Aponte v. Commonwealth, Record No. 0052-17-3.

• Citation: 68 Va.App. 146,804 S.E.2d 866
• Decision Date: 10 October 2017
• Docket Number: Record No. 0052-17-3.
• Parties: Emily Lynn APONTE v. COMMONWEALTH of Virginia
• Court: Court of Appeals of Virginia

68 Va.App. 146

804 S.E.2d 866

Emily Lynn APONTE

v.COMMONWEALTH of Virginia

Record No. 0052-17-3.

Court of Appeals of Virginia, Salem.

OCTOBER 10, 2017

Dirk B. Padgett (Dirk Padgett Law PLLC, on brief), Roanoke, for appellant.

Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Chafin, O'Brien and Malveaux

OPINION BY JUDGE MARY BENNETT MALVEAUX

Emily Lynn Aponte ("appellant") appeals her convictions of involuntary manslaughter, in violation of Code § 18.2–36.1, driving while intoxicated (second offense within five to ten years) with a child in her vehicle, in violation of Code §§ 18.2–266 and –270, and maiming of another resulting from driving while intoxicated, in violation of Code § 18.2–51.4.¹ On appeal, she contends the trial court erred when it denied her motion to suppress the certificate of analysis containing her blood test results, refused to allow her to introduce data evidence at trial, and denied her motion to strike as the Commonwealth failed to prove appellant was intoxicated at the time of her accident.² For the reasons discussed below, we affirm her convictions.

I. BACKGROUND

"In accordance with familiar principles of appellate review, the facts [are] stated in the light most favorable to the Commonwealth, the prevailing party at trial." Scott v. Commonwealth, 292 Va. 380, 381, 789 S.E.2d 608, 608 (2016).

The Accident and Investigation

While driving on the afternoon of April 26, 2014, appellant crossed the center line of a two-lane highway and collided head on with a van. The van's driver suffered injuries which impair his ability to walk and limit his work capacities. Appellant's six-year-old son, E.A., was a passenger in the back seat of her car. E.A. was gravely injured and died several hours after the accident.

Connie Letchford was sitting on her porch that day when, at about 3:00 p.m., she heard "a great big boom." She walked around the side of her home and looked toward the nearby highway, where she saw that a van and car had collided. She ran to the scene, opened appellant's door, asked her if she was okay, and told her she was going to call 911. Appellant said, "please don't.... [P]lease don't call. I've been drinking."

Appellant got out of her car and tried to phone her husband. When Letchford completed her call to 911, she turned around and saw appellant holding three or four cans of beer. Letchford asked appellant what she was doing, and appellant said, "I have to get rid of this" and threw the cans into a wooded area near the road.

Connie Letchford's daughter-in-law, Cheryl Letchford, was with her on the porch that afternoon and also heard the collision. When Cheryl approached the accident scene, appellant "was begging Connie not to call 911 because she would be in so much trouble." She noted that when appellant got out of her car there was a strong odor of beer on her breath. Cheryl Letchford also saw appellant throw away several cans of beer.

Senior Trooper Gordon Musgrove of the Virginia State Police arrived at the scene shortly after 3:00 p.m. Several emergency vehicles were already present, and Musgrove found the scene "fairly hectic" to observe and investigate. He asked appellant for her license and registration and "asked her real quickly" what had happened, but "didn't get that close" to appellant. Appellant told Musgrove that E.A. had asked her a question, and when she looked back to answer him, the accident occurred. Appellant's husband arrived at the scene, E.A. was airlifted to a Roanoke hospital, and appellant and her husband asked if they could leave. At approximately 3:45 p.m., Musgrove told them to drive to the hospital and that he would later meet them there.

Shortly thereafter, Musgrove spoke with two other troopers who had talked with Connie Letchford. Apprised of their conversation, Musgrove walked to the wooded area and saw three cans of beer. Musgrove also spoke with Letchford and heard her account of appellant's conduct and statements. Prior to that time, Musgrove had not been concerned that alcohol might have played a role in the accident.

After completing his work as lead investigator of the accident, Musgrove left the scene shortly after 5:20 p.m. and arrived at the hospital just before 6:00 p.m. He went to the pediatric intensive care unit and spoke briefly with E.A.'s doctor before speaking again with appellant at about 6:15 p.m. Musgrove could detect a slight odor of alcohol in the room where he and appellant spoke. Appellant repeated her account of the accident and denied having anything to drink after the crash. She stated her last drink had occurred at about 3:00 a.m. or 4:00 a.m.

