State v. Price

• Decision Date: 28 December 2006
• Docket Number: No. 2005 KA 2514.,2005 KA 2514.
• Parties: STATE of Louisiana v. Derick P. PRICE.
• Court: Court of Appeal of Louisiana — District of US

952 So.2d 112

STATE of Louisiana v. Derick P. PRICE.

No. 2005 KA 2514.

Court of Appeal of Louisiana, First Circuit.

December 28, 2006.

Hon. Charles C. Foti, Jr., Attorney General, Kristi D. Hagood, Assistant Attorney General, Baton Rouge, Counsel for Appellee State of Louisiana.

M. Michele Fournet, Baton Rouge, Counsel for Defendant/Appellant Derek P. Price.

Before: CARTER, C.J., WHIPPLE, PARRO, KUHN, GUIDRY, PETTIGREW, DOWNING, GAIDRY, McDONALD, McCLENDON, HUGHES and WELCH, JJ.

KUHN, J.

The defendant, Derek P. Price,¹ was indicted by a grand jury for vehicular homicide, a violation of La. R.S. 14:32.1. With counsel present, the defendant entered a plea of not guilty. Following a jury trial, the defendant was found guilty as charged. The defendant filed motions for post-verdict judgment of acquittal and new trial, which were denied. The defendant was sentenced to seven years at hard labor, with the first year of the sentence to be served without benefit of probation, parole, or suspension of sentence. The defendant filed a motion to reconsider sentence, which was denied. The defendant now appeals, asserting five assignments of error. We affirm the conviction and sentence.

FACTUAL AND PROCEDURAL BACKGROUND

The testimony of several witnesses at trial established that at about 2:10 a.m. on March 9, 2003, the defendant, after drinking at a nightclub in Chauvin, Terrebonne Parish, drove his truck on La. Highway 56, lost control, and wrecked. Brittany Porche, the passenger in the defendant's pickup truck, was ejected from the truck and died shortly thereafter from her injuries.

Late March 8 and into the early morning of March 9, 2003, a group of friends were drinking at Club Outrageous in Chauvin. Among this group were the defendant, Porche, Kenny Luke, Douglas Luke, Skyla Bouquet, Jake Peltier, Paul Babin, Paul Domangue, and Kayla Britt. Kenny Luke, Douglas Luke, Peltier, Domangue, and Babin all testified that they saw the defendant drinking at the club. When the club closed at 2:00 a.m., the group gathered in the parking lot across the street. While in their respective vehicles, the defendant and Peltier began "brake-talking."² Kenny Luke was in the back of the defendant's truck while the defendant was "brake-talking." Douglas Luke, Kenny's older brother, testified that he pulled Kenny out of the defendant's truck because he did not think that the defendant was fit to drive.

Eric Dumond was driving past Club Outrageous with Jaclyn Duncan and Shaun Lassere. According to the testimony of these three witnesses, they saw a truck do a "doughnut" as it was pulling onto the highway. The truck got directly behind Dumond and followed him. Shortly thereafter, the truck passed Dumond. As the truck was passing, it continued to veer to the left. The truck went off the road, hit a culvert, became airborne, hit a telephone pole, and flipped several times before coming to rest on its side.

Mathew Chatagnier testified that he had not been at the club that night, but stopped by, while on his way to work, to see his girlfriend in the parking lot. Chatagnier saw a truck "brake-talking." He noticed there was a female passenger in the truck. Later, when he was driving down the highway, he heard a loud crack and then saw a truck on his left flipping past him. He went to the scene of the accident and saw a male and female lying on the road and called 911.

Joey Lirette testified that he was working at the club that night as a deejay and that he saw a truck in the parking lot spinning its tires and doing a "doughnut." When the truck got on the road, Lirette saw the truck do another "doughnut" and after almost going into the ditch, the truck "took off down the road." A few minutes later, Lirette came upon the scene of the accident. Lirette testified that the wrecked truck was the same truck he saw spinning its tires and doing "doughnuts."

