State v. Briggs

• Decision Date: 19 December 1997
• Docket Number: No. 76601,76601
• Citation: 950 P.2d 273,24 Kan.App.2d 621
• Parties: STATE of Kansas, Appellee, v. Larry J. BRIGGS, Appellant.
• Court: Kansas Court of Appeals

Page 273

950 P.2d 273

24 Kan.App.2d 621

STATE of Kansas, Appellee, v. Larry J. BRIGGS, Appellant.

No. 76601.

Court of Appeals of Kansas.

Dec. 19, 1997.

Syllabus by the Court

1. Under the facts of this case, evidence of the percentage of alcohol in blood serum and testimony that the alcohol concentration in whole blood "is pretty much the same" as that in blood serum met the requirements of K.S.A.1996 Supp. 8-1567.

2. No party may assign as error the giving or failure to give an instruction unless objected to before the jury retires to consider its verdict stating distinctly the matter objected to and grounds for the objection unless the instruction is clearly erroneous. An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict.

3. K.S.A. 21-4711(c) provides an exception to the general rules of criminal history scoring that applies to prior convictions under K.S.A.1996 Supp. 8-1567 when the current crime of conviction is involuntary manslaughter committed while driving under the influence pursuant to K.S.A. 21-3404(b). Reading these statutes together, municipal convictions for driving under the influence may be used under the special criminal history provision of K.S.A. 21-4711(c).

4. Where a general statute and a specific statute conflict, the specific statute controls. K.S.A. 21-4711(c) and K.S.A.1996 Supp. 8-1567 are the specific statutes governing sentencing of persons convicted of involuntary manslaughter while driving under the influence with prior convictions for driving under the influence. These two statutes control over the general rule of K.S.A. 21-4710 that nonselect class B nonperson misdemeanors are not used in criminal history scores.

Rebecca Woodman and Thomas W. Bartee, Assistant Appellate Defenders, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

Keith E. Schroeder, Assistant County Attorney, and Carla J. Stovall, Attorney General, for appellee.

Before MARQUARDT, P.J., PADDOCK, S.J., and MARK A. VINING, District Judge, Assigned.

MARQUARDT, Presiding Justice:

Larry J. Briggs appeals from his jury conviction and sentence for involuntary manslaughter.

On December 3, 1994, 81-year-old Verneta Stallings had slowly inched her car forward into an intersection when the car that Briggs was driving crashed into the driver's side of her car, killing her.

While investigating the accident, Officer David Maness noticed the odor of alcohol on Briggs' breath. Officer Maness asked Briggs to perform several sobriety tests. During the one-leg test, Briggs had to use his arms to maintain his balance. Officer Maness also noted that Briggs' speech was slurred and his eyes were bloodshot. Briggs admitted to Officer Maness that he had drunk a quart of beer while working on a car that afternoon. Briggs was arrested for driving under the influence of alcohol. Due to his injuries, Briggs was taken to the hospital where he consented to having a blood test done.

Susan Hein, a medical technologist at the hospital, analyzed Briggs' blood. Hein testified that serum was used for the blood alcohol test rather than whole blood or plasma. Hein testified further that in determining Briggs' alcohol concentration, the machine that she used for the test, the Dupont Automatic Clinical Analyzer (ACA), was reliable and the procedure that she used to do the test was commonly accepted in the scientific community and commonly used in laboratories throughout Kansas.

Defense counsel objected to the admission of the blood serum test results on the basis that the testing procedure that was used did not meet the standard for admissibility. Defense counsel submitted no evidence on this issue, but cited People v. Campbell, 73 N.Y.2d 481, 483-86, 541 N.Y.S.2d 756, 539 N.E.2d 584 (1989), in which the court held that the State had failed to establish that the Dupont ACA was reliable in determining blood alcohol content. The district court overruled Briggs' objection.

Hein testified that the test results indicated that Briggs' blood alcohol concentration was .155. On cross-examination, when defense counsel asked Hein about the relative concentration of alcohol in whole blood as opposed to serum, she stated: "[T]he alcohol present in the blood I believe is pretty much the same. The reason we remove the cellular material is not because the concentration is different; it's because the cells interfere with the testing procedure." Hein testified further that she believed the "concentration [to be] the same in the red cells as it is in the serum." Hein also testified that although she could test whole blood, the cellular matter would be broken up first and then removed, leaving only the red cells and the plasma; "[i]t's not whole blood any more."

