State v. Beene

• Decision Date: 15 April 2015
• Docket Number: 49,612–KA.
• Citation: 164 So.3d 299
• Parties: STATE of Louisiana, Appellee v. Jenny Leeper BEENE, Appellant.
• Court: Court of Appeal of Louisiana — District of US

164 So.3d 299

STATE of Louisiana, Appellee

v.Jenny Leeper BEENE, Appellant.

49,612–KA.

Court of Appeal of Louisiana, Second Circuit.

April 15, 2015.

Daryl Gold, Shreveport, for Appellant.

Wiener, Weiss & Madison, Shreveport, by M. Allyn Stroud, Barham Warner Stroud McKay by Ansel Martin Stroud, III, Charles R. Scott, II, District Attorney, Dhu Thompson, George Winston, III, Jessica D. Cassidy, Assistant District Attorneys, for Appellee.

Before STEWART, DREW and LOLLEY, JJ.

Opinion

STEWART, J.

The defendant, Jenny Leeper Beene, was found by a jury to be guilty as charged of the vehicular homicide of Erma Lee Jackson. The trial court initially sentenced the defendant to 15 years at hard labor, with the first five years to be served without benefit of probation, parole, or suspension of sentence. However, the trial court granted the defendant's motion to reconsider sentence and reduced the 15–year sentence to a 12–year sentence, the first five without benefits. We now affirm her conviction and sentence.

FACTS

On September 1, 2007, while traveling on Highway 1 in the vicinity of Oil City, Louisiana, the defendant drove her Ford Expedition in the oncoming lane of travel and crashed into Ms. Jackson's Pontiac Grand Am. Ms. Jackson was killed by the violent impact.

The defendant was transported to North Caddo Medical Center where her blood was drawn at exactly 5:55 p.m., one hour and 15 minutes after the accident, and a urine sample collected. Subsequent testing revealed that the defendant had a blood alcohol concentration of 0.18 percent and detected the presence of diphenhydramine

(generic Benadryl ) in the defendant's blood sample. Analysis of her urine sample showed the presence of diphenhydramine, hydrocodone (Lortab, a Schedule II controlled dangerous substance), and chlorpheniramine (an antihistamine).

On July 2, 2008, the state filed a bill of information charging the defendant with vehicular homicide in violation of La. R.S. 14:32.1. The defendant entered a not guilty plea and opted for a jury trial.

The defendant's case was assigned to Criminal Division, Section B, of the 1st Judicial District Court. Judge E. Joseph Bleich, sitting pro tempore,

had been presiding over that section when the defendant's case was called for trial on September 9, 2013. However, Judge Bleich had a prior commitment to hear a matter in the 26th Judicial District Court beginning that same week. Pursuant to Rule 3.1, a local rule permitting the exchange of assignments between judges, Judge Bleich and Judge Scott Crichton¹ signed an order effective September 9, 2013, exchanging assignments through September 20, 2013. The defendant's trial counsel objected to the exchange on the basis that it was an impermissible transfer of the case between sections. The trial judge overruled the objection and denied the defendant's request that the trial be stayed pending supervisory review. By order rendered on September 11, 2015, this court denied the defendant's writ application and motion to stay the proceedings.

The state called four witnesses who had observed a dark-colored SUV being driven recklessly shortly before the accident occurred. Two of these witnesses, April Martin (“Martin”) and Virginia Travers (“Travers”), testified that the SUV had damage to its rear and was missing the back glass. Martin, who also observed the accident, testified that the SUV was traveling in the wrong lane after passing her and another vehicle when it hit Ms. Jackson's vehicle in a head-on collision.

The state also presented testimony from various officers with the Caddo Parish Sheriff's Office (“CPSO”), which investigated the fatal collision. Lieutenant Michael Gray (“Lt. Gray”), who was accepted as an expert in accident and crash reconstruction, identified the defendant as the driver at fault in causing the accident and noted that the accident occurred in Ms. Jackson's

southbound lane of travel. Lt. Gray testified that the defendant's northbound vehicle was very far over the center line and likely driving on the wrong shoulder of the road. He believed the accident happened as the defendant veered back toward her lane and hit, at an angle, the front passenger side of Ms. Jackson's vehicle. Gray further testified that the damage to the rear of the defendant's vehicle was not consistent with the accident and that there was no roadway evidence indicating that the defendant's Expedition was hit from behind just prior to the accident, as claimed by the defendant.

