State v. Thomas

• Decision Date: 09 June 2006
• Docket Number: No. 2005 KA 2210.,2005 KA 2210.
• Citation: 938 So.2d 168
• Parties: STATE of Louisiana v. James THOMAS.
• Court: Court of Appeal of Louisiana — District of US

938 So.2d 168

STATE of Louisiana v. James THOMAS.

No. 2005 KA 2210.

Court of Appeal of Louisiana, First Circuit.

June 9, 2006.

Rehearing Denied August 22, 2006.

COPYRIGHT MATERIAL OMITTED

Camille A. Morvant, II, District Attorney, Steven M. Miller, Assistant District Attorney, Thibodaux, for the State of Louisiana.

Mary E. Roper, Baton Rouge, for Defendant-Appellant James Thomas.

Before: KUHN, GUIDRY, and PETTIGREW, JJ.

PETTIGREW, J.

The defendant, James Thomas, was charged by bill of information with vehicular homicide (count one) and fourth or subsequent offense DWI (count two), violations of La. R.S. 14:32.1 and La. R.S. 14:98. The defendant entered a plea of not guilty. The charges were severed, and count two was ultimately nol prossed by the State. After a trial by jury, the defendant was found guilty of vehicular homicide. The defendant was sentenced to 20 years imprisonment at hard labor. The trial court ordered that the first year of the sentence be served without the benefit of parole. The defendant was then adjudicated a fourth felony habitual offender. The trial court vacated the previously imposed sentence and sentenced the defendant to 40 years imprisonment at hard labor. The trial court denied the defendant's motion for reconsideration of sentence. The defendant now appeals, arguing that the evidence is insufficient to support the conviction and that La. R.S. 15:529.1 is unconstitutionally vague. For the following reasons, we affirm the conviction of vehicular homicide, reverse the habitual offender adjudication, vacate the habitual offender sentence, reinstate the sentence on vehicular homicide, and remand for further proceedings on the habitual offender bill.

STATEMENT OF FACTS

On or about February 14, 2004, at approximately 8:30 p.m., Officers Brook Angelette and Kurt Landry (both of the Greater Lafourche Port Commission Harbor Police) left their office in separate police units to conduct street patrol. The two officers were responding to an electrical power outage that had just occurred in the area. After receiving a dispatch regarding a utility pole, the officers headed toward Louisiana Highway 1 in Lafourche Parish. The officers promptly arrived at the scene of a downed utility pole and electrical wires lying across the highway. Traffic was stalled due to the downed pole and wires. The officers observed an overturned (upside down) 1985 GMC Jimmy utility-style vehicle in a body of water located off the shoulder of Louisiana Highway 1, just south of Louisiana Highway 39. An adult male and a male child (the defendant and his eight-year-old son) walked up the bank toward the highway. The officers asked the defendant if anyone else was in the vehicle, and the defendant informed them that his daughter (the eight-year-old victim) was still in the vehicle. The officers ran into the water toward the vehicle. They ultimately pulled the victim, who was restrained in the front passenger seat at the time of their approach, out of the vehicle and took her to the shoulder of the highway.¹

Officer Angelette attempted to perform CPR on the victim but could not detect any vital signs. The autopsy revealed the victim's cause of death to be a broken neck and severed spinal column, injuries consistent with the victim having been a restrained guest passenger in a vehicle that was involved in a high-impact collision. The defendant's blood-alcohol concentration, determined from a blood sample taken at 10:50 p.m. (on the night of the accident) at Terrebonne General Medical Center, was .24 grams percent.

ASSIGNMENT OF ERROR NUMBER ONE

In the first assignment of error, the defendant avers that the evidence presented herein was insufficient to support the conviction. The defendant concedes that he drove his vehicle off the highway and that the accident resulted in the death of the victim. The defendant argues, however, that the causation element of the offense was not proven. The defendant notes that the traversed area was under construction and argues that posted signs did not provide adequate response time to a bump in the highway. The defendant avers had he been sober, due to the road conditions, the accident still could have occurred. The defendant further notes that the accident occurred on a windy night and that his vehicle, a sports utility vehicle, was "top heavy." The defendant concludes that the circumstances indicated that forces other than the defendant's intoxication could have caused the accident.

