State v. Blevins
| Decision Date | 27 January 1981 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 128 Ariz. 64,623 P.2d 853 |
| Parties | STATE of Arizona, Appellee, v. Tennis Brian BLEVINS, Appellant. 4497. |
| Court | Arizona Court of Appeals |
Based on events arising out of a collision between an automobile and a motorcycle in the early morning hours of May 27, 1978, Tennis Brian Blevins was charged with vehicular manslaughter in violation of A.R.S. §§ 13-455, 13-456(A) (3)(b) and 13-457(C)(2), 1 and leaving the scene of an accident involving injury or death of another in violation of A.R.S. §§ 28-661 and 28-663. The first trial ended in a mistrial. At the second trial, the jury found Blevins guilty of both counts. Following entry of judgment of guilt, sentence was suspended on both counts and Blevins was given a one year period of probation. He has appealed from the judgments and suspended sentences. We have jurisdiction of his appeal from the judgments of guilt, the convictions, and the suspended sentences. A.R.S. §§ 13-4031, 13-4033.
On appeal in a criminal case we must view the evidence in a light most favorable to sustaining the conviction, resolving all reasonable inferences in favor of the State. State v. Acree, 121 Ariz. 94, 588 P.2d 836 (1978). The relevant facts are summarized below. James Larry Payne, the victim, and appellant were both members of the United States Air Force, stationed at Luke Air Force Base west of Phoenix. On the evening of May 26, 1978, some personnel from the base met at Hank's Bar in celebration of good results on a recent inspection. After the bar closed, 12 to 15 people bought some beer and began to drink outside. One witness observed appellant drinking a mixed drink at the bar and four to six beers after closing. Appellant told this witness that he had been at Hank's since approximately 10:00 P.M. At approximately 1:30 A.M. on the morning of May 27, the victim arrived outside the bar and began drinking also. The last of the group began to disperse around 3:45 A.M., at which time appellant was "drunk" in the opinion of one witness. The victim left the area, headed east on Glendale Avenue, riding a motorcycle. Shortly thereafter appellant also began driving east on Glendale Avenue in an automobile. Appellant testified at trial that while he was driving down Glendale Avenue, something appeared in his headlights and he swerved to avoid it. He testified that he slammed on his brakes and hit a motorcycle that was lying in the road. He stated that he saw no one on the motorcycle. He jumped out of his car and ran around to the front and saw that the motorcycle was stuck in his right front fender. He attempted to pull the motorcycle from his fender, but was unable to do so. He looked around the immediate area and failed to see anyone. He then attempted to shake the motorcycle loose from his vehicle by driving on and off the road. His continued efforts were futile and his tire eventually went flat, forcing him off the road and into a tree near the New River bridge. A passerby helped him out of the vehicle and took him to a telephone booth where he called his roommate. The roommate testified that he received the phone call at approximately 4:30 A.M., and arrived at the telephone booth to pick up appellant around 4:50 A.M. Together, the two drank some coffee at a nearby restaurant for approximately an hour. They then drove toward where appellant had left his car but were stopped by a Maricopa County Sheriff's Office roadblock. They did not contact any officers at the roadblock because appellant had been drinking was afraid to do so. They returned home.
Around 4:30 A.M., a Maricopa County Sheriff's Department deputy had been contacted by a witness who had seen a man lying near Glendale Road. The deputy accompanied the witness to the location and found James Larry Payne laying near the edge of Glendale Road. Payne's body exhibited no vital signs. A pathologist testified at trial that Payne had died from a fracture of the cervical spine. The injury was consistent with the State's theory that Payne's motorcycle had been struck in the rear by an automobile traveling at a greater rate of speed than his motorcycle.
Deputy Jacobs of the Maricopa County Sheriff's Department arrived at the accident scene at approximately 4:30 A.M., and took charge of the investigation. A deputy contacted appellant at his home at approximately 7:20 A.M., by telephone, and two detectives transported him to the location of his automobile. One of the deputies testified at trial that appellant had the odor of alcohol on his breath at that time. When appellant was brought back to the scene, deputy Jacobs gave him his "Miranda" warnings and discussed the accident with him. Appellant admitted owning and driving the automobile involved, and said that he had had one beer at Hank's after work and nothing to drink after the accident. He said that he did not know he had struck a motorcycle, and that he had walked home from the scene of the accident.
At trial, deputy Jacobs and Lamont Skousen testified for the State as motor vehicle accident reconstruction experts. They described the scene as they found it on that morning, including the damage to the two vehicles, the location of the two vehicles after they had come to rest, the location of the victim's body, the debris in the roadway, and the size and location of gouge, skid, and scuff marks on the pavement. Based on all the physical evidence, their measurements and computations, and their experience in the field of accident reconstruction, it was their opinion that appellant's automobile was traveling at a speed of 54 to 58 miles per hour, conservatively estimated, at the time of impact. The posted speed limit in that area of Glendale Avenue was 50 miles per hour. The speed of the victim's motorcycle immediately prior to impact was estimated at approximately 45 miles per hour. From examination of filaments in the damaged headlight of the automobile and the damaged taillight and brake light of the motorcycle, it was the witnesses' opinion that immediately prior to impact, the automobile headlights were on, the motorcycle taillight was on, and the motorcycle brake light was not on. From the damage to the two vehicles and remnants of a decal from the motorcycle which was found on the automobile, and from a fabric impression from the victim's clothing which was found on the hood of the automobile, it was their opinion that the motorcycle was upright and moving with the victim riding it when it was struck, and that it was struck directly from the rear by the automobile in a straight line, or at a 180 degree angle. Partly due to the location of the victim's body at rest, approximately 250 to 300 feet from the point of impact, it was further opined that at the point of impact the front wheel of the motorcycle flipped up and back, pinning the victim on the hood of appellant's automobile, causing his body to be carried that distance from the point of impact. It was the ultimate conclusion of deputy Jacobs, who had spent three to four hundred hours reconstructing the accident, that appellant had been following the motorcycle too closely immediately prior to the time of the collision.
Appellant first contends that the trial court erred in denying his motion for a judgment of acquittal at trial in regard to the vehicular manslaughter count, both because the State failed to prove that appellant had committed an unlawful act and because the State had failed to prove that any unlawful act of appellant was the proximate cause of the victim's death. Both of these arguments are directed toward the admittedly circumstantial nature of the State's case. Initially we note that rule 20, Arizona Rules of Criminal Procedure, provides that only "substantial evidence"...
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