Tims v. State

• Decision Date: 26 September 1997
• Docket Number: CR-96-0411
• Citation: 711 So.2d 1118
• Parties: John Wendell TIMS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1118

711 So.2d 1118

John Wendell TIMS v. STATE.

CR-96-0411.

Court of Criminal Appeals of Alabama.

Sept. 26, 1997.

Rehearing Denied Nov. 14, 1997.

Certiorari Denied March 13, 1998

Alabama Supreme Court 1970378.

D.E. Brutkiewicz, Jr., Mobile, for appellant.

Bill Pryor, atty. gen., and Joseph G.L. Marston III, asst. atty. gen., for appellee.

LONG, Presiding Judge.

The appellant, John Wendell Tims, was convicted of one count of murder, two counts of assault in the second degree, and seven counts of assault in the third degree. He was sentenced to 12 years' imprisonment for the murder count, to 5 years' imprisonment for each count of assault in the second degree, and to 1 year's imprisonment for each count of assault in the third degree. All the sentences were to run concurrently.

I.

The appellant contends that the evidence was not sufficient to support his conviction for murder.

The appellant was charged with, and was convicted of, violating § 13A-6-2(a)(2), Ala.Code 1975, which provides that "[a] person commits the crime of murder if ... [u]nder circumstances manifesting extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to a person other than himself, and thereby causes the death of another person." In arguing that there was insufficient evidence to support the murder conviction, the appellant contends that the state failed to prove that he acted recklessly, with extreme indifference to human life.

"In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485 (Ala.Cr.App.1984), aff'd, 471 So.2d 493 (Ala.1985). Furthermore, a judgment of conviction will not be set aside on the ground of insufficiency of the evidence unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the judgment is so decided as to clearly convince the reviewing court that it was wrong and unjust. Jackson v. State, 516 So.2d 726 (Ala.Cr.App.1985)."

Powe v. State, 597 So.2d 721, 724 (Ala.1991). Circumstantial evidence must be accorded the same weight as direct evidence. Linzy v. State, 455 So.2d 260, 262 (Ala.Cr.App.1984).

The evidence presented by the state tended to show the following: At about 11:00 a.m. on August 12, 1995, an automobile driven by the appellant collided with a van driven by Gwendolyn Grady near the George Wallace Tunnel in Mobile. There were 10 occupants in the van at the time of the collision. One occupant of Grady's van was killed as a result of the collision. Two other occupants of the van sustained serious physical injuries and seven occupants, including Grady, sustained less severe injuries. The appellant and a passenger in his automobile were also injured. Leonard Blanchard, an eyewitness to the events, testified that shortly before the collision, he was driving west on Interstate 10, just east of the George Wallace Tunnel, when he observed the appellant also driving west on I-10. Blanchard stated that the appellant appeared to be engaged in an animated argument with the passenger in his car and that he was looking at his passenger instead of the road. According to Blanchard, the appellant was driving erratically, weaving constantly and nearly hitting the wall at the entrance to the tunnel. Blanchard stated that once inside the tunnel, he slowed his own vehicle down in order to put some distance between himself and the appellant's car. He testified that the appellant's vehicle did not appear to be speeding or weaving while he was in the tunnel. However, just after exiting the west end of the tunnel, Blanchard said, the appellant accelerated his vehicle to approximately 70 miles per hour and again began to weave from lane to lane. The speed limit on this stretch of road was 55 miles per hour. Still apparently arguing with his passenger, the appellant crossed into the lane occupied by Grady's van and collided with her van a short distance beyond the west end of the tunnel. Both vehicles flipped several times.

Martha Ludgood, another eyewitness to the collision, testified that she saw the appellant's vehicle weaving between lanes and moving from the far left lane to the far right lane before hitting Grady's van. Ludgood stated that Grady's van appeared to be driving straight in its own lane of traffic at the time of the collision.

In the aftermath of the collision, the appellant was treated by emergency personnel at the scene and was then transported to a hospital. Larry Hearn, an accident investigator for the Mobile Police Department, testified that he saw two empty beer cans and four unopened beer cans inside the appellant's vehicle following the crash. Hearn stated that the appellant smelled of alcohol at the scene.

