McVay v. State

• Court: Arkansas Supreme Court
• Writing for the Court: HAYS
• Citation: McVay v. State, 312 Ark. 73, 847 S.W.2d 28 (Ark. 1993)
• Decision Date: 15 February 1993
• Docket Number: No. CR,CR
• Parties: Bruce McVAY, Appellant, v. STATE of Arkansas, Appellee. 92-1030.

Page 28

847 S.W.2d 28

312 Ark. 73

Bruce McVAY, Appellant, v. STATE of Arkansas, Appellee.

No. CR 92-1030.

Supreme Court of Arkansas.

Feb. 15, 1993.

W. Hunter Williams, Jr., Osceola, for appellant.

J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

Appellant Bruce McVay appeals from a judgment entered on his conviction of the felonious negligent homicide of William Mann. Death resulted from a collision between vehicles driven by Mann and McVay. On appeal McVay challenges three evidentiary rulings by the trial court and the denial of his motion to set aside the conviction and enter an order of dismissal based on the doctrine of collateral estoppel. Finding no error, we affirm the judgment appealed from.

McVay was charged with two offenses: felonious negligent homicide in violation of Ark.Code Ann. § 5-10-105 (1987) and driving while intoxicated in violation of Ark.Code Ann. § 5-65-103 (1987). A trial was held and the jury was instructed on both charges. Concerning the offense of felonious negligent homicide, the jury was instructed that the state must prove beyond a reasonable doubt that McVay negligently caused the death of William Mann "as a result of operating a vehicle while intoxicated, or if at the time there was one-tenth of one percent (0.10%), or more, by weight of alcohol in Bruce McVay's blood as determined by a chemical test of Bruce McVay's blood...." That identical element was included in the instruction pertaining to driving while intoxicated.

The jury returned a verdict finding McVay guilty of negligent homicide, but not guilty of DWI. A fine of $1,000 and a three year suspended sentence was imposed. McVay moved to set aside the conviction on the basis of inconsistent verdicts which he alleged were in violation of the double jeopardy clause. The motion was denied and McVay has appealed.

McVay first argues that the trial court erred in failing to grant his motion to set aside the judgment of conviction. He maintains that under § 5-65-103 DWI is an element of negligent homicide as defined in § 5-10-105, and because the jury acquitted him of DWI, the doctrine of collateral estoppel precludes his conviction for negligent homicide. McVay argues that if he were first tried for DWI and acquitted, and then tried for negligent homicide, the state would be barred from bringing that charge under the doctrine of collateral estoppel. McVay argues the same principle should apply when he is subject to both charges in one trial.

McVay is correct to this extent: if the state proceeded against him first on DWI and he were acquitted, the state would be collaterally estopped from proceeding against him in a second trial for negligent homicide. See United States v. Greene, 497 F.2d 1068 (7th Cir.1974); Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). We disagree, however, with the corollary--that the same result applies when the two offenses are tried simultaneously.

This question was presented in Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), the last opinion of Justice Holmes. Dunn held that the principle of collateral estoppel would not apply when, in the same trial, a defendant was acquitted on one count but found guilty on another. The rationale in that case has been questioned in part, but there were two theories for the Court's holding and subsequent decisions have upheld it on the alternative basis. For example, in United States v. Greene, supra, the court gave the following explanation for agreeing with Dunn:

The [faulty] argument in Dunn was in no way essential to [Holmes's] conclusion. Rather, the holding of Dunn can be supported independently from Holmes's dicta. The true rationale for the rule permitting inconsistent verdicts in a single trial is that a jury may convict on some counts but not on others not because they are unconvinced of guilt, but because of compassion or compromise. Indeed if the rule were otherwise, the government would be entitled to have the jury warned that an acquittal on some counts might undermine a guilty verdict on others--almost the opposite of the standard instruction, which is obviously beneficial to criminal defendants. (Citations omitted.) [Emphasis added.]

In United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), the issue was again addressed. Powell recognized the dubious rationale in Dunn, but reaffirmed its holding on the reasoning expressed in United States v. Greene, supra. Betty Lou Powell had been convicted of soliciting a conspiracy by telephone to possess and to distribute cocaine. She was acquitted of the lesser included offense of conspiracy to possess and to distribute cocaine. She claimed the verdicts were inconsistent and she should be granted a retrial as to the telephone solicitation counts because she had been acquitted of one of the elements of that offense. The Supreme Court disagreed and held that inconsistent verdicts in the same trial where there is conviction on the compound offense but acquittal on the predicate (lesser included) offense is permissible, and that collateral estoppel does not apply. The Powell decision has been followed in a number of subsequent decisions, see e.g., United States v. Romano, 879 F.2d 1056 (2d Cir.1989), where the court stated:

The law is clear that a defendant may not attack his conviction on one count because it is inconsistent with an acquittal on another count. Res judicata concepts are not applicable to inconsistent verdicts; the jury is free to exercise its historic power of lenity if it believes that a conviction on one count would provide sufficient punishment. (Citations omitted.)

This case falls directly within the rule of law announced in Dunn and reaffirmed in Powell. While McVay was acquitted of the predicate offense, he was convicted of the compound offense in the same trial. Collateral estoppel does not apply and McVay's conviction will not be vacated. Several decisions of this court and of the Court of Appeals are in accord with the rationale of the Powell case: Johnson v. State, 274 Ark. 293, 623 S.W.2d 831 (1981); Riddick v. State, 271 Ark. 203, 607 S.W.2d 671 (1980); Wade v. State, 290 Ark. 16, 716 S.W.2d 194 (1986); Cole v. State, 33 Ark.App. 98, 802 S.W.2d 472 (1991).

As his second point, McVay argues the trial court erred in allowing testimony concerning admissions he made in the emergency room following the accident. One of the admitting nurses smelled alcohol, and in determining what medication could be prescribed, asked McVay if he had had anything to drink. He told her he had, and when asked how much, he stated he had drunk about a half a case of beer in the last hour-and-a-half.

By a motion in limine, McVay asked that the nurse's testimony not be admitted. His argument below and again on appeal is that the statement was untrustworthy and uncorroborated and that Ark.Code Ann. § 16-89-111(d) (1987) requires that a confession be corroborated by other evidence in order to sustain a conviction. The argument, however, confuses admissibility with sufficiency of the evidence. Section 16-89-111(d) and the cases interpreting it deal only with the sufficiency of the evidence to sustain a conviction, and not mere admissibility. The standard for reviewing that ruling is abuse of discretion. Ark.R.Evid. 103. McVay has not shown that discretion to have been abused.

McVay also maintains his statements to the nurse were a privileged communication between physician and patient under Ark.R.Evid. 503. We cannot sustain the...