Anderson v. State, 23248
| Decision Date | 22 December 1993 |
| Docket Number | No. 23248,23248 |
| Citation | 109 Nev. 1129,865 P.2d 318 |
| Parties | James Larry ANDERSON, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Appellant James Larry Anderson appeals from a judgment of conviction, pursuant to a jury trial, of three counts of driving while under the influence of intoxicating liquor ("DUI") which resulted in a multi-car accident and three deaths. We affirm the judgment of conviction.
On August 25, 1990, at approximately 11:50 P.M., Anderson (driver) and a friend, John Edward Roy, Jr. (passenger), were traveling at a high rate of speed on Highway 93 near Railroad Pass, Clark County, when Anderson approached an accident involving an overturned horse trailer. Mary Ann Roether testified that she was also traveling on Highway 93 that night and that Anderson'sautomobile passed her traveling at approximately 100 miles per hour.
Thomas Coonan, the driver of the Volkswagen that Anderson's car struck, testified that as he drove northbound from Boulder City to Henderson, he noticed the horse trailer accident and stopped. In his rear view mirror Coonan saw Anderson's car approaching and heard the carburetor "kick in" as Anderson accelerated.
While patrolling Highway 93 near Railroad Pass Casino, Officer Eric Reinke, a Boulder City Police Officer, observed a Trans Am or Firebird traveling Highway 93 at about "100 miles per hour." Shortly thereafter, Officer Reinke responded to the accident scene. Upon arrival, Officer Reinke realized that the same automobile that he had seen traveling at a high rate of speed was the same automobile involved in the second accident (the first being the horse trailer accident).
Anderson testified at trial that prior to the accident, he had a problem with the accelerator sticking. Anderson explained that on August 25, 1990, he was at Pat K's bar playing pool and that he did not remember having more than three or four beers. At approximately 11:30 P.M., Anderson decided to drive to the Lonesome Dove Bar with his friend, Roy. Anderson further testified that as he approached the accident scene, he attempted to downshift and he attempted to ease up on the accelerator and apply the brake, but the car continued to accelerate. At this point, Anderson told Roy that the accelerator was stuck and shifted the car into neutral. Anderson testified that after his car struck the first vehicle, he did not recall anything until he woke up later at the hospital.
At trial, the State offered John Edward Roy, Jr.'s preliminary hearing testimony. The district court determined that Roy was unavailable for trial and allowed the State, over objection, to read his prior testimony to the jury. Roy testified that he and Anderson were together for a few hours prior to the accident and that during this time, Roy saw Anderson drink at least two or three beers. Roy also stated at the preliminary hearing that he did not recall Anderson saying anything about the throttle being stuck on his vehicle.
Trooper William Marhold, a Nevada Highway Patrolman, testified that after investigating the accident scene, he went to the University Medical Center where Anderson had been taken. Trooper Marhold testified that when he initially came into contact with Anderson, he "detected an odor, a rather strong odor of an intoxicating beverage on his breath." Marhold advised Anderson of his Miranda rights and read him the Nevada Implied Consent warning. Anderson waived his rights and agreed to submit to a chemical test.
Anderson told Trooper Marhold that at the time of the accident, Roy was driving the car. Roy, who was located in the same room lying on a nearby gurney, overheard Anderson's comment and said, "I'm not taking this; I wasn't driving, you murdered those people, not me."
On August 28, 1991, Trooper Garth Gardner, one of the highway patrolmen who investigated the accident, testified that he examined the scene of the accident and that there were no signs of either a skid or a scuff mark that would indicate that Anderson attempted to downshift his car while travelling at a high rate of speed. Trooper Gardner, along with a mechanic and two other highway patrolmen, examined Anderson's automobile and noted that the gas pedal still moved freely and the carburetor linkage system appeared to be in "perfect working order."
Trooper Peter Hamilton, a highway patrolman and an expert in the field of accident reconstruction, testified that at the point where Anderson reached the stopped vehicles, he estimated Anderson's speed to be between sixty-eight and eighty-one miles an hour. Additional calculations by Trooper Hamilton demonstrated that Anderson had ample time to stop his vehicle upon perceiving the pre-existing accident, even if he had been traveling at 100 miles per hour.
Dan Berkabile, a forensic chemist, testified that he ran a blood alcohol test on Anderson's blood sample for ethyl alcohol. Berkabile testified that based on a standard metabolism rate of approximately 0.02 percent per hour, he extrapolated backwards to estimate Anderson's blood alcohol level at the time of the accident to have been 0.128.
At the conclusion of trial, a jury found Anderson guilty of all three DUI charges. The district court sentenced Anderson to three consecutive ten-year terms to be served in the Nevada State Prison and fined Anderson $6,000.00.
On appeal, Anderson argues the following: (1) the district court erred in admitting Anderson's statement because Anderson did not knowingly and intelligently waive his Miranda rights; (2) the district court erred in giving Instruction No. 5 because the instruction did not properly define the phrase "under the influence" as provided for by NRS 484.3795(1); and (3) there was insufficient evidence presented at trial to support Anderson's convictions.
First, Anderson contends that he did not knowingly and intelligently waive his Miranda rights, and thus, the district court erred in admitting his statements. Anderson argues that when Trooper Marhold interviewed him, Anderson was at the hospital being treated for head injuries as a result of the car accident and therefore could not have made a knowing and intelligent decision. Further, Anderson contends that at the time he gave his statement, he was twenty-six years old, had no prior experience in the criminal justice system, and had never been arrested for a DUI. Lastly, Anderson notes that he had a blood alcohol level of approximately 0.088 percent.
In Miranda v. Arizona, the Supreme Court stated:
If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. This Court has always set high standards of proof for the waiver of...
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