Murray v. United States

Decision Date24 May 1976
Docket NumberNo. 7999.,7999.
Citation358 A.2d 314
PartiesWinston G. MURRAY, Appellant, v. UNITED STATES and District of Columbia, Appellees.
CourtD.C. Court of Appeals

Arthur J. Levine, appointed by this court, for appellant.

Robert E. Hauberg, Jr., Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry and James A. Fitzgerald, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee United States.

C. Francis Murphy, Corp. Counsel, Washington, D. C., at the time, Louis P. Robbins, Principal Asst. Corp. Counsel, and Richard W. Barton and James N. Dulcan, Asst. Corp. Counsels, Washington, D. C., entered appearances for appellee District of Columbia.

Before YEAGLEY, HARRIS and MACK, Associate Judges.

HARRIS, Associate Judge:

Appellant was convicted by a jury of two counts of negligent homicide, D.C.Code 1973, § 40-606, and of driving under the influence of intoxicating liquor, id. § 40-609(b). He also was found guilty by the court of failing to keep to the right. Highways and Traffic Regulations, Part 1, § 30. He was sentenced to one year of imprisonment for each count of negligent homicide, six months for driving under the influence of intoxicating liquor, and ten days for failing to keep to the right. All sentences were to run consecutively.1 Appellant challenges: (1) the failure of the indictment to distinguish between voluntary and involuntary manslaughter; (2) the admission of blood alcohol content test results at trial; and (3) the imposition of consecutive sentences for the single act which resulted in the deaths of two different persons. We affirm.

I

On the night of June 7, 1973, appellant was driving along Delacarlia Parkway on the wrong side of the median strip. Witnesses in another car, traveling a short distance behind appellant in the same direction on the correct side of the median, attempted to warn appellant by honking the horn of their Fiat several times. Another car drove past appellant's vehicle, coming from the opposite direction on the same side of the median strip. Neither of these events caused appellant to apply his brakes or change directions. A few seconds later, appellant's car collided head-on with a Porsche. The Porsche had been driven by Henry Bodman, and was occupied also by Dorothy Bodman, his wife, and 17-year-old Diane Bodman. The occupants of the Fiat, who had been observing appellant, rushed over to the scene of the collision. The only sound or movement in the Porsche came from Diane Bodman.2 Both Mr. and Mrs. Bodman apparently were dead. Appellant was under the steering wheel of his car, but was conscious and moving.

Metropolitan Police Officer James Walson arrived at the scene of the collision minutes later. He observed that appellant's "eyes were watering, his speech was stuttering, his movements were impaired." He also noticed that appellant's breath "had a very strong odor of alcohol." An almostempty pint bottle of whiskey was on the floorboard by the appellant's feet.

Mr. and Mrs. Bodman were taken to the emergency room of Georgetown University Hospital, where they were pronounced dead on arrival. Appellant was rushed to the cardiac trauma room of the same hospital. A battery of emergency tests were performed on him immediately, which necessitated the drawing of several vials of his blood. Both the doctors and the nurse attending appellant concluded, through observation, that he was intoxicated.

Metropolitan Police Detective Carr, who previously had been at the scene of the collision, came to the emergency room to continue his investigation. After attempting to communicate with appellant, and concluding that he was intoxicated, Carr requested the nurse to take a sample of blood from Murray. The nurse informed the detective that she already had done so, and gave him some of appellant's blood. This blood later was analyzed and was shown to contain .35 per cent alcohol.3

Defense counsel filed no pretrial motions. However, at the start of the proceedings, the trial judge entertained two oral motions made on behalf of appellant. The first challenged the indictment, which charged appellant with manslaughter, without specifying voluntary or involuntary manslaughter. The second was an objection to the anticipated introduction into evidence of the blood alcohol test results. Counsel argued that the taking of the blood sample fell within the provisions of the District of Columbia's Implied Consent Act, D.C.Code 1973, § 40-1005(b), giving the defendant the right to prevent the use of such evidence against him. Both motions were denied.4

