Kenyon v. State, CACR

• Decision Date: 04 June 1997
• Docket Number: No. CACR,CACR
• Citation: 58 Ark.App. 24,946 S.W.2d 705
• Parties: Terry Jay KENYON, Appellant, v. STATE of Arkansas, Appellee. 96-1288.
• Court: Arkansas Court of Appeals

Page 705

946 S.W.2d 705

58 Ark.App. 24

Terry Jay KENYON, Appellant, v. STATE of Arkansas, Appellee.

No. CACR 96-1288.

Court of Appeals of Arkansas Division II.

June 4, 1997.

Lawrence A. Wright, Jr., Kiowa, CO, Russ Hunt, Searcy, for appellant.

Winston Bryant, Attorney General, Sandy Moll, Assistant Attorney General, Little Rock, for appellee.

CRABTREE, Judge.

Appellant Terry Jay Kenyon appeals his conviction of two counts of negligent homicide for which he was sentenced to a term of imprisonment of twelve months and fined $2,000. Appellant raises three points on appeal. He first argues that the trial court should have suppressed the results of the blood-alcohol test obtained by the State because the private laboratory that performed the test and then stored the remainder of the blood sample removed the sample from refrigeration, causing it to be useless for further testing by appellant. Appellant then argues that the judgment should be reversed because the trial court allowed the introduction of graphic photographs of the victims. Finally, appellant argues that the trial court should have granted his motion for a mistrial because spectators attending the trial and sitting near the front of the courtroom were wearing buttons with the picture of one of the victims and coming and going often, thereby drawing attention to themselves. Finding no error, we affirm.

The tragic facts of this case are that appellant and his wife, Rhonda Kenyon, invited three couples to a small "get-together" on their houseboat on Greers Ferry Lake at Heber Springs, Arkansas, on the evening of July 3, 1995. The couples grilled, drank beer and margueritas, and watched fireworks. From the testimony, it appears that appellant acted as host throughout the evening, serving the guests and grilling. According to the testimony by the guests on appellant's houseboat, appellant did not appear to be intoxicated during the evening. Appellant's testimony was that he had between three and four beers during the course of the evening. He testified that he had no difficulty cleaning up the boat and loading everyone's cars at the end of the evening. He felt that he was in an acceptable condition to drive. After the guests left at approximately 11:30 p.m., appellant and his wife straightened and cleaned the houseboat before leaving. Everyone was returning to Searcy, Arkansas, by way of Highway 16. Appellant's wife reclined her seat and slept on the way home while appellant drove. Appellant, who was driving a Ford Explorer, testified that he did not remember anything from the time that he left the parking lot at the lake.

Meanwhile, Melissa Patrick was spending the evening with her parents; a friend's child; her boyfriend, victim Steven Seitz; and her one-month-old son, victim Cody Patrick. At the end of the evening, Melissa Patrick, Steven Seitz, and Cody started to return to Hickory Flat, Arkansas, by way of Highway 16. Melissa was driving her pickup truck, and Steven was following in a Ford Escort with Cody strapped in an infant carseat in the backseat. Melissa's testimony was that she was driving fifty-five miles an hour when appellant's car entered her lane, hitting her truck, and causing her to wreck. Melissa was able to climb from her truck through a window and saw that the Escort in which Steven and Cody were riding also had been hit. Steven Seitz and Cody Patrick were killed instantly in the wreck. After the accident, Melissa was taken to the hospital in the same ambulance as appellant, but she was hysterical and could not recall if he smelled of alcohol.

Passengers in a car that immediately came upon the wreck and stopped testified that appellant had passed them on a double yellow line at a high rate of speed a mile or less before the accident. One passenger testified that he smelled alcohol in appellant's Ford Explorer. Another testified that he smelled a strong odor of intoxicants, but did not know if it was alcohol, anti-freeze, or something else.

The state trooper who went to the scene testified that he smelled alcohol on appellant and listed that as a contributing factor in the accident report. Both paramedics who came to the scene smelled a strong odor of intoxicants coming from appellant. Appellant's nurse at Central Arkansas Hospital testified that she smelled the distinct odor of alcohol coming from appellant.

