Hill v. State

• Citation: 366 So.2d 296
• Decision Date: 18 April 1978
• Docket Number: 8 Div. 947
• Parties: Lawrence Glenn HILL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 296

366 So.2d 296

Lawrence Glenn HILL v. STATE.

8 Div. 947.

Court of Criminal Appeals of Alabama.

April 18, 1978.

Rehearing Denied May 16, 1978.

Joe M. Berry of Cloud, Berry, Ables, Blanton & Tatum, Huntsville, for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, appellee.

TYSON, Judge.

Lawrence Glenn Hill was indicted for "unlawfully killing Mark B. Pizitz by perpetrating an act greatly dangerous to the lives of others and evidencing a depraved mind, regardless of human life, although without any preconceived purpose to deprive any particular person of life by, to-wit: operating a motor vehicle while under the influence of intoxicating liquors or narcotic drugs along the highway, and while operating the said motor vehicle under the influence of intoxicating liquors or narcotic drugs did run the motor vehicle in which the said Lawrence Glenn Hill was driving, over, upon, into or against the motor vehicle in which the said Mark B. Pizitz was a passenger and as a proximate cause thereof, unlawfully killed the said Mark B. Pizitz, against the peace and dignity of the State of Alabama." The jury found the appellant guilty of manslaughter in the first degree and fixed his punishment at imprisonment for eighteen (18) months. On September 1, 1976, the trial court entered judgment in accordance with the jury verdict. Appellant's motion for new trial was denied following a hearing thereon. Hence this appeal.

Around 12:15 A.M. on Saturday, January 10, 1976, a 1975 Grand Prix Pontiac operated by appellant collided with a 1973 Ford station wagon being driven by David Tarrant Lee. Mark Pizitz, age 15, was a passenger in the Lee vehicle. As a result of overwhelming head injuries sustained in the collision, Pizitz died fourteen hours later in the Huntsville Hospital.

The collision took place in the area of the Whitesburg Drive-In Theatre. According to the testimony of David Lee, he had turned north (left) onto Whitesburg Drive (a four lane highway with a center turn lane) from Airport Road. As he approached the drive-in theatre, he noticed a small car with its emergency lights flashing parked in the exit driveway. Lee stated that he intended to stop to see if he could render assistance but that when he "put his foot on the brake something hit (him)." He did not know which northbound lane his car was in when the collision occurred, but he was in the inside left lane when he turned onto Whitesburg Drive. Lee acknowledged that he had made a prior statement that he never, at any time, entered the right northbound lane of traffic.

Michael Gunter and Deborah Moore were traveling north on Whitesburg Drive in Gunter's automobile at the time of the collision, and both were eyewitnesses to the collision. Gunter testified that just before the collision, appellant passed his automobile at a speed of about eighty miles an hour. When appellant came up behind the Lee station wagon, which Gunter stated was traveling in the outside (right) lane, the car made "a quick right like it was trying to pass" and the rear end of the car hit the curbing of an island in front of the theatre, causing appellant's car to veer back to the left into the side of Lee's station wagon.

Mr. A. O. Pipkin, Jr., a crash reconstruction expert, postulated that appellant's initial contact with the Lee vehicle occurred in the outside northbound lane near the exit driveway of the theatre as indicated by a gouge or rim mark in that area; that both vehicles were traveling "practically straight ahead" in the outside northbound lane at the time of impact; that appellant ran up on the Lee vehicle from behind and hit it in the right rear bumper area; and that the angle of impact between the two vehicles was 180 degrees.

The force of appellant's car and the spinning action of Lee's station wagon after impact caused the entire right side (from the rear right wheel forward) of Lee's station wagon to be ripped away from its frame. The evidence further showed that while the Lee vehicle was in a counter clockwise spin, Pizitz was thrown from the automobile onto the highway. The Lee vehicle came to rest in the center turn lane facing south. Upon separation of the two cars after impact, appellant's car went over the curbing immediately north of the exit of the drive-in, traveled about 60 feet on the grassy area along the highway, touched back down on the highway, and stopped in the northbound lane approximately 188 feet from the point of impact. Lee was not injured in the collision. Appellant sustained a cut on the forehead; appellant's wife, who was riding with him at the time of the collision, received minor facial lacerations.

