2, Section 21, of the Oklahoma State Constitution, which provides: "No person shall be compelled to give evidence which will tend to incriminate him." In support of this single proposition, defendant cites Lorenz v. State, Okl.Cr., 406 P.2d 278 (1965). However, the Lorenz case is readily distinguished from the instant one. In that case the evidence was quite clear that the defendant was unconscious when the blood sample was taken. Hence, it was impossible for Lorenz to have consented to taking of the blood. In the instant case, the evidence is clear that the defendant was not unconscious. Instead, it is argued that he was incapable of giving his consent and hence the rule of Lorenz v. State, supra, should apply. We do not agree.

¶5 The trial court properly denied defendant's motions at the conclusion of the hearing, before his trial commenced. Defendant offered his testimony, and that of his wife, that he did not give his consent to the taking of the blood sample; while on the other hand, the state offered the transcript of the preliminary examination at which there was testimony offered to show that such consent was given. Consequently, the trial court was confronted with sufficient conflict of evidence to refuse defendant's motions. This court stated in Pickens v. State, Okl.Cr., 372 P.2d 618 (1962):

"The question of suppressing evidence being a judicial one, this court will not reverse the trial court upon a question of fact where there is a conflict of evidence, and there is competent evidence reasonably tending to support the findings of the trial court."

In the instant case, there was such a conflict of evidence and that evidence did reasonably tend to support the findings of the court, we therefore conclude that the trial court properly denied defendant's motion to quash and his motion to suppress.

¶6 We observe from the record also, that the testimony as presented to the jury was conflicting. It was conflicting concerning not only the question of the voluntary consent of defendant, but also as to other questions presented.

¶8 We have also considered all of the trial court's instructions and find that they properly instructed the jury. Likewise, we are of the opinion that none of defendant's constitutional rights were violated, as contended by defendant in his brief.

¶9 After reviewing the record before the Court, and the briefs submitted, we are of the opinion that the judgment and sentence rendered by the District Court of Pittsburg County, in that court's case number 6152, on the 19th day of February, 1968, should be, and the same is therefore, affirmed.

¶10 Judgment and sentence affirmed.

BUSSEY, J., concurs.

NIX, J., not participating.

Footnotes:

1 The blood sample test revealed .31% by weight of ethyl alcohol, by the Dubowski Method.

2 Defendant's wife said he had not been drinking; and his other witnesses testified that he had only one mixed drink after two P.M. The state's witnesses testified that they smelled alcoholic odor on his breath, that he acted like he was drunk, and alcoholic test revealed a high percentage of ethyl alcohol in his blood sample.

3 Several of the state's witnesses testified that when the hospital technician asked defendant if he could take a blood sample, the defendant held out his arm and said, "Take all you want." Defendant claimed he could not remember, and his wife denied that defendant gave his consent.