Hall v. Com.

• Decision Date: 20 June 2000
• Docket Number: Record No. 1280-98-4.
• Citation: 32 Va. App. 616,529 S.E.2d 829
• Parties: Franklin Eugene HALL v. COMMONWEALTH of Virginia, Richmond.
• Court: Virginia Court of Appeals

529 S.E.2d 829

32 Va. App. 616

Franklin Eugene HALL v. COMMONWEALTH of Virginia, Richmond.

Record No. 1280-98-4.

Court of Appeals of Virginia, Richmond.

June 20, 2000.

Gregory E. Stambaugh, Manassas, for appellant.

Virginia B. Theisen, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., BENTON, COLEMAN, ELDER, BRAY, ANNUNZIATA and BUMGARDNER, JJ., and OVERTON, Senior Judge.

UPON A REHEARING EN BANC

FITZPATRICK, Chief Judge.

Franklin Eugene Hall (appellant) was convicted in a jury trial of aggravated involuntary manslaughter, in violation of Code § 18.2-36.1(B). Appellant argued that the trial court erred in: (1) admitting the results of the preliminary alco-sensor test; (2) allowing testimony during the Commonwealth's case-in-chief that appellant was previously convicted of an unrelated offense of driving under the influence; (3) denying his motion to strike the evidence; and (4) refusing appellant's jury instruction on causation. A divided panel of this Court reversed appellant's conviction and remanded the case for a new trial. See Hall v. Commonwealth, Record No. 1280-98-4, 1999 WL 1133268, September 28, 1999. On the Commonwealth's motion, we stayed the mandate of that decision and granted a rehearing en banc. Upon rehearing en banc, we find no reversible error and affirm appellant's conviction.

I. FACTS

On February 2, 1997, shortly after 8:00 p.m., a pickup truck driven by appellant and a motorcycle driven by Wayne A. Holmes collided at the intersection of Occoquan and Horner Roads in Prince William County. Holmes died in the crash. In the Commonwealth's case-in-chief, Mike Arnold testified that he was driving about forty miles per hour westbound on Occoquan Road in the left lane and he was slowing down as he approached an intersection. Arnold said he was fifty feet from the intersection at Horner Road when he saw in his rearview mirror a motorcycle approaching in the right lane. He testified that the traffic light at the intersection controlling his travel direction was green. As Arnold slowed, the motorcycle continued in the right lane past his car. Arnold testified that a pickup truck, driven by appellant eastward on Occoquan Road, made a left turn onto Horner Road, across the westbound travel lanes of Occoquan Road. Arnold testified that he was thirty feet away from the intersection when the truck turned, that the truck had given no turn signal, and that the truck did not make a proper turn—"it cut the corner." Arnold saw the collision between the motorcycle and the truck. He estimated that thirty seconds passed between the time he first saw the motorcycle in his rearview mirror and the time of the collision.

Connie Stewart was a passenger in a car, which turned onto Occoquan Road at Route One and began travelling westbound toward Horner Road. She saw the motorcycle turn onto westbound Occoquan Road from Route One. The car in which Stewart was a passenger was travelling west in the left lane of Occoquan Road, and the motorcycle was travelling west in the right lane of Occoquan Road. As the car in which Stewart was riding was moving at thirty-five miles per hour, the motorcycle passed the car. The motorcyclist gave a hand signal and drove into the left westbound lane. The motorcyclist passed a car in the right westbound lane, gave a hand signal, and moved again to the right westbound lane. Stewart estimated the speed of the motorcycle as forty to forty-five miles per hour. Stewart testified that as they were approaching the intersection, the light "had turned green." Her car was in the left travel lane, and the motorcycle was in the right travel lane. As the motorcycle passed to the right of a vehicle in front of Stewart's car, Stewart "saw the motorcycle flying up in the air." She did not witness the actual collision and said it was dark at the time of the accident.

Officer J.S. Scalici, who examined the crash scene one-half hour following the accident, opined that if appellant's truck had not hit the motorcycle at the point of impact, the truck would have traveled into oncoming traffic on Horner Road. The officer testified that the motorcycle was travelling between thirty-five and forty miles per hour and that appellant's truck was travelling between thirty and thirty-five miles per hour. He admitted, however, that his estimates of speed were "guess[es]."