Lee admitted that both he and Pizitz had consumed alcoholic beverages a short time before the accident. He drank two beers at a Huntsville nightclub around 10:00 P.M. and later, around 11:00 P.M., consumed a lime daquiri at the home of a friend. An alcohol blood analysis test conducted a short time after the accident revealed the level of alcohol in Lee's blood to be .09 percent.

Appellant and his wife had attended a housewarming party earlier in the evening. While there appellant consumed several beers and a mixed drink. The couple were on their way home from this party when the accident occurred. Several witnesses at the scene who came in contact with appellant shortly after the accident testified that they were of the opinion that appellant was intoxicated and that appellant acted in a very uncooperative manner when offered on-the-scene emergency treatment.

At the Huntsville Hospital emergency room, approximately one hour after the collision occurred, appellant was advised that he was under arrest for driving while intoxicated. He was requested "on more than ten occasions" to submit to either a blood alcohol test or a breath test and informed that his failure to do so would result in the possible loss of his driver's license for a period of at least forty-five days. The appellant initially indicated that he would take a blood alcohol test upon the condition that his personal physician withdraw the blood. An effort to get appellant's physician to the hospital was unsuccessful, and subsequent requests by police officers to submit to a blood test were refused; the appellant repeatedly stated that "he was scared" and that he wanted first to talk with his doctor or lawyer before signing a consent form.

Appellant was thereafter taken to the Huntsville city jail where he was booked for driving while intoxicated and again asked to take an alcohol breath analysis test; again appellant refused to do so until he talked with his lawyer. Some three hours after the accident appellant's attorney arrived at the jail; after conferring with him appellant agreed to take a blood alcohol test. Officer Della-Calce agreed to take appellant and his attorney back to the Huntsville Hospital so that appellant could undergo the test but advised them "that there may be people in the emergency room lobby who wished to do harm to the (appellant)." Upon learning this, appellant's attorney stated, "Just forget it. We don't want a blood test."

Appellant testified in his own behalf and related that he and his wife had attended a housewarming party at a friend's home. During the evening he consumed two beers (possibly three) and a scotch and water. Appellant estimated that while on his way home he operated his car at a speed of "45, 50 maybe 55 miles an hour", and that he first noticed the Lee station wagon when it turned off Airport Road onto Whitesburg Drive into the inside northbound lane. Appellant stated that he was traveling in the outside northbound lane when the collision occurred. As he attempted to pass the Lee station wagon, the station wagon "suddenly veered to the right . . . right in front of me."

Appellant's wife testified that in her opinion appellant was not intoxicated at the time of the collision. Several witnesses, who were guests at the housewarming party attended by the appellant, testified that appellant's speech and mannerisms at the time he left the party did not cause them to believe that he was intoxicated.

Prior to trial appellant filed a motion in limine to prevent admission of evidence of his refusal to take a blood test to determine the alcoholic content of his blood. The motion was denied and, as permitted by Alabama statute, police officers testified that appellant refused to take either a blood test or a breath test. The prosecutor commented upon appellant's refusal in this respect in his closing argument. Appellant challenges the constitutionality of the statute, and maintains error in both the admission of the evidence and the prosecutor's comment on his refusal.

I

The statute in question is the Alabama Chemical Test for Intoxication Act. ¹ Appellant says that the statute itself grants a person a right to refuse to take any of the three chemical tests (blood, breath and urine) designated in the statute, and therefore evidence of refusal should not be permitted at trial. Our examination of the act compels us to disagree with the appellant.

Appellant relies on that portion of the act which provides:

"If a person under arrest refuses upon the request of a law-enforcement officer to submit to a chemical test designated by the law-enforcement agency as provided in paragraph (a) of this section, none shall be given . . . ."

Title 36, § 154(c), Code of Alabama 1940 (Recomp.1958) (Supp.1973).

While it would appear that this language creates a right of refusal, the overall statutory scheme negates any such legislative intent.

Sections 154(a) and (b) of the act adopt the theory of implied consent ² to chemical testing of a person's blood, breath or urine to determine the alcoholic content of the person's blood. Section 154(a) states in pertinent part:

"Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given his consent (to such...