State vs. Roy A. Jordan
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED MARCH SESSION , 1999 April 30, 1999 STATE OF TENNESSEE, Appellee, VS. ROY A. JORDAN, Appe llant. ) ) ) ) ) ) ) ) ) ) Cecil W. Crowson Appellate Court Clerk C.C.A. NO. 01C01-9801-CR-00015 DAVIDSON COUNTY HON. FRANK G. CLEMENT, JR. JUDGE (Vehicular Homicide) ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUNTY FOR THE APPELLANT: FOR THE APPELLEE: JAMES ROBIN MCKINNY, JR. One Washington Square Suite 103 214 Se cond A venue N orth Nashville, TN 37201 JOHN KNOX WALKUP Attorney General and Reporter TOMMY TRAVIS OVERTON 213 T hird Aven ue No rth Nashville, TN 37201 ELIZABETH B. MARNEY Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243 VICTOR S. JOHNSON District Attorney General BERNARD MCEVOY Assistant District Attorney General Washington Square, Suite 500 222 Se cond A venue N orth Nashville, TN 37201-1649 OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE OPINION The Defendant, Roy A. Jordan, was found guilty of vehicular homicide and sentenced to ten yea rs. He no w appe als his con viction, purs uant to Rule 3 of the Tennessee Rules of Appellate Procedure. The Defendant presents two issues on appeal: (1) whether the evid ence was s ufficien t to sup port the jury’s finding of guilt beyond a reasonable doubt; and (2) whether the trial cou rt prop erly denied his mo tion to sup press the results of h is blood a lcohol tes t. On O ctober 2 5, 1996 at appro ximately te n o’clock p.m., Mr. an d Mrs . Bill Stone exited the Dark horse Th eatre on Ch arlotte Avenue after viewing a play. Mr. Bong Im, who was traveling westward on Charlotte in an Oldsmobile Cutlass, stopped his vehicle in front of the theatre to allow theatregoers to cross Charlotte. He signaled a group, which included the Stone s, to cro ss the street in front of h is vehicle where there was no crosswalk. The first two individuals in the group crossed Charlotte safely. However, as two more individuals, the Stones, attempted to make their way across the street, the Defendant’s Chevrolet Blazer, which was also traveling westward on Charlotte, rear-ended Mr. Im’s car. Mr. Im’s vehicle lurched forward, striking Mr. Stone and throwing his body over the hood of the car into the next intersection. Stone died at the scene. After hitting Mr. Im’s c ar, the Bla zer veere d to the left an d struck a n onco ming c ar. One eyewitne ss, Steve n Carl S calet, testified that he w as alerte d to the impending accident by the “sound of a car or truck coming too fast, just revving up his engine.” He reported that the Blazer was traveling at a speed in excess -2- of forty-five or fifty miles per hour. Scalet stated that between the time he looked up and first saw the D efenda nt’s Blaze r approa ching, he had en ough tim e to think, “If he starts to stop right now, he will avoid an accident. And even—you know, like half a second to a second later, . . . you still have another chance; stop right now and you will not hit this parked car.” He also testified that the Bla zer did not “break up until the very last millisecond or a second and a half” before hitting Im’s car. Scalet stated that after the accident, he watched the Defendant exit the Blazer a nd notice d that the D efenda nt “looked like he ha d been drinking.” Another eyewitness to the accident, Malika Jackson, testified that the Defe ndan t’s Blazer was traveling at approximately sixty miles per hour. She estimated that five seconds passed between the time that she first noticed the Blazer speed ing dow n the stree t and the time of collision. She stated that M r. Im’s car was completely stopped at the time of the crash. A third eyew itness to the collision and a close friend o f the victim , Orville D. Hinkle , testified that he attended the play with the victim on the night of the accident and state d that he and his family crossed Charlotte shortly before the Stones. Hinkle reported that the portion of Charlotte where the accident occurred was well-lit at the time of the crash, illuminated by both s treet lights an d lights from a church. He also maintained that Mr. Im’s car was at a complete stop at the time of the crash. He recalled that after the crash , he ran by the D efend ant’s vehicle and ob served th e Defe ndant s itting with his head in his hands. He stated that he noticed the “smell of alcoho l” as he ran by. -3- Evans Donn ell, a fourth eyewitness to the accident, testified that the Blazer was traveling at a spee d over forty-five m iles pe r hour b efore h itting Mr . Im’s stopped car. Like M r. Hinkle, he reported that Cha rlotte Avenue was well-lit at the time of the accident and that although it began to rain shortly after the accident, it was not raining at the time of the accident. In addition, he testified that there were no other cars in the vicinity of the Blazer before the crash. He testified that as the Blazer approached Mr. Im’s c ar, he w onde red wh ether it would stop in time and stated that he believed the Bla zer co uld ha ve stop