State v. Sherer

• Decision Date: 01 March 1982
• Docket Number: No. 81-KA-1462,81-KA-1462
• Citation: 411 So.2d 1050
• Parties: STATE of Louisiana v. Joseph N. SHERER.
• Court: Louisiana Supreme Court

Page 1050

411 So.2d 1050

STATE of Louisiana v. Joseph N. SHERER.

No. 81-KA-1462.

Supreme Court of Louisiana.

March 1, 1982.

Rehearing Denied April 16, 1982.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Sturgeon, Dist. Atty., Glenn Gremillion, Ronald J. Kilgarlin, Asst. Dist. Attys., for plaintiff-appellee.

Philip A. LeTard, Vidalia, for defendant-appellant.

BOUTALL, Justice Ad Hoc. ¹

Joseph N. Sherer was convicted and sentenced on two counts of the crime of negligent homicide, LRS 14:32. Subsequently, he was charged and sentenced under the Habitual Offender Law, LRS 15:529.1. He appeals both his conviction and sentence.

The record shows that in the early morning hours of June 16, 1976, Joseph N. Sherer was driving his truck on Highway 84 near Ferriday, Louisiana, when he crossed the center line of the highway and crashed headon into a vehicle being driven in the opposite direction by Mrs. Eloise Killingsworth. Both Mrs. Killingsworth and her passenger, Wanda Sue Burnham, were killed in the accident. Sherer was subsequently charged with two counts of negligent homicide and convicted by a six-man jury. His convictions were affirmed by this court, State v. Sherer, 354 So.2d 1038 (La.1978). While serving his term of imprisonment, Sherer applied for and received a new trial on the basis of the holding in Brown v. Louisiana, 447 U.S. 323, 100 S.Ct. 2214, 65 L.Ed.2d 159 (1980). In that case, the United States Supreme Court retroactively applied the holding in Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), which held that a five to one verdict convicting a defendant of a non-petty offense violated the constitutional guarantee of jury trial. The new trial was held in December, 1980, and ended with a unanimous jury verdict on both counts of negligent homicide. The trial judge sentenced Sherer to serve five years at hard labor on each count, the sentences to run consecutively. The state then filed a bill of information charging Sherer as an habitual offender with two prior felony convictions. The judge then pronounced sentence on the habitual offender bill ordering Sherer's confinement for five additional years on each count to run consecutively with each of the other two sentences, making a total of twenty consecutive years. Sherer has appealed asserting nine assignments of error.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial court erred in failing to suppress the results of the blood alcohol test pursuant to his motion to suppress. He contends that the requirements of LRS 32:661 were not met in that he was not under arrest at the time of the test, that he had not consented to the test, and that being in Mississippi at the time, the Louisiana State Trooper had no authority to order the taking of the blood, and that the blood sample was not properly handled.

A similar contention was made in the appeal from the defendant's first trial, State v. Sherer, 354 So.2d 1038 (La.1978). We perceive nothing in the record before us which would change the basic facts and legal principles enunciated in that decision. We reiterate that the facts show that the defendant was arrested within the scope of the statute, that he was rendered unconscious at the time of the accident and remained unconscious at the hospital, a condition rendering him incapable of refusal to submit to the blood test and accordingly not having withdrawn the implied consent statutorily provided in LRS 32:661(B). It would be a miscarriage of justice indeed, if the act of mercy in having the injured defendant brought to a nearby hospital in Mississippi in an effort to preserve his life could be the basis for suppressing the evidence of the blood test. The evidence shows the blood sample was taken in accordance with Louisiana procedures and the motion to suppress was properly refused. Although the prior Sherer case was not on a motion to suppress, the same principles apply. We find no error in this assignment.

ASSIGNMENT OF ERROR NO. 2

Defendant asserts that the trial court erred in failing to grant his motion to quash the indictment based on the unconstitutionality of the Louisiana Negligent Homicide Statute, LRS 14:32. He contends that he has been denied his Fourteenth Amendment right to due process of law because the statute creates an unconstitutional criminal presumption that the violation of a statute or ordinance causes him to be presumed criminally negligent, thus allowing the state to secure a conviction without proving every element of the crime beyond a reasonable doubt as required under the principles announced by the United States Supreme Court in the case of In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

The pertinent part of LRS 14:32 provides:

"Negligent homicide is the killing of a human being by criminal negligence.

