Lambert v. Commonwealth

• Decision Date: 12 March 2019
• Docket Number: Record No. 1762-17-3
• Citation: 824 S.E.2d 18,70 Va.App. 54
• Court: Virginia Court of Appeals
• Parties: Clinard Gary LAMBERT v. COMMONWEALTH of Virginia

70 Va.App. 54

824 S.E.2d 18

Clinard Gary LAMBERT

v.COMMONWEALTH of Virginia

Record No. 1762-17-3

Court of Appeals of Virginia, Lexington.

MARCH 12, 2019

Robert M. Galumbeck (Galumbeck & Kegley, Attorneys, on brief), for appellant.

Rachel L. Yates, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Petty, O’Brien and Russell

OPINION BY JUDGE MARY GRACE O’BRIEN

A jury convicted Clinard Gary Lambert ("appellant") of aggravated involuntary manslaughter, in violation of Code § 18.2-36.1, and driving while intoxicated, in violation of Code § 18.2-266. The court imposed the jury’s sentence of seven years of incarceration for manslaughter and a $1,500 fine for driving under the influence.

Appellant asserts three assignments of error. First, he contends the court erred by not allowing him to question a witness, now a former state trooper, "regarding his conviction of soliciting a prostitute and the reasons for his termination of employment with the Virginia State Police." In his second and third assignments of error, appellant challenges the sufficiency of the evidence that he "self-administered the drugs which impaired his ability to drive" and that he had taken the "drugs prior to the accident and at a time when they or it would have affected his driving safely." Finding no error, we affirm.

FACTUAL BACKGROUND

We review the evidence in the light most favorable to the prevailing party at trial, the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781 (2003). So viewed, the evidence established that on March 1, 2015, Donna Turner was driving her Chevrolet Cavalier across Big A Mountain in Russell County, with Forrest Ramey in the passenger seat. Appellant, who was operating a pickup truck, crossed the center line and collided with Turner’s vehicle. Ramey later died as a result of blunt force injuries sustained in the collision.

Claude Musick was driving on the same road as Turner and appellant. He heard a "big thump" and saw a truck pressed against the guardrail when he looked in his rearview mirror. Musick immediately turned around and drove back toward the accident site. He was the first person at the scene.

Shortly after Musick, another driver, Tammy Brown, arrived with one of her friends and saw that the parties involved in the collision were still inside their vehicles. Brown assisted Turner, and Brown’s friend helped appellant out of his truck. Brown testified that appellant appeared "dazed," "wobbly on his feet," and was bleeding profusely. Appellant was standing beside the truck, and Brown did not see him eat, drink, or take any medication after the accident.

Greta Morrison, a member of the Lebanon Lifesaving Crew, responded to the accident. According to Morrison, who also works as an assistant chief nurse at the local hospital, appellant was conscious and alert but had "some slurred speech." When she spoke to appellant, he denied consuming any drugs or alcohol prior to driving. Morrison testified that she thought appellant suffered an orbital fracture

and also believed he was under the influence of drugs or alcohol. She stated that appellant was not given any medication at the accident scene or during his transport to the hospital. Emergency personnel took Turner and Ramey to the hospital as well.

Randy Osborne, a state trooper at the time, also responded to the accident. Osborne testified that during his twenty-year employment with the Virginia State Police, he investigated approximately ten accidents per month, although he was not on the accident reconstruction team. Virginia State Police policy did not require him to call a reconstructionist because there were no fatalities at the scene. Osborne testified that based on his investigation, he determined that appellant’s truck "crossed the center line[,] ... struck the guardrail[,] ... and scrubbed up against the guardrail for approximately forty feet." From the damage to the passenger side of the Cavalier, Osborne concluded that Turner tried to avoid the truck before the collision.

Osborne testified that he spoke with appellant at the accident scene for approximately five to ten minutes. Although appellant initially denied consuming any drugs or alcohol before driving, he subsequently admitted that he had "just come back" from receiving a methadone

treatment at a local clinic. Osborne observed that appellant had glassy eyes, appeared sleepy, and needed to lean on the guardrail for support. Osborne obtained a search warrant for appellant’s blood; a subsequent chemical analysis revealed the presence of methadone, alprazolam (commonly known as Xanax ), and nordiazepam.

