Lopez v. Commonwealth

Decision Date29 October 2021
Docket Number2018-CA-1691-MR
PartiesANTONIO PEREZ LOPEZ APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
CourtKentucky Court of Appeals

ANTONIO PEREZ LOPEZ APPELLANT
v.

COMMONWEALTH OF KENTUCKY APPELLEE

No. 2018-CA-1691-MR

Court of Appeals of Kentucky

October 29, 2021


NOT TO BE PUBLISHED

APPEAL FROM KNOX CIRCUIT COURT HONORABLE GREGORY A. LAY, JUDGE ACTION NO. 18-CR-00065

ON REMAND FROM THE KENTUCKY SUPREME COURT (FILE NO. 2019-SC-0717)

BRIEFS FOR APPELLANT: Steven Nathan Goens

BRIEF FOR APPELLEE: Daniel J. Cameron Attorney General of Kentucky

Mark D. Barry Assistant Attorney General

BEFORE: GOODWINE, TAYLOR, AND K. THOMPSON, JUDGES.

OPINION

GOODWINE, JUDGE.

This case is before us on remand from the Kentucky Supreme Court for reconsideration after Commonwealth v. McCarthy, 628 S.W.3d 18 (Ky. 2021).

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Antonio Perez Lopez ("Lopez") appeals a judgment and sentence of the Knox Circuit Court convicting him of one count of first-degree assault, one count of second-degree assault, leaving the scene of an accident, and driving under the influence of alcohol. Lopez was sentenced to a total of thirteen years of imprisonment. After careful review, we affirm.

BACKGROUND

On January 20, 2018, Lopez's vehicle crossed the centerline of Route 11 in Knox County and collided with a vehicle driven by Tiffany Cummins ("Tiffany"). Riding with Tiffany was her husband Chad Cummins ("Chad"). Both suffered physical injuries from the accident. A Knox County grand jury indicted Lopez on two counts of first-degree assault, leaving the scene of an accident, and operating a motor vehicle under the influence of intoxicants, third offense. He pled not guilty. Prior to trial, Lopez filed a motion to suppress challenging the admissibility of his refusal to consent to a blood test. The trial court denied the motion.

At trial, Tiffany testified that immediately before the impact, she saw headlights quickly approaching her vehicle. Lopez testified the Cummins's vehicle had its high beams on as it came toward him, which caused him to lose control of his vehicle. He acknowledged drinking two beers before driving that night and stated he was driving fifty-five miles per hour at the time of the accident.

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Deputy Andrew Lawson was the first officer on the scene. He testified Lopez left the scene of the accident on foot. When Lopez was brought back to the scene, he refused to perform field sobriety tests. Lopez denied being drunk, instead testifying that he felt drunk because he had been in a wreck. Deputy Lawson testified Lopez was unsteady on his feet. He arrested Lopez and took him to the hospital for a blood test. Deputy Lawson read Lopez the implied consent form and informed him of his right to contact an attorney. Lopez unsuccessfully attempted to contact an attorney and refused to consent to a blood draw. Due to his refusal, his blood was not drawn. Lopez testified, denying that he refused to take the blood test and that he was ever taken to the hospital.

Following testimony and arguments of counsel, the trial court instructed the jury on first-degree assault[1] and second-degree assault[2] for Tiffany's injuries; first-degree assault, second-degree assault, and fourth-degree assault[3] for Chad's injuries; leaving the scene of an accident; [4] and driving under the influence of alcohol ("DUI").[5] The jury found Lopez guilty of one count of first-degree

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assault for Tiffany's injuries, one count of second-degree assault for Chad's injuries, leaving the scene of an accident, and DUI, third offense.[6]

The jury recommended thirteen years on one count of first-degree assault, eight years on one count of second-degree assault, five years for leaving the scene of an accident, and twelve months for DUI, third offense, with all counts, except the DUI, to run concurrently. The jury recommended that the twelve-month sentence on the DUI run consecutively for fourteen years. However, the trial court sentenced Lopez to thirteen years, running all counts concurrently. This appeal followed.

ANALYSIS

I. EVIDENCE OF LOPEZ'S REFUSAL TO SUBMIT TO A BLOOD TEST WAS IMPROPERLY ADMITTED.

First, Lopez argues the trial court erred in denying his motion to suppress evidence of his refusal to consent to a warrantless blood draw as evidence of his guilt. "Our analysis of trial court rulings on suppression motions involves a two-stage review, using a clear error standard for factual findings and a de novo standard for legal conclusions." Commonwealth v. Brown, 560 S.W.3d 873, 876 (Ky. App. 2018) (citations omitted).