When the officer interviewed appellant, appellant said he was returning from a bowling alley when the accident occurred. After the officer told appellant the bowling alley was in the opposite direction, appellant said he left the bowling alley, went to a friend's house, and was returning from the friend's house when the accident occurred. Appellant told the officer he had consumed three beers between 5:15 p.m. to 8:00 p.m. The officer also testified that appellant "had an odor of a strong alcohol beverage about his person."

When the officer made inquiry concerning appellant's driving status, appellant gave him an Alabama driver's license. Appellant said the license was suspended for failure to pay fines, that he had just returned from Alabama, and that "he had taken care of the fines." When the officer asked appellant if he had ever had a Virginia driver's license, appellant responded that he had not. Over objection, the officer testified that he told appellant the Department of Motor Vehicles records indicated appellant's Virginia driver's license had been suspended for a conviction. When asked about the conviction, the officer testified that appellant's Virginia license was suspended for "DWI" and that appellant's Alabama license had been revoked "for driving while intoxicated," not for failure to pay fines. Appellant unsuccessfully objected to the introduction of evidence concerning the prior convictions.

Officer Christopher Lando testified that he arrived at the accident scene at 8:30 p.m., obtained appellant's Alabama driver's license, and determined that it was suspended. When he asked appellant to complete a "statement form," appellant wrote that "`[he] was taking a left on'—`[he] had the green'—`[he] was making a left'—`[Holmes] hit [him].'" After Lando "detected a very strong odor of an alcoholic beverage about [appellant's] person" and was told by appellant that he had consumed three beers at a bowling alley, he had appellant perform several "field dexterity tests." Appellant was unsuccessful in those tests. Lando testified that he then gave appellant a "field alco-sensor test," which he identified as a device that can determine a person's blood alcohol concentration at the scene of the accident. Appellant objected to testimony concerning the results of the alco-sensor test. The trial judge overruled the objection. Lando then testified that when appellant's reading reached .200, he stopped the test and arrested appellant. After the officer transported appellant to the police headquarters, appellant's breath was again tested and indicated an alcohol content of .22.

A forensic toxicologist tested fluid recovered from Holmes' body and concluded that Holmes' blood alcohol level was .13. He agreed that at .13, a person's "vision, judgment, and ability to execute or act on that judgment ... would be a little impaired." He further testified that at .22, appellant's blood alcohol level, a person would suffer "incoordination of the muscle, ... disorientation,... [a]nd confusion." Over appellant's objection, the toxicologist opined that a man of appellant's size would have to have consumed "more than 10 beers" to reach an alcohol level of .22.

At the conclusion of the Commonwealth's case, appellant testified that he went to a friend's house after leaving the bowling alley on the night of the accident. He left the friend's house and drove east on Occoquan Road. When he arrived at the intersection with Horner Road, he was in the left turn lane and the light was red. He testified that when the light controlling his travel lane turned to a green arrow, he turned left and was struck by a motorcycle. On cross-examination, appellant conceded that he had consumed more than three beers that night and was not sure how many beers he actually had. Appellant testified he had a prior felony conviction.

Elizabeth Tuialana testified that prior to the collision, she was driving north on Horner Road in the left lane. As she approached the intersection of Horner and Occoquan Roads, intending to turn left onto westbound Occoquan Road, the light controlling her lane of travel turned yellow. She stopped before entering the intersection because the light turned red. She saw a truck on Occoquan Road ready to turn onto Horner Road. After looking into her rearview mirror to see if her friend was behind her, she saw a truck on Occoquan Road turning onto Horner Road, saw "something coming down Occoquan and then the accident occurred." She recalled that the accident occurred within "a matter of seconds" of the time she arrived at the intersection.

Rachael Robinson testified that she was behind Tuialana's car going north on Horner Road. She stopped when Tuialana stopped, and she recalled that the light was yellow. When she stopped, she saw a truck stopped on Occoquan Road to her left in a turning lane. She testified that the accident then occurred within "seconds. It was fairly quickly."

John Olivo, a traffic signal supervisor for the Virginia Department of Transportation (VDOT), testified to the signal sequence at the intersection. He stated that after the signal light controlling Horner Road traffic turns red, if a vehicle is in the left turn lane at Occoquan Road, the next sequence of lights would display a green turn arrow for that lane of travel. The green arrow would be displayed for seven to twelve seconds, depending on the number of vehicles in the turn lane. He also testified it was impossible for the green turn arrow to display while a solid green light is displaying for traffic...