The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence."

Defendant refers us to the decision of the United States District Court, Western District of Louisiana, in the case entitled Hammontree v. Phelps, 462 F.Supp. 366 (W.D.La.1978), and urges that we should adopt the opinion of the trial judge holding that this provision violated due process because it created an unconstitutional presumption that violation of a statute constitutes criminal negligence. However, we point out that that decision has been reversed on appeal in the case of Hammontree v. Phelps, 605 F.2d 1371 (U.S.App. 5th Cir. 1979). The Louisiana Supreme Court had previously rendered a decision, State v. Hammontree, 363 So.2d 1364 (La.1978), in which this court clarified the construction to be placed on the statute. We quote at page 1372:

"The better interpretation of 'presumptive evidence' in R.S. 14:32 is that it creates no legal presumption, but means that the violation of a statute related to the cause of the accident will justify the inference that defendant committed a criminally negligent act. To constitute 'criminal negligence,' the offender's conduct must be a gross deviation below the standard expected of a reasonably careful man. R.S. 14:12. Reasonably careful men are expected to obey safety laws, and it is within the province of the legislature to permit the inference that one who violates a safety law and thereby injures another is guilty of criminal negligence; and if it is proved beyond a reasonable doubt that the criminal negligence was the cause of death, the perpetrator may be guilty of criminal homicide."

Relying upon this definition, the Fifth Circuit concluded that the statute did not shift any constitutional burden from the prosecution to the defendant and reverse the finding of unconstitutionality of the District Court. Similarly, we believe our interpretation of presumptive evidence contained in Hammontree is constitutionally correct and reiterate it in this case. Accordingly, we find that LRS 14:32 is not in violation of either the Louisiana or United States constitution.

In the alternative under this assignment of error, defendant argues that the manner in which the state was allowed to introduce evidence concerning levels of intoxication denied him his Fourteenth Amendment right to due process of law. The defendant argues that the state was allowed to show that a person with a .27% of alcohol in his blood was far above the percentage needed for a conviction of driving while intoxicated, and reasons that this led to a presumption by the jury that the defendant must be guilty of criminal negligence, a fact which was not proved beyond a reasonable doubt.

The state presented experts to testify that the defendant's blood did contain .27% by weight of alcohol, and that a person would be unable to operate machinery when the alcohol in his blood was much lower. Additionally, the state introduced testimony of the eye witnesses to the accident as well as the investigating officer and others, all of which tended to establish that the defendant was clearly guilty of criminal negligence. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

This assignment is directed to a state trooper being allowed to testify how the accident occurred, the trooper not having been presented as a reconstruction of accident expert and not having first hand knowledge of how the accident occurred.

The state examined the trooper, Johnny Blunschi, and established his qualifications as an expert witness; however, he was not formally tendered nor accepted as an expert in accident reconstruction. The evidence showed that Trooper Blunschi had been employed for nine years by the Louisiana State Police. He had completed the State Police Training Academy and received a certificate in Traffic Police Administration from Northwestern University in Chicago. Since 1972, he had been instructing accident investigation and reconstruction at the State Police Academy in Baton Rouge. Before becoming a member of the State Police, he had obtained the equivalent of an associate degree in law enforcement from Memphis State University. Prior to this trial, he had testified on two occasions as an expert in accident reconstruction, and had testified on numerous occasions as a factual witness.

During the trooper's examination, the defense did not object until the State asked the witness how the vehicle involved in the accident could have gotten into a certain position. When defense counsel objected on the basis that the witness was not qualified to answer the question, the court overruled the objection.

The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert, his competency must have been established to the satisfaction of the court, LRS 15:466. This court has consistently held that the competence of an expert witness is a question of fact to be determined within the sound discretion of the trial judge. His...