Evans v. State

• Decision Date: 07 October 1980
• Docket Number: 6 Div. 201
• Citation: 389 So.2d 567
• Parties: Dwight Allen EVANS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 567

389 So.2d 567

Dwight Allen EVANS v. STATE.

6 Div. 201.

Court of Criminal Appeals of Alabama.

Oct. 7, 1980.

B. J. McPherson, Oneonta, for appellant.

Charles A. Graddick, Atty. Gen., and J. T. Simonetti, Jr., Asst. Atty. Gen., for appellee.

BOOKOUT, Judge.

Second degree manslaughter; sentence: twelve months imprisonment at hard labor for Cullman County and a fine of one cent.

On August 10, 1979, Dwight Allen Evans's tractor-trailer truck collided with a car driven by Carey Brett Weeks. The collision took place on U. S. Highway 278 East in Cullman County at the intersection of College Hill Drive. Evans was subsequently indicted for first degree manslaughter. He stipulated at trial that seventeen-year-old Weeks was killed as a direct result of this head-on collision. Appellant filed a pretrial motion for change of venue which was denied by the trial court.

On the morning of the accident, appellant was returning from a poultry plant in Water Valley, Mississippi, where he had delivered crates of live chickens for his employer, Hazelrig Fruit & Poultry Company, Inc. Appellant admitted that between 8:30 and 9:00 a. m. he drank one-third of a pint of vodka just before driving back to Alabama. He stated that this was the only alcohol he drank on the day of the accident. Appellant made no stops during the return trip except at the truck scales on the Mississippi-Alabama state line.

At approximately 2:00 p. m. appellant was traveling east at about 50 m. p. h. on the two-lane side of a three-lane section of U. S. Highway 278, east of downtown Cullman. According to the appellant a car suddenly turned out of the St. Bernard College exit, forcing him to "hit" his brakes in order to avoid a collision. Due to the wet highway, saturated from heavy rainfall preceding the accident, appellant's truck jackknifed, skidding across the center line into the westbound lane. There, his truck crashed head-on into Weeks's automobile and catapulted over a car driven by Jerome William Hayes, III.

Dwight Pope, a Cullman police investigator, testified for the State. After visiting the scene of the accident, he went to Cullman Medical Center where the appellant had been taken for emergency treatment. While appellant was lying on a stretcher in the emergency room, Pope asked Evans how fast he had been traveling. Evans answered "fifty or fifty-five m. p. h. or whatever the speed limit was." The prosecutor later introduced a city ordinance prescribing a speed limit of 40 m. p. h. for that particular section of Highway 278.

Jerome William Hayes, III, who was traveling approximately fifty feet behind Weeks's vehicle when the tragedy occurred, testified that he first noticed appellant's truck as it approached the St. Bernard College intersection. He did not see a car turn in front of appellant, but he did observe appellant's truck beginning to jackknife when it reached the college exit. While admitting that he took his eyes off appellant's truck for about fifteen seconds during this sequence of events, Hayes estimated that appellant was traveling at a speed of 55 m.p.h.

A state toxicologist, Chip Walls, testified that an analysis of appellant's blood taken at the hospital one hour after the accident occurred revealed 0.06% ethyl alcohol. He explained that a person with this blood-alcohol content would normally exhibit some mental confusion, loss of ability to concentrate, and critical judgment would be diminished. He added that a slowed reaction time and slightly altered hand-to-eye coordination could be expected due to the effect of the amount of alcohol on the muscular system.

Dewayne Goodwin, an emergency medical technician who arrived at the scene immediately, testified that he came within two feet of appellant and smelled no alcoholic beverages. He recalled smelling a mixture of other odors including diesel fuel. However, Elaine Persall, the emergency room coordinator at Cullman Medical Center, insisted that she smelled alcohol as well as blood odors when she came close to the appellant at the hospital.

Lewis Bradford, a Cullman policeman, directed traffic and cleared wreckage following the accident. When traffic normalized, he left the scene and returned an hour and a half later on orders from Dwight Pope and another police investigator. Bradford, without a warrant, searched appellant's truck and discovered an unopened bottle of vodka under the mattress of a cot in the sleeper portion of the truck's cab. The district attorney prominently displayed the bottle before the jury, and the trial judge gave curative instructions and granted defense counsel's motion to exclude the bottle.

The trial court denied appellant's motion to exclude the State's evidence at the close of the State's case. After the appellant took the stand, two character witnesses testified in his behalf. The trial court submitted the case to the jury, which returned a guilty verdict of second degree manslaughter. A motion for a new trial was denied.

