State v. Jones
| Decision Date | 24 September 2004 |
| Docket Number | No. 2003 KA 1345.,2003 KA 1345. |
| Citation | 888 So.2d 885 |
| Parties | STATE of Louisiana v. Daniel J. JONES. |
| Court | Court of Appeal of Louisiana — District of US |
Rehearing Denied December 28, 2004.1
Walter P. Reed, District Attorney, Parish of St. Tammany, Covington, Dorothy Pendergast, Metairie, Counsel for Plaintiff/Appellee State of Louisiana.
John W. Lindner, II, Appellate Attorney, Covington, Counsel for Defendant/Appellant Daniel J. Jones.
Before: CARTER, C.J., FOIL, WHIPPLE, PARRO, FITZSIMMONS, KUHN, GUIDRY, PETTIGREW, DOWNING, GAIDRY, McDONALD, and McCLENDON, JJ.
This court has considered the appeal of defendant-appellant, Daniel Jones, en banc, and all twelve of the judges of this court have participated. Louisiana Constitution Art. V, § 8B requires that "[a] majority of the judges sitting in a case must concur to render judgment." Since six of the twelve judges agree to the affirmance of the conviction while six would reverse, there is no majority concurring to render judgment in this case. Accordingly, the judgment of conviction and the sentence stand.
CONVICTION AND SENTENCE STAND.
McCLENDON, J., concurs and assigns reasons by J. MICHAEL McDONALD, J.
GUIDRY, J., dissents and would reverse the conviction.
Defendant, Daniel J. Jones, was charged by bill of information with one count of fourth offense driving while intoxicated (hereinafter "DWI-fourth offense"), in violation of La. R.S. 14:98.2 The offense was alleged to have occurred on June 29, 2002. Defendant entered a plea of not guilty. After a trial by a jury, defendant was found guilty as charged and was sentenced to twenty years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. In addition the trial court imposed a fine of $5,000.00 and ordered defendant's vehicle forfeited. The trial court denied defendant's motion to reconsider sentence.
Defendant appeals, urging the following assignments of error warrant reversal of his conviction and sentence:
Finding no merit in these assignments of error, I would affirm defendant's conviction and sentence.
At about 11:15 P.M. on June 29, 2002, Pearl River Police Department Deputy Corey Crow was dispatched to assist a motorist on State Highway 41. On her way to work, police dispatcher Barbara Crawford had observed a white male slumped over the steering wheel of a silver Kia that was pulled off on the shoulder of the highway, just barely off the road. No one else was in or around the car and there were no other vehicles in the vicinity. She thought the driver might be having a medical emergency. When she arrived at the station, only about one and one half miles away, she asked Deputy Crow and reserve Officer Edgar Legman to investigate. Officer Legman left immediately to investigate.
When Officer Legman arrived on the scene, just moments later, defendant Daniel J. Jones was getting out of the driver's side of the Kia and staggering toward a sports utility vehicle (SUV) parked nearby. At this point, the Kia was in a different location, about twenty-five feet off the roadway, stuck in mud. Defendant tried to get into the passenger side of the SUV, but Officer Legman advised him that he could not leave. The driver of the SUV then drove off, leaving defendant on the shoulder of the road. Defendant told Officer Legman that he was trying to get his vehicle out of a ditch and that his girlfriend had been driving.
When Deputy Crow arrived to take over the investigation shortly thereafter, defendant was sitting in the driver's seat of the Kia, with the driver's side door open. Defendant appeared intoxicated and Deputy Crow read him his Miranda rights. When asked if he had been drinking, defendant admitted that he had a couple of beers earlier, had been at a friend's house swimming, and was headed home. Defendant had a Kia uniform shirt on and indicated that he was purchasing the Kia. At no time did he suggest to Deputy Crow that anyone else had been driving the vehicle. Officer Crow understood from his exchange with defendant that defendant had driven the car into the ditch on the side of the road.
Officer Crow called for assistance from the State police DWI patrol. State Trooper Greg Vogt was dispatched to assist. Trooper Vogt observed defendant staggering, with watery bloodshot eyes, slurred speech, and a strong odor of alcohol coming from his breath. After defendant failed a field sobriety test, he was placed under arrest and advised of his Miranda rights. Trooper Vogt asked defendant how his vehicle ended up off the roadway. Defendant answered that he was driving from a friend's house and just "ran off the road." He also stated: He made no mention of anyone else operating the Kia.
After defendant was transported to the Pearl River Police Station, Trooper Vogt administered a chemical test for intoxication. Defendant admitted that he had been drinking and had consumed about five beers at home. He also indicated that he had taken a muscle relaxant. At this point, defendant changed his story and told Trooper Vogt that he had not been driving the Kia. He stated that a girl named Cindy had been driving, but he denied knowing where Cindy had gone. He did not describe "Cindy" as his girlfriend. When asked why he changed his story, defendant replied: "Well, I don't like lying, but I will say anything to keep me in the clear." The results of defendant's Breath Intoxilyzer Test showed a blood alcohol level of .216, more than twice the legal limit. Afterward, on the way to jail, he apologized to Trooper Vogt for lying and saying that someone named "Cindy" had been operating the vehicle.
Shonni Oswald, a probation officer for the Twenty-Second Judicial District Court for the Parish of St. Tammany, testified that she personally supervised defendant in connection with two separate misdemeanor DWI offenses in cases Nos. 189990 and 202761. Adam Stocks, another probation officer, identified documents showing defendant's release from incarceration on three previous DWI charges. The dates on the documents showed that not more than ten years elapsed between defendant's first conviction and this charge, excluding periods of incarceration. Stocks also testified that defendant was released on supervised probation on the most recent offense, No. 224540, with parole supervision scheduled to extend until December 2006. Finally, James Folks of the St. Tammany Parish Crime Laboratory testified that defendant's prints matched those of the defendant convicted in cases Nos. 224540 and 251957.3
In his first assignment of error, defendant claims that the evidence adduced by the State was insufficient to support his conviction of driving while intoxicated, fourth offense. Specifically, he argues that there was no evidence that he was operating a motor vehicle on the evening in question.
The standard of review for sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved the essential elements of the crime and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. See La.C.Cr.P. art. 821; State v. Johnson, 461 So.2d 673, 674 (La.App. 1st Cir.1984). The Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), standard of review incorporated in Article 821 is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. McLean, 525 So.2d 1251, 1255 (La.App. 1st Cir.), writ denied, 532 So.2d 130 (La.1988). However, when a case involves circumstantial evidence, and the trier of fact reasonably rejects the hypothesis presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1st Cir.), writ denied, 514 So.2d 126 (La.1987).
At all relevant times, Louisiana Revised Statute 14:98 A provided, in pertinent part:
In order to convict an accused of driving while intoxicated, the State need only prove that the defendant was operating a vehicle and that he was under the influence of alcohol. State v. Pitre, 532 So.2d 424, 428 (La.App. 1st Cir.1988), writ denied, 538 So.2d 590 (La.1989).
In his brief to this court, defendant does not contest the fact that he was intoxicated. Instead, he argues that the State failed to prove that he was operating a vehicle while under the influence of alcohol. Defendant insists that there was a reasonable hypothesis that someone other than defendant was driving the Kia and left in the SUV, so that there was insufficient evidence to prove beyond a reasonable doubt that he ever operated the vehicle.
The evidence adduced at trial shows that defendant was initially observed alone in the Kia, slumped...
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