Sgt. William Gaines (“Sgt. Gaines”) of the CPSO heard the crash from a nearby substation and responded immediately. He found Ms. Jackson deceased. He testified that an empty liquor bottle rolled out of the defendant's vehicle when emergency personnel opened the door. The presence of over-the-counter drugs, generic Benadryl

, an empty bottle of Seagram's Whiskey, and a partially full bottle of wine were discovered in the vehicle during a subsequent search.

Leah Meade, a forensic scientist with the Louisiana State Police Crime Lab and an expert in blood alcohol and toxicology analysis, testified that the defendant's blood sample contained 0.18 grams of ethyl alcohol per 100 mills of whole blood. Jimmy Barnhill (“Barnhill”), an expert in forensic alcohol toxicology analysis and the system director of the North Louisiana Crime Lab, calculated that the defendant's blood alcohol level at the time of the accident would have likely been between 0.20 and 0.21, based her body weight and the time at which her blood sample was collected. Barnhill also testified as to the impairing effects of the alcohol and drugs found in the defendant's blood and urine samples. He explained that the alcohol and drugs would have affected the

defendant's vision and motor skills, her ability to judge distances, and her reaction time. He testified that the accident was consistent with this type of impairment, and he emphasized that the impairment from the alcohol alone was significant.

The defendant testified on her own behalf. Though she admitted to drinking alcohol that day before the accident occurred, she denied taking hydrocodone

or Benadryl. She testified that she may have taken a Benadryl during the night to help her sleep and that she had perhaps taken hydrocodone three months before the accident. The defendant denied driving recklessly and insisted that she was not at fault in causing the accident. Instead, she blamed a phantom hit-and-run driver. The defendant testified that her vehicle was hit hard from behind. After being hit, she closed her eyes, screamed, felt another impact, and was knocked out when her air bag deployed. On cross-examination, she testified that she did not see what vehicle supposedly hit her but that it felt like she was hit by something going 150 miles per hour. When asked about the witnesses who testified that they observed her reckless driving just prior to the accident, the defendant stated, “somebody covering up something” and that it was possibly the police “looking for some help.” When questioned in detail about what she drank that day, the defendant admitted to having two drinks of Crown Royal, about 12 ounces, while in her parked vehicle by a Chili's restaurant when she was out running errands.

The defendant's mother, Jan McKinnon, testified that she spoke with the defendant in the parking lot of a Brookshire's on North Market in Shreveport around 4:00 p.m., the afternoon of the accident. According to McKinnon,

there was no damage to the rear of the defendant's vehicle at that time, and the defendant was not intoxicated.

The jury unanimously found the defendant guilty as charged of vehicular homicide. At the sentencing on October 31, 2013, the defendant stated that the accident would not have happened if she had not been drinking, but she still maintained that she was hit from behind just before hitting Ms. Jackson's vehicle. The trial court noted that the sentencing range was a mandatory minimum five years without benefits due to the fact that the defendant's blood alcohol concentration was above 0.15 percent when the accident occurred and a maximum of 30 years. In reviewing the facts of the case, the court noted the absence of any evidence of fault on the part of Ms. Jackson, the failure of the defendant to accept any responsibility for the accident at trial or in her presentence interview, and the defendant's expression of some remorse during the sentencing hearing. After discussing various aggravating and mitigating factors and other considerations under La. C.Cr.P. art. 894.1, the court sentenced the defendant to 15 years at hard labor, with the first five years to be served without benefit of probation, parole, or suspension of sentence. Finally, the court noted that vehicular homicide had been designated a crime of violence by the Louisiana Supreme Court.

The defendant filed a motion to reconsider the sentence. She argued that the sentence was excessive given the presence of various mitigating factors and that it was increased based on facts not submitted to the jury. In a written ruling on February 11, 2014, the trial court granted the defendant's motion and reduced her 15–year sentence to 12 years at hard labor.

Raising five assignments of error, the defendant now appeals her conviction and sentence.

DISCUSSION

Sufficiency of the Evidence

The defendant contends that the state's evidence was insufficient to support a conviction for vehicular homicide. Specifically, she argues that the evidence establishes reasonable doubt as to whether the fatal collision was caused by another vehicle rear-ending her Expedition and as to whether her intoxication was a contributing cause of the accident.

The standard for reviewing a sufficiency of the evidence claim is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d...