Corporal Lindsey Williams of the Arkansas State Police testified that he is certified to reconstruct accidents. He arrived at the scene several hours after the accident. From the skid marks, measurements, and photographs, he concluded that the accident occurred on a stretch of straight, flat highway. It was Williams's definite opinion that the impact occurred in the victims' lane of traffic. Williams testified that his conclusion was that appellant crossed the center line, hit Melissa Patrick, then continued across the center line and hit the Ford Escort in which Steven Seitz and Cody Patrick were riding. He saw no sign of braking by appellant before the initial impact.

At the hospital, appellant signed a statement of rights form for administration of a blood-alcohol test. Appellant agreed to take the test. On the rights form, he indicated that he did not wish to have his own blood, urine, or breath test. Appellant put the wrong date on this form. He also wrote "I was not driving." The result of the legal blood test was that appellant had a blood-alcohol level of .10. The hospital also performed tests. The result of the medical tests performed by the hospital was that appellant's blood-alcohol level was .120. Melissa Patrick had a blood-alcohol level of .00, as did Steven Seitz.

We first address appellant's argument that the trial court should have suppressed the blood-alcohol-test result showing his blood-alcohol level to be .10 because his right to have his own test performed was destroyed when the laboratory that performed the test removed his blood sample from refrigeration. He asserts that when a defendant's right to run his own tests is violated, his remedy is the exclusion of the State's evidence because to do otherwise deprives the defendant of due process. The trial court correctly denied appellant's motion to suppress the result of the blood-alcohol test.

The facts pertinent to this point are that following the accident, appellant signed the statement of rights form as to the blood-alcohol test. The form explained his rights with regard to the test and explained his right to have his own test performed if he agreed to take the test. He agreed to submit to the blood-alcohol test and checked the box by the "no" following the question as to whether he would like a blood, urine, or breath test. Appellant signed this form at 2:05 a.m. on July 4, 1995. Then, on November 16, 1995, appellant filed a motion requesting an order directing the laboratory that stored the blood to make a portion of the blood available for independent testing. At this time it was discovered that an employee of the laboratory, which was privately owned and operated, had removed the blood from refrigerated storage, and the blood was no longer in a suitable condition for testing for the blood-alcohol level.

Section 5-65-204 of the Arkansas Code Annotated provides in pertinent part:

(e) The person tested may have a physician or a qualified technician, registered nurse, or other qualified person of his own choice administer a complete chemical test in addition to any test administered at the direction of a law enforcement officer.

(1) The law enforcement officer shall advise the person of this right.

(2) The refusal or failure of a law enforcement officer to advise such person of this right and to permit and assist the person to obtain such test shall preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer.

Ark.Code Ann. § 5-65-204(e) (Repl.1993).

Appellant relies on the above statute and the case of California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), in support of his argument. In Trombetta, the issue before the United States Supreme Court was "whether the Due Process Clause requires law enforcement agencies to preserve breath samples of suspected drunken drivers in order for the results of breath-analysis tests to be admissible in criminal prosecutions." Id. at 481, 104 S.Ct. at 2530. The Court held that "the Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce the results of breath-analysis tests at trial." Id. at 491, 104 S.Ct. at 2535. In reaching its conclusion, the Court stated that the authorities in the case did not destroy the defendant's breath samples in a calculated effort to circumvent the disclosure requirements previously established by the Court; rather, the authorities acted in good faith. Secondly, the Court stated that, more importantly, the duty to preserve samples must be limited to evidence that "might be expected to play a significant role in the suspect's defense." Id. at 488, 104 S.Ct. at 2534. The Court stated that to meet this standard, the evidence must possess exculpatory value that was apparent before it was destroyed and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means. The Court noted that the evidence from the breath samples would be much more likely to be inculpatory rather than exculpatory. Finally, the Court pointed out that the defendants had other methods of demonstrating their innocence, such as presenting evidence of how the tests could be inaccurate.

In Wenzel v. State, 306 Ark. 527, 815 S.W.2d 938 (1991), the Arkansas Supreme Court followed Trombetta, supra, in affirming a defendant's conviction when he appealed on the basis that the State had used all the semen found on vaginal swabs during DNA testing, and he was, therefore, unable to conduct his own tests....