Jetton v. Com., 0371-85

• Decision Date: 05 August 1986
• Docket Number: No. 0371-85,0371-85
• Citation: 2 Va.App. 557,347 S.E.2d 141
• Parties: C. Nathan JETTON v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 141

347 S.E.2d 141

2 Va.App. 557

C. Nathan JETTON v. COMMONWEALTH of Virginia.

Record No. 0371-85.

Court of Appeals of Virginia.

Aug. 5, 1986.

Frederick W. Payne, Francis McQ. Lawrence (St. John, Bowling, Payne and Lawrence, Charlottesville, on brief), for appellant.

Johns H. McLees, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee.

Present: BARROW, BENTON and KEENAN, JJ.

BARROW, Judge.

Manslaughter convictions arising out of the deaths of five passengers in a single vehicle accident are the subject of this appeal by C. Nathan Jetton, the driver of the vehicle. He questions whether evidence of his consumption of alcohol was admissible and whether all of the evidence presented was sufficient to convict him. We conclude that the evidence of his alcohol consumption was admissible and, when considered with the other evidence, was sufficient to convict him.

Evidence of the amount of alcohol consumed by Jetton as well as its effect on his speech and behavior was presented to the jury. After leaving work on the evening of the accident, Jetton returned home about 4:00 p.m. where he consumed three twelve-ounce beers. Jetton then picked up four friends, and they proceeded to the home of Brenda Evans, arriving there between 8:00 and 8:30 p.m. David Bodrey was also present at Evans' home. Everyone participated in a drinking game called "quarters." Jetton testified that he drank three or four five-ounce cups of beer over a period of thirty-five to forty minutes.

The entire group left Evans' home between 10:00 and 10:30 p.m., arriving at Vivian Vance's home at approximately 11:30 p.m. Jetton joined four of the others who had resumed their game of "quarters," and, according to his testimony, drank one five-ounce glass of beer.

The effects of the alcohol on Jetton's behavior were observed by several witnesses. A friend of Jetton's testified that Jetton's speech was "a little bit slurred" when she spoke to him on the telephone shortly after midnight. A paramedic who arrived at the scene of the accident testified that there was an odor of alcohol on Jetton's breath and that Jetton's speech was "slightly slurred." Teresa Barker, the only other survivor of the accident, testified that she could tell everybody in the cab of the truck had been drinking by "[j]ust the way they acted and some of the silly things they did."

Evidence of the consumption of alcohol is admissible where evidence shows that it has affected a person's "manner, disposition, speech, muscular movement, general appearance or behavior ..." Code § 4-2(14); Hemming v. Hutchinson, 221 Va. 1143, 1146, 277 S.E.2d 230, 232 (1981) (quoting Hill v. Lee, 209 Va. 569, 571, 166 S.E.2d 274, 276 (1969)). It is also admissible "where the quantity of alcohol consumed and the relative time of its consumption are sufficient to raise an inference of intoxication." Baker v. Taylor, 229 Va. 66, 69-70, 326 S.E.2d 669, 671 (1985) (quoting Beck v. Commonwealth, 216 Va. 1, 4, 216 S.E.2d 8, 10 (1975)).

The effect of alcohol on Jetton's behavior and the quantity of alcohol he consumed during the evening were sufficient to raise an inference of intoxication. His slurred speech, the odor of alcohol on his breath, and his general conduct following the accident indicated the effects of alcohol consumption. Therefore, the evidence of his alcohol consumption was admissible.

In determining the sufficiency of the evidence, several factors, in addition to alcohol consumption, must be considered. These include evidence of the condition of Jetton's truck, its speed at the time of the accident, and its crowded cab.

The truck failed to pass inspection approximately one month prior to the accident. Its brakes were not working properly, the steering box was not in good condition and the odometer and speedometer did not work. After the accident the brake pads on one wheel were completely worn away and on another were "negligible and not worth measuring." Based on this evidence, the jury could have found that Jetton continued to operate his vehicle despite knowledge of the vehicle's defects which interfered with his ability to maintain proper control of the vehicle. See Kennedy v. Commonwealth, 1 Va.App. 469, 473, 339 S.E.2d 905, 908 (1986).

Although the exact speed of the truck at the time of the accident is uncertain, there was evidence that it exceeded the posted speed limit and may have been too fast for the existing conditions. On the night of the accident, the weather was rainy and foggy. Jetton testified that he was driving 50 mph around a curve when his truck left the roadway and struck two trees, but his speedometer was not working on this date so that he could not positively state his speed. The state trooper testified that the posted speed limit on that stretch of the highway was 55 mph; however, an advisory speed limit sign of 50 mph was located just prior to the curve.

A highway traffic engineer testified that as Jetton's truck rounded the curve, it went off the road and onto the shoulder for a distance of several yards. The truck then reentered the roadway, and the defendant's speed at that point was estimated by the traffic engineer at approximately 57 mph. Immediately after the truck reentered the highway, it crossed over to the opposite shoulder of the road and struck the trees. From this evidence the jury could have reasonably inferred that the vehicle's speed, before it first left the highway, exceeded the speed limit and was too fast for existing conditions.

Furthermore, Jetton's truck was overcrowded. Although two of the seven persons who had been riding in the passenger cab of the truck moved to the rear bed of the truck when Jetton made a stop shortly before the accident, there were four passengers plus Jetton riding in the cab of the pickup truck at the time of the accident. Jetton testified that immediately prior to impact "somebody grabbed hold the steering wheel and had put their foot on my [right] foot," implying that the accident was the result of horseplay but also supporting the inference that overcrowding contributed to the accident.

The evidence that Jetton, after drinking enough beer to affect his behavior, knowingly drove an overcrowded, defective vehicle and attempted to negotiate a curve at a speed in excess of the posted speed limit during unfavorable weather conditions was a sufficient basis for the jury to conclude that Jetton's negligence was "so gross, wanton, and culpable as to show a reckless disregard of human life." King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d 312, 316 (1977). "The cumulative effect of a series of connected, or independent negligent acts" causing a death may be considered in determining if a defendant has exhibited a reckless disregard for human life. Bell v. Commonwealth, 170 Va. 597, 609, 195 S.E. 675, 680 (1938).

The defendant's reckless disregard for human life must be causally linked to the homicide to establish involuntary manslaughter. King v. Commonwealth, 217 Va. at 607, 331 S.E.2d at 317. The issue of "recklessness" is separate and distinct from "proximate cause." Commonwealth v. Root, 403 Pa. 571, 574-75, 170 A.2d 310, 311 (1961). Whether the defendant's conduct was a remote or proximate cause of the death is a question of fact to be resolved by the jury or the court trying the case without a jury. Delawder v. Commonwealth, 214 Va. 55, 58, 196 S.E.2d 913, 915 (1973).

Evidence of the cause of Jetton's accident presented a factual issue. Whether the effect of alcohol on Jetton's behavior, the overcrowding of his vehicle, the defective condition of his brakes, the speed of his vehicle, or all of these factors contributed to the accident was a question to be decided by the jury. It did so after being properly instructed, and its verdict should not be disturbed.

For these reasons the judgments of conviction are affirmed.

Affirmed.

KEENAN, Judge, concurring.

I agree that the manslaughter convictions must be affirmed; however, I reach this conclusion based on a different view of the evidence than that taken by the majority. I believe that the only evidence upon which these convictions can stand is the evidence regarding Jetton's consumption of alcohol and the effect that it had on him. Because the majority also relies upon evidence regarding the speed of Jetton's truck, the number of persons in the vehicle, and the fact that it had failed inspection, I write separately.

The Virginia Supreme Court has held that ...