ped in time. He further testified that after he watched the Blazer hit Mr. Im’s car, he heard the Blazer’s engine “revving” before the Blazer crashed into the oncoming car. He recalled that after the accident, he heard the Defendant ask, “What happened?” and testified that the Defendant, who “appeared quite dish eveled,” smelled of be er. Officer Scott Mitc hell was c alled to the scen e shortly afte r the accid ent. He testified that when he approached the Defendant, the Defendant informed him that his Blazer had been hit in the rear b y another car, ca using him to “sw erve into the oncoming traffic and strike another vehicle.” He stated that the Defendant did not mention anything at that time about striking Mr. Im’s car. Mitchell testified that he “detected a strong odor of alcohol about [the Defen dant].” He stated that the Defendant’s “eyes were bloodshot and re d, his speech was slurred and he seemed somew hat con fused w hen an swering . . . questions. He was unstable on his feet also.” According to Mitchell, the Defendant admitted to having d runk fou r beers b efore the acciden t. He testified that he also checked the inside of the Defendant’s vehicle and found “close to 30" beer cans , some full and s ome em pty. -4- Officer Ronald C. Swanson, a mem ber of the DUI E nforcem ent Un it, administered field sobriety tests to the Defendant at the scen e of the ac cident. When he arrived , he esco rted the D efendant to a level surface “away from the distraction of the noise and lights” to administer the tests. Swanson observed that the Defe ndan t could not walk unaided, that there was an extremely “strong odor of alcohol” about the Defendant, and that the Defendant’s speech was slurred and “mumbling.” He concluded that the Defendant “was about as intoxicated as anybody [he’d] ever seen.” Swanson testified that when he administered the horizontal gaze nystagmus test to the Defendant, the Defendant was initially ab le to follo w his instructions but then “kind of discontinue d and sort of gazed.” The Defendant subsequently declined to perform the nine-step walkand-turn and the one-leg -stand te sts. Swanson stated that he then se ated the De fendant in the pa trol car, where the Defendant began to make incoherent comments, and recited to the Defendant his Miranda rights. He recalled that the Defendant made a couple of comm ents about wanting to see a lawyer. Swanson next transported the Defendant to Nashville General Hospital, where a sample of the D efend ant’s blood was drawn at midnight. Jerry Gowen, the director of the clinical laboratory at the ho spital, te stified that hospital policy ordinarily requires consent of the patient for obtaining blood samples, except when the patient is under arrest. Test results revealed that at midnight, the Defendant’s blood contained an alcohol conten t of .20 perc ent. Officer Joe Morton testified about damage done to the vehicles during the acciden t. He stated that he exa mine d the D efend ant’s ve hicle a nd wa s una ble -5- to find any da mage to its rear or a ny other evidence indicating that it had been struck from behind. He also testified that there were numerous beer cans inside the Blazer and a glass bowl containing two full beer cans, which was positioned on the floo rboar d of the driver’s sid e within reach of the driver. He determined that Mr. Im’s vehicle traveled 158 feet after the collision and that the distance between the area of impact and the intersection of 46th Street, the approxim ate location where eyewitnesses first noticed the speeding B lazer, was 331 feet. He stated that a driver of a vehicle going forty miles per hour, the designated speed limit on Ch arlotte A venue , would have a little ov er five seco nds to re act to another car stopped approxima tely three hundre d feet ahead of his car. In addition, Morton testified that he contacted the Defendant at the hospital shortly after m idnigh t. He sta ted tha t at that tim e, the D efend ant still sme lled strong ly of alcohol, his speech was slurred and disjointed , and his eyes w ere watery. He concluded that “he was unable to drive, he was impaired.” He stated that the Defend ant told him that as he chang ed lanes to pa ss a car, he sa w Mr. Im’s car stopped ahead, but was unable to stop his own vehicle in time. The Defendant testified at trial. He stated that at 4:00 p.m. on October 25, 1996, he pic ked u p a six-p ack o f beer a fter wo rk and drank it before 5:00 p.m ., when he went to his second job. He reported that at approximately 9:15 p.m., he left his second job to meet a friend, Robert McCarter, who was employed as security for a church on Charlotte Avenue. McCarter, whom the Defendant sometimes helped out free of charge, was paid to sit inside his own vehicle in the church parking lot during c hurch services to prevent theft and vandalism. According to the Defendant, he arrived at the church at approximately 9:30 p.m. -6- and opened another can of beer. He stated that between the time he got off wo rk at 9:15 