For a conviction of involuntary manslaughter, the district court instructed the jury that the State had to establish that Briggs was driving under the influence of alcohol by proving that he had operated a vehicle with a blood alcohol concentration of .08 or more.

The jury found Briggs guilty of involuntary manslaughter. Prior to sentencing, Briggs filed a notice of error in the criminal history worksheet, arguing that his prior municipal conviction for driving under the influence should not be counted in his criminal history because it was on appeal and still pending before this court. Following a hearing, the district court held that the prior conviction could be counted in Briggs' criminal history notwithstanding the pending appeal. The district court sentenced Briggs to a prison term of 52 months.

Briggs argues that the evidence presented at trial is insufficient to support his conviction for involuntary manslaughter, that the jury instruction on the elements of involuntary manslaughter was erroneous, and that the district court erred in including his previous municipal conviction for driving under the influence in his criminal history as a person felony.

Sufficiency of the Evidence

In order to find Briggs guilty of involuntary manslaughter, the jury was required to find that he was guilty of driving under the influence of alcohol. See K.S.A. 21-3404(b). K.S.A.1996 Supp. 8-1567(a)(2) provides that no person shall operate any vehicle when "the alcohol concentration in the person's blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more." Briggs argues that the evidence of the alcohol level in his blood serum was insufficient to establish that the alcohol level in his blood was .08 or more.

"When the sufficiency of the evidence is challenged in a criminal case, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt." State v. Knighten, 260 Kan. 47, 52, 917 P.2d 1324 (1996).

See State v. Price, 233 Kan. 706, 712-13, 664 P.2d 869 (1983).

There is no published Kansas appellate court case addressing the use of the alcohol level in serum or plasma to prove blood alcohol concentration. In City of Abilene v. Hall, 202 Kan. 636, 640, 451 P.2d 188 (1969), the court stated the general principles of testing for blood alcohol content. The Hall court held that a properly educated medical technologist has the necessary qualifications to evaluate chemical tests for alcoholic content of blood. 202 Kan. at 640, 451 P.2d 188.

The Hall court adopted the following rule:

"[T]he fact there may be some disagreement on the part of a few in the scientific and medical community as to the reliability of a particular test method is a matter affecting the weight of such evidence and not its admissibility. [Other courts] have held such evidence admissible as long as a qualified expert witness testifies that the particular test method employed in a given case is reliable and accurate in his opinion, and also that it is generally accepted as such by other experts in the field." 202 Kan. at 641, 451 P.2d 188.

On appeal, Briggs cites Com. v. Wanner, 413 Pa.Super. 442, 450, 605 A.2d 805 (1992), where the court held that evidence of the amount of alcohol in a person's plasma was not sufficient to support a conviction. The Wanner court quoted extensively from Com. v. Bartolacci, 409 Pa.Super. 456, 458-59, 598 A.2d 287 (1991), where the court required a conversion of the blood serum, and an expert testified that "when serum blood is tested the results will show a blood alcohol content which can range from between 10 to 20 percent higher than a test performed on whole blood."

In Melton v. State, 597 N.E.2d 359 (Ind.App.1992), an alcohol content test was performed using a Dupont ACA, which indicated a blood alcohol content of .167; however, the State failed to present any evidence of conversion, and the technician could not indicate a blood alcohol rating. The Melton court held that the evidence was insufficient to prove the amount of alcohol in the defendant's blood. 597 N.E.2d at 361. Melton can be distinguished from this appeal because Hein testified that blood alcohol concentration and serum alcohol concentration are about the same.

Other jurisdictions have discussed how the blood alcohol concentration in serum differs from that in whole blood. See State v. DesLaurier, 32 Conn.App. 553, 562, 630 A.2d 119 (1993) (noting that a serum alcohol concentration of .179 converted into a whole blood concentration of .158); State v. Koch, 115 Idaho 176, 178-79, 765 P.2d 687 (1988) (a test of the serum with the proper conversion was admissible); People v. Menssen, 263 Ill.App.3d 946, 953, 201 Ill.Dec. 669, 636 N.E.2d 1101, appeal denied 158 Ill.2d 561, 206 Ill.Dec. 842, 645 N.E.2d 1364 (1994) (holding that serum test results could predictably be anywhere from 12 percent to 20 percent higher...