Arthur Campbell, a paramedic at the crash scene; Dr. John M. McMahon, Jr., the appellant's emergency room physician; and Fred Phelps, a registered nurse who tended to the appellant at the hospital, all testified that the appellant smelled of alcohol when they treated him and all testified that the appellant appeared to be under the influence of alcohol. Dr. McMahon testified that while he was treating the appellant after his arrival at the hospital, the appellant said, "I guess I really screwed up this time."

Dixie Sue Smith, a medical technologist at the hospital, testified that she performed a blood alcohol test on the appellant's blood plasma after blood was drawn from the appellant by Linda Risk, a phlebotomist at the hospital. Smith testified that after separating the appellant's blood in a centrifuge, she tested the blood plasma for alcohol content using an ACA-4 "chemistry analyzer" and found the appellant's blood plasma alcohol level to be .298% "by dilution," indicating "a great deal of alcohol [was] present." (R. 157.) The blood sample was drawn from the appellant approximately an hour and 15 minutes after the crash.

From the state's evidence--which tended to show that, at the time of the collision, the appellant was intoxicated and was operating his vehicle heedlessly and erratically and at an excessive speed--the jury could reasonably find that the appellant recklessly engaged in dangerous conduct under circumstances manifesting an extreme indifference to human life and that he thereby caused the death of another person. See Allen v. State, 611 So.2d 1188 (Ala.Cr.App.1992); Weaver v. State, 591 So.2d 535 (Ala.Cr.App.1991); Patterson v. State, 518 So.2d 809 (Ala.Cr.App.1987); Lofton v. State, 515 So.2d 137 (Ala.Cr.App.1987). "[Section] 13A-6-2(a)(2) 'embrace[s] those homicides caused by ... driving an automobile in a grossly wanton manner.' " Allen, 611 So.2d at 1190, quoting Northington v. State, 413 So.2d 1169, 1172 (Ala.Cr.App.1981) (emphasis in Allen ). Based on our review of the evidence in a light most favorable to the prosecution, we find that sufficient evidence was presented by the state to submit the case to a jury on the charge of murder under § 13A-6-2(a)(2).

Absent clear and convincing evidence to the contrary, this court will not reverse a jury's determination. Hoobler v. State, 668 So.2d 905 (Ala.Cr.App.1995). This case does not present such a situation.

II.

The appellant contends that the hospital records containing the results of the blood alcohol test administered by hospital personnel were effectively "seized" by the state, in violation, he says, of his Fourth Amendment rights, and that, therefore, those records were improperly admitted into evidence. The appellant argues that the state was required to, but did not, obtain a judicially approved warrant for the seizure of the hospital records and that the state's acquisition of the hospital records pursuant to a subpoena duces tecum ¹ issued to the hospital amounted to an illegal seizure.

The test for determining whether a person has a protected Fourth Amendment privacy interest is whether that person has a reasonable expectation of privacy in the area invaded by the government. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). "[A] subjective expectation of privacy does not, by itself, give rise to Fourth Amendment protection. The expectation of privacy must be one that society is prepared to recognize as reasonable." Chandler v. State, 680 So.2d 1018, 1022 (Ala.Cr.App.1996). "[T]he concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities." United States v. Jacobsen, 466 U.S. 109, 122, 104 S.Ct. 1652, 1661, 80 L.Ed.2d 85 (1984). We do not believe that the appellant had a reasonable expectation of privacy in the hospital records relating to his blood alcohol test. ²

Although not dispositive of this issue, the Alabama legislature apparently does not recognize as reasonable an expectation of privacy in all medical records. For instance, although the legislature has adopted a psychotherapist-patient privilege, see § 34-26-2, Ala.Code 1975, there is no Alabama statute that provides for a general physician-patient privilege. "There is no privilege in Alabama covering communications between a physician and a patient or the physician's knowledge of the patient's condition acquired by reason of the relationship. It customarily is phrased that communications to a physician or surgeon by a patient or one seeking professional advice are not privileged under common law and no such privilege exists in Alabama, absent a statute creating it." C. Gamble, McElroy's Alabama Evidence, § 413.01 at 1677 (5th ed.1996) (footnotes omitted); see Rule 503, Ala.R.Evid. (recognizing only psychotherapist-patient privilege).

It is also apparent that the Alabama le...