People v. Deadmond, 82SA367
| Citation | 683 P.2d 763 |
| Decision Date | 21 May 1984 |
| Docket Number | No. 82SA367,82SA367 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas Eugene DEADMOND, Defendant-Appellant. |
| Court | Supreme Court of Colorado |
J.D. MacFarlane, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., John Milton Hutchins, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Banowetz, Liggett & Moore, Thomas H. Moore, Fort Collins, for defendant-appellant.
Defendant, Thomas Gene Deadmond, appeals his jury conviction of vehicular homicide under section 18-3-106, 8 C.R.S. (1973 & Supp.1983). 1 We affirm in part, reverse in part, and remand for further proceedings.
The record reveals the following pertinent facts. On May 15, 1980, on a highway near Loveland, Colorado, defendant drove his pickup truck into a car driven by Sharon Kay Bakovich. Both drivers were taken by paramedics to a Loveland hospital, where defendant was treated by Dr. Michael J. Jobin for a laceration on his chin. Sharon Bakovich died later that evening.
Before the extent of Sharon Bakovich's injuries was known, Officer Joseph Berdin of the Loveland Police Department, pursuant to section 42-4-1202(3), 17 C.R.S. (1973), 2 advised defendant of his rights under the implied consent statute and asked defendant to submit to a chemical test to determine the alcohol content of his blood. Defendant refused to take the test. When he learned that Sharon Bakovich was not expected to live, the officer ordered a blood test sample to be taken from defendant. An information charging defendant with vehicular homicide was subsequently filed. Prior to trial, defendant moved to dismiss the case on the ground that the vehicular homicide statute is unconstitutionally vague. He also moved to suppress the blood sample taken from him at the hospital. The trial court denied both motions.
At trial, Dr. Jobin was called as a witness during the prosecution's case-in-chief. When defendant objected that the doctor's testimony violated the physician-patient privilege, an in camera hearing was held to evaluate the testimony. At the hearing Dr. Jobin testified that when he arrived at the hospital emergency room defendant announced that he did not need any treatment, but that defendant "had an odor of alcohol on his breath ... and because of that and his very hostile, aggressive, almost bizarre b[e]havior at times, I took it upon myself to really try to examine [defendant] carefully." He further stated that various policemen and staff members were in the emergency room during this entire time, and gave the following testimony:
In the process of examining his nervous functions, I asked him about his alcohol consumption. That is a very important factor in determining whether somebody has had a head injury or whether they are acting under the influence of other drugs or alcohol. And he did admit to drinking, he told me between five and ten beers.
On cross-examination of Dr. Jobin, the following pertinent exchanges occurred:
Q You were taking into consideration in treating [defendant] his behavior and his manner of acting, that had medical significance, didn't it?
A It did.
....
Q All information that comes to you, you take into account in treating a patient?
A That's a matter of living, being an emergency room doctor. My eyes are open to everything that happens in the emergency room, and that always enters into any treatment.
....
Q Nothing is trivial, and [defendant's] condition was not trivial, and certainly in your mind you took into consideration all the factors in considering the diagnosis of [defendant's] condition?
A That's right.
At the conclusion of the hearing the trial court ruled that Dr. Jobin could testify about his "physical observations" of defendant, but that he could not testify "concerning the answer to his inquiry concerning the consumption of alcohol." In testifying before the jury, Dr. Jobin essentially repeated his in camera testimony. He further stated that on the night in question defendant was "definitely impaired by the use of alcohol" and that defendant's "demeanor and attitude and behavior" could be attributed "partially to the use of alcohol." Defendant did not object to these specific statements.
Defendant testified at trial that at approximately noon on May 15, 1980, he "had a beer or two" at a bar; that he left the bar for a period of time and then returned at approximately 3:30 p.m.; and that he remained there until 8:00 p.m. Defendant estimated that he had consumed as many as five beers during this time, and acknowledged that on the day of the accident he told police officers that he had consumed "three or four beers" prior to the collision.