and the time he le ft the ch urch, h e dran k ano ther thr ee an d one -half beers. He and Mr. Im, who was also employed at the church, left the church at approxim ately the sa me tim e. The D efenda nt testified, W e were traveling westbound on Charlotte; I was next to the center lane on Charlotte Avenue. We got to 4 6th Av enue and th e car in front of me, which had just le ft the churc h, applied his brake s. I changed lanes because I did not see any brake lights on the back of Mr. Im’s car at that time. W hen I cha nged la nes his ligh ts came on and I applied my brakes and that’s when I slid.1 He claimed that he was traveling at a speed of forty miles per hour befo re applying his brakes and also claimed that the streetlights in front of the Darkhorse Theatre were n ot work ing. He testified that eve n if he h ad be en so ber, he would have hit Mr. Im’s car. He stated, “I had no indication that the gentleman was stopped where he was until after I changed lanes and I saw his brake lights being applied then.” In addition, he denied telling Officer Mitchell at the scene of the crime th at he ha d been rear-end ed. The Defe ndan t main tained that he did no t cons ume any be er insid e his vehicle after leaving the chur ch. He fu rther testified that he fe lt the effects of alcohol more strongly at the time his blood was drawn after the accident than at the time of the acciden t. Finally, he admitted to having drunk a six-pack of beer almost every day for six years during the time between his first and second jobs. 1 No witness to the accident saw the Defendant change lanes before crashing into Mr. Im’s car. -7- Robert McCarter, the Defendant’s friend, testified that the Defendant arrived at the church parking lot at approximately 9:15 or 9:20 p.m. on the night of the accident. He testified that the Defendant had a can of beer in his hand and that his breath smelled strongly of alcohol. However, he stated that the Defen dant “se emed to have k nowled ge and his spee ch was n’t slurred.” Donna Jordan, the Defendant’s wife, stated that she saw her husband with a beer in his hand at approximately 9:15 or 9:20 on the night of the accident when he stopped by their home before heading to the church. She testified that she knew he ha d bee n drink ing be caus e of his dem eano r and th e fact th at his eyes were bloodshot. However, she also stated, “He was talking all right, he was walking fine . . . [and] he didn ’t stagger.” I. SUFFICIENCY OF THE EVIDENCE The Defendant first argues that the evidence presented at trial is insufficient to sustain his conviction for vehicular homicide. He the orizes that if Mr. Im had testified, the jury co uld have determined that Mr. Im contributed to the acciden t. He contends th at a “rational trier of fact could have found that the essential element for the crime was not proven beyond a reasonable doubt due to the lack of testimony from Mr. Im.” He emphasizes the fact that the Defendant did not submit to a breath alcohol test. He also points out Officer Swan son’s notation in his report th at he wa s unab le to asce rtain the D efenda nt’s “ability to operate a m otor vehicle.” Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions whether by the trial court or jury shall be set aside if the -8- evidence is insufficient to support the finding by the trier of fact beyond a reaso nable doubt.” Tenn. R. App. P. 13(e). In addition, because a conviction by a trier of fact destroys the presumption of innocence and imposes a presumption of guilt, a convicted criminal defendant bears the burden of showing that the evidence was insufficient. McBe e v. State, 372 S.W .2d 173, 176 (Tenn. 196 3); see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329, 331 (Tenn . 1977)); State v. Tug gle, 639 S.W .2d 913, 914 (Tenn. 198 2); Holt v. State, 357 S.W .2d 57, 61 (T enn. 1962 ). In its review of th e eviden ce, an ap pellate court must afford the State “the strongest legitim ate view of the e videnc e as w ell as all reasonable and legitimate inferences that may be d rawn therefrom .” Tug gle, 639 S.W.2d at 914 (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “reweigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court find particular conflicts in the trial testimony, the court must res olve them in favor of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W.2d at 914. Based upon our review of the record, we co nclud e that th ere wa s clear ly sufficient evidence introduced at trial to support the jury’s verdict. The Defendant complains that Mr. Im was not called as a witness at trial and contends that Mr. Im’s testimon y would h ave con vinced juro rs that Mr. Im contribute d to the acciden t. How ever, th e Def enda nt doe s not s pecify w hat tes timon y Mr. Im could have provided to ensur e this resu lt. We n ote that th e Defendant could have called Mr. Im as a witness and apparently chose not to do so. We may not now -9- hypothesize about w hat testim ony Mr. Im may or m ay not have provided. See Tenn . R. App . P. 13(c). Our vehicular homicide statute, Tennessee Code Annotated § 39-13-213, defines the crime as “the reckless killing of another by the operation of an automobile, airplane, m otorboa t, or other m otor vehic le . . . [a]s the pro ximate result of the driver’s intoxication as set forth in § 55-10-401 . . . .” Tenn. Code Ann. § 39-13-21 3(a)(2). Tennessee Code Annotated § 55-10-401 specifies that an individual is intoxicated for purposes of our DUI statute if his or her blood alcohol content is “ten-hun dredths of one percent (.10% ) or more.” Id. § 55-10401(a)(2 ). Tests performed on a sam ple of the Defendant’s blood which was drawn appro ximate ly two hours after the accident reveal that the Defendant’s blood alcohol content was .20 percent, twice the amoun t required by statute to show intoxication. The Defendant himse lf admitted to drinking nine an d one-half bee rs on the evening of the accident, three and one-half of them within less than an hour before the crash. Moreover, numerous witnesses an d officers present at the scene of the accident described the Defendant as inebriated and smelling strongly of alcoho l. Thus, it is cle ar that the p roof dem onstrate d that the Defen dant wa s intoxicate d at the tim e of the ac cident. Furthermore, witnesses to the accident testified that the Defendant was speeding; that Mr. Im ’s car stop ped su bstantially a head o f the Defe ndan t’s speeding vehicle; tha t Mr. Im’s ca r was co mplete ly stopped at the time of th e crash; that there we re no oth er cars o n the roa d to impede the Defendant’s view; -10- that the De fenda nt did not ap ply his brakes until the very last moment before he hit Mr. Im’s c ar; and that the Defen dant accelera ted after striking Mr. Im’s ca r, thus propelling his own vehicle into an oncoming car. Certainly this is sufficient evidence from which a rational trier of fact c ould c onclu de tha t the D efend ant’s recklessness was the cause of the accident and that the accident was the proxima te result of h is intoxication . This issu e is withou t merit. II. BLOOD ALCOHOL TEST The Defendant next argues that the results of his blood alcoh ol test s hould have been excluded from evidence.2 He challenges the constitutionality of Tennessee Code Annota ted § 55 -10-406 (e) on the basis tha t it compels a defendant to give evidence against himself, in contravention of Article I, Section 9 of our state constitution . Tenn. C onst. art. I, § 9.3 He also contends that the statute violates rights protected by Article I, Section 7 of our state constitution,4 arguing that “the least obtrusive measure [by] which to compel a Defen dant to provide a blood alcohol sample is to ascertain a search warrant to ensure that the constitutional safeguards are met and satisfied.” Tenn. Const. art. I, § 7. 2 In his brief, the Defendant initially argues that the “results of the breath alcohol test should have been excluded from evidence.” (Emphasis added.) However, from a reading of his argument as a whole, it seems clear that the Defendant is referring to the blood alcohol test results. 3 The relevant portion of Article I, Section 9 of the Tennessee Constitution, “the accused . . . shall not be compelled to give evidence against himself,” parallels the Fifth Amendment to our United States Constitution, which provides, in pertinent part, “[n]o person shall . . . be compelled in any criminal case to be a witness against himself.” Tenn. Const. art. I, § 9; U.S. Const. amend. V. 4 Both Article I, Section VII of the Tennessee Constitution and the Fourth Amendment to the United States Constitution address unreasonable searches and seizures. Tenn. Const. art. I, § 7; U.S. Const. amend. IV. -11- In Tennessee, anyone who operates a motor vehicle on the roads of our state is “deemed to have given consent to a test for the purpose of determining the alcoholic . . . content o f that perso n’s blood . . . .” Tenn. C ode An n. § 55-10406(a)(1). If an accuse d is charg ed with driving under the influence and “refuses to submit” to testing, the tests “sha ll not be given.” Id. § 55-10-40 6(a)(3). However, when a person is charged with vehicular homicide, Tennessee Code Annotated § 55-10-406(e) applies. It provides: Nothing in this section shall affe ct the a dmis sibility in e videnc e, in criminal prosecutions for aggravated assault or homicide by the use of a motor vehicle only, of any chemical analysis of the alcoholic or drug content of the defendant’s blood which has been obtained by any me ans law ful without re gard to th e provision s of this sec tion. Id. § 55-10-40 6(e). In Schm erber v. Califo rnia, 384 U.S. 757 (1966), the United States Supreme Court emphasized that the Fifth Amendment privilege ag ainst selfincrimination under our United States Constitution “protects an accused only from being compelled to testify against himse lf, or otherwis e provide the State with evidence of a testimonial or communicative nature.” Id. at 761. The Court determined that [t]he values pro tected by the F