I

Appellant contends that the evidence does not sustain a conviction of involuntary manslaughter. We disagree.

"Manslaughter in the second degree is defined as the unlawful killing of another human being, without malice and without the intent to kill or to inflict the injury resulting in death, but accidentally committed by the accused while he was doing an unlawful act amounting to a misdemeanor, or accidentally committed by the accused while he was doing a lawful act, but in a grossly negligent or improper manner." (Emphasis added.)

Jones v. State, 21 Ala.App. 234, 236, 109 So. 189 (1926).

Clayton v. State, Ala.Cr.App., 359 So.2d 419 (1978); Smith v. State, 56 Ala.App. 609, 324 So.2d 323 (1975); Ayers v. State, 48 Ala.App. 743, 267 So.2d 533 (1972).

Whether appellant drove his truck in a manner which constituted a misdemeanor is a question for the jury to determine in light of the evidence. Smith v. State, supra; Pippin v. State, 19 Ala.App 384, 97 So. 615 (1923). It seems doubtful that the jury found the appellant violated the speed limit in the instant case because there was conflicting testimony, and the State failed to properly introduce the existence of a speed limit sign into evidence. At any rate exceeding the speed limit, alone, does not authorize a jury to find a person guilty of second degree manslaughter. Crisp v. State, 21 Ala.App. 449, 109 So. 282, reversed on other grounds, 215 Ala. 2, 109 So. 287 (1926).

We conclude, however, that the jury in this case could reasonably find that appellant was driving while intoxicated. It is a violation of the law of Alabama for "any person who is intoxicated to drive a motor vehicle upon any highway of the state." Section 32-5-170, Code of Ala.1975. As a general rule when an intoxicated driver runs into or against another, causing death, he is guilty of manslaughter in the second degree. Clayton v. State, supra; Broxton v. State, 27 Ala.App. 298, 171 So. 390 (1936); Oliver v. State, 24 Ala.App. 292, 134 So. 892, cert. denied, 223 Ala. 167, 134 So. 894 (1931).

Code § 32-5-193 provides that, in any proceeding arising out of acts alleged to have been committed by a person driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the person's bloodstream at the time of the chemical test as shown by analysis of the person's blood shall be admissible evidence and shall give rise to certain presumptions. A person with 0.05% or less by weight of alcohol in his blood is presumed not to be under the influence of intoxicating liquor, whereas a person with a 0.10% or greater level is presumed to be intoxicated. However, when a person's blood-alcohol level falls between 0.05% and 0.10%, no presumption arises, but rather "such fact may be considered with other competent evidence in determining whether the person was under the influence of intoxicating liquor." Section 32-5-193(a)(2).

In Smith v. State, supra, 56 Ala.App. at 612, 324 So.2d 323, this court quoted from Broxton v. State, supra, wherein Judge Samford wrote:

"The taking of one or more drinks of intoxicating liquor would not of itself be sufficient to establish the fact of intoxication. The evidence must go further and show facts indicating a mental condition not normal and produced or brought about by the intoxicating liquor. When, therefore, an accident occurs on a public road in which a person is killed by being run over by an automobile, and it is shown that the driver has been drinking, it becomes a question for the jury to say, from all the facts and circumstances surrounding the homicide, whether or not the driver at the time of the accident was under the influence of liquor, and, if so, was that condition the proximate cause of the homicide. If these facts be proven to the satisfaction of the jury beyond a reasonable doubt, the crime of manslaughter in the second degree would be complete."

Moreover, there is no need to distinguish between "being under the influence of intoxicating liquors" and "being intoxicated." As Judge Samford commented in Holley v. State, 25 Ala.App. 260, 261, 144 So. 535 (1932):

"The difference is that of 'Tweedle dee and Tweedle dum.' ... There are perhaps as many stages of intoxication as there are varieties of Heinz pickles, and the party affected rarely knows when he passes from one to another. But, in whatever stage he is, if he drives a vehicle upon the public road he becomes a menace to the public and subjects himself to the penalties of the statute."

The testimony and report of the state toxicologist and appellant's own admission are sufficient evidence from which the jury could reasonably infer that the appellant was committing a misdemeanor which resulted in the death of the deceased. The guilt of this appellant was not overwhelmingly established by the evidence. Nevertheless, after careful consideration we believe the evidence presented questions for the determination of a jury and was sufficient, if believed, to sustain...