State ex rel. R.V.

• Decision Date: 13 December 2011
• Docket Number: No. 11–KA–138.,11–KA–138.
• Parties: STATE of Louisiana in the Interest of R.V.
• Court: Court of Appeal of Louisiana — District of US

82 So.3d 402

STATE of Louisiana in the Interest of R.V.

No. 11–KA–138.

Court of Appeal of Louisiana, Fifth Circuit.

Dec. 13, 2011.

[82 So.3d 403]

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Joseph R. McMahon, Jr., Jody J. Fortunato, Assistant District Attorneys, Harvey, LA, for Plaintiff/Appellee.

Katherine M. Franks, Attorney at Law, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.

Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.

FREDERICKA HOMBERG WICKER, Judge.

[5 Cir. 2] The defendant/appellant, R.V., appeals his conviction and sentence for vehicular homicide in violation of La. R.S. 14:32.1. He argues that the State did not prove beyond a reasonable doubt that his intoxication caused the accident that led to the victim's death. After a thorough review of the record, we find that R.V. was impaired when the accident occurred and that such impairment was a contributing factor that led to the victim's death. Therefore, the conviction and sentence are affirmed.

[82 So.3d 404]

Factual and Procedural Background

On Friday, April 30, 2010, J.P. spent the night at the home of his best friend—14–year–old C.O. The young boys woke up between 11:30 A.M. and 12:00 P.M. the following day, Saturday, May 1, 2010, and rode their bikes to J.P.'s house.

Meanwhile, 16–year–old R.V. picked up his friend L.P. between 12:30 and 1:00 P.M. in his mother's 2007 black Jeep Cherokee. M.F., another one of their friends, was already seated in the front passenger seat when L.P. got inside the Jeep. The boys then drove to K.O.'s house to pick him up. Both K.O. and L.P. sat in the rear. The boys rode around in the Jeep for the remainder of the day. R.V., L.P., and M.F. began smoking marijuana from L.P.'s bong around 1 P.M. The [5 Cir. 3] three boys shared two bowls of marijuana, each taking approximately three to four hits from each bowl. The last time the boys smoked was between 4 and 5 P.M. At approximately 6:30 P.M., a member of the Jefferson Parish Sheriff's Office pulled the boys over because the Jeep was swerving. The officer removed the boys from the Jeep, separated and searched them, and then searched the Jeep. Although the officer located the bong and a marijuana grinder, the boys were allowed to leave. R.V. dropped L.P. off at home around 7:30 P.M.

Later that evening, C.O. decided to spend the night at J.P.'s house but remembered he left his charger at home. The boys cycled back to C.O.'s house to get the charger and then headed back to J.P.'s house. On the return trip, the boys came upon R.V. around 10:30 P.M. C.O. and J.P. were afraid they would not make their 11 o'clock curfews riding their bikes. So R.V., a close friend of C.O.'s older brother, offered to give them a ride home. C.O. and J.P. left their bikes at a friend's house and got into the Jeep—K.O. was now in the front passenger seat. C.O. sat behind K.O. in the rear, and J.P. sat behind R.V. C.O. and J.P. were unaware that R.V. had smoked marijuana earlier in the day. R.V. and K.O. shared a Mad Dog 20/20 while the two boys were passengers in the back seat. Although R.V. had been drinking and smoking marijuana, he seemed to be driving normally. However, things took a drastic change for the worst when the boys arrived on West Metairie Road.

While R.V. was in the left lane on West Metairie Road, a Mustang pulled up next to him in the right lane and revved its engine. The Mustang sped off and R.V. accepted its invitation. R.V. immediately took off in the left lane next to the Mustang. R.V. was traveling between 50 and 60 mph. The two vehicles were swiftly driving next to each other when R.V. swerved the Jeep into the middle of the right lane where the Mustang was driving. The Mustang, while still in the right [5 Cir. 4] lane, passed R.V. and then cut in front of him in the left lane. R.V. swerved to the left, and his wheel hit the curb. He attempted to overcorrect but lost control of the Jeep. The Jeep flipped several times and landed in the canal. The accident occurred at approximately 11:11 P.M. R.V. was ejected from the Jeep, and J.P. landed in the canal. K.O. left the scene on foot, telling J.P. that he had “to get out of there.” J.P. looked for his best friend, C.O. He was nowhere to be found.