Dr. James Kuhlman, Jr., a forensic toxicologist, testified that the low level of nordiazepam was probably a metabolite from Valium

that appellant consumed several days before the accident and likely did not affect appellant’s driving. However, in his opinion, the individual levels of methadone and alprazolam were "more significant." Each of the three drugs has depressant effects and can cause drowsiness, dizziness, lethargy, slowed hand-eye coordination, slurred speech, and altered balance. Dr. Kuhlman testified that the combination of Xanax and methadone can be dangerous if the user is not accustomed to taking those drugs together. Although Dr. Kuhlman acknowledged that a head injury could produce similar side effects, he concluded that the drug levels present in appellant’s blood could have impaired his driving.

Osborne testified that he spoke with Turner four days after the accident, following her hospital discharge. She recounted that as she came around a curve, appellant’s pickup truck was "completely on her side" and she was not able to avoid it.

To support a defense that his conduct after the collision was attributable to his injuries, appellant presented evidence from Dr. Gayle Suzuki, a medical examiner subpoenaed by the Commonwealth. Dr. Suzuki testified that, although her practice "deal[s] with dead people," she could opine that a nose fracture

can cause bleeding, which could possibly affect speech if the blood flows down the throat. She also stated that "it just depends" how an orbital fracture, head injury, or nose fractureoccurs in determining whether it can cause disorientation and motor skill impairment.

PROCEDURAL HISTORY

The Commonwealth filed a motion in limine to prohibit appellant from referring to a pending criminal charge against Osborne. At the pre-trial hearing, appellant argued that he was entitled to introduce evidence that Osborne had a pending charge and was suspended from his employment as a state trooper. He asserted that the proposed evidence was relevant to impeach Osborne’s credibility. The court granted the Commonwealth’s motion to exclude the challenged evidence.¹

The parties proceeded to trial, and at the conclusion of the Commonwealth’s case, appellant moved to strike the evidence. He argued that the Commonwealth had not established that the drugs in his blood were self-administered or that he was under their influence at the time he was driving. The court denied appellant’s motion and denied his renewed motion to strike at the conclusion of the evidence.

ANALYSIS

A. Exclusion of evidence concerning former Trooper Osborne

Appellant contends that the court erred by not allowing him to question former Trooper Osborne that sometime after the accident he was convicted of soliciting a prostitute. He also argues that he was entitled to introduce evidence that Osborne was suspended and ultimately terminated from his employment as a result of the conviction. We review the court’s ruling concerning admissibility of evidence for an abuse of discretion. See Midkiff v. Commonwealth, 280 Va. 216, 219, 694 S.E.2d 576 (2010).

Initially, we note that the evidence excluded by the trial court differs from the evidence identified in appellant’s assignment of error. At the pre-trial hearing, the charge against Osborne, which was unspecified in the record, was merely pending; he had not been convicted. Additionally, he had not yet been terminated, only suspended. The court’s ruling prohibited appellant from introducing unadjudicated conduct, not evidence of a solicitation conviction or employment termination as he asserts in his assignment of error. Accordingly, we review only the court’s ruling as to the impeachment evidence actually challenged below: the pending charge and suspension. See Rule 5A:18 ("No ruling of the trial court ... will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling[.]").

Appellant contends that the challenged evidence was admissible to impeach Osborne’s credibility. Virginia Rule of Evidence 2:607(a) provides that "the credibility of a witness may be impeached by any party other than the one calling the witness, with any proof that is relevant to the witness’s credibility." Proper forms of impeachment evidence under Rule 2:607(a) include:

(i) introduction of evidence of the witness’s bad general reputation for the traits of truth and veracity, as provided in Rule 2:608(a) and (b);

(ii) evidence of prior conviction, as provided in Rule 2:609;

(iii) evidence of prior unadjudicated perjury, as provided in Rule 2:608(d); [and]

....

(viii) any other evidence which is probative on the issue of credibility because of a logical tendency to convince the trier of fact that the witness’s perception, memory, or narration is defective or impaired, or that the sincerity or veracity of the witness is questionable.

Rule 2:608(a) permits impeachment by reputation evidence of "truthfulness or untruthfulness," subject to certain limitations. However, "specific instances of the conduct of a witness may not be used to attack or support credibility [and] may not be proved by extrinsic evidence." Va. R. Evid. 2:608(b). See also Banks v. Commonwealth, 16 Va. App. 959, 963, 434 S.E.2d 681 (1993). A party may question a witness about prior specific acts of misconduct...