Ashley v. State

• Decision Date: 03 November 1982
• Docket Number: No. 53266,53266
• Citation: 423 So.2d 1311
• Parties: Nathan Leon ASHLEY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1311

423 So.2d 1311

Nathan Leon ASHLEY v. STATE of Mississippi.

No. 53266.

Supreme Court of Mississippi.

Nov. 3, 1982.

Rehearing Denied Jan. 12, 1983.

Johnston & Steinberger, Albert S. Johnston, III, Pascagoula, for appellant.

Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before SUGG, P.J., and HAWKINS and DAN M. LEE, JJ.

SUGG, Presiding Justice, for the Court:

Shawn M. Allman was killed on July 3, 1980 when the automobile in which he was a passenger was stopped at a traffic signal and was hit in the rear by an automobile driven by appellant. The automobile in which the deceased was riding caught fire and he died in the ensuing blaze. Appellant was convicted of manslaughter by culpable negligence and sentenced to serve a term of ten years. Appellant has assigned several errors but does not contend that the verdict of the jury was against the overwhelming weight of the evidence.

I

Appellant first argues that the trial court erred in failing to sustain his pretrial motion to suppress the results of a blood-alcohol test. The trial court conducted hearings on the motion to suppress. Patrolman Albert Santacruz testified that he arrived at the scene of the collision shortly after it occurred. The automobile in which Allman was riding was burning, the fire department arrived and the fire was extinguished about forty-five minutes later, and the body of Allman was recovered from the vehicle. In the meantime, Santacruz determined that four vehicles were involved in the collision and four people, including appellant, were sent by ambulance to the hospital.

Based on information he received from other officers who preceded him to the scene, about appellant's involvement in the collision and appellant's behavior, Santacruz radioed the sheriff's department and requested it to contact the hospital where appellant had been carried and instruct the hospital personnel to hold appellant and perform a blood-alcohol test on him. This request was made through the sheriff's office because Santacruz did not have access to a telephone at the scene of the collision and he had no radio contact with the hospital. The request was relayed to the hospital by the sheriff's department. If appellant had not been injured and sent to the hospital, he could have been arrested at the scene for the felony of manslaughter by culpable negligence.

Officer Santacruz arrived at the scene of the collision about 9:10 p.m. and approximately two hours and twenty minutes later, after completing his investigation, he went to the Singing River Hospital. When he arrived at the hospital the nightwatchman told him they were having trouble with a patient. He found the patient in the restroom, talked to him and persuaded the patient to get into a wheel chair to be transported to one of the emergency rooms. After the patient was placed in a wheel chair, Santacruz learned that the patient was the appellant. He testified that appellant was belligerent and was drunk. He then ascertained that a blood test had been previously run on the appellant, but did not know it was requested by appellant's physician.

On the second hearing on the motion to suppress, appellant called Dr. Edward Wiggins, an orthopedic surgeon, as his witness. Dr. Wiggins testified that he treated appellant at the hospital and ordered blood drawn from appellant for a blood-alcohol test. The doctor had not received instructions from any law enforcement official to perform a blood test, but ordered the blood test as appellant's physician for diagnostic purposes.

On cross-examination the doctor testified that appellant exhibited a very belligerent He testified that, after his initial examination, appellant demanded that he be taken to the bathroom and the doctor felt that it was the better part of valor to grant appellant his request. Appellant threatened to leave the hospital so the doctor explained to a highway patrolman that appellant was apparently intoxicated, he had been in an automobile wreck and had a bad ankle fracture that needed surgery. He asked the officer to help him convince appellant to stay in the hospital. The officer "offered to take him to jail if he left the hospital," whereupon appellant changed his mind and consented to enter the hospital. The doctor stated that in his opinion the appellant was highly intoxicated. No objection was made to the cross-examination of the doctor which revealed the above facts.

behavior, appellant was combative, and had a strong odor of alcohol on his breath. He stated that, since appellant had been in an automobile accident with the possibility of a head injury he ordered the blood-alcohol test to ascertain whether appellant's behavior was due to alcohol or injuries received in the accident. He testified that appellant had a .31% alcoholic content in his blood. ¹

At the first hearing on the motion to suppress the lab technician who drew the blood from appellant and the technician who administered the test testified in detail about drawing the blood at 10:55 p.m. and the results of the test.