Someone reported the accident to 9–1–1, but the caller was unable to identify the exact location. Deputy Robert Mitchell, of the Jefferson Parish Sheriff's Office, was in the area and was one of the first responders on the scene. He observed the Jeep in the canal in the 6700 block of West Metairie Road and radioed the other officers to give them the location. Dep. Mitchell saw R.V. sitting on the median holding his head. He asked R.V. whether

[82 So.3d 405]

there were any other passengers. Though erratic, R.V. gave the deputy J.P.'s name. Dep. Mitchell then approached J.P. and asked him the same thing. J.P. told the deputy that K.O. had walked away. At that time, another officer yelled, “there's one in the water.” Dep. Mitchell ran over to the canal, removed his safety belt, and went into the water with Dep. Keith Young to retrieve C.O. C.O. was face down in the two-foot deep water. When the deputies retrieved C.O. from the water, his body was pale, cold, and lifeless. C.O. was transported to East Jefferson General Hospital where he was pronounced dead at 2:12 A.M. on Sunday, May 2, 2010.

R.V. arrived at Ochsner Hospital at 11:51 P.M. on May 1, 2010. The attending physician ordered an ADX—alcohol and drug test. R.V.'s blood alcohol level was 0.045. Marijuana was also detected in his system. After C.O.'s death, the Jefferson Parish Sheriff's Office went to Ochsner Hospital and arrested R.V.

On August 2, 2010, the Jefferson Parish District Attorney's office filed a petition charging R.V. with vehicular homicide in violation of La. R.S. 14:32.1(A)(3). [5 Cir. 5] The petition alleged that while R.V. was engaged in the operation of a motor vehicle, he killed a minor child while under the influence of a controlled dangerous substance. The State then moved to revoke his probation and bond on August 12, 2010.¹ R.V.'s bond was revoked on August 18, 2010. The court deferred ruling on the motion to revoke probation until after the trial. The State subsequently amended its petition on September 2, 2010, to additionally state that R.V. was under the influence of alcohol. The trial commenced on September 15, 2010.

Ms. Andrea Gardner, the attending emergency room nurse at Ochsner Hospital, testified that R.V. arrived in the emergency room at 11:51 P.M. on May 1, 2010. Ms. Gardner drew R.V.'s blood and urine at 12:18 A.M. on Sunday, May 2, 2010. Prior to the draw, Ms. Gardner testified that she prepped R.V.'s arm with chloraprep, which is comprised of 70% isopropyl alcohol. She then waited for the area to dry in order to prevent the possibility of cross-contamination. Once the area dried, Ms. Gardner inserted the IV into R.V.'s arm and withdrew the blood which went into several separate vials. She then labeled the vials, placed them in the pneumatic tube, and sent them to the lab along with the urine sample she drew from the catheter.

Ms. Karen Bullock, the core laboratory manager at Ochsner Clinic Foundation, also testified. She testified that specimen obtained in the emergency room primarily comes to the lab through the pneumatic tube system. She testified that the laboratory performed a comprehensive blood screen on R.V.'s blood and a comprehensive drug panel on his urine. Ms. Bullock testified that R.V.'s specimen arrived in the lab at 12:28 A.M. on May 2, 2010. Based on their procedures, an employee removes the specimen from the pneumatic tube when it arrives in the [5 Cir. 6] lab. The urine specimen is then placed in a smaller tube, spun, and then given to the chemistry department which is located in the same room 15 to 20 feet away. The same procedure is repeated for the blood specimen with the exception of spinning.

Mr. Alton Smith, the CSR tech in the laboratory, testified that he is responsible for verifying specimen received in the lab. He testified that he retrieved R.V.'s specimen

[82 So.3d 406]

from the pneumatic tube at 12:28 A.M. on May 2, 2010. After completing his verification, he then delivered the specimen to the chemistry department at 12:41 A.M. Mr. Smith testified that he had no reason to believe the specimen was contaminated.

Mr. William Toups, an employee at Ochsner Core Laboratory, testified that he received the urine specimen from Alton Smith. He performed a urinary toxicology screen—a screen that detects drugs of abuse. At 12:43 A.M., the urine specimen tested positive for benzos and THC, which is commonly referred to as marijuana. Mr. Toups testified that he had no reason to believe the specimen was contaminated.

Ms. Jawanna Savoie worked as a medical technologist for Ochsner on May 2, 2010. She testified that when she received the specimen from William Toups, she verified the paperwork and checked the blood specimen for clots. She then placed the blood on the analyzer. Ms. Savoie testified that the blood ETRH was positive .045 milligrams per deciliter. She completed the blood test at 1:13 A.M. on May 2, 2010. She also testified that she had no reason to believe that the blood specimen was contaminated.

Ms. Marketia Jackson, an emergency room staff nurse at Ochsner Hospital, testified that at 3:25 A.M. on May 2, 2010, she withdrew R.V.'s blood and urine at the direction of the Jefferson Parish Sheriff's Office. She testified that the officers [5 Cir. 7] came into the room, gave her a kit, and explained to her that she had to use everything in the kit to draw the blood. She placed a tourniquet on R.V.'s left arm and prepped the area with the betadine inside the kit. Once the area dried, she then used a venipuncture needle to draw the blood. She then obtained urine from the Foley catheter that was already in place. Ms. Jackson testified that she labeled the samples with the...