State v. Bredehoft

• Decision Date: 01 October 1998
• Docket Number: No. 941724-CA,941724-CA
• Citation: 966 P.2d 285
• Parties: 353 Utah Adv. Rep. 3 STATE of Utah, Plaintiff and Appellee, v. Paul G. BREDEHOFT, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 285

966 P.2d 285

353 Utah Adv. Rep. 3

STATE of Utah, Plaintiff and Appellee, v. Paul G. BREDEHOFT, Defendant and Appellant.

No. 941724-CA.

Court of Appeals of Utah.

Oct. 1, 1998.

Robert K. Heineman, Salt Lake Legal Defender Ass'n, Salt Lake City, for Appellant.

Jan Graham, Atty. Gen. and J. Frederic Voros Jr., Ass't. Atty. Gen., Criminal Appeals Div., Salt Lake City, for Appellee.

Before WILKINS, Associate P.J., and BILLINGS and ORME, JJ.

OPINION

ORME, Judge:

Defendant Paul G. Bredehoft appeals his conviction for automobile homicide in the death of young Sean Adkins, a second degree felony, in violation of Utah Code Ann. § 76-5-207(2) (1995). ¹ We affirm.

BACKGROUND

"On appeal, we review the record facts in a light most favorable to the jury's verdict and recite the facts accordingly." State v. Brown, 948 P.2d 337, 339 (Utah 1997).

At about 7:10 p.m. on March 1, 1994, seven high school boys were driving west on Interstate 80, on their way to a basketball game, when their station wagon blew a tire. After exiting the freeway at the 2100 South exit, the boys pulled over into the emergency lane to change the tire. At about 7:35 p.m., one of the boys who was sitting in the station wagon noticed lights shining directly into the rearview mirror, illuminating the car's interior more than other passing car headlights had done. Although the posted speed limit was 40 miles per hour, Bredehoft, driving a red Mustang, had swerved into the emergency lane and was racing toward the station wagon at approximately 50 to 65 miles per hour. Bredehoft never slowed down or took any evasive action before slamming into the rear of the station wagon. Two boys were sitting in the car, while the others had jumped the guardrail to safety. The impact knocked the station wagon thirty-three feet and over the top of the guardrail.

After the collision, the boys realized that one of their group, Sean Adkins, was missing. The boys found Sean's body 113 feet down the road. He had been struck, most likely by the dislodged station wagon, while running away. After arriving at the scene, Utah Highway Patrol Trooper Jeff Peterson found Bredehoft sitting on the guardrail with a broken finger and a cut lip, smelling of alcohol, and appearing "extremely intoxicated."

Trooper Peterson led Bredehoft to an ambulance and placed him under arrest for driving under the influence. While in the ambulance, Trooper Peterson advised Bredehoft that his blood would be drawn. Aside from relaying this information, Trooper Peterson engaged in no other conversation with Bredehoft regarding the blood draw. Without objection or resistance, Bredehoft offered his arm and allowed his blood to be drawn. One of the ambulance personnel made the blood draw at 8:18 p.m. ² A chemical analysis showed Bredehoft had the extremely high blood alcohol level of .27 percent.

En route to the hospital, Bredehoft repeated, "I have killed a kid," two or three times. At the hospital, Bredehoft was examined and determined to have only minor injuries. When asked what had happened, Bredehoft responded, "I was driving drunk and I killed a kid." Sean Adkins was pronounced dead on arrival at LDS Hospital.

On March 7, 1994, the State charged Bredehoft with (1) automobile homicide, a second degree felony, in violation of Utah Code Ann. § 76-5-207(2) (1995); (2) driving on a denied, suspended, disqualified, or revoked license, a class B misdemeanor, in violation of Utah Code Ann. § 53-3-227 (1998); (3) driving without registration or certificate of title, a class C misdemeanor, in violation of Utah Code Ann. § 41-1a-1303 (Supp.1998); and (4) operation of vehicle without security, a class B misdemeanor, in violation of Utah Code Ann. § 41-12a-302(1) (Supp.1998). Bredehoft pled guilty to every offense except automobile homicide, which proceeded to trial.

Before trial, Bredehoft moved to suppress the blood evidence, arguing that because Trooper Peterson had no warrant, consent, or other lawful basis for doing so, drawing Bredehoft's blood violated the Fourth Amendment of the United States Constitution and Article I, section 14 of the Utah Constitution. The trial court denied Bredehoft's motion to suppress, ruling that exigent circumstances, such as Trooper Peterson's concerns about the dissipation of blood alcohol and the possible loss or corruption of that evidence, obviated the need for a warrant.