On cross-examination, the prosecution asked the following question of the defendant: "Isn't it a fact that you told the doctor who was examining you that you had between five and ten beers to drink?" Defendant objected on the basis of the physician-patient privilege. The trial court overruled the objection, and defendant answered as follows: "I don't remember saying it."
Defendant was found guilty of vehicular homicide. Following a sentencing hearing, 3 defendant was placed on probation for a period of four years. As a condition of probation, defendant was ordered to pay $9,600 to Sharon Bakovich's husband. This appeal followed. 4
Defendant first contends that his refusal to consent to a chemical analysis of his blood pursuant to the implied consent law precluded the performance of such test. However, consent is not a prerequisite to the performance of a chemical test to determine the alcohol content of a defendant's blood when the offense charged is a felony rather than the lesser offense of driving under the influence of alcohol. People v. Sanchez, 173 Colo. 188, 476 P.2d 980 (1970). See also People v. Duemig, 620 P.2d 240 (Colo.1980), cert. denied, 451 U.S. 971, 101 S.Ct. 2048, 68 L.Ed.2d 350 (1981); People v. Myers, 198 Colo. 295, 599 P.2d 891 (1979). The trial court, therefore, correctly concluded that evidence of the chemical test was admissible even though obtained without defendant's consent.
Defendant next contends that the term "proximate cause" as used in the vehicular homicide statute is unconstitutionally vague. In People v. Rostad, 669 P.2d 126, 128 (Colo.1983), we concluded that the requirement of proof of "proximate cause" in section 18-3-106 "is sufficiently intelligible to satisfy both federal and Colorado constitutional standards of due process of law." That decision is dispositive of this issue.
Defendant argues that the trial court's definitional instructions on strict liability were insufficient to properly define the culpability element of vehicular homicide. We agree that the trial court erred, but conclude that such error was harmless in the circumstances of this case.
In Rostad, we examined "strict liability" crimes defined by our General Assembly and concluded that "the minimal requirement for a 'strict liability' offense is proof that the proscribed conduct was performed voluntarily--i.e., that such act must be the product of conscious mental activity involving effort or determination." 669 P.2d at 129. We also concluded that the prosecution has the burden of proving voluntary conduct in the operation of a motor vehicle to secure a conviction of vehicular homicide, and noted that, when properly requested by a defendant, a trial court "must instruct the jury with respect to the minimum requirement for criminal liability and the definition of a voluntary act." Id. at 130 n. 5.
Instruction No. 9 given the jury stated in pertinent part as follows:
The crime of Vehicular Homicide charged in the Information is one of strict liability. Intent to commit the crime need not be shown, only intent to act. The voluntary commission of the forbidden act constitutes the crime charged.
....
"The requirement for criminal liability of [vehicular homicide] is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing.
This instruction was based on CJI-Crim. 6:3, relating to strict liability crimes. 5 The "Notes on Use" pertaining to that model instruction suggest that when it is given, the terms conduct, voluntary act, and omission are also to be defined for the jury. In Instruction No. 10, the trial court defined certain words and phrases as follows:
Concerning the charge of Vehicular Homicide in this case certain words or phrases have a particular meaning.
The following are the definitions of these words and phrases.
'Act' means bodily movement, and includes words and possession of property.
Motor Vehicle includes any self-propelled device by which persons or property may be moved, carried, or transported from one place to another on or in land, water, or air, except devices operated on rails, tracks, or cables fixed to the ground or supported by pylons, towers, or other structures.
Operate and Drive means every person who drives or is in actual physical control of a motor vehicle upon a highway.
Proximate Cause means that cause which, in natural and continued sequence, unbroken by any efficient intervening cause, produced the alleged death and without which that result would not have occurred.
Defendant objected to Instruction No. 9 on the grounds that it was vague, that it was inconsistent with other instructions, and that, when considered in conjunction with an instruction which defined certain presumptions concerning levels of blood alcohol content, 6 it in effect directed the jury to enter a guilty verdict. Defendant objected to Instruction No. 10 asserting that it failed "to set out the proper definitions as required." Defendant also objected "to the definition of 'proximate cause' as given in Instruction No. 10 in that such definition is nowhere contained in our statutes." Defendant did...
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