Below, Lopez urged the trial court to find he had a Fourth Amendment right to refuse to submit to a blood test without a warrant under

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Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016). Lopez argued that because the officer needed a warrant to conduct a blood test, his refusal to undergo such an examination is protected under the Fourth Amendment. We agree. In Birchfield, the Supreme Court of the United States addressed the constitutionality of North Dakota's implied consent statute which "impose[d] penalties on motorists who refuse[d] to undergo testing when there is sufficient reason to believe they are violating the State's drunk-driving laws." Id. at 2166. The Supreme Court held "reasonableness is always the touchstone of Fourth Amendment analysis[.] . . . And applying this standard, we conclude that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense." Id. at 2186 (citation omitted).

In McCarthy, our Supreme Court recently held that under Birchfield, a defendant's refusal to submit to a blood test could not be used to enhance his criminal penalty for DUI, and under controlling precedent could not be used as evidence that he was guilty of DUI. McCarthy, 628 S.W.3d 18. Accordingly, the trial court erred in admitting evidence of Lopez's refusal to consent. However, the error was harmless for two reasons: (1) there was other evidence of Lopez's intoxication; and (2) the twelve-month sentence imposed on the DUI conviction was run concurrently with the thirteen-year sentence imposed on the felony convictions.

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In both McCarthy and the case before us, the defendant was transported to a hospital for a blood test and the defendant refused the test and, then later, filed a motion to exclude the introduction of his refusal to take a warrantless blood test in reliance on Birchfield. In McCarthy, the trial court prohibited the Commonwealth from using the defendant's refusal as evidence of intoxication or as an aggravating circumstance but did permit the Commonwealth to use the fact of his refusal to explain why there were no test results and prohibited the defendant from asking the officer why he did not obtain a warrant for a blood test. In the case before us, the trial court allowed the Commonwealth to use Lopez's refusal of consent against him as evidence of guilt.

Lopez's constitutional rights were violated by allowing the introduction of evidence that he refused consent where he had an absolute right to refuse a warrantless search and seizure of his blood.[7] Thus, a legal error occurred, and the only remaining question is whether it was harmful.

In McCarthy, there was strong evidence that the defendant was not intoxicated where three witnesses testified they had been out with the defendant all evening and did not see him drink any alcohol, the officer testified he stopped the

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defendant because he swerved, the defendant told the officer he swerved because he was distracted by talking to his passengers, the video of the stop was far from conclusive in showing intoxication and the defendant's previous trial had ended in a mistrial.

In contrast, here there was overwhelming evidence of guilt to support Lopez's convictions. Deputy Lawson testified about Lopez's admissions at the scene (that he was too drunk to complete the field sobriety tests) and his observations that Lopez smelled of alcohol and was unsteady on his feet. There was also testimony by the Cumminses that Lopez's vehicle crossed the centerline and entered their lane at a high rate of speed before their collision, causing the accident which trapped Tiffany inside her vehicle and critically injured her.

The testimony from Deputy Lawson regarding his request for a consensual blood draw consisted of him testifying about taking Lopez to the hospital for a blood draw, reading him the implied consent form and explaining that Lopez had a right to refuse consent to a blood draw and had a right to contact an attorney before submitting to the blood draw, and Lopez's unsuccessful attempt to contact an attorney.

Lopez, unlike the defendant in McCarthy, chose to testify in his own defense. This is important in the consideration as to whether the error was harmless because when a defendant testifies he thereby "cast[s] aside his cloak of

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silence" and opens himself up to the truth-telling function of the adversarial process, making it permissible to use the defendant's pre-arrest silence for impeachment purposes. Jenkins v. Anderson, 447 U.S. 231, 238, 100 S.Ct. 2124, 2129, 65 L.Ed.2d 86 (1980). At least some of the evidence regarding Lopez's refusal to consent to the blood test could potentially have been admissible on rebuttal to impeach his testimony.[8] See Coulthard v. Commonwealth, 230 S.W.3d 572, 583 (Ky. 2007). Lopez also had the opportunity to explain his actions, which could lessen the impact of the refusal.[9] When considering these factors, the violation of Lopez's constitutional rights was harmless and does not warrant reversal.

II. THE TRIAL COURT DID NOT PALPABLY ERR IN ADMITTING EVIDENCE AND THE COMMONWEALTH DID NOT ENGAGE IN FLAGRANT MISCONDUCT.

Second, Lopez argues the Commonwealth introduced and repeatedly referenced improper evidence, misrepresented evidence, and made prejudicial references to evidence not in the record. He concedes each of the issues raised are

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unpreserved, except for references to his refusal to submit...

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