U.S. v. Tresvant

• Decision Date: 05 May 1982
• Docket Number: No. 79-5339,79-5339
• Citation: 677 F.2d 1018
• Parties: UNITED STATES of America, Appellee, v. Henry TRESVANT, III, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1018

677 F.2d 1018

UNITED STATES of America, Appellee, v. Henry TRESVANT, III, Appellant.

No. 79-5339.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 8, 1982.

Decided May 5, 1982.

John P. McGeehan, Alexandria, Va., for appellant.

D. McCarty Thornton, Sp. Atty., Dept. of Justice, Washington, D. C. (Justin W. Williams, U. S. Atty., Joseph J. Aronica, Asst. U. S. Atty., Alexandria, Va., on brief), for appellee.

Before INGRAHAM, Senior Circuit Judge, ^* and WIDENER and PHILLIPS, Circuit Judges.

INGRAHAM, Circuit Judge:

In this appeal Henry R. Tresvant, III, challenges the sufficiency of the evidence underlying his conviction of involuntary manslaughter. 18 U.S.C. § 1112 (1976). ¹ Our range of inquiry into the sufficiency of evidence supporting jury verdicts in criminal cases is necessarily somewhat constrained, and under the relevant standards of review we must affirm the conviction in this case.

The following facts were essentially undisputed at trial. At approximately 3:30 A.M. on June 15, 1979, a motorist named Shossein M. Shayestehpour was driving from Washington, D. C. into Virginia on the northbound side of the George Washington Memorial Parkway, near the intersection of the Parkway and the Capital Beltway. Shayestehpour encountered a 1975 Toyota stopped in the right lane of the Parkway. He stopped his car and knocked on the window of the Toyota. The deceased, Louise Lytzen, was behind the wheel in a semi-conscious condition. A subsequent autopsy report determined that the deceased had a blood-alcohol level of .19%. After unsuccessfully attempting to rouse Ms. Lytzen, Shayestehpour took her keys, turned on the flashing hazard lights on the Toyota and returned to his car, a Volkswagen, to move it off the highway in front of the Toyota. As he walked back toward the Toyota he noticed headlights coming up the Parkway. Shayestehpour managed to signal this car to stop, and the driver indicated he would call the police for assistance. A second car subsequently approached and passed Shayestehpour and the Toyota without stopping. The third car to approach was driven by the defendant. While the first two cars apparently were in the left, unblocked lane at all relevant times, the defendant's car was in the right lane. From a position behind the Toyota, Shayestehpour jumped up and down in an attempt to signal the driver of the third car, but jumped out of the way when it was apparent the car was not stopping or changing lanes. The defendant collided with the rear of the Toyota, which then caught fire and collided with Shayestehpour's Volkswagen. The defendant's car came to rest in the green median strip to the left of the roadway.

The defendant ran back to the Toyota and asked Shayestehpour if there was anyone in the car. Shayestehpour told him there was, and told him to get something to break the windows of the car and try and save Ms. Lytzen. Defendant went back to his car, retrieved a tire jack and broke the front windshield of the Toyota. According to the defendant's testimony, by this time the heat of the fire was too intense to allow any further rescue efforts. The parties stipulated that the cause of Ms. Lytzen's death was the fire that resulted from the collision.

Officer Feltham of the United States Park Police was among the officials responding to the accident. Officer Feltham testified that when he approached the defendant it was his opinion that the defendant had a strong odor of alcohol on his breath and that his eyes were glassy and bloodshot. Feltham arrested the defendant for driving while intoxicated. Incident to this arrest Feltham searched the defendant and seized a cannister containing a small amount of a substance later determined to be marijuana. Small amounts of marijuana and related paraphernalia were also seized from the defendant's car. The defendant was then taken to the Arlington County Jail, where a breath test to determine blood-alcohol level was performed. The test showed the defendant's blood-alcohol level to be .07%.

Tresvant was indicted by grand jury on two counts: involuntary manslaughter under 18 U.S.C. § 1112; and unlawfully exceeding the speed limit by driving in excess of seventy miles an hour. 36 C.F.R. § 50.31 (b) (1981). The involuntary manslaughter count more specifically charged that the defendant caused the death of Louise Lytzen while driving a car during the commission of unlawful acts not amounting to felonies, those acts being driving in excess of the posted speed limit, in violation of 36 C.F.R. § 50.31(b), ² driving while under the influence of intoxicating liquor in violation of 36 C.F.R. § 50.28(c), ³ and driving under the influence of a self-administered intoxicating drug (marijuana), in violation of 18 U.S.C. § 13 (1976), assimilating Virginia Code § 18.2-266 (Michie, 1975). Further, following the language of § 1112, the indictment charged the defendant was engaged in a lawful act which might produce death, driving, without due caution and circumspection (in a manner amounting to criminal negligence).