II

Appellant urges that his convictions for negligent homicide should be reversed and the indictment dismissed because the indictment charging him with manslaughter was fatally defective.5 The defect alleged was duplicity in failing to distinguish between voluntary and involuntary manslaughter. Although voluntary and involuntary manslaughter are separate offenses which must be charged in separate counts if the government desires to charge both, United States v. Bradford, D.C.App., 344 A.2d 208 (1975), the original duplicitous nature of the indictment was corrected when the government elected to proceed solely upon a theory of involuntary manslaughter.6 Such an election is an appropriate remedy for a duplicitous indictment. United States v. Starks, 515 F.2d 112, 116-18 (3d Cir. 1975); Bins v. United States, 331 F.2d 390, 393 (5th Cir.), cert. denied, 379 U.S. 880, 85 S.Ct. 149, 13 L.Ed.2d 87 (1964). See United States v. Bradford, supra; United States v. Pender, D.C.App., 309 A.2d 492 (1973).

After the government's election to proceed only on involuntary manslaughter, the trial suffered none of the infirmities associated with one based upon a duplicitous indictment. The government adduced no proof inconsistent with a charge of involuntary manslaughter; motions for judgments of acquittal were addressed solely to that charge (and to the charge of negligent homicide, a lesser-included offense); and the jury was instructed only on involuntary manslaughter7 Finally the jury acquitted appellant on the charge of manslaughter as to both victims, which abrogated any question as to which crime the indictment referred.

III

Appellant's next contention involves the construction of the District of Columbia's Implied Consent Act.8 The section of that Act upon which appellant relies provides that when a person is unconscious or otherwise incapable of refusing to submit to a blood test, such person nevertheless is presumed to have consented to the tests.9 It further provides that evidence thus obtained from an incapacitated person shall not be used against him if he later objects to its introduction.10 The sanction imposed upon one who so objects is the automatic loss of his operator's permit for a period of six months. Although the Act's provisions in general are triggered by circumstances such as those present in this case, appellant may not take advantage of that section11 Construing § 40-1005(b) in light of the statute's overall purposes, we find that its evidentiary exclusion provision does not apply in cases involving death or personal injury.

The Implied Consent Act provides for chemical testing to determine the blood alcohol content of two categories of motor vehicle operators. The first includes all those operating a motor vehicle in the District of Columbia who are arrested and believed to be under the influence of alcohol. Those persons are deemed to have given their consent to submit to chemical testing.12 Refusal to give a specimen, which is a permissible alternative for this category of operators, subjects the motorist to revocation of his license for a six-month period.13

The second category (actually a sub-category of the first) includes those motorists who are involved in accidents resulting in death or personal injury. Unlike other drivers, persons involved in serious motor vehicle accidents who are arrested and believed to be under the influence of alcohol are not given the option to refuse to submit to testing.14 This limitation is made clear by both the language of the act and its legislative history.

Section 40-1002(b) is that part of the Implied Consent Act which mandates the testing of an operator who is involved in a motor vehicle collision in which death or bodily injury results. Explaining the statute to the District of Columbia Committee of the United States Senate, a spokesman for the District of Columbia stated that "such a provision is of the utmost importance in the charging, prosecution, and determination of appropriate penalties of persons involved in such accidents."15 Further testimony at the hearings revealed the rationale for this strict, inflexible provision:

The reasoning behind [mandatory testing in personal injury and fatality cases] was, where there are serious cases, where possible negligence and homicidal manslaughter or second degree murder charges even might arise, the drivers involved will choose to refuse to take the test and avoid scientific evidence that may be needed in order to bring about a conviction for the more serious crimes . . . .16

The Senate, in its final report accompanying the Implied Consent Act,17 adopted the Commissioner of the District of Columbia's view that a motorist would not be allowed to refuse to give a specimen for testing in those cases involving death or personal injury.18

Since the specific provision upon which appellant relies does not unambiguously differentiate between the two categories of motorists discussed above, its import must be judged according to the goals which Congress intended the overall Act to effectuate. National Petroleum Refiners Association v. F. T. C., 157 U.S.App. D.C. 83, 100, 482 F.2d 672, 689 (1973), cert. denied, 415 U.S. 951, 94 S.Ct. 1475, 39 L. Ed.2d 567 (1974). In our view it would do violence to the intent of this...

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