Porche was supposed to ride home with Babin, but decided to ride with the defendant because the defendant was driving alone. Porche also told Douglas Luke that she was going to ride with the defendant. Domangue and Chatagnier testified that they saw a female in the passenger's seat of the defendant's truck before he left, but could not identify her.

Joshua Rodrigue testified that he stopped by the club around 1:00 a.m. and left about a half-hour later because Troy, the friend he was riding with, had to leave. Rodrigue planned on returning to the club to meet his friends, including the defendant, who was one of his best friends. As Rodrigue was driving back to the club, he received a phone call from Porche, who was using the defendant's cell phone. Rodrigue testified that Porche was nervous and frantic during the call. Porche told Rodrigue that the defendant was "driving messed up" and that she was scared and she wanted the defendant to pull over. Rodrigue told her to tell the defendant to pull over and that he (Rodrigue) would come to pick her up. Rodrigue heard Porche say, "Derek, pull the f___ over. Derek pull over or I am jumping out." The phone then cut off.

State Trooper Clifton Dupre, II, testified that he was dispatched to the scene of the accident. Trooper Dupre saw the defendant's truck on its side, the defendant being tended to, and Porche lying on the ground incapacitated. Trooper Dupre heard the defendant tell his mother that he did not understand why Porche was in his truck. He testified that he detected a strong odor of alcohol on the defendant's breath and that the defendant's speech was a little slurred. At Terrebonne General Medical Center, Trooper Dupre instructed Barbara Cheramie, a registered nurse, to draw blood from the defendant. Upon completion of the defendant's specimen kit, Trooper Dupre turned it over to Troop C of the Louisiana State Police the following morning. The blood sample was then sent to the State Police Crime Lab. The crime lab report indicated the defendant's blood alcohol concentration was .25 percent. Trooper Dupre also testified that he obtained the defendant's cell phone records, which indicated that a phone call was made from the defendant's cell phone to Rodrigue's cell phone at 2:10 a.m. on March 9, 2003.

Dr. Felix Mathieu testified that Porche died from a ruptured liver with massive internal hemorrhaging. He stated that Porche's injuries were consistent with being ejected from a vehicle and probably being crushed by the overturning vehicle, given the fairly-well localized injury to the liver area, as well as the external bruising. Dr. Mathieu took a blood sample from Porche and determined that her blood alcohol concentration was .15 percent. Dr. Amita Adhvaryu testified that the defendant was brought to the emergency room of Terrebonne General Medical Center, where he was treated for a broken leg and fractured vertebrae.

The defendant did not testify.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the defendant argues the evidence was insufficient to support the conviction of vehicular homicide. Specifically, the defendant contends that the State failed to prove a causal connection between his intoxication and Porche's death. The defendant further contends that the State did not prove beyond a reasonable doubt that he was driving instead of Porche.

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider "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 560 (1979). See also La.Code Crim. P. art. 821(B); State v. Mussall, 523 So.2d 1305, 1308-09 (La.1988). The Jackson v. Virginia 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, in order to convict, the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585, p. 5 (La.App. 1st Cir.6/21/02), 822 So.2d 141, 144.

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. State v. Taylor, 97-2261, pp. 5-6 (La.App. 1st Cir.9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342, p. 8 (La.10/17/00), 772 So.2d 78, 83.

Louisiana Revised Statutes 14:32.1 provides in pertinent part:

A. Vehicular homicide is the killing of a human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance, whether or not the offender had the intent to cause death or great bodily harm, whenever any of the following conditions exists:

(1) The operator is under the influence of alcoholic beverages as determined by chemical tests administered under the provisions of R.S. 32:662.

(2) The operator's blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.

Under the vehicular homicide statute, "the state . . . must prove that an offender's unlawful blood alcohol concentration combined with his operation of a vehicle to cause the death of a human being." State v. Taylor, 463 So.2d 1274, 1275 (La.1985). It is insufficient for the State to prove merely that the alcohol consumption "coincides" with the accident. Taylor, 463 So.2d at 1275. Causation is a question of fact that has to be considered...