The blood test was administered at the direction of Dr. Wiggins and not pursuant to the request of Patrolman Santacruz. Appellant had not been arrested when his blood was withdrawn for the test.

Appellant's motion to suppress was based on Fourth Amendment and privileged communication grounds.

We first address appellant's Fourth Amendment claims. The United States Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) held that taking blood samples from a defendant who had been lawfully arrested did not violate his Fourth Amendment rights. In Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) the Court held that taking fingernail scrapings from one detained did not violate his Fourth Amendment rights where probable cause for his arrest existed. The Cupp rationale has been extended in some jurisdictions to include the warrantless taking of a suspect's blood for analysis prior to arrest where probable cause existed and the circumstances dictated that the blood should be taken for a test. Aliff v. State, 627 S.W.2d 166 (Tex.Cr.App.1982); State v. Campbell, 615 P.2d 190 (Mont.1980); State v. Oevering, 268 N.W.2d 68 (Minn.1978).

We find appellant had not been lawfully arrested when his blood was withdrawn for testing. However, our examination of the facts must not stop here. We must determine whether Officer Santacruz had probable cause to detain appellant and order a blood test after he went to the hospital. The facts in possession of the officer at that time were that Ashley was driving an automobile which had run into the rear end of another automobile which was stopped at a traffic signal, that an occupant of the stopped automobile had been killed in the accident, and in the opinion of the officer appellant was intoxicated. Under these facts the officer could then have arrested appellant on a charge of manslaughter and required appellant to submit to a test to determine the alcoholic content of his blood. At that time there existed probable cause for arrest and also probable cause to search appellant by requiring him to submit to the withdrawal of blood from his body to be tested.

The officer did not order another blood test because he had been advised that blood had been withdrawn from appellant and the test results were known to the officer.

The United States Supreme Court recognized in Schmerber, supra, that extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol. It also recognized, as this Court did in Jackson v. State, 310 So.2d 898 (Miss.1975), that the percentage of alcohol in the blood begins to diminish shortly after drinking stops as the body functions to eliminate alcohol from the system.

Information gathered at the accident scene and later at the hospital not only provided probable cause for appellant's arrest, but also indicated that appellant was probably intoxicated; hence, the need for a blood test. Under the facts of this case, we hold that appellant's Fourth Amendment rights were not violated, and the result of the blood test administered at the direction of Dr. Wiggins was admissible in evidence. We hold that, where the state is justified in requiring a blood test to determine the alcoholic content in a suspect's blood, and such test has in fact been performed, although for diagnostic and not law enforcement purposes, the state is entitled to the benefit of the test results. It would have been unduly repetitive to require the officer to have blood withdrawn from appellant a second time for testing. This would have required appellant to be subjected to another intrusion of his body. Any additional tests were unnecessary because one had already been performed, and the results were available.

Appellant also argues that his motion to suppress should have been sustained because admission of the result of the test violated the privileged communication statute. Section 13-1-21 Mississippi Code Annotated (Supp.1981). ² The privilege applies in criminal proceedings. Keeton v. State, 175 Miss. 631, 167 So. 68 (1936). However, the privilege may be waived. We hold that appellant waived the privilege when he called Dr. Wiggins to the stand as his own witness and the result of the test was elicited from the doctor on cross-examination without objection from the defendant.

II

Appellant also argues that the trial court erred in failing to sustain his objection to the testimony of Dr. Wiggins. When the cause came on for trial immediately following the second hearing on the motion to suppress, the state introduced Dr. Wiggins to prove the result of the blood test administered to appellant. The state did not call the lab technicians who withdrew the blood and performed an analysis of the blood, but chose to use Dr. Wiggins to show the result of...