In reviewing the sufficiency of the evidence to support a conviction, a Louisiana appellate court is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). That standard of appellate review, adopted by the Legislature in enacting La.Code Crim. P. art. 821 (pertaining to motions for post verdict judgment of acquittal based on insufficiency of evidence), is whether the evidence, when viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. State v. Brown, 2003-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18. The Jackson standard of review 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 trier of fact must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Graham, 2002-1492, p. 5 (La.App. 1 Cir. 2/14/03), 845 So.2d 416, 420.

Vehicular homicide is defined in La. R.S. 14:32.1, in pertinent part, as follows:

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.

In State v. Taylor, 463 So.2d 1274, 1275 (La.1985), the Louisiana Supreme Court concluded that, under the vehicular homicide statute, "the [S]tate . . . 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." See also State v. Ritchie, 590 So.2d 1139, 1149 (La.1991) (on rehearing). It is insufficient for the State to prove merely that the alcohol consumption "coincides" with the accident. Taylor, 463 So.2d at 1275. The vehicular homicide statute does not impose criminal liability based solely on the coincidental fact that the fatal accident occurred (without fault on the part of the accused) while the accused was operating a vehicle under the influence of alcohol. Ritchie, 590 So.2d at 1149. Compare State v. Archer, 619 So.2d 1071, 1074 (La.App. 1 Cir.), writ denied, 626 So.2d 1178 (La.1993). Causation is a question of fact that should be considered in light of the totality of circumstances surrounding the ultimate harm and its relation to the actor's conduct. State v. Kalathakis, 563 So.2d 228, 231 (La.1990); State v. Trahan, 93-1116, p. 11 (La.App. 1 Cir. 5/20/94), 637 So.2d 694, 701.

State witness J.T. (the defendant's eight-year-old son) and the victim, were the occupants of the vehicle being driven by the defendant. J.T. indicated that at the time of the accident, the defendant was driving them from Gulfport, Mississippi, to Grand Isle, Louisiana. J.T. further testified that after initially leaving their home in Gulfport, the defendant returned home to retrieve his vodka before recommencing the trip. J.T. had fallen asleep in the back of the vehicle before the accident took place. He woke up after the vehicle overturned. J.T. indicated that the defendant assisted him out of the vehicle.

State witnesses Sergeant Richard Blanchard, an expert in accident reconstruction, and Louisiana State Trooper Donald R. Callais, Jr., reconstructed the instant accident. The scene of the accident consisted of a curved roadway located just past Louisiana Highway 39 (Fourchon Road). The officers examined the point of the departure of the vehicle from the highway and found no evidence of an abrupt exit. Sergeant Blanchard confirmed that the manner of departure from the highway was consistent with the driver being asleep or inattentive. The accident was reconstructed as follows.

The defendant was traveling in the southbound lane. The defendant traversed a milled section of the highway. The milled section, located along a curve, was an area that was being resurfaced. The surface of that particular portion of the highway had been grinded and chopped by a machine. A tapered area of joint or asphalt was located at the end of the milled area to provide a smooth transition to the normally surfaced portion of the highway. The milled area was approximately 93 feet long. After traversing the milled section of the highway, the defendant continued his travel in the southbound lane for approximately 115 feet. The defendant's vehicle then veered off the highway. After the vehicle exited the roadway, it began spinning or traveling sideways counterclockwise, consistent with abrupt steering. The vehicle ultimately crashed into a utility pole. The distance traveled after the departure from the highway to the point of impact was approximately 103 feet. After the vehicle struck the utility pole, it overturned and came to rest in the body of water.

During the cross-examination of Sergeant Blanchard and Trooper Callais, the defendant elicited testimony to show that an end...