ourth A men dme nt . . . sub stantia lly overlap those [that] the Fifth Amendment helps to protect. H istory and precedent have required that we today reject the claim that the Self-Incrimination Clause of the Fifth Amendment requires the human body in all circums tances to be held inviolate ag ainst state expeditions seeking evidence of crime. But if compulsory administration of a blood test does not implic ate the F ifth Ame ndme nt, it plainly involves the br oadly co nceived reach o f a search and se izure und er the Fo urth Am endm ent. Id. at 767 . The C ourt co nclud ed tha t blood test evid ence is admissible if the test is performed in a reaso nable m anner a nd there is some indication th at the -12- evidence sough t will be found . Id. at 771; see also State v. Greene, 929 S.W.2d 376, 38 0 (Ten n. Crim. A pp. 199 5). In State v. Cleo Mason, No. 02C01-9310-CC-00233, 1996 WL 111200 (Tenn. Crim. App ., Jackson, Ma rch 14, 1996 ), the late Judge Joe B. J ones w rote for this Court and adopted the Schmerber test, which sets forth four prerequisites to be met before the results of a compelled blood-alcohol test are adm issible into evidenc e. The S tate mu st prove b y a prepo nderan ce of the e vidence that: a) The officer compelling the extraction of blood from the accused has probable cause to believe that the accused committed the offense of aggravated assault or vehicular homicide while under the influences of an intoxic ant or drug, and there is a clear indication that eviden ce of th e acc used ’s intoxic ation w ill be fou nd if the blood is taken from the accused’s body and tested; b) Exigen t circums tances exist to foreg o the wa rrant requ iremen t; c) The test selected by the officer is reasonable and competent for determining blood-alcohol content; and d) The test is pe rformed in a rea sonable m anner. Id. at *7-8 (citations omitted) (citing Schmerber, 384 U.S . at 768-7 2). In Mason, this Court ruled that on the specific facts of the case, the use of physica l force to obtain the defe ndant’s b lood wa s objective ly reason able. Mason, 1996 W L 1112000, at *12. We find the reasoning and analysis of Judge Jones to be sound. Here, althou gh it is som ewha t uncle ar from the De fenda nt’s brief, it does not appear that the Defendant challenges the m ethod by whic h his b lood s amp le was taken, nor does he argue that he refused consent for blood tests.5 Rather, 5 In his brief, the Defendant states, It is clear from the record that the Appellant, Roy A. Jordan, refused the breath test and was subjected to a blood alcohol test. The Appellant, Roy A. Jordan, refused the field sobriety tests. On the 25th day of October, 1996 the Appellant refused to submit to the breath alcohol testing. He makes no other references to the method of procuring his blood sample. -13- it appears that the Defe ndant ra ises a ge neral cha llenge to th e cons titutionality of Tennessee Code Annotated § 55-10-406(e)6 and contends that because the statute is unconstitutional, the State should have procured a search warrant before drawing a sample of his blood. Based upon legal analysis of this issue by both the United States Supreme Court and this Cou rt in previous cases, as summarized herein, we conclude that Tennessee Code Annotated §55-10-406(e) is constitutional. Our case law requires that specific procedures must be followe d in ob taining a bloo d sam ple from a defendant charged with vehicular homicide and even allows the forcible taking of blood in certain situations. We are unpersuaded to overrule previous holdings by this Co urt on this iss ue. Because the Defendant points to no evidence in the record that he refused consent to the blood-alcohol test performed on him the night of the ac ciden t or that h is bloo d was drawn in violation of the standards set forth in Mason, we con clude tha t the trial c ourt properly d enied the Defen dant’s m otion to su ppress the resu lts of the test. The jud gmen t of the trial cou rt is accord ingly affirme d. 6 The Defendant argues that when the issue of the constitutionality of Tennessee Code Annotated § 55-10-406(e) was raised in State v. Bullington, 702 S.W.2d 580, 583 (Tenn. Crim. App. 1985), this Court “did not specifically address the constitutionality other than the general conclusory opinion” that the statute passes constitutional muster. We note that in Bullington, this Court relied upon two United States Supreme Court cases in concluding, “The State may compel submission to [blood alcohol] testing if the officer has reasonable grounds to believe that the motorist is intoxicated.” Id. at 583. In addition, this Court found the statute to be constitutional in State v. Terry Fowler, Lake County No. 4, 1985 WL 3545 (Tenn. Crim. App., Jackson, Nov. 6, 1985). -14- ____________________________________ DAVID H. WELLES, JUDGE CONCUR: ___________________________________ JOE G. RILEY, JUDGE ___________________________________ THOMAS T. WOODALL, JUDGE -15-
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