Also before trial, Bredehoft filed a motion to compel discovery regarding the State's expert witnesses under Utah Code Ann. § 77-17-13(1) (1995). Bredehoft sought a list of the expert witnesses the State intended to call at trial and a written report of the substance of their testimony. The trial court granted Bredehoft's motion, ordering the State to provide written reports or testimony proffers for its expert witnesses by August 8, 1994.

On August 29, 1994, the day before trial, the State disclosed that one of its witnesses, Utah Highway Patrol Trooper Gary Zdunich, would testify as an expert on the physiological effects of certain blood alcohol levels. Bredehoft objected to this proposed testimony, arguing the State's late designation of this witness prejudiced him because he could not obtain a countering defense expert on such short notice. Although the trial court reserved ruling on whether to exclude his testimony, Zdunich testified only in rebuttal to Bredehoft's testimony, and not during the prosecution's case-in-chief.

However, during its case-in-chief the prosecution did offer the testimony of Dr. Raymond Middleton, the medical director of the Dayspring drug and alcohol treatment program. The State had never identified Dr. Middleton as a potential expert regarding the physiological effects of a .27 percent blood alcohol content. In fact, before trial, the State represented that Dr. Middleton would testify only to the substance of lectures he presented for the Dayspring alcohol treatment program, which Bredehoft had attended. Nonetheless, on direct examination, Dr. Middleton testified that the fine motor coordination of a person with a .27 percent blood alcohol level would be "[v]ery much impaired," and that, at this level, many people "would be approaching [a] comatose state." Bredehoft objected, arguing that Dr. Middleton's testimony was "moving over into the expert opinion area ... and he was not designated as an expert witness to testify on the effects of" blood alcohol levels. Bredehoft implored the trial court to "follow the statute on expert witnesses at this point." Although noting that Dr. Middleton's testimony was "based upon his training ... and experience and expertise," the trial court admitted Dr. Middleton's testimony. On cross-examination, Dr. Middleton conceded that the lectures he presented for the Dayspring alcohol treatment program did not address the effects of specific blood alcohol levels.

In his defense, Bredehoft testified that the collision resulted when another car forced him into the emergency lane to avoid being hit. He claimed to have checked his blind spot and mirrors for that car, and that he then looked up and saw "some movement" and "swerved to the lane of travel and there was, I don't know, an impact." On cross-examination, Bredehoft testified that, before the collision, he had consumed alcohol at three different bars, including Uncle Bart's and Charley's Club, where he had gone to find a friend, Doug Mickelson. However, Bredehoft testified that he did not feel intoxicated when the collision occurred. It was in rebuttal to this testimony that Trooper Zdunich testified that a blood-alcohol level of .27 percent would impair judgment, coordination, vision, balance, reflexes, and energy. Bredehoft does not challenge the propriety of this testimony on appeal.

After a six-day trial, the jury found Bredehoft guilty of automobile homicide. The trial court sentenced him to serve one-to-fifteen years at the Utah State Prison, to run consecutively to the concurrent sentences of up to six months for his other offenses, and to pay a $10,000 fine and full restitution. Bredehoft appealed, raising numerous arguments, including that his privately retained trial counsel rendered ineffective assistance.

Early in the course of his appeal, Bredehoft filed a motion for remand, pursuant to Rule 23B of the Utah Rules of Appellate Procedure, ³ seeking to supplement the record so his claim of ineffective assistance of counsel could be determined. Bredehoft claimed that his trial attorney, James D. Mickelson, provided ineffective assistance of counsel due to Mickelson's business association with two of the three bars at which Bredehoft had been drinking on the night in question.

On August 12, 1996, we remanded this case to the trial court for entry of findings of fact relevant to Bredehoft's ineffective assistance claim, and on October 2, 1996, the trial court held an evidentiary hearing. At the hearing, the trial court took evidence and entered findings of fact necessary to determine Bredehoft's ineffective assistance claim. "We defer to a trial court's findings of fact after a rule 23B hearing," State v. Taylor, 947 P.2d 681, 685 (Utah 1997), and we recite these facts accordingly.

Mickelson represented Bredehoft throughout his entire trial. Mickelson's family, including his father, Doug Mickelson, owned and operated Uncle Bart's and Charley's Club. Bredehoft and Mickelson had known each other for almost fifteen years, associating in both social and business situations, and Mickelson had represented Bredehoft in a previous DUI case. Bredehoft knew that Uncle Bart's and Charley's Club were Mickelson family operations, and he had even performed janitorial and other services for these businesses.

Uncle Bart's and Charley's Club are nonprofit private clubs, operated by Club Management, Inc., a for-profit entity owned by the Mickelson family. Mickelson's parents depend on the revenue generated by these clubs and their management entity for their livelihood....