State v. Simmons
| Decision Date | 06 October 2021 |
| Docket Number | No. 54,026-KA,54,026-KA |
| Parties | STATE of Louisiana, Appellee v. Brynton Kelli SIMMONS, Appellant |
| Court | Court of Appeal of Louisiana — District of US |
WHITLEY R. GRAVES, APLC, By: Whitley Robert Graves, Benton, Counsel for Appellant
JOHN SCHUYLER MARVIN, District Attorney, HUGO A. HOLLAND, JR., JOHN MICHAEL LAWRENCE, Assistant District Attorneys, Counsel for Appellee
Before PITMAN, STONE, and STEPHENS, JJ.
This criminal appeal arises from the Twenty-Sixth Judicial District Court in Webster Parish, the Honorable Michael O. Craig presiding. The defendant, Brynton Kelli Simmons ("Simmons"), was convicted by a unanimous jury of vehicular homicide, as defined by La. R.S. 14:32.1, and was sentenced to 8 years at hard labor with credit for time served from the date of arrest. The defendant now appeals.
For the following reasons, Defendant's conviction and sentence are affirmed.
On October 28, 2016, the defendant, Simmons, and the victim, Kelly Birdwell ("Birdwell"), had a head on collision on LA 157 near the center of the road. Both vehicles were found on the wrong sides of the road, and Birdwell died as a result of the injuries sustained in the crash. The defendant, Simmons, was taken to the hospital for treatment of the injuries he sustained in the crash and received 10 units of morphine
and two Percocet pills from medical personnel. The defendant also had alcohol and four other drugs in his system which were not administered by medical personnel; to wit: diazepam, fluoxetine, tramadol, and dextromethorphan.
At the hospital, Trooper Glenn Allen Younger ("Younger") of the Louisiana State Police sought the defendant's consent for a blood test. Simmons refused twice, but eventually consented after Trooper Younger discussed the "pros and cons" of consenting and not consenting. The conversation included Trooper Younger telling the defendant that there could be "jail time" if he refused the test, and that the victim's family might be able to successfully sue the defendant in civil court if he could not prove that he was not inebriated.
Simmons’ blood was drawn by a hospital employee whose name tag bore the designation "RN." Trooper Younger did not remember her exact name, but thought he remembered her name being "Ms. Adams." The defendant's counsel unsuccessfully filed a motion to suppress the blood sample.
At trial, Trooper Younger and Trooper Garrett Monroe testified that they believed a warrant was not necessary because the defendant consented. Both state troopers testified that the defendant was alert, coherent and in his right frame of mind and correctly gave the day of the week and his name. Also, both troopers testified that the defendant gave no sign that the morphine
he received from the ambulance personnel affected his ability to understand.
Three trial witnesses who responded to the scene of the accident testified to smelling alcohol inside Simmons’ vehicle. The State introduced evidence that the defendant had alcohol and four different drugs in his system and was driving over the center line of the highway at a speed of 70 mph in a 55-mph zone. The State introduced evidence that the defendant's blood alcohol concentration was .07% when his blood was drawn, but testimony from experts in blood alcohol testing concentration and forensic toxicologists estimated that the defendant's blood alcohol concentration was .09 to 0.12% two hours before his blood was drawn and at the time the accident occurred.1
Additionally, the State introduced the defendant's black box data at trial. The black box recorded the last five seconds before impact. For the first three seconds Simmons traveled straight, then suddenly he veered right and then to his left. The trial court accepted Trooper Verhoef as an accident reconstruction expert. Trooper Vehoef testified that the defendant's veer to his right was consistent with trying to avoid a hazard in his lane of travel.
Simmons called Dr. Jeffrey Bennett ("Bennett") as an expert witness. The trial court accepted Dr. Bennett as an expert in pharmacology, but rejected him as an expert in retrograde blood alcohol analysis.
Simmons enumerates four assignments of error, but there are actually five: (1) the evidence was insufficient to convict him because it did not disprove the reasonable hypothesis that the collision was caused by Kelly Birdwell swerving into Simmons’ lane; (2) the trial court erred in denying the pre-trial motion to suppress the blood sample; (3) the trial court erred in allowing testimony concerning the blood sample when the person who drew the blood sample did not testify to her qualifications under La. R.S. 32:664 ; (4) the trial court erred in allowing testimony concerning the blood samples because they were not introduced at trial; and (5) the trial court erred in refusing to recognize Dr. Bennett as an expert in retrograde blood alcohol concentration analysis.
Simmons argues that the evidence at trial was insufficient to support his conviction because it did not disprove the reasonable hypothesis that the collision was caused by Birdwell swerving into Simmons’ lane.
The standard of review for the sufficiency of the evidence to uphold a conviction is whether 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) ; State v. Tate , 01-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied , 541 U.S. 905, 124 S. Ct. 1604, 158 L.Ed. 2d 248 (2004) ; State v. Ward , 50,872 (La. App. 2 Cir. 11/16/16), 209 So. 3d 228, writ denied , 17-0164 (La. 9/22/17), 227 So. 3d 827. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Ward , supra ; State v. Dotie , 43,819 (La. App. 2 Cir. 1/14/09), 1 So. 3d 833, writ denied , 09-0310 (La. 11/6/09), 21 So. 3d 297. On appeal, a reviewing court must view the evidence in the light most favorable to the prosecution and must presume in support of the judgment, the existence of every fact the trier of fact could reasonably deduce from the evidence. Jackson , supra .
The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So. 2d 442 ; State v. Ward , supra . A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Ward , supra ; State v. Eason , 43,788 (La. App. 2 Cir. 2/25/09), 3 So. 3d 685, writ denied , 09-0725 (La. 12/11/09), 23 So. 3d 913.
The Jackson , supra , standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton , 436 So. 2d 471 (La. 1983) ; State v. Ward , supra ; State v. Speed , 43,786 (La. App. 2 Cir. 1/14/09), 2 So. 3d 582, writ denied , 09-0372 (La. 11/6/09), 21 So. 3d 299.
To convict a defendant based upon circumstantial evidence, every reasonable hypothesis of innocence must be excluded. La. R.S. 15:438 ; State v. Barakat , 38,419 (La. App. 2 Cir. 6/23/04), 877 So. 2d 223. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Burd , 40,480 (La. App. 2 Cir. 1/27/06), 921 So. 2d 219, writ denied , 06-1083 (La. 11/9/06), 941 So. 2d 35.
At the time of the defendant's arrest, the statute defining vehicular homicide, La. R.S. 14:32.1 provided, in pertinent part:
The defendant, in effect, argues that the evidence was insufficient to prove beyond a reasonable doubt that he proximately caused the victim's death (as required by La. R.S. 14:32.1(A)(1) ) because the evidence creates a reasonable hypothesis that the victim swerved into his lane first.
As previously mentioned, Trooper Vehoef testified that the defendant's veer to his right was consistent with trying to avoid a hazard in his lane of travel. However, Trooper Verhoef's testimony does not bear any indication that it was the victim swerving into defendant's lane that caused him to veer right. For example, the...
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