Musgrove, giving appellant "the benefit of the doubt" that 14 or 15 hours had passed since her last drink, offered appellant a breath test to see if any alcohol remained in her system. At about 6:23 p.m., appellant's breath test returned a blood alcohol content ("BAC") result of .130. Based on appellant's account of her conduct, the result seemed high to Musgrove. Appellant's husband was present, and he asked Musgrove if his Alco–Sensor was working properly. Another trooper, who was investigating a different accident, was in the emergency room at that time and Musgrove asked if he would administer a second test using that trooper's Alco–Sensor. At approximately 6:30 p.m., that breath test returned a result of .109 BAC.

Musgrove asked appellant what she had to drink the night before. Appellant said she had consumed part of a mixed drink and some beer—"a lot more than normal"—and that, as a consequence, she had spent the previous night at the home of her mother's friend. At that point, after approximately 30 minutes of conversation with appellant, Musgrove contacted the Commonwealth's attorney for guidance. Since more than three hours had elapsed since the accident, the statutory window for implied consent for a blood draw had passed³ and the Commonwealth's attorney advised Musgrove to see if appellant would consent to give a blood sample. He also advised the trooper that if appellant did not consent, there was sufficient probable cause for Musgrove to take her before a magistrate and obtain a search warrant for her blood.

Musgrove told appellant she could voluntarily provide a blood sample, which would allow her to remain in the hospital and minimize her time away from her son, or they would have to go before a magistrate and obtain a search warrant. Appellant said she would provide a blood sample, and her blood was drawn at 7:15 p.m.

Pre–Trial Motions

Appellant filed a pre-trial motion to suppress the certificate of analysis from her blood sample, alleging that the sample was obtained by coercion and thus violated her constitutional rights. At the motion hearing, appellant testified that when Musgrove asked her to provide a blood sample, she thought she had to comply. She said she remembered hearing that she would be handcuffed and taken before a magistrate if she did not voluntarily provide a blood sample and that she did not know what to do because she did not wish to leave her son. Appellant gave a blood sample because, she thought, "I had no choice or I'd have to be gone."

The trial court also heard the testimony of Trooper Musgrove, as outlined above, and his further testimony that at no time prior to the blood draw did he tell appellant that he would arrest her. He stated he was prepared to handcuff her and take her before a magistrate, but that he did not convey this information to appellant and that he neither handcuffed nor applied any force to her.

The trial court denied the motion to suppress, finding that although the appellant's purported consent to a blood draw was not voluntary, the certificate of analysis was nonetheless admissible because the warrantless blood draw was obtained under exigent circumstances. The trial court stated that it is "a matter of common sense in ordinary human experience [that] ... the level of alcohol in the body dissipates with the passage of time" and that because of that, Musgrove "might reasonably have believed that he was confronted with an emergency in which the delay necessary to obtain a warrant under the circumstances threatened the destruction of evidence." Further, the trial court noted the "circumstances of what the [t]rooper had been told by witnesses at the scene and discovered in his investigation and what [appellant] herself had told him."

Appellant also moved for a pre-trial determination of the admissibility of data from her vehicle's airbag control module ("ACM"). Appellant wished to introduce the ACM data to defend against the charge of aggravated involuntary manslaughter. She maintained the ACM's data comprised evidence of speed, brake use, and steering that would bolster her argument that the accident was the result of her momentary inattention, rather than gross, wanton, and culpable conduct.

The trial court found the ACM data was relevant, because it could assist the jury in determining whether appellant's conduct was sufficiently gross, wanton, and culpable as to show a reckless disregard for human life. See Code § 18.2–36.1(B). However, the court also ruled the evidence was inadmissible for two reasons. First, the court concluded the evidence was hearsay because the ACM contained data and information constituting an out-of-court declaration offered for the truth of its content. Second, the court found appellant had failed to carry her burden of showing the evidence was reliable. Consequently, appellant's motion was denied.

Relevant Proceedings at Trial

At trial, Chad Harris of the Virginia Department of Forensic Science testified that he analyzed appellant's blood sample. Harris prepared a certificate of analysis which reflects that at 7:15 p.m. the night of the accident, appellant's BAC was 0.116% by weight by volume. That certificate was entered into evidence.

Also at trial, Dr. Trista Wright of the Virginia Department of Forensic Science testified...