The evidence of speed and intoxication was as follows:

Speed

The posted speed limit for the Parkway was fifty miles per hour throughout the area of the accident. On direct testimony, in response to a question whether he knew or had any impression of the speed of defendant's car, Shayestehpour testified "I don't know how fast. But it was fast." The defendant testified that he looked at his speedometer shortly before the collision and noted that it was slightly to the left of center, center representing fifty miles an hour, and also that he was "shaky, sort of paranoid" when driving along this highway because of a prior collision with a deer that had run out of the woods. In addition to this testimony the government introduced photographs of the damage to the vehicles, and evidence concerning skid marks and the movement of the vehicles as the result of the collision. The Toyota was extensively damaged; the rear of the car was pushed forward approximately sixty-two inches. The defendant's car, a Chevrolet, suffered damage in the right front and to the engine, although the car was apparently drivable with minor repairs to the engine. After the initial impact, the defendant's Chevrolet had traveled four hundred and nineteen feet up the highway with the engine rendered inoperable; the Toyota was pushed seventy feet until collision with Shayestehpour's Volkswagen; after this second impact the Toyota moved eighteen-twenty feet farther and the Volkswagen was pushed sideways twelve-thirteen feet. The highway had a slight uphill grade of approximately 2% throughout the area.

The government also introduced results of an experiment in which a 1975 Toyota was placed on the highway in approximately the same position and at the same time as the accident, and a police officer walked back down the highway to ascertain the car's visibility. The rear lights of the Toyota were both visible from five hundred and forty feet and at least one light was visible up to 3/10ths of a mile down the highway. Referring to the standardized stopping tables in the Virginia Code, § 46.1-195, the government sought to impress the jury that if the defendant had actually been traveling at or below the speed limit, the five hundred and forty feet visibility distance would have given the defendant at least three full opportunities to bring his car to a full stop upon seeing the Toyota.

In support of Count Two of the indictment, speeding in excess of seventy miles an hour, the government had prepared a reconstruction study that concluded, largely on the basis of the measurements of the distances traveled by the cars, that the defendant's car had been traveling at a specific speed in excess of seventy miles per hour. This study was excluded, however, and its exclusion is not challenged on appeal. Surveying the remaining evidence, the district court granted the defendant's motion to dismiss Count Two, observing:

Well, I think there is plenty (of) evidence of excessive speed. I'm not so sure that there is enough evidence of the specific speed of in excess of seventy miles an hour.

Intoxication-Alcohol

As noted above, the arresting officer detected a "strong odor of alcohol" on the defendant's breath and stated his eyes were "bloodshot and they appeared very glassy." Although the officer testified that the defendant was speaking clearly and coherently, the officer stated he had trouble getting the defendant's attention. The officer who administered the blood-alcohol test also testified that the defendant's speech was not slurred but was very slow, and that the defendant had difficulty maintaining the chain of conversation. Shayestehpour testified on cross-examination that the defendant spoke clearly and that he acted quickly without stumbling in their joint rescue attempts.

The defendant admitted to consuming a beer with his dinner at approximately 6 P.M. the evening before the accident, and approximately two and one-half glasses of wine between 9:30 and 12:30 at a bar in downtown Washington, D. C. The defendant also testified that he stopped on his way home for a cup of cappuccino and a quiche at approximately 1:30 A.M. A pathologist who testified for the government as an expert physician estimated that in order to reach a blood-alcohol level of .07%, the level of the defendant's blood when tested after the accident, a person of roughly the defendant's weight would have to ingest approximately three or four drinks, each equivalent to a twelve ounce bottle of beer or one ounce of whiskey or other fortified spirits, in the hour preceding the test.

Intoxication-Marijuana

Officer Feltham testified that when he seized the cannister, later determined to contain a small quantity of marijuana, from the defendant incident to his arrest, the defendant "grinned" at the officer and said "there isn't much left, I smoked the rest." On cross